Punjab-Haryana High Court
Kusum And Another vs State Of Haryana And Others on 13 November, 2024
Bench: G.S. Sandhawalia, Meenakshi I. Mehta
Neutral Citation No:=2024:PHHC:148307-DB
247
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.11318 of 2022 (O&M)
Date of Decision: 13.11.2024
Kusum & another
...Petitioners
Versus
State of Haryana & others
...Respondents
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
HON'BLE MRS. JUSTICE MEENAKSHI I. MEHTA
Present:- Mr. Sandeep Sharma, Advocate,
for the petitioners.
Mr. Ankur Mittal, Additional AG, Haryana with
Mr. Saurabh Mago, DAG, Haryana.
Mr. Ankur Mittal, Advocate with
Ms. Kushaldeep Kaur Manchanda, Advocate,
for the respondent-HSVP.
****
G.S. SANDHAWALIA J. (Oral)
Prayer in the present writ petition, filed under Articles
226/227 of the Constitution of India, is to the extent of releasing the land of
the petitioners as per Policy dated 14.09.2018 (Annexure P-19) which has
been issued under Section 101-A of the Right to Fair Compensation &
Transparency in Land Acquisition, Rehabilitation & Resettlement (Haryana
Amendment) Act, 2018 (for brevity 'the State Act').
2. The petitioners are owners of the land bearing Khasra
No.9//6/2/2 situated in Mauja Gulab Nagar Hadbast No.404 Tehsil
Jagadhari District Yamunanagar. The respondents had issued the
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notifications under Sections 4 and 6 the Act of 1894 for the development
and utilization land as residential, commercial area for Sectors 22, 23 & 24
in Revenue Estate Jagadhari District Yamunanagar, by resorting to the
acquisition proceedings initiated on 30.05.2005 (Annexure P-1) under
Section 4 of the Land Acquisition Act, 1894 (for short, 'the Act of 1894')
and the subsequent notification dated 22.05.2006 (Annexure P-2) issued
under Section 6 of the Act of 1894 followed up by the Award dated
16.07.2007.
3. The respondents in their reply has met out the aspect of the
viability of the acquisition and the essentiality which is pre-requisite
condition by averring as under in para 19:-
"19. That is further respectfully submitted that land in
question affects the planning of housing board and is
therefore, an integral part of the planning of sector.
Considering the essentiality of the land in question, it
cannot be released from acquisition proceedings. True
copy of the layout plan is being annexed herein as
Annexure R-3/1 for the kind perusal of this Hon'ble
Court."
4. Perusal of the layout-plan (Annexure R-3/1) would go on to
show that the development of the land stated to be allegedly built up is
held up. As per the sale-deed dated 24.08.2004 (Annexure P-4) and the
mutations dated 17.11.2005 (Annexures P-5 & P-6), the plot is stated to be
100 square yards. The present litigation is not first round of litigation,
therefore, the arguments which, now, has raised before this Court on the
ground of sympathy and equity on the constructed portion is liable to be
rejected. Apparently, the petitioners have taken the risk in raising the
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construction, if any, which is now claimed on the plot in question.
5. Initially, the petitioners had approached this Court challenging
the acquisition along-with one Jiwan Kapil by filing CWP No.10700 of
2007 and was arrayed as petitioners No.2 & 3 the said writ petition was
dismissed on 05.08.2008 (Annexure P-10) by specifically noting that the
plot of the petitioners was found to be vacant land and the same could not
be recommended favourably and thus, new construction had been raised in
the year 2007. The relevant portion of the said order reads as under:-
"It appears that constructed portion of 'C' class of
residential house of the petitioner Jiwan Kapil having
a covered area of 18.44 square meters along-with four
times vacant land, being total area 6m x 15m (90
square meters) has been recommend for release under
Section 48 of the Land Acquisition Act. Since plots of
petitioners No.2 & 3 were found to be vacant land, the
same could not be recommended favourably. Learned
counsel for the petitioners took us to the photographs
annexed with the writ petition. On bare perusal
thereof, they appear to be photographs of new
constructions admittedly taken by the petitioners at the
time of filing of this writ petition in May, 2007
whereas, notification under Section 4 of the Land
Acquisition Act, was issued two years back, i.e in May,
2005.
As the relief has been granted in part and the
Director concerned has given and reasons
recommending released of the land in favour of
petitioners No.2 and 3, are not inclined to interfere
with the order.
Accordingly, CWP No.10700 of 2007 is
disposed of in view of the aforesaid order of the
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Director".
6. It has also come on record that even Special Leave Petition
(C) No.19637 of 2010 filed by the petitioners against the order dated
05.08.2008 was dismissed on 07.07.2010. Thereafter, CWP No.6297 of
2021 was filed by Baldev and Kusum seeking the relief of release of their
land from acquisition on the ground of parity and had claimed 'C' class
construction which was rejected on 20.04.2022 (Annexure P-11) by noting
as under:-
"Short question for consideration in this petition
is,"whether the petitioners can seek release of their
land by claiming parity with the land of Mohender
Kumar, which has been released pursuant to the order
dated 18.06.2008.
When the inspection was carried out, claim of the
petitioners was dismissed on the ground that inspection
carried does not recommend release of their land. As
far as the petition (CWP No.12435 of 2007) filed by
Mahender Kumar is concerned, it was disposed of vide
order dated 05.08.2008, as the recommendation for
release of his land had been made by the Director,
Urban Estate. This fact is clear from the information
received under the Right to Information Act, 2005
(Annexure P-32).
Petitioners are claiming that their 'C' class
construction should be released as par with Mohender
Kumar.
Learned State counsel has referred to the order
dated 05.08.2008 passed in CWP No.10700 of 2007
(Annexure P-10), wherein this Court had taken into
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account the order dated 18.06.2008, which was passed
pursuant to the direction dated 14.03.2008 given by this
Court in a bunch of writ petition. As per the said order
land of petitioner Nos.2 and 3 (petitioners herein) had
not been recommended for release, as the same was
found to be vacant land. Even Special Leave Petition
i.e SLP (C) No.19637 of 2010 against this order, was
dismissed vide order dated 07.07.2010(Annexure
P-10/A).
Now, after a gap of almost 13 years, the
petitioners cannot claim parity of release of land at par
with Mahender Kumar, whose land/constructions had
been recommended for release after carrying out a
survey by the competent authority and the said report
had been accepted by this Court in toto while
dismissing the earlier writ petition filed by the
petitioners, i.e CWP No.10700 of 2007 (Annexure
P-10).
Since the earlier writ petition has been dismissed
and has attained finality, the petitioners, now, cannot
claim benefit of release of land as per Section 24(2) of
the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act,
2013 keeping in view the judgment passed in Indore
Development Authority vs. Manoharlal and others,
SLP (C) No.9036-9038 of 2016.
Resultantly, finding no merits, the present
petition is dismissed."
7. Without appealing against the said order, the present writ
petition was filed on 20.05.2022 seeking the relief of release. As noticed
earlier, the essentiality aspect has already been rejected by the State. It has
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also been mentioned in the written-statement that the petitioners did not
file the objections under Section 5-A of the Act of 1894 and the possession
of the land was taken vide Rapat Roznamcha No.1996 dated 16.07.2007. It
has also been averred that a sum of Rs.56,259/- has been deposited for the
vacant land qua petitioner No.1 as well as Rs.1,45,455/- for the structure
and Rs.56,259/- for vacant land to petitioner No.2 but they had chosen not
to receive the same. The total amount of award for the acquisition in
question was Rs.20,87,22,222/- for four villages as per the notification
under Section 4 of the Act of 1894 out of which Rs.17,85,89,081/- has
already been disbursed and rest amount is already deposited before the
Land Acquisition Collector.
8. It has also to be noticed that second writ petition was filed in
the year 2021 and the issue of Section 101-A of the State Act was also
raised and the relief as per the Policy dated 14.09.2018 (Annexure P-19)
was never claimed. Under similar circumstances, in CWP 6297 of 2021
titled as Baldev Singh & another vs State of Haryana & others, we have
held that the principle of constructive resjudicata would apply, therefore,
the second round of litigation could not have been initiated on the same
facts and circumstances. The acquisition having been upheld till the Apex
Court way back in the year 2010, is, now, not liable to be interfered in the
manner sought by the petitioners at this stage.
9. Learned counsel for the State submits that in 'Raghubir Singh
and another vs. State of Haryana and others', (2022) 4 SCC 728 it was
held by the Apex Court that the issue of non-viability or non-essentiality of
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the land is to be decided by the Government as such and that in case, it
chooses to de-notify certain land, it is for the State to decide as such. In
such circumstances, the claim, at this belated stage, is not liable to be
entertained. Even the representation dated 06.01.2022 (Annexure P-20)
was moved by the petitioners for release of their land as per the Policy
dated 14.09.2018 (Annexure P-19), much after the judgment dated
06.03.2020 in Indore Development Authority vs. Manoharlal and others,
(2020) 8 SCC 129.
10. The said aspect, thereafter, was re-considered by the Apex
Court in Civil Appeal No.16421 of 2021 'Ram Swaroop (dead) through
LRs & another Vs. State of Haryana and others' and the Apex Court,
thus, clarified that Section 101-A of the State Act does not give a vested
right to the landowner to seek de-notification. It is not for this Court to sit
over the opinion of the competent authority, who has to ensure effective
town planning and whether the land is required, which stood vested in the
State once the Award was passed on 13.08.2002. Claim as such is only on
the ground that possession continues, which cannot be sustained, since the
petitioners have apparently continued to be in unauthorized occupation,
thereafter and have raised construction after the notification under Section
4 the Act of 1894 as noticed in the earlier round of litigation. The relevant
observations read as under:-
"8. Section 101-A of 2013 Act (as inserted in State of
Haryana) gives liberty to the State Government to
denotify such land, on such terms, as considered
expedient by the State Government, including the
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payment of compensation on account of damages, if
any, sustained by the landowner due to such
acquisition. Section 101-A is an enabling provision
with the State Government to denotify the land vested
with the State if it finds that any public purpose for
which land was acquired under the Land Acquisition
Act, 1894 becomes unviable or nonessential. In other
words, the power is with the State Government on its
satisfaction that the land acquired has become
unviable or non-essential. No landowner has a vested
right to assert that the land acquired has become
unviable or non-essential mainly because the
landowner continued to be in possession by virtue of
an interim order passed by the High Court.
xxxx xxxx xxxx xxxx xxxx
11. The claim of the appellants for release of land on
account of Section 24(2) had been rejected by the
State Government on 12.09.2016. The writ petition
against the said order stands dismissed on
12.10.2020. Thus, the present appeal is merely an
attempt to continue to be in possession of the land on
one pretext or the other so as to defeat the public
purpose of acquisition of the land for development
and utilization of residential, commercial and
institutional area, Sector-51, Gurgaon (now
Gurugram). This Court in Raghubir Singh has held
that Section 101-A does not give a vested right to the
landowner to seek denotification or even that upon
denotification, the land in question must return to the
erstwhile owners only. The State Government is at
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liberty to pass such order other than release of land in
favour of the landowners. 12. Therefore, the
appellants cannot compel an exercise of power by the
State Government in their favour as the appellants
have no vested right to seek denotification of the land.
Consequently, the present appeal is dismissed."
11. Resultantly, keeping in view the above-stated facts, we are not
inclined to direct that the State shall decide the representation of the
petitioners keeping in view the fact that the issue of viability and
essentiality has already come on record and also the fact that the petitioners
have never chosen initially to agitate for the said grievance as noticed
above in the second round of litigation. It is actually a case of relentless
litigant rushing to the Court time and again. However, keeping in view that
the fact that the plot in question is only 100 square yards, we refrain
ourselves from imposing exemplary costs which we would have resorted to
in the normal circumstances for clogging the judicial system of this Court.
12. With the above-said observations, the present writ petition is
dismissed.
13. All the pending application(s) stand disposed of accordingly.
(G.S. SANDHAWALIA)
JUDGE
November 13, 2024 (MEENAKSHI I. MEHTA)
seema JUDGE
Whether speaking/reasoned: Yes
Whether Reportable: No
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