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2008 DIGILAW 695 (PNJ)

Kamlesh Chander v. State of Haryana

2008-03-13

M.M.KUMAR, SABINA

body2008
JUDGMENT M.M. Kumar, J. - This order shall dispose of C.W.P. Nos. 3787, 3808 and 3823 of 2008. However, facts are being referred from C.W.P. No. 3787 of 2008. In all the petitions subject matter of challenge are notification dated 20.1.2003, issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, the Act) and declaration dated 16.1.2004, issued under Section 6 of the Act (Annexures P-1 and P-2 respectively). A further prayer for issuance of direction to the respondents for grant of licence to the petitioners to set up residential plotted colony has also been made, for which an application in the prescribed Form LC-I has already been submitted and stated to be under consideration of the respondents. 2. It has been conceded by the learned counsel for the petitioners right at the out set that award has been announced by the respondents in January 2006. 3. Petitioner Nos. 1 to 11 have filed the petition (C.W.P. No. 3787 of 2008) through their General Power of Attorney Shri Sandeep Mangla son of Shri Shiv Darshan Mangla, whereas petitioner No. 12 is a Limited Company and Shri Sandeep Mangla has been authorised to file the instant petition on its behalf. The case of petitioner Nos. 1 to 11 is that they are owner in possession of land in question as they have entered into collaboration agreement with petitioner No. 12. They have applied for grant of licence for setting up a residential plotted colony. In Paras 2 and 3, petitioner No. 12 has given its background claiming that it is a reputed developer and has acquired expertise in the field of setting up residential and commercial colonies. In Para 6, vague averments have been made that the respondents have failed to publish notification under Section 4 of the Act in two daily newspapers and as a result thereof the petitioners could not file objections. Similar vague averments have been made in Paras 10 and 11. In fact, the grievance of the petitioners as per averments made in Para 12 is that they have applied for development of their land for the purposes of setting up extended residential plotted colony for which requisite application in the prescribed. Form LC-I has already been submitted with the competent authority. Even the requisite fee for licence and scrutiny for an area measuring 53 acres has been deposited (P-3 Colly). Form LC-I has already been submitted with the competent authority. Even the requisite fee for licence and scrutiny for an area measuring 53 acres has been deposited (P-3 Colly). Petitioner No. 12 claims that it fulfils all the requirements and conditions to carry out and develop the land for the purposes for which land is sought to be acquired by the State Government. A reference has also been made to a policy framed and followed by the respondents for setting up residential/commercial complexes in the respondent State of Haryana. The policy is stated to have been framed under Section 3 of the Haryana Development and Regulation of Urban areas Act, 1975. The petitioners have also claimed that the respondent State has been releasing land in similar circumstances. In that regard, reliance has been placed on the release of land in favour of M/s Siddharth Cooperative House Building Society in Sector-2, Sonepat, as is evident from order dated 15.2.2007 (P-8). 4. We have heard learned counsel at some length and has perused the paper book. 5. Having heard learned counsel we find that the writ petition is wholly misconceived. Mr. Sanjay Vij, learned counsel has conceded that the award has been announced in January 2006. In that view of the matter, acquisition proceedings could not be challenged by filing a petition under Article 226 of the Constitution. The award in this case has been announced more than two years back and there is nothing on the record to explain the delay in filing the instant petition. It is well settled by catena of judgments of Honble the Supreme Court that no writ petition would be maintainable after passing of award. In that regard reliance may be placed in the cases of Star Wire (India) Ltd. v. State of Haryana, (1996)11 SCC 698; Municipal Council Ahmednagar v. Shah Hyder Beig, (2000)2 SCC 48; C. Padma v. Dy. Secretary to the Government of Tamil Nadu, (1997)2 SCC 627; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, 2008(2) RAJ 82 : JT 2008(2) SC 280. 6. Secretary to the Government of Tamil Nadu, (1997)2 SCC 627; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, 2008(2) RAJ 82 : JT 2008(2) SC 280. 6. We also remained unable to persuade ourselves to accept the contention raised by the learned counsel that the respondents may be permitted to consider the application filed by the petitioners for grant of licence to develop a residential plotted colony by them because after announcement of award, possession of the land is taken, which results into vesting the same in the respondent State free of any encumbrances. Accordingly, the land stand acquired for establishment of a public purpose for which notification under Section 4 of the Act was earlier issued and after consideration of objections, declaration under Section 6 of the Act has been made. Thereafter notice under Section 9 of the Act is issued and award under Section 11 of the Act is announced. If the land is permitted to be utilised for establishing a private plotted colony at the instance of petitioner No. 12 after announcement of award and taking of possession, then it would mean that the land of the land owners has not been acquired for the avowed public purpose. It is well settled that compulsory r acquisition sustains its justification from the public purpose of acquiring the land. If the land by the respondent State is to be acquired for the purpose of releasing it to the colonizer after taking possession then it would result into traversity of justice on the general public. The general public would feel defrauded if such an action by the respondent State is permitted. For the aforementioned view, we place reliance on the following observation made by 3-Judge Bench of Honble the Supreme Court in the case of Chameli Singh v. State of U.P., (1996)2 SCC 549 :- "18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individuals right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, sub-section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. So long as the exercise of the power is for public purpose, the individuals right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, sub-section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. Acquisition in accordance with the procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood. Section 23(1) provides compensation for the acquired land at the prices prevailing as on the date of publishing Section 4(1) notification, to be quantified at later stages of proceedings. For dispensation or dislocation, interest is payable under Section 23(1-A) as additional amount and interest under Sections 31 and 28 of the Act to recompensate the loss of right to enjoyment of the property from the date of notification under Section 23(1-A) and from the date of possession till compensation is deposited. It would thus be clear that the plea of deprivation of right to livelihood under Article 21 is unsustainable." 7. A similar observation has been made by another 3-Judge Bench in the case of Scindia Employees Union v. State of Maharashtra, (1996)10 SCC 150. It has been observed that for exercise of power, eminent and domain public purpose must subsist. If there is no public purpose then there cannot be any compulsory acquisition. It is true that the State may acquire land by exercising power of eminent domain for a public purpose and if the land is not utilised then it could be utilised for another public purpose. On the ground of change of public purpose, the acquisition cannot be set aside, as has been held by Honble the Supreme Court way back in the case of Gulam Mustafa v. State of Maharashtra, (1976)1 SCC 800. In the case of Srinivasa Cooperative House Building Society Ltd. v. Madam Gurumurthy Sastry and others, (1994)4 SCC 675, Honble the Supreme Court was examining the acquisition of land belonging to small farmers for private cooperative house building society for development and allotment to its members, who are Advocates, Chartered Accountants and businessmen, for construction of their houses. After notification under Section 4(1) and report under Section 5-A of the Act, an agreement was entered into by the Society under Section 41 whereby the Society was treated as a company. After notification under Section 4(1) and report under Section 5-A of the Act, an agreement was entered into by the Society under Section 41 whereby the Society was treated as a company. However, the proceedings under Para 7 dealing with for acquisition of land for Companies (Sections 38A to 44B) were dropped and the State by contributing Rs. 100 for each acquisition, published declaration under Section 6 of the Act. It was in these circumstances, held that the land was being acquired for a private society, which is not any of the public purpose specified under Section 3(e) (sic) the Act and that it was for the transfer of the acquired land to the members of the society, who were Advocates, Chartered Accounts and businessmen etc. The acquisition was set aside holding that it was for a colourable exercise of power. 8. When the facts of the present case are examined in the light of the principles laid down in various judgments noticed above, we are left with no doubt that after announcement of award and taking of possession, no licence could be given to a private colonizer because the land has come to be vested in the State free from any encumbrances. The amount of compensation also stand deposited and paid to the land owners. Even the writ petition would not be maintainable in view of various judgments to which reference has already been made. Therefore, these petitions are wholly misconceived and the same are accordingly dismissed. Petition dismissed.