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2010 DIGILAW 2563 (PNJ)

Mai Ram v. State of Haryana

2010-09-07

AUGUSTINE GEORGE MASIH, JASBIR SINGH

body2010
JUDGMENT Mr. Jasbir Singh, J. (Oral):- By this order, we intend to dispose of CWP No. 10784 of 2009 titled as Mai Ram son of Sh. Puran Chand vs. State of Haryana and others and CWP No. 17220 of 2009 titled as Mahindero Devi and another vs. State of Haryana and others. For convenience, facts are being taken from CWP No. 10784 of 2009. 2. These writ petitions have been filed to lay challenge to a notification issued under Section 4 of the Land Acquisition Act, 1894 (for short ‘the Act’) on 23.08.2007 proposing to acquire 107.03 Acres of land including land of the petitioners measuring 16 Kanal. Further challenge is to a declaration under Section 6 of the Act dated 21.08.2008. 3. In these writ petitions, it is grievance of the petitioners that constructed houses of other land owners were released from acquisition whereas the same relief was not given to the petitioners in both these writ petitions. 4. During the course of hearing on 04.03.2010, following order was passed by this Court:- “It has remained undisputed that the land belonging to the petitioner is A class constructed residential house. In para 3 of the written statement filed by respondents No. 1 and 3, it has been categorically stated by the respondents that the constructed area has been left out from the acquisition except those which existed in the green belt area or the Sector Road. It has been asserted that the residential constructed house of the petitioner existed on the green belt and sector periphery road which cannot be released. Once the respondent-State is consistent in pursuing a policy of releasing the constructed area from acquisition, then how can the constructed ‘A’ class construction of the petitioner be acquired by making the plans in that manner. The plan has to be made by the Town Planner in such a way so as to be consistent with the State Policy of excluding constructed area from acquisition. However, the reply of the Town Planner has not been filed and learned State counsel states that reply of respondent No. 2 would be necessary. The plan has to be made by the Town Planner in such a way so as to be consistent with the State Policy of excluding constructed area from acquisition. However, the reply of the Town Planner has not been filed and learned State counsel states that reply of respondent No. 2 would be necessary. Let the reply of respondent No. 2 be filed, explaining as to how the planning cannot be made so as to adjust the constructed area of petitioner having ‘A’ class construction as per the State Policy, within two weeks with copy in advance to the learned counsel for the petitioner. List for further consideration on 23.03.2010. A photocopy of this order be placed on the file of connected case.” 5. In response thereto, affidavit of Sh. Vasant Hooda, District Town Planner, Jind, Department of Town and Country Planning, Haryana, dated 18.03.2010 has been put on record. Paragraph Nos. 2 and 3 of the above-said affidavit read thus:- “2. That plea of the petitioner that the construction raised by him is that of ‘A’ class residential house and therefore he is entitled for release of land from acquisition proceedings, is wrong and hence denied. A perusal of the photographs taken on 11.03.2010 of the residential house of the petitioner would reveal that the construction is of ‘B’ class & not that of ‘A’ class. The constructed house is without any cemented flooring & the roof of the house is that of temporary wooden battens. There is no plaster on the walls. Photographs would further reveal that even the bricks of the walls are damaged. The constructed area is mostly being used for storing of the feed for cattle and for tying of cattle. Hence this construction cannot be classified as ‘A’ class construction in any way. Copies of the photograph of the constructed house are attached as Annexure R-I. The petitioner & his family is staying permanently in another house. It has also been alleged by the petitioner that since a Temple exists at site, therefore, his land should not have been acquired. It is stated that the so called Temple is of 5' x 6' and is being used only by the family members and not by the public at large. 3. It has also been alleged by the petitioner that since a Temple exists at site, therefore, his land should not have been acquired. It is stated that the so called Temple is of 5' x 6' and is being used only by the family members and not by the public at large. 3. That is also further stated that the site of the petitioner falls within the Controlled Area declared under Section 4 of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 vide notification no. CCP (NCR) 2003 JCA 2/840 dated 12.05.2003 published on 20.05.2003. As per the Draft Development Plan of the Controlled Area Safidon, site of the petitioner falls within Residential Sector-9, Copy of the Development Plan is enclosed as Annexure R-2. As per the tentative Layout Plan of Sec-9, Urban Estate Safidon (Drg. No. DTP (J) 1208/2009 dated 20.07.2009), the site of the petitioner falls in proposed 75m widening of the periphery road abutting Sector-9 which is mainly approachable from the proposed Peripheral Road. Copy of the tentative layout plan showing site of the petitioner is attached as Annexure R-3. It is further clarified that the existing periphery road is to be widened on both sides by acquiring land by widening 22.5m on both sides. Further, a green belt of 60m is also to be provided on both sides of the road. The impugned notifications have also been issued for acquiring land for the purposes of widening of the existing periphery road and provision of 60m green belt. It is not disputed that there is a policy of the State Government that where structures have been raised will only be considered for release under Section 48 (1) provided the structure exists prior to Section 4 and is inhabited. However, it is submitted that before considering release of land on which constructed portion exists, it is to be seen whether it fits into the overall planning of sector or Sector Roads. If it affects the planning proposal, even such constructed area cannot be considered for release. It may also be pointed that the fundamental principle for route selection and highway roads location is to achieve the least overall cost of transportation, having regard to the costs of initial construction of the road facility, its periodic maintenance, and vehicle operation. If it affects the planning proposal, even such constructed area cannot be considered for release. It may also be pointed that the fundamental principle for route selection and highway roads location is to achieve the least overall cost of transportation, having regard to the costs of initial construction of the road facility, its periodic maintenance, and vehicle operation. Further, from the planning point of view also, the roads should be as direct as possible between the cities or towns to be linked. A direct road results in economy in construction, maintenance and operation. The location of the roads should, as far as possible, facilitate easy grades and curvature. Keeping in view these main principles, the land of the petitioner cannot be considered for release as it will affect the total planning of widening of the proposed 75 mtr. wide Peripheral road. The road will have to take a turn from the point of land of the petitioner. Similar curvatures will also have to be made in case of other constructed areas with the result that the said road will not be direct but in a Zig-Zag way which is not good from the point of planning principles of the route selection of the proposed road and safety of the general public. The roads having many turns and bends will also disrupt free flow of traffic and the widening of the proposed peripheral road. In view of the above said position, case of the petitioner for release of land from acquisition proceedings cannot be considered.” 6. In the affidavit, it is specifically stated that the construction raised by the petitioners falls in the road alignment and as such it cannot be released. 7. We have perused the photographs put on record by the petitioners, which show that it is not the petitioners’ house, which is going to be acquired, rather it is only a cattle shed and a small temple. As per reply filed, the temple was being used only by family members of the petitioners. 8. To the averments made in the above-said affidavit, no replication, controverting the averments made, has been filed. The State counsel has specifically stated that as per policy of the State Government, wherever construction could have been adjusted in the plan, the same has been done. 9. In view of the above, no case is made out for interference in these writ petitions. Dismissed. ——————