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2013 DIGILAW 1648 (PNJ)

Raj Singh v. State of Haryana

2013-12-10

SURINDER GUPTA, SURYA KANT

body2013
JUDGMENT Surya Kant, J. 1. The petitioners seek quashing of the notifications dated 7.2.2008 (Annexure P-3) and 6.2.2009 (Annexure P-4) issued under Sections 4 & 6 of the Land Acquisition Act, 1894 (hereinafter referred to as, the Act), respectively, whereby their land measuring 31 kanal 12 marlas comprising khasra numbers mentioned in para No. 2 of the writ petition, situated within the revenue estate of village Faridpur, Tehsil and District Faridabad, has been acquired. The acquisition has been made 'for the development of residential and commercial Sectors 76, 77 & 78 at Faridabad under the Haryana Urban Development Authority Act, 1977, to be developed by the Haryana Urban Development Authority (for short, the HUDA). The principal grievance of the petitioners is that even if the acquisition of their vacant agricultural land for the notified public purpose is assumed to be valid, their residential houses located on the land measuring 1500 square yards deserve to be released from acquisition. It is pointed out that the petitioners are residing in these houses since the year 1960 and the factum of existence of residential houses before issuance of notification under Section 4 of the Act, has been duly admitted and acknowledged by the respondents. The petitioners have placed on record photographs to substantiate their plea. 2. We find from the photographs that the structures raised by the petitioners are undoubtedly old. In fact, respondent No. 1 & 4 in para No. 2 of their written statement have also admitted the construction of residential houses by the petitioners where it is averred that:- "2. That the contents of para No. 2 of the writ petition are matter of record. However, it is submitted that there was old residential house measuring 350 square yards with roof of garter and tukdi with one room on first floor and a Smadhi without roof over Rect. No. 28 Killa No. 16/2 of petitioner No. 1. Similarly, an old residential house measuring 450 square yards alongwith teen shed of petitioner No. 2 over Rect. No. 28, Killa No. 15 and one old residential house measuring 400 square yards with 5 shops and teen shed over rect. No. 27 killa No. 11/1 and Rect. No. 28 killa No. 15 in existence at the time of issuance of notification under Section 4 of the Act. Rest of the land of the petitioners was lying vacant." (Emphasis applied) 3. No. 27 killa No. 11/1 and Rect. No. 28 killa No. 15 in existence at the time of issuance of notification under Section 4 of the Act. Rest of the land of the petitioners was lying vacant." (Emphasis applied) 3. The petitioners rely upon the Government Policy dated 26.10.2007, which, inter-alia, provides:- "The Government has framed a comprehensive policy as detailed below:- (1) No request will be considered after one year of award. Only those requests will be considered by the Government where objections under Section 5-A were filed. (2) Any request or application where structures have been constructed will only be considered for the release under Section 48(1) provided the structure exists prior to section 4 and is inhabited. (3) Any factory or commercial establishment which existed prior to Section 4 will be considered for release. 4. The afore-said policy has been held to be enforceable by the Supreme Court in Patasi Devi vs. State of Haryana and Others, 2013 (1) R.C.R. (Civil) 536: 2012 (6) Recent Apex Judgments (R.A.J.) 416: (2012) 9 SCC 503 observing as follows:- "19. Before this Court it has been pleaded that on the date of issuance of preliminary notification the appellant's land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter-affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of the land on which construction had been raised prior to issuance of Section 4 notification. The appellant's case is covered by that policy. Therefore, her land ought to have been released as was done in the case of M/s Sharad Farm and Holdings (P) Ltd." 5. The only plea taken by the respondents is that since the petitioners have not filed objections under Section 5A of the Act, they are not entitled to seek the benefit of above-stated policy. The other plea raised by them at this belated stage is that a part of the residential houses falls on the alignment of the Master Plan road. In support of this plea, the revised Circulation Plan of Sectors 75 to 79 and 80 to 89 of Faridabad has been appended with an additional affidavit dated 2.7.2013 filed by the Land Acquisition Collector, Faridabad. In support of this plea, the revised Circulation Plan of Sectors 75 to 79 and 80 to 89 of Faridabad has been appended with an additional affidavit dated 2.7.2013 filed by the Land Acquisition Collector, Faridabad. The additional affidavit dated 2.7.2013 of the Land Acquisition Collector reads as under:- "That as per realignment marked in the Map of Sector 75 to 89 Master Plan Roads (copy attached at Annexure R-1), Faridabad, the constructed and vacant land of khasra No. 28//15 (7-5), 28//16 (5-0) of the petitioner as shown in yellow colour in the Map, is now falling in the master roads, the same cannot be released from the acquisition at this stage and constructed area of 1 kanal 11 marla of khasra No. 27//11/1 and 13 marlas of khasra No. 28//15 shown in red colour is falling out of realignment of Road." 6. We have heard learned counsel for the parties and gone through the record including the revised sectorial plan appended with the additional affidavit. 7. The fact that there exists old residential houses constructed by the petitioners is not in dispute. Similarly, the Government Policy which enables the Competent Authority to release the structures found in existence at the time of issuance of Section 4 notification, is also beyond any pale of doubt. The non-submission of objections by the petitioners under Section 5-A of the Act, in our considered view, cannot be a valid ground to deny them the benefit of Government Policy which deserves to be uniformly applied. It is imperative upon the respondents to give effect to their policy decision instead of obtaining objections from the affected land-owners. Consequently, we reject the plea taken by the respondents in this regard and hold that the petitioners are entitled to the benefit of the Government policy dated 20.10.2007, as amended from time to time. 8. It would be apposite at this stage to refer to the view taken by this Court in Rohtas and Others vs. State of Haryana and Others, 2014 (2) R.C.R. (Civil) 101: CWP No. 21572 of 2011, decided on 04.09.2013, to the following effect:- "There is no gain saying that the right to shelter is a vibrant component of right to live with dignity and is one of the most sacrosanct fundamental right guaranteed under Article 21 of the Constitution." 9. Adverting to the new plea taken by the respondents on the basis of revised sectorial plan that the houses of petitioners fall on the realigned road, we are of the considered view that the said plea deserves to be rejected for more than one reason. Firstly, no such plea was taken by the respondents in the written statement or before the Hon'ble Supreme Court in Civil Appeal No. 2210-2211 of 2013 Raj Singh and Others vs. State of Haryana and Others, allowed on March 05, 2013 whereby this case was remanded to this Court for fresh adjudication. Secondly, the revised sectorial plan appears to be a tailor made document prepared to defeat the rights of bonafide owners of residential houses etc. The manner in which frequent and repeated curves have been given to the proposed road is sufficient to infer that the revised sectorial plan has been designed to target some existing residential houses. It inspires no confidence at all. 10. There is yet another disturbing feature not to be over-looked by this Court. It may be seen from the notifications under Sections 4 & 6 of the Act that the acquisition was propagated for the development of residential and commercial sectors under the Haryana Urban Development Authority Act by the HUDA. The lands of hundreds of farmers have been acquired for the said purpose. However, after the Award, the acquired land has been released in favour of several private builders-cum-developers who entered into so called Collaboration Agreements with the desperate farmers/owners who were put under the fear of losing their land. After releasing the land, several licences including bearing No. 58 of 2011 and No. 12 of 2012 (Annexure P-20 & P-21) have been granted to private Builders. It leaves no room to doubt that the so called regulated urban development by the State or its Agency was never the real public purpose behind the acquisition. The acquisition process from the very inception was a cloak to deprive the farmers of the best bargain for their lands in free and open market. The statutory power was misused to give undue benefit to the private builders/colonizers at their cost by burglarizing the land owners. The colourable exercise was detrimental to the State interest also. 11. The acquisition process from the very inception was a cloak to deprive the farmers of the best bargain for their lands in free and open market. The statutory power was misused to give undue benefit to the private builders/colonizers at their cost by burglarizing the land owners. The colourable exercise was detrimental to the State interest also. 11. This issue, however, may not be elaborated further and no directions need to be issued as neither the beneficiaries-Builders-cum-Developers are party-respondents nor are their licences on record. The directly aggrieved farmers are also not before us. 12. For the reasons afore-stated, we allow this petition and quash the acquisition of petitioners' houses and/or other structures alongwith sufficient open space. The petitioners held to entitled to the release of their residential houses with structures and open space, the total area of which shall not be less than 1500 square yards. Needless to say that the release of the petitioners' houses and structures will be without prejudice to their right to claim compensation and/or allotment of plots under the Rehabilitation Policy for the acquisition of their remaining land. 13. Ordered accordingly. Dasti. Petition allowed.