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2013 DIGILAW 408 (PNJ)

Nagesh Kumar v. State of Haryana

2013-04-01

AJAY K.MITTAL, G.S.Sandhawalia

body2013
JUDGMENT Mr. G.S. Sandhawalia J.:- The present writ petition has been filed for quashing the notifications dated 02.08.1989 (Annexure P-2) issued under Section 4 and dated 01.08.1990 (Annexure P-4) issued under Section 6 of the Land Acquisition Act, 1894 (for brevity, the ‘Act’) whereby the land of the petitioner was sought to be acquired. Notice dated 15.01.1991 (Annexure P-5), issued under Section 9 of the Act is also under challenge. 2. The pleaded case of the petitioner is that he is owner in possession of the land bearing khewat No.239/300 khasra No.49/11/1 measuring 5 kanals situated within the revenue estate of village Mewla, Maharajpur, Tehsil Ballabgarh District Faridabad. The petitioner is staying in the constructed house in the said land along with his family and also keeping his animals there. Reliance was placed upon khasra girdawari for the year 1988-89 and 1990. The notification under Section 4 of the Act was issued wherein 194.97 acres of land, situated within the revenue estate of village Mewla, Maharajpur, District Faridabad was sought to be acquired for the development of Sector 45 of the Urban Estate, Faridabad. The petitioner filed objections under Section 5A of the Act on 28.08.1989 stating therein that he had constructed a house in the land and has been residing there since long and prayed for exemption from acquisition. It has further been pleaded that a number of other persons, who had constructed houses on their respective lands, have been exempted from acquisition while issuing notification under Section 6 of the Act, falling in khasra No.14, 15/1, 15/2, 12/2 and 18. The said houses were excluded from acquisition and accordingly, land measuring 184.66 acres was notified under Section 6 of the Act. The inclusion of the land of the petitioner in the proposed acquisition was, thus, a clear discrimination and amounted to violation of Article 14 of the Constitution of India. The notice dated 15.01.1991 had not been issued by respondent No.2. As per the policy of the State Government, the lands on which buildings have been in existence at the time of notification were to be exempted from acquisition. Thus, the acquisition proceedings were in violation of the policy framed by the State Government and was, accordingly, challenged. 3. The notice dated 15.01.1991 had not been issued by respondent No.2. As per the policy of the State Government, the lands on which buildings have been in existence at the time of notification were to be exempted from acquisition. Thus, the acquisition proceedings were in violation of the policy framed by the State Government and was, accordingly, challenged. 3. The writ petition was admitted for hearing on 08.02.1991 and dispossession from constructed portion was stayed and it was ordered that the same order as passed in CWP No.2167 of 1991 would be applicable. 4. The State, in its reply, pleaded that the petitioner was owner of the said land but he had built up the house of ‘C’ Class construction after the issuance of notification under Section 6 of the Act. It was further pleaded that no documentary proof of construction was produced by the petitioner and therefore, the writ petition was liable to be dismissed. The objections under Section 5A of the Act had been heard and thereafter, the notification had been issued under Section 6 of the Act as the petitioner had constructed the house in the land in dispute, after the issuance of the Section 4 notification. The purpose of acquisition was stated to be within the scope of the authority and all the required formalities had been completed and due opportunity had been given. The petitioner was entitled for the just and adequate compensation and no right of the petitioner had been infringed since the land was acquired in accordance with law. 5. No replication was filed by the petitioner to the written statement. 6. Counsel for the petitioner has placed reliance upon the decision of this Court in [2010(5) Law Herald (P&H) 4255 (DB)] : CWP No.1593 of 1991 titled Chandu Singh & others Vs. The State of Haryana & another, decided on 03.08.2010 wherein the acquisition under the same notification had been quashed and direction had been issued to release the land of the land-owners on the ground that the residential houses were in existence prior to the issuance of the notification under Section 4 of the Act. 7. However, a close perusal of the said judgment would go on to show that where the construction had been raised after the notification under Section 4 of the Act, the Division Bench had dismissed those writ petitions out of the bunch of connected matters. 7. However, a close perusal of the said judgment would go on to show that where the construction had been raised after the notification under Section 4 of the Act, the Division Bench had dismissed those writ petitions out of the bunch of connected matters. Accordingly, CWP Nos.1704, 1905 and 2166 of 1991 were dismissed. On facts, the said judgment is against the petitioner since in the present case, as per averments in the written statement the construction was raised after the issuance of notification under Section 4 of the Act. 8. Faced with this situation, counsel for the petitioner submitted that as per the khasra girdawari of the years 1988-89 and 1990 (Annexure P-1), construction had been raised by the petitioner on the land in dispute. 9. However, a perusal of the said revenue record shows that it pertained to khasra No.49/11 and not 49/11/1 and the name of the owner who had constructed the house is one Gianender and the name of the petitioner does not figure in the said revenue record. Thus, the submission of the counsel for the petitioner that the petitioner had constructed the house prior to the issuance of notification under Section 4 is without any basis. A categorical averment has been made in the written statement that the house was built after the issuance of Section 4 notification which was never repelled by way of replication. Further, neither the petitioner had produced any documentary evidence before the Land Acquisition Collector nor before this Court to show that the house was built up prior to the notification issued under Section 4 of the Act. Accordingly, it cannot be held that the petitioner was discriminated, in any manner. The purpose of acquisition is for development of Sector 45 of the Urban Estate, Faridabad and the same being a public purpose, the State has eminent right which counsel for the petitioner has not been able to dispute. 10. Accordingly, finding no merit in the writ petition, the same is, dismissed. --------0.B.S.0------------ —————————