High Court of Punjab and HaryanaCWP/3340/1991dismissed

Zile Singh v. State Of Haryana

2023-09-22Mr. Justice Sureshwar Thakur,Mr. Justice Kuldeep Tiwari14 pages

-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Reserved on : 6.9.2023 Date of decision : September 22, 2023 Jile Singh (since deceased) through his LR ....Petitioner

Versus

State of Haryana and others ....Respondents

CORAM:

HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MR. JUSTICE KULDEEP TIWARI Present :

Mr. Ashish Chopra, Senior Advocate with Ms. Rupa Pathania, Advocate, for the petitioner Mr. Ankur Mittal, Addl. Advocate General, Haryana with Mr. Saurabh Mago, Deputy Advocate General, Haryana Mr. Kamal Sharma, Advocate and Mr. Raja Sharma, Advocate, for the respondent-HUDA KULDEEP TIWARI,J.

This is second round of litigation seeking quashing of land acquisition notification and declaration issued respectively under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter to be referred as 'the Act of 1894') on 27.8.1987 and 25.8.1988, Annexure P/1 and Annexure P/2. In earlier round of litigation, the writ petition was disposed of with the consent of the petitioners therein, as parties agreed for appointment of Mr. A.Banerjee, the then Financial Commissioner (Revenue) and Secretary to Government of Haryana, who shall after conducting spot inspection examine as to whether the premises of the petitioner deserves to be

-2exempted from the acquisition in view of the scheme adopted by the State of Haryana. It was also agreed that the decision, taken by the Appointed Authority concerned, shall be treated as final decision. (emphasis specifically). The consenting order dated 28.9.1989 is reproduced as under:- "Parties counsel are agreed with Mr. A. Banerjee, Financial Commissioner (Revenue) and Secretary to Government, Haryana shall be asked to go to the spot to examine as to whether the premises of the petitioners deserve, in the scheme of things, to be exempted from acquisition and that whatever be his decision with regard to each petitioners, it shall be treated as final. In terms of the agreement so arrived at, we direct Mr. A.

Banerjee, Financial Commissioner (Revenue) and Secretary to Government, Haryana, to go to village Jhasra, which is proximate to the spot, on October 26, 1989 reaching there at 10 o'clock and then roam about in the area to see what kind of building and plots have been exempted and as to whether there is any parity of those exempted plots and buildings with those of the petitioners, deserving exemption. Any of the petitioner, who may choose to be present on the spot on the aforesaid date and time, may be so and made him such suggestions as are relevant for the purpose. It is expected of Mr. Banerjee to pass a short speaking order in respect of each case. On this understanding, we dispose of this writ petition, as also the connected ones."

Thereupon, the Appointed Authority concerned (supra) after conducting the spot inspection, prepared his status report and also passed a speaking order, whereby, the prayer to release the instant petition land(s)

-3was declined, on the ground that the construction made by the petitioner is totally un-authorized, as the same is in violation of the Punjab Scheduled Roads and Controlled Areas (Restriction of Un-regulated Development) Act, 1963 and the petition land(s) is situated on the National Highway No. 8 and falls within the prohibited area.

Though the petitioner, in the earlier round of litigation agreed that whatever order passed by the Appointed Authority concerned would be final, however, despite that he approached this Court by filing the instant writ petition again challenging the same acquisition notification and declaration issued under Sections 4 and 6, respectively, of the Act of 1894, as well as the declining order passed by the Financial Commissioner (Revenue).

Submissions by counsel for the petitioner 4.

Learned counsel for the petitioner vociferously argued that it is admitted fact that the petitioner has raised construction over the petition land(s), however, despite his being wrongly and illegally non-suited by the Financial Commissioner (Revenue) for release of his acquired land. The Financial Commissioner (Revenue) has passed a speaking order on surmises and conjectures, in fact the report has not been prepared in accordance with the actual revenue record. Further, he also reiterated his plea of discrimination and submitted that the land(s) of similarly situated persons who have raised un-authorised construction, had also been released from the acquisition proceedings.

-4Chronology of proceedings of the instant writ petition. 5.

It is apt to note that initially this Court granted status quo in favour of the petitioner and the present writ petition was tagged along with other writ petitions. Respondent No. 3-HUDA (now Haryana Shehri Vikas Pradhikaran) filed miscellaneous application CM No. 13177 of 2007, for vacation of stay, as some portion of the acquired land was required for laying down sewer line. The aforesaid CM was disposed of by the learned Single Bench, vide order dated 4.12.2007, with the observation that the acquiring authority concerned has waived their right qua the remaining land except which is required for laying sewer line and the main writ petition was disposed of as well. Having aggrieved with the order (supra), State of Haryana through HUDA preferred LPA No. 1704 of 2011 which was allowed, vide order dated 19.1.2017 and the main petition was restored back to its original number with the directions to decide the same on merits qua the controversy and issue of benefit under

! "#$! ! "#$ % The relevant extract of the order is reproduced as under:- "xxxxx After hearing learned counsel for the parties, we are of the opinion that the learned Single Judge fell in grave error in concluding that the appellants had foregone their contest in the main writ petitions qua the entire acquisition questioned by the land owners. It was only with a limited prayer that they had approached this Court to permit them to continue with the development works and release some portion of the land from the

-5impact of the stay order since these works were of paramount importance and of an urgent nature. The entire reading of the applications does not remotely suggest that they intended to settle the writ petitions in these terms.

Consequently, we accept the present appeals and modify the order of the learned Single Judge to say that it would be applicable to the land that stand utilized for public purposes but in so far as challenge to the remaining land is concerned the parties would be free to agitate the same on merits. Therefore, we restore the writ petitions bearing nos. 3340, 3342, 3344 of 1991 and 10628 and 10068 of 1998 to their original numbers and direct their listing as per roster so that they can be decided on merits qua the controversy and the benefits under Section 24(2) of the Act.

Since the affidavit of the Administrator was to be filed only in one connected LPA bearing no. 2256 of 2011, the costs imposed vide this Court's order dated 18.10.2016 in all the LPAs shall stand waived and will stand in said LPA only."

When the matter was fixed for the final hearing, the petitioner moved an application for placing on record some documents to submit that the petition land(s) has already been released from the acquisition in view of order dated 4.12.2007, passed by this Court and the reference for the same has been made in the letter dated 3.5.2011, issued by respondent No. 2, wherein, it was recorded that the land(s) except one has been released, which is required for laying down the sewer line. He has also placed reliance upon mutation No. 6162 in favour of the petitioner.

-67.

Let us first deal with this application (supra), before making adjudication on the main writ petition. The learned State counsel after perusing the original record available, apprised this Court, that in fact the order which has been mentioned in the letter No. L.A.O.(G)-2011/3063 dated 3.5.2011, of Land Acquisition Officer, has been set aside in LPA No. 1704 of 2011 and the writ petition has been restored back to its original number. So far as the reliance placed upon the mutation is concerned, the same is highly misplaced as this mutation was entered on account of inheritance and not at all pertains to exchange of rights from the acquiring authority in favour of the petitioner.

We have examined the plea of the petitioner. However, we are unable to accept the same as the letter which was written by the learned Land Acquisition Collector concerned, was based on the order dated 4.12.2007 (supra) passed by the learned Single Bench of this Court. However, the same was set aside by the learned LPA Bench vide order dated 19.1.2017, therefore, the petitioner was very well aware of the order passed by the LPA Bench. In these circumstances, the reliance placed by the petitioner on such order, which has already been reversed by the LPA Bench of this Court, is a misplaced reliance and thus, is not accepted. ANALYSIS 9.

Coming back to the merits of the writ petition, the learned State counsel has brought to the notice of this Court, the dismissal order dated 4.1.2011 passed by the Hon'ble Supreme Court in SLP(C) 19384 of 2010 and submitted that some of the land owners in the same impugned

-7acquisition notification also filed writ petitions before this Court and the same were disposed of by common order dated 28.9.1989, whereby Mr. A.Banerjee, the then Financial Commissioner was appointed as an Authority to examine the applicability of the scheme for release of the land(s). The verdict (supra) was challenged before the Hon'ble Supreme Court and the same was dismissed vide order dated 4.1.2011 (supra). 10.

We have minutely examined the entire record. This Court has also dismissed one of the writ petition bearing CWP No. 3342 of 1991, titled Sh. Hukam Chand (deceased) through his LRs and others vs State of Haryana and others, on 5.9.2023, wherein same the notification, declaration and the order of Financial Commissioner (Revenue) was challenged, with the following observations:-

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10.

The facts and legal issues raised in the instant writ petition are absolutely same, therefore, in view of the judgment passed in Sh. Hukam Chand (deceased) through his LRs's case (supra), the present writ petition is also liable to be dismissed.

11.

Though the petitioner has also raised the plea of discrimination, however, not a single instance has been cited to establish that he was treated differently from the similarly situated persons. The finding of the Financial Commissioner (Revenue), though was assailed in the present writ petition, but without substantiating the same with any material available on record. As per the report of the Financial Commissioner (Revenue), the petitioner has raised the construction within the prohibited zone along with the National Highway No. 8, therefore, the same cannot be released from the acquisition. It is a well settled law, that the person who has raised an unauthorized construction is barred from challenging the acquisition proceedings. This Court in New Vidya Niketan Educational Society v.

State of Haryana and others, Civil Writ Petition No. 7711 of 2009 has observed as under:- "A litigant, who has no respect for the law, this Court feels, is not entitled to get any equity by invoking the provisions of Article 226/227 of the Constitution of India.

-13Cambridge International Public School v. State of Haryana and another, CWP No. 2958 of 2011, decided on March 23, 2011, wherein the construction was raised without getting any prior permission and a prayer was made for release of the land from acquisition, a Division Bench of this Court observed as under:

"Otherwise also, we feel that on account of violation of the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, no relief can be granted to the petitioner. As per the provisions of that Act, to construct building/ change of land use, permission is necessary from the competent authority. In the present case, it was not done. It has become a fashion to violate the provisions of law and then to make an attempt to get relief in one way or the other. Attitude of 'sab chalta hai' cannot be tolerated, this has to be stopped one day, to make the people to be respectful to the law and its provisions. A violator of law, who has no respect in the established system of rule of law, cannot be granted any relief when exercising jurisdiction under Articles 226/227 of the Constitution of India. Adherence to the duties as enshrined in Article 51-A of the Constitution of India is must. One can claim his rights under Chapter III of the Constitution of India only if respect is shown to the duties as contained in the above said provision." 12.

The next plea raised is regarding lapsing of acquisition

-14proceedings in view of Section 24(2) of the Act of 2013. We have examined this plea also. The record depicts that the award qua impugned notification has been passed way back on 16.3.1989 and also made available by tendering the same with the competent authority. The actual physical possession was assumed by recording Rapat Roznamacha in the revenue record, therefore, both the contingencies as prescribed by the Hon'ble Supreme Court in

! "#$#$%&'(! has been completed, thus, there is no lapsing in view of Section 24(2) of the Act of 2013. The petitioner has failed to refute the above factual aspects regarding passing of award and tendering of the same with the competent authority concerned and assumption of possession by recording Rapat Roznamacha in the revenue record. Therefore, in sequel, we do not find any merit in the instant writ petition and the same is, accordingly, dismissed. (SURESHWAR THAKUR) (KULDEEP TIWARI) JUDGE JUDGE September 22, 2023 'dalbir'

Whether speaking/reasoned ? Yes/No Whether Reportable ?

Yes/No