High Court of Punjab and HaryanaCWP/15545/2016dismissed

M/S Hind Metalchem Industries(P) Ltd v. State Of Haryana And ORS

2022-08-31The Chief Justice,Mr. Justice Arun Palli21 pages

CWP No. 15545 of 2016 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 15545 of 2016 (O&M) Reserved on : 29.03.2022 Date of Decision: 31 August, 2022 M/s Hind Metalchem Industries (P) Ltd.

.... Petitioner

Versus

State of Haryana and others

...Respondents

Present:;

Mr. M.L. Sharma Advocate, for the petitioner. Mr. Ankur Mittal, Addl. Advocate General, Haryana with Mr. Saurabh Mago, Assistant Advocate General Haryana and Ms.

Kushaldeep Kaur Manchanda, Advocate for the respondents.

*****

The petitioner has filed the instant petition for issuance of writ in the nature of Certiorari for quashing the notifications dated 10.11.2000 and 28.11.2001 issued under Sections 4 and 6 of the Land Acquisition Act, 1894 as well as the award dated 23.04.2003 to acquire the land for the public purpose namely, development of Industrial Estate in Village Kundli, District Sonepat, vide which the land of the petitioner was acquired. Petitioner further sought for issuance of a declaration to the effect that the acquisition proceedings have lapsed in view of Section 24(2) of Act of 2013. 2.

As per the case set up by the petitioner, it is a registered firm under the name & style of M/s Hind Metalchem. Industries Pvt. Ltd. set up on the land comprised in Khasra No. 84//11 (8;0), 84//12/1 (5;6), total measuring 13 Kanal 16 marla, situated in Village Kundli, Tehsil and District Sonepat. The company is working and running business on the said land

CWP No. 15545 of 2016 2 since 1970 and has constructed sheds, staff quarters, office, toilets, pump house and boundary walls and also installed the machinery therein. The said land was notified to be acquired vide notification dated 10.11.2000 issued under Section 4 of the Act of 1894 for the public purpose, namely, the development of Industrial Estate in Village Kundli. The petitioner thereafter filed objections under Section 5A of the Act of 1894 and without giving any opportunity of hearing to it, the respondent;State went on to issue a declaration under Section 6 of the Act of 1894 on 28.11.2001. 3.

As contended on behalf the petitioner, the issuance of declaration was beyond the stipulated period of one year provided under Section 6 of the Act of 1894 and thus, even though the notification under Section 4 had lapsed, yet the respondent;State went on to acquire the land in question. It is further, pleaded that the acquisition is arbitrary as the Industrial Unit was set up much prior to the issuance of notification under Section 4 of act of 1894 and in view of the law laid down by the Hon'ble Supreme Court of India in the case of

, the Industrial Unit deserves to be released from the acquisition proceedings. The notifications have not been published in accordance with the provisions of the Act of 1894 as neither were they published in two daily newspapers nor they were placed at a convenient place. Even the notices issued under Section 9 of the Act of 1894 were not in order and still the respondent;State announced the award on 23.04.2003. 4.

The acquisition proceedings came to be challenged by the petitioner before this Court in Civil Writ Petition No. 5938 of 2003, which was disposed of vide order dated 29.10.2013 with a direction to the respondent;State to reconsider the matter for releasing part of the acquired land keeping in view the factors like (i) some of the petitioners had

CWP No. 15545 of 2016 3 applied/obtained CLU before issuance of notification under Section 4 of the Land Acquisition Act; (ii) all the petitioners are ready and willing to give an undertaking that industrial units shall be put into operation in a time bound manner; (iii) they have no objection against part acquisition of their property to the extent it is needed for 'green belt' and/or for implementation of the lay out plan; (iv) they are also ready and willing to deposit the EDC and other statutory charges; (v) those who have received the compensation, are ready and willing to refund the same along with interest as admissible under the Land Acquisition Act, and (vi) the petitioners have sufficient proof to show that they intend to utilize the land for 'industrial purpose' only. 5.

Thereafter, the petitioner moved a representation dated 11.02.2014 in terms of the aforesaid order which was decided on 14.10.2014 by the authorities rejecting the claim of the petitioner. After such rejection, the petitioner made several representations for consideration of its case; however, no decision was taken on such representations. It is contended by the petitioner that the order passed by the respondent;State is contrary to the orders and directions issued by this Court. Even though the challenge has been made to the order passed by the respondent authorities, yet the petitioner has failed to plead as to how and in what manner the order dated 14.10.2014 is illegal, cryptic and unconstitutional. In addition to the aforesaid, the petitioner has also sought benefit of Section 24(2) of the Act of 2013 for release of its land on the ground that the acquisition proceedings qua the land in question have lapsed.

Refuting the contentions raised by the petitioner, Mr. Ankur Mittal, learned Additional Advocate General, Haryana has contended that the actual, factual as well as legal position is altogether different and in contrast to what has been projected by the petitioner. He submits that the

CWP No. 15545 of 2016 4 land in question was notified for acquisition under Section 4 of the Act of 1894 vide notification dated 10.11.2000, which was published in the official gazette on 05.12.2000 and in two daily newspapers namely, Hari Bhoomi (Hindi) dated 21.11.2000 and Indian Express (English) dated 20.11.2000. Thereafter, objections under Section 5A of the Act of 1894 were invited and considered by the Sub Divisional Officer (Civil);cum;Land Acquisition Collector, Sonepat and a report was submitted to the Government. The objections of the petitioner were also received and same were duly considered after visiting the site in question on 03.02.2001 wherein it was found that petitioners had constructed a pucca shed over the land measuring 969 sq. yds., and servant quarters over the land measuring 189 sq. yds., comprised in Khasra No.

84//11 (8;0) which was surrounded by a boundary wall. On the land comprised in Khasra No. 84//12/1 (5;6), a boundary wall was found constructed. Further as per the report, three old machines were lying at the site in dilapidated conditions which were not in use for past many years and accordingly a recommendation was made to acquire the land in question. After considering the report of LAC, a declaration under Section 6 was issued on 28.11.2001, which was published in the official Gazette on 28.11.2001 and in two daily newspapers Hari Bhoomi (Hindi) dated 08.12.2001 and Indian Express (English) dated 08.12.2001. 7.

He submits that there is no procedural irregularity in issuance of notifications as the same were duly published in the manner prescribed in the Act and further, the declaration under Section 6 has been duly issued within one year of the date of publication of Section 4 notification as the last date of publication of notification under Section 4 was 05.12.2000, whereas the declaration under Section 6 was issued on 28.11.2001 which implies that the publication was within the statutory period provided in the Act.

CWP No. 15545 of 2016 5 8.

The petitioner thereafter approached this Court by filing a Civil Writ Petition No. 5938 of 2003, wherein dispossession was stayed on 22.04.2003. During the pendency of the petition, the Award was announced on 23.04.2003. The writ petition was disposed of vide order dated 29.10.2013 with a direction to the respondents to consider the claim of the petitioner keeping in mind the factors as enumerated above in paragraph No.4.

In compliance of the said order, Additional Chief Secretary to Government Haryana, Industries and Commerce Department passed a speaking order rejecting the claim of the petitioner for release of land from acquisition. While rejecting the claim, the petitioner was duly heard who submitted that he had purchased the land in question prior to issuance of notification under Section 4 and was running cotton waste spinning plant which was in operation from 1979 to 2000. Admittedly, the compensation was taken by the petitioner and now he is willing to refund the compensation along with interest thereon, if the land in question is released from acquisition. In order to verify the facts, a site visit was made wherein it was found that out of total land measuring about 8345 sq. yds (about 6760 sq.

yds), there exists a shed, in an absolutely dilapidated condition, over an area measuring appx. 40 sq. yds. i.e. over an area of 11.25% of the total area. The condition of the shed, as is evident from the photographs, was in abandoned condition. As per CTP, HSIIDC, the part of the subject land was situated in the RoW of an internal circulation road of 15 mtrs. width and that the petitioner had not obtained any CLU permission for the subject land.

CWP No. 15545 of 2016 6 upto 1 acre size to the petitioner at the allotment rate applicable at the time of receipt of the application. The relevant findings of the speaking order are reproduced herein below:;

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The aforesaid order was not challenged by the petitioner for almost two years and now it is being assailed without even pointing out as to how the said order is bad in law. In this regard, Mr. Mittal submits that the instant petition is barred by delay and laches as it has been filed after two years after passing of the speaking order whereby the acquisition proceedings were duly upheld and the claim of the petitioner was rejected. The subsequent filing of the representation would not give any cause of action to the petitioner to cover the delay in approaching this Court. He has placed reliance on the judgment of the Supreme Court of India in case ! " # $%&%'(

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CWP No. 15545 of 2016 7 ,, wherein the Supreme Court had declined to interfere with the acquisition proceedings on the ground of delay in approaching the Court even though representations were given by the land owner for release of the land. Further a reliance has been placed on the judgment passed by the Supreme Court in case -& .$

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6 & 17&+,4 decided on 28.02.2022. 11.

Mr. Mittal further submits that the industrial unit of the petitioner was not functional at the time of acquisition as it was lying abandoned and further the industrial unit was setup without any valid CLU permission taken by the petitioner from the competent authority. Therefore, no ground for release of the land is made out in favour of the petitioner in view of the factors which were recorded by this Court in order dated 22.07.2013 passed in Civil Writ Petition No. 5938 of 2003. As regards the undertaking given by the petitioner for refund of the compensation amount, Mr. Mittal has heavily placed reliance on the judgment passed in . / "5%6 7 SLP(C) 9036;9038 of 2016 wherein the Supreme Court of India has categorically held that there is no provision in the Land Acquisition Act, 1894 for refund of the amount of compensation and thus, petitioner's request cannot be acceded to. With respect to the reliance being placed on the judgment passed by the Supreme Court in case

% 2 Mr. Mittal submitted that the said judgment is not applicable in the case at hand because the petitioner has failed to point out as to how non;release of the land is discriminatory and further, it is settled law that there is no

CWP No. 15545 of 2016 8 restriction to acquire the constructed portion of the land. In this regard, he has referred to the judgments rendered in 68

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12.

As regards the prayer of the petitioner invoking Section 24(2) of the Act of 2013, he submits that it is not maintainable as the requisite period of 5 years prior to commencement of Act of 2013, which is first and foremost requirement to invoke Section 24(2) of Act of 2013 is not fulfilled. Though Award was announced on 23.04.2003, however since dispossession was stayed even before the announcement of Award i.e. on 22.04.2003 and was in operation till 29.10.2013 therefore, after excluding such period, the requisite period of 5 years is not completed. Accordingly, Section 24(2) of Act of 2013 cannot be invoked by the petitioner. 13.

Since, the interim order was in operation, the possession of the land could not be taken by the respondent;State. Thus, no inaction can be attributed to the respondent;authorities for non taking of the possession of the land in question. As regards the compensation, Mr. Mittal submits that admittedly, the petitioner has received the amount of compensation and has also filed a Reference under Section 18 of the Act of 1894, therefore, the contingencies prescribed in Section 24(2) of Act of 2013 remained unfulfilled and no declaration for lapse of acquisition proceedings can be made.

14.

With respect to challenge to the acquisition proceedings on merits, the contentions of the petitioner can be summarized in the following manner:;

CWP No. 15545 of 2016 9 i. The declaration was not made within one year of the publication of notification under Section 4 of the Act of 1894. ii. The notification under Section 4 and Section 6 of the Act of 1894 were not published in the manner prescribed. iii. The construction of the petitioner shall be released in view of law laid down by the Supreme Court of India in 5%

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iv. The acquisition proceedings have lapsed in view of Section 24(2) of the Act of 2013 as even though the petitioner has received the amount of compensation, the possession of the land has not been taken till date.

v. The undertaking has already been given by the petitioner for refund of compensation amount received.

15.

We do not find any merit in the contention of the petitioner that the notifications under Sections 4 and 6 of the Act of 1894 were not in the prescribed manner because as submitted by the learned Counsel for the respondent;State, the notification under Section 4, though issued on 10.11.2000, but it was published in the official gazette on 05.12.2000 and in two daily newspapers, namely, Hari Bhoomi (Hindi) dated 21.11.2000 and Indian Express (English) dated 20.11.2000. Therefore, the last date of the publication of the notification was 05.12.2000 and as prescribed in Section 4 of Act of 1894, last date for publication is to be referred as the date of publication for calculating the period of one year for issuance of declaration under Section 6 of Act of 1894. In this regard, a Reference is made to sub Section (1) of Section 4, which is reproduced herein below:; ; < 9 = " "< =!" " < "=

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The declaration under Section 6 of Act of 1894 was issued on 28.11.2001, which is within one year of the last date of the publication of Section 4 of Act of Act of 1894. Thus, the contention of the petitioner that the issuance of declaration under Section 6 of Act of 1894 is beyond the period of one year is hereby rejected. Also, a perusal of the written statement filed on behalf of the respondent;State as well as the submissions made before this Court reveal that the substance of notifications was duly published in the modes as prescribed in the Act and thus, the contention as regards the procedural irregularity in issuance of the notifications is also rejected.

17.

We have also considered the rival contentions of the parties with respect to the release of construction on the land in question. The petitioner has heavily relied on the judgment passed by the Supreme Court of India in case %

#" to contend that the respondent;State cannot make any discrimination between the manner of existing construction on the land sought to be acquired and thus, the land of the petitioner along with construction thereon shall also be released from the acquisition.

18.

We have perused the judgment passed in the case of (supra) and are in agreement with Mr. Mittal that the said judgment is not applicable in the facts of the instant case as in Sube Singh's case (supra), the specific argument raised by the writ petitioners was that though the existing structures of certain landowners were released from the acquisition

CWP No. 15545 of 2016 11 proceedings, however the structures of the petitioners were acquired discriminately. It was in this regard, the observations were made that no classification can be made as regards the types of constructions on the land. 19.

It is trite law that the judgment is to be read in the light of the factual matrix of the case and cannot be relied upon by reading one line in favour, which indeed is the manner in which petitioner is trying to interpret the judgment. The ratio of the judgment cited by the petitioner, when read in the light of the facts suggests that it is distinguishable and is not applicable to the case at hand because the petitioner has not pleaded specifically as to how it has been discriminated. Coupled with the fact that the construction by the petitioner was unauthorised as no permission for' change of land use' was taken by the unit and at the time of acquisition same was lying vacant. The position of law is, as pointed out by Mr. Mittal, that if the construction is unauthorised, the same cannot be a ground for release of land, reference is made to the judgment of the Supreme Court in cases 9(:$/ ' 7&' ,

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The law as regards the acquisition of construction is lucid and well settled up till the Supreme Court and even the judgments passed by the Supreme Court after Sube Singh (supra) have categorically held that there is no bar for the State to acquire the construction under the Land Acquisition Act, 1894. The Reference in this regard is made to the judgment of the Supreme Court of India in )= #%"

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wherein the Hon'ble Court while referring to the policy of the State to release the constructed area from acquisition proceedings held that implementation of policy is the exclusive domain of the State Government and there is no prohibition in the Act of 1894 for acquisition of the structures. The relevant paragraph from the judgment is reproduced hereon below:;

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Therefore, there remains not even an iota of doubt as regards the legal position that the decision to acquire and not to acquire the land/ construction is of the State and not within the domain of the Courts. The only duty bestowed on the Court is to see that acquisition proceedings have been carried in accordance with the procedure prescribed and for the public purpose. Till the time the procedure followed by the State authorities for acquiring the land is legal, interference in the acquisition proceedings is totally unwarranted.

24.

As regards the plea of lapsing of acquisition proceedings, it is imperative to understand the scope and extent of applicability of Section 24(2) of Act of 2013 which was in dispute for a long time and came to be settled by a Constitution Bench of the Supreme Court of India in case >% /' 2$ # '

) % 2 thereby laying down principles for declaring the acquisition deemed to have been lapsed under Section 24(2) of Act of 2013 were laid down. The Apex Court has discussed in detail all the aspects necessary and relevant for interpreting Section 24(2) of Act of 2013, and in this regard the Reference is made to the concluding paragraph of the judgment which is reproduced herein below:;

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The sum and substance of the interpretation of Section 24 (2) of the Act of 2013 by the Supreme Court is that to seek lapsing, both the contingencies provided i.e. about the physical possession and the payment of compensation are to be fulfilled meaning thereby if either of the condition is not satisfied, there would be no lapsing. As far as the obligation to make the payment in lieu of the land acquired is concerned, it has been clarified that such obligation to pay is complete by tendering the compensation which would mean that the compensation amount was made available to the land owner and if he has not accepted the same, it will not be available for the land owner to claim that the compensation has not been paid. Similarly, word "deposit" has been interpreted to mean depositing with the LAC or the Treasury or the Reference Court.

Drawing of panchnama has been considered to be a valid proof of taking physical possession and once the land stands vested in the State, there is no divesting provided under Section 24 (2) of the Act of 2013.

CWP No. 15545 of 2016 16 computing the gap period of five years. Similarly, it has been clarified that Section 24 (2) of the Act of 2013 does not give rise to new cause of action to question legality of concluded proceedings of land acquisition as it applies to only those cases wherein the proceedings were pending on the date of enforcement of Act of 2013.

26.

Having heard the respective arguments, going through the respective pleadings and above all the exposition in Indore Development Authority (supra), we are of the considered opinion that the petitioner is not entitled to claim lapsing of acquisition proceedings. 27.

The Supreme Court in Indore Development Authority (supra) has categorically held that the plea of 24 (2) is available to only those land owners, in respect of which the acquisition proceedings were pending on the date of coming into effect the Act of 2013 i.e.. 01.01.2014. It has been clarified that Section 24 contemplates pending proceedings and not the concluded one. After detailed discussions and placing reliance on the previous judicial pronouncements, the Supreme Court in Para No. 359 has made it clear that Section 24(2) cannot be used to revive dead and stale claims and concluded cases. Para 359 of the aforesaid judgment is extracted herein below:;

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CWP No. 15545 of 2016 17 28.

It is admitted that the petitioner had earlier challenged the acquisition proceedings by filing a Civil Writ Petition No. 5938 of 2003, which was disposed of vide order dated 29.10.2013 to consider the claim of the petitioner in terms of the parameters laid down by the Court in order dated 22.07.2013. The representation filed thereafter was rejected by the respondent;State vide order dated 14.10.2014 on the grounds as discussed above. Thereafter the petitioner did not challenge the said order and after two years has approached this Court. In the meantime, as pleaded by the petitioner, he kept on giving representations.

We are unable to agree with the contention being raised by the petitioner as once the order rejecting the claim of the petitioner was not challenged immediately and is being impugned after two years, such challenge is clearly barred by delay and laches. The logical corollary is, thus, that the acquisition proceedings are upheld and same is final, as a result of which the claim of petitioner is a dead claim and cannot be revived under the guise of Section 24(2) of Act of 2013. 29.

Further the filing of representation would neither give a new cause of action nor will keep alive the cause of action in favour of the petitioner, as held by the Supreme Court in case ! " # $% &%'(

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! "# The Supreme Court therein dismissed the challenge to the acquisition proceedings on the ground that the filing of representation would not be sufficient to explain the delay in approaching the Court. Similar observations have been made in cases $%$&$'()$*$+*,-&./$'0,$'&$/$1 234.13 3435 66.$5 - "

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CWP No. 15545 of 2016 18 of the petitioner was rejected. It goes without mention that acquisition is for public purpose and if such proceedings are challenged after efflux of time and are eventually entertained, it would amount to hampering the development process all together.

30.

The petitioner cannot seek any relief in terms of the provision of Section 24(2) of Act of 2013 as requisite period of five years is not completed since the dispossession of the petitioner from the land in question was stayed on 22.04.2003 i.e., prior to announcement of Award and the interim stay continued till 29.10.2013. It being so, said period is required to be excluded while computing the window period of 5 years between the announcement of the award and coming into effect of the Act of 2013 i.e. 01.01.2014 in terms of the principles laid down in >% /' 2$ # 2 In this regard, a reference is made to para 331 of the judgment, which is reproduced herein below:;

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CWP No. 15545 of 2016 19 31.

In terms of the aforesaid, we have no hesitation to hold that after excluding the period of operation of the interim order, the requisite period of 5 years is not completed and thus, Section 24(2) of Act of 2013 cannot be made applicable to the acquisition proceedings qua the land in question.

32.

Even on aspect of contingencies provided in Section 24(2) of Act of 2013, we do not find any merit in the submissions made on behalf of the petitioner. The possession of the land could not have been taken due to the operation of stay order on dispossession, whereas the compensation amount had already been received by the petitioner. In view of law laid down by the Hon'ble Court, in order to claim lapsing of acquisition proceedings both the contingencies must be fulfilled. Section 24(2) of Act of 2013 prescribes two contingencies i.e. non;taking of possession and non; payment of compensation; if possession is taken but compensation is not paid or if possession is not taken but compensation is paid, there can be no lapsing of acquisition. Applying the principle on case at hand, there can be no declaration as regards the lapsing of acquisition proceedings. 33.

As regards the contention of the petitioner that he is ready to refund the compensation amount, it is worthwhile to refer to para 132 of the judgment in >%/' 2$ # (supra):;

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From a perusal of aforesaid, it transpires that observations of the Supreme Court are categoric onto the aspect that there is no provision in the Land Acquisition Act, 1894 for refund of compensation and in absence of same, refund is not possible. In view of the law laid down by the a Constitution Bench, even the undertaking given by petitioner is therefore, neither such undertaking can be enforced nor it can be relied upon by the petitioner.

35.

As a sequel of the above discussion and in view of the settled legal position, present petition merits dismissal on the following grounds:; (i) There is no procedural irregularity in issuance of notification under Section 4 and declaration under Section 6 of Act of 1894. (ii) The order rejecting the claim of the petitioner for release of land has been passed based on cogent and plausible reasons.

CWP No. 15545 of 2016 21 (iii) The petitioner is not entitled to invoke Section 24(2) of Act of 2013 as the requisite period of five years is not fulfilled, claim of the petitioner is a dead & stale claim and the petitioner has already received the amount of compensation.

The petition is dismissed and the pending applications, if any, also meet the same fate.

(RAVI SHANKER JHA) CHIEF JUSTICE (ARUN PALLI) JUDGE 31 August, 2022 ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No