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2008 DIGILAW 1124 (PNJ)

Swet Chem Antibiotics Ltd. v. State of Haryana

2008-05-29

M.M.KUMAR, SABINA

body2008
JUDGMENT M.M. Kumar, J.:- This petition filed under Article 226 of the Constitution prays for quashing notification dated 17.11.2005 (Annexure P.9) issued under Section 4 of the Land Acquisition Act, 1894 (for brevity ‘the Act’) and declaration dated 7.2.2006 (Annexure P.10) made under CWP No.17240 of 2006 Section 6 of the Act in respect of the land of the petitioner. At the outset it is appropriate to mention that acquisition proceedings which are subject matter of challenge in the instant petition were also impugned in CWP No.2835 of 2006 alongwith other bunch of petitions which were dismissed on 22.1.2008 by a Division Bench of this Court of which one of us (M.M. Kumar, J.) is a member. However, on the ground that the instant petition is distinguishable from others the file appears to have been segregated. 2. Brief facts of the case necessary for the disposal of the instant petition are that the petitioner, which is a limited company, is stated to have purchased the land comprised in Rectangle Nos. 41, 42 and 46 in Khasra No. 7/2, 8/2, 15/1, 13/1, 14/1, 15/2, 16/1, 24/25/1, 11, 12 and 4/1 on 14.12.1992 (Annexure P.2). The total land comes to 41 kanal 19 marlas which is situated in village Asawarpur, Tehsil and District Sonepat. The mutation has been entered in the name of the petitioner in the revenue record. It is claimed that the land was purchased by the petitioner company for setting up of a chemical unit of manufacturing antibiotics. For change of land use an application was made on 15.9.1994 by the petitioner company to the Director, Town and Country Planning, Haryana-respondent No. 3 on the prescribed form and fee under the rules was also deposited. It is claimed that vide communication dated 26.9.1994 (Annexure P.3) the petitioner company was granted permission for change of land use with certain conditions and after the permission, construction has been raised, photographs of which have been placed on record as Annexure P.4 (Colly.). It has further been asserted that for raising construction the petitioner company had raised a loan of Rs. 420 lacs from the IDBI and the property in question was hypothecated to IDBI. It was thereafter on 17.11.2005 that notification under Section 4 of the Act was issued. It has further been asserted that for raising construction the petitioner company had raised a loan of Rs. 420 lacs from the IDBI and the property in question was hypothecated to IDBI. It was thereafter on 17.11.2005 that notification under Section 4 of the Act was issued. On 3.1.2006 (Annexure P.6), the petitioner is stated to have come to know about the notification and accordingly a letter through courier (Annexure P.7) for release of land of the petitioner from acquisition was sent to the Commissioner and Deputy Commissioner and the receipts have been placed on record. Again on 22.2.2006 a representation (Annexure P.8) was made to respondent No. 4 HUDA when the representative of the petitioner-company personally met their officers, which was forwarded by the Administrator HUDA to the District Town Planner, Sonepat and Land Acquisition Collector. However, declaration under Section 6 of the Act was made on 7.2.2006 (Annexure P.10). The petitioner has also placed reliance on policy dated 26.6.1991 (Annexure P.11) which postulates that existing factory should not be acquired and be released from acquisition proceedings. On that basis it is claimed that respondents have released the land of a number of land owners who have obtained permission from the State Government and for utilisation of their land which comes to about 10.25 acres. It has also been mentioned that M/s Roulnds Codan, which was the beneficiary, inasmuch as, 8.58 acres of their land has been released by respondents. In a separate affidavit filed by the Director of the petitioner- company the stand taken is that BIFR has declared the petitioner company as a sick unit and revival proposal of the company has to be submitted by 5.6.2008. The petitioner has also placed reliance on the State Policy dated 26.10.2007, for release of land from acquisition, which clearly states that any factory or commercial establishment which is in existence prior to 2004 may be considered for release. 3. The stand of the respondents in the written statement is that the land has been acquired by the respondent State for setting up of the Rajiv Gandhi Education City Sonepat, which is being developed as a ‘Knowledge City’ and which will have top class infrastructure and support services, so as to attract world class educational institutes to open their campuses in that education city. The project is part of an endeavor to invite the world’s best education talent in this area of globalization by developing this education city as a hub of learning. The project is stated to be of substantial importance to the State. In that regard the respondent state has invited “Expression of interest” for consultancy service so that the proposed education city should be planned to meet future area requirements, planning development, financing, legal and administrative mechanism for the development of the State. The acquisition is for larger public interest and as such the petitioner can have no lawful grievance in that regard. 4. It has further been claimed that a High Level Committee under the Chairmanship of Chief Administrator, HUDA was constituted for deciding the location of the education site and the present site was found to be suitable. It is claimed that all necessary steps envisaged by Sections 4,5A and 6 of the Act have been taken. After consideration of the report submitted by the Land Acquisition Collector as also the Joint Site Inspection Committee, the Government decided that land measuring 41.26 acres be released from acquisition which pertains to village Aswarpur, Sewl, Khewda and Badkhals. 5. As far as the petitioner is concerned its unit is not in a running position. It is pointed out that the petitioner would be given compensation as per the act/rules for any structure falling within the acquired area. It has also been claimed that a large number of petitions have been dismissed on 25.5.2006, where acquisition proceedings arising out of impugned notifications were challenged, which includes CWP Nos. 2747, 2748, 3234, 3441, 3444, 4300, 4297, 4820, 4993, 5089, 5333, 4305, 5447, 5042, 5469, 6517, and 6522 of 2006. 6. In a separate reply filed by the Director Urban Estates it has been stated that permission for change of land use for setting up industrial unit was granted on 26.9.1994 for an area measuring 4030 sq. yards falling within khasra no. 42//II Part under the provisions of the Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963 (for brevity ‘the 1963 Act’) and the rules framed thereunder. There was no permission for change of land use ever considered for rest of the land. yards falling within khasra no. 42//II Part under the provisions of the Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963 (for brevity ‘the 1963 Act’) and the rules framed thereunder. There was no permission for change of land use ever considered for rest of the land. It has further been asserted that the petitioner did not obtain occupation certificate after completion of the building as required by Rule 47 of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Rules, 1965 (for brevity ‘1965 Rules’). Another significant feature in respect of the petitioner unit mentioned is that it is lying closed since last five years and the same is in possession of bank as per the report given by the District Town Planner, Sonepat. 7. In still another reply filed by respondent no. 3 HUDA it is stated that the area of Asawarpur where the land of the petitioner is situated has been declared as controlled area under Section 4(1)(a) of the 1963 Act and the land of the petitioner falls in the above controlled area. 8. Mr. Akshay Bhan, learned counsel for the petitioner has argued that once permission for change of land use has been granted to the petitioner then according to the policy of the respondent State dated 26.10.2007 it should have been excluded from acquisition. According to the learned counsel the petitioner has built an industrial unit after obtaining permission and acquisition of land would result in loss of structural property. He has further submitted that the principle of estoppel would apply and the land of the petitioner deserves to be released. In support of his submission, learned counsel has placed reliance on a Division Bench judgement of this Court in the case of Eros City Developers Private Ltd. v. State of Haryana, 2008 (2) PLR 492 and has argued that in some what similar circumstances the building constructed by the petitioner in that case in pursuance to the policy was directed to be released from acquisition by invoking principles in nature of estoppel. 9. Mr. Ashish Kapoor, learned State counsel has, however, argued that the petitioner has not complied with the CLU conditions as per the permission granted on 26.9.2004 (Annexure P.3). According to the learned counsel condition No. 1 specifically required the petitioner to comply with all the conditions, inter alia, of 1963 Act and 1965 Rules. 9. Mr. Ashish Kapoor, learned State counsel has, however, argued that the petitioner has not complied with the CLU conditions as per the permission granted on 26.9.2004 (Annexure P.3). According to the learned counsel condition No. 1 specifically required the petitioner to comply with all the conditions, inter alia, of 1963 Act and 1965 Rules. He has submitted that no occupation certificate has been obtained as per Rule 47 of the 1965 Rules. According to the learned counsel in any case the factory is lying closed which has been declared as a sick unit whereas the land is required for setting up Rajiv Gandhi Education City, which is stateof- art and prestigious project. He has further submitted that in similar circumstances CWP No. 2835 of 2006 (M/s Coral Chemicals Pvt. Ltd. And another v. State of Haryana and others) was dismissed on 22.1.2008. 10. We have thoughtfully considered the submissions made by the learned counsel for the parties and have also perused the record with their able assistance. The land measuring 2007.60 acres has been acquired for a public purpose of establishing Rajiv Gandhi Education City and a number of writ petitions stand already dismissed by this Court, vide detailed order on 25.5.2006 which includes CWP No.2747, 2748, 3234, 3441. 3444. 43-00. 4297, 4820, 4993, 5089, 5333, 4305, 5447, 5042, 5469, 6517, 6522 of 2006. According to the written statement an extremely prestigious educational institution is being developed as ‘Knowledge City’, which would have top class infrastructure and support services so as to attract the world class institutions to open their campuses there. Even otherwise the factory belonging to the petitioner is lying closed since 1997 and has been declared as a sick unit by BIFR. It is in possession of IDBI bank. The public purpose for which the land is required far out weights the right of the petitioner. It is further worthwhile to notice that the petitioner did not file any objection under Section 5A of the Act which implies acquiescence in the acquisition proceedings. The question regarding grant of permission for change of land use would pale insignificance because no occupation certificate as per Rule 47 of the 1965 Rules was obtained. It would be pertinent to read Rule 47 of the 1965 Rules which reads thus: “Section 47. The question regarding grant of permission for change of land use would pale insignificance because no occupation certificate as per Rule 47 of the 1965 Rules was obtained. It would be pertinent to read Rule 47 of the 1965 Rules which reads thus: “Section 47. Completion of Building (Section 8(2) and 25(2) (f)- (i) No person shall occupy or allow any other person to occupy and new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the Director or by any person authorised by him in this behalf as having been completed in accordance with the permission granted and an occupation certificate has been issued in his favour in Form BR -VI. xx xx xx xx xxx” 11. A perusal of the afore-mentioned provisions would show that the petitioner was not entitled to occupy or allow any other person to occupy the new building or part thereof unless the Director had certified that the building is complete in accordance with the permission granted. In pursuance thereof the occupation certificate has to be issued. It is admitted position that no occupation certificate has been issued. It is further admitted that area of the petitioner factory falls within the controlled area. It appears that the public purpose of establishing education city of world class is likely to be obstructed. If the factory of the petitioner is also acquired then adequate compensation for structure is to be granted by the respondent-State to the petitioner. 12. The Division Bench judgment of this Court rendered in the case of Eros City Developers A (supra) is distinguishable because there whole land was sought to be acquired for the similar purpose for which permission had been given to change land use. The public purpose in the present case is entirely different, namely, construction of a prestigious Education City. The writ petition is, thus, liable to be dismissed. 13. As a sequel to the above discussion and the reasons, this petition fails, which is accordingly dismissed. ----------------------