High Court of Punjab and HaryanaCWP/22202/2016dismissed

Adarsh And ORS v. State Of Haryana And ORS

2023-04-24The Chief Justice,Mr. Justice Arun Palli21 pages

CWP No. 22202 of 2016 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 22202 of 2016 ((O&M) Reserved on : 08.02.2023 Date of pronouncement: 24 April, 2023 Adarsh and others

...Petitioners

Versus

State of Haryana and others

...Respondents

Present:7 Mr. Sanjeev Kumar Dubey, Senior Advocate with Mr. Ankit Grewal, Advocate, for the petitioners. Mr. Ankur Mittal, Addl. Advocate General, Haryana with Ms. Kushaldeep K Manchanda, Advocate, for the respondents.

*****

The core question that arises for our consideration is: whether the acquisition proceedings qua the land of the petitioners have lapsed in view of the deeming fiction envisaged in Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re- settlement Act, 2013 ("the Act of 2013"). 2.

The petition at hands was earlier dismissed, along with a batch of several other writ petitions (lead case being CWP No. 18718 of 2016), on 12.10.2020 with the observations that since possession of the land in question had already been taken (by recording Rapat Roznamcha), thus, in view of the law laid down by the Constitution Bench of the Supreme

CWP No. 22202 of 2016 2 Court in Indore Development Authority Vs. Manohar Lal and others 2020(8) SCC 129, lapsing of the acquisition proceedings in terms of Section 24 (2) of the Act of 2013 could not be sought. Against the said decision, the petitioners moved the Supreme Court by a filing Special Leave Petition (C) No. 14937 of 2020, which was decided on 15.12.2020 and the petitioners were relegated to file a review petition so that this Court could consider/examine the factual matrix obtaining in the matter as also the documents that are being relied upon by the petitioners. 3.

Consequently, the petitioners filed RA-CW No. 276 of 2020, which was allowed on 25.04.2022, whereupon a detailed written statement was filed by Land Acquisition Collector, Gurugram, to which replication has also been filed by the petitioners.

Learned senior counsel for the petitioners contended that land of the petitioners measuring 9 Bighas 15 Biswas 10 Biswani, situated in Village Faridabad, was sought to be acquired for a public purpose, namely, for development of Sector 28, Faridabad. Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 09.10.1973. However, upon consideration of the objections under Section 5-A of the Act of 1894, land measuring 2.48 acres was released from acquisition proceedings on account of construction raised on the said land. And eventually land measuring 5 Bighas 39 Biswas was notified under Section 6 issued on 01.10.1976. The award acquiring the land of the petitioners was announced on 15.04.1989.

By placing reliance on letter dated 19.09.1994 issued by the District Town Planner, Faridabad to Director, Urban Estate, Haryana, learned senior counsel for the petitioners contends that in addition to 2.48

CWP No. 22202 of 2016 3 acres of land, which was released pursuant to the objections under Section 5A, 1.39 acres of additional land was also released from the acquisition proceedings. In the light of the said fact, it was contended that there was no acquisition of the land at all, which shows that neither the possession of the land was taken by the respondents nor compensation has been paid to the petitioners. Therefore, acquisition proceedings qua the land in question lapsed.

In addition to the aforesaid, it has been contended that HSVP had carved out plots on the acquired land of the petitioners, out of which one plot measuring 500 square yards was allotted to Sh. S. Banga son of Sh. H.S. Banga, which was purchased by the petitioners. Upon which they had constructed the shops and houses, which are in existence for more than 40 years which, substantiates the claim of the petitioners that possession of the land in question was never taken by the respondents, and thus, the acquisition proceedings be declared to have lapsed under Section 24 (2) of the Act of 2013.

Per contra, Mr. Ankur Mittal, learned Additional Advocate General, Haryana, submits that apparently the submissions made by learned senior counsel for the petitioners are contradictory. For on one hand, it is stated that the land is no more under acquisition and on other, declaration has been sought that acquisition proceedings be declared to have lapsed. In case the land had already been released from acquisition, there was no occasion for the petitioners to plead or seek any such declaration.

CWP No. 22202 of 2016 4 In reference to the written statement filed by the State, he crystallized the factual position that a notification under Section 4 of the Land Acquisition Act, 1894 (the Act of 1894) was issued by the State of Haryana (through Urban Estate Department) notifying its intent to acquire land measuring 147.28 acres, situated in Village Faridabad and 15.72 acres of land situated in Village Mewla Maharajpur, for development and utilization of land for residential Sector 28, Faridabad. As far as the petitioners are concerned, it was urged that Khasra No.1 comprises of land measuring (4B-2B), 1876/1 (3B-11B), 39 (0B-2B), 40 (1B-12B) and 4 (3B-0B). And in proportion to the share of the petitioners' in Khasra No. 4 (3B-0B), he owned a land measuring 11 Bigha 10 Biswas, situated in village Faridabad.

As regards the land situated in village Mewla Maharajpur, the land owned by the petitioners comprised in Khasra No. 116//6/2 (1K-16M), 15 (7K-3M) and 16/1 (2K11M), it was included and notified for acquisition vide aforesaid notification dated 01.10.1973 issued under Section 4 of the Act of 1894. He submits that on consideration of the objections under Section 5-A of Act of 1894 filed by the petitioners, land measuring 2.48 acres i.e. 2 Bighas 4 Biswas comprised in Khasra No.1; 1 Bigha 2 Biswas comprised in Khasra No. 1876/1, and 14 Biswas comprised in Khasra No. 4, situated in village Faridabad, was left out of the acquisition proceedings. Pursuant thereto, a declaration under Section 6 of Act of 1894 was issued in two phases i.e., firstly, an area measuring 100.

06 acres situated in village Faridabad was included in Section 6 declaration issued on 04.01.1974, which was followed by award date 22.02.1974.

CWP No. 22202 of 2016 5 as well as in the award.

Thereafter, declaration under section 6 of 1894 Act was issued on 01.10.1976 for acquiring land measuring 37.22 acres (Village Faridabad) and land measuring 1.44 acres (Village Mewla Maharajpur). This declaration included the land of the petitioners measuring 4.14 acres comprised in the aforesaid Khasra numbers, after excluding the area released under Section 5-A situated in Village Faridabad, and further included land measuring 1.44 acres situated in Village Mewla Maharajpur. Subsequent to the issuance of section 6 declaration dated 01.10.1976, two awards were announced for Village Faridabad i.e. Award No. 7 dated 21.09.1978 and Award No. 5 dated 15.04.1982. The land of the petitioners i.e. 4.14 acres situated in village Faridabad (which has been claimed in the petition) was acquired vide the award No. 5 dated 15.04.1982.

The possession of the land included in the award was taken by recording Rapat Roznamcha No. 429 dated 15.04.1982. He submitted that as far as the land situated in village Mewla Maharajpur is concerned, again two awards were announced; one was award No. 7 dated 21.09.1978 and second was Award No. 4 dated 15.04.1982. The land of the petitioners measuring 1.44 acres was included in Award No 4 dated 15.04.1982 and the possession of the said land was taken by recording Rapat Roznamcha No. 378 dated 15.04.1982.

CWP No. 22202 of 2016 6

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* 2 * 2 * 2 * 2 It is urged that from a perusal of the aforesaid factual matrix, it is clear that in total 4.14 acres of land comprised in Khasra No.1 (1B-18B), 1876/1 (2B-9B), 39(0B-2B), 40 (1B-12B) and 4 (0B-11B10B), situated in Village Faridabad, belonging to the petitioners was acquired vide award No. 5 dated 15.04.1982, the possession of which was taken vide Rapat No. 429 dated 15.04.1982. Further, land measuring 1.44 acres comprised in Khasra No. 116//6/2 (1K- 16M), 15 (7K-3M) and 16/1

CWP No. 22202 of 2016 7 (2K-11M) situated in Village Mewla Maharajpur belonging to the petitioners was acquired vide the Award No. 4 dated 15.04.1982 and the possession of the said land was taken vide Rapat No. 378 dated 15.04.1982. Accordingly, he asserts that since possession of the acquired land was obtained, the same stood vested in the State Government free from all encumbrances. He has placed reliance in this regard on the discussion made by the Constitution Bench of the Supreme Court in Indore Development Authority (supra), wherein it has been held that drawing of panchnama is the valid mode of taking possession of the acquired land.

Further elucidating the factual aspect of the case at hand, Mr. Mittal submits that the amount of compensation qua the entire acquired land, which also included the land in question, was duly tendered at the time of announcement of award and was made available to the landowners as also the petitioners. However, they have chosen not to receive the amount of compensation out of their own will and volition. No fault can be attributed to the State agencies for non-payment of compensation as they had fulfilled their obligation to pay the compensation once the compensation amount was tendered. He submits that this aspect is also covered by the decision rendered in Indore Development Authority (supra), for the "tender" of compensation is sufficient discharge of the obligation to pay compensation and actual payment or deposit in the Court is not required. As a sequel to the aforesaid, he submits that for declaring the acquisition proceedings to have been lapsed, it is incumbent upon the landowner to show that both the contingencies prescribed in Section 24(2) of Act of 2013 i.e. "non-

CWP No. 22202 of 2016 8 payment of compensation" and failure to obtain "non-taking of possession" co-exist. If one of the contingencies is not fulfilled, there can be no declaration as regards the lapsing of acquisition proceedings. Since in the case at hand, the possession of the land in question stands taken and the compensation also stands tendered, there can be no declaration as to lapsing of acquisition proceedings as none of the contingencies as prescribed in section 24(2) of Act of 2013 is fulfilled. As regards the letter dated 19.09.1994, he has clarified that said letter merely states that additional land measuring 1.39 acres was released from the acquisition proceedings, which included 0.83 acres of Village Faridabad and 0.56 acres of Village Mewla Maharajpur.

He submits that decision to release the land was taken as it was holding up the progress work as per the development plan due to retaining of possession by the petitioners even after it was acquired and further an area of 1420 square yards was also exchanged due to the same reason. Thus, the said letter could not be read to mean that land in question was never acquired. Rather, only an additional land was released from acquisition and a parcel of land was exchanged in lieu of exchange of 1420 sq. yards of land and rest of the land is still under acquisition. He has referred to the Part Demarcation Plan (appended with the written statement as Annexure R-2), which clearly depicts the area which stands released, the area which is acquired and the land which is to be exchanged.

Therefore, on two occasions, land of the petitioners was released from the acquisition proceedings i.e. 2.48 acres situated in Village Faridabad at the time of Section 5-A and 1.39 acres, situated in

CWP No. 22202 of 2016 9 Village Faridabad and Mewla Maharajpur, as depicted in the Part Demarcation Plan (Annexure R- 2) after the announcement of the award. Rest of the land is under acquisition, possession of which stands taken and the same forms part of the planning of the HSVP, the beneficiary department.

He has further drawn our attention to the Revised Layout Plan of Sector-28 Faridabad, which shows that land in question affects the planning of plot Nos. 9, 43 and 44 of Sector-28 Faridabad. He further submits that from a perusal of the layout plan, it reveals that except the land released in the manner stated above, rest of the land is acquired land and the land in question also forms integral part of the planning of the Sector. Rather the petitioners have encroached upon the acquired land unauthorizedly. The attempt of the petitioners to prove their possession over the land in question by referring to the fact that they had purchased the Plot No. 44-P from original allottee of HSVP also fails.

Because firstly, this admission clearly shows that the land was acquired, developed and allotted by HSVP and thus, forms part of the acquired land. Secondly, the respondents have categorically stated in their reply that there is no record to show that plot was subsequently purchased by the allottee and even if it is so, it would not change the factum that the land is an acquired land and the petitioners are in unauthorised possession thereof.

We have heard learned counsel for the parties and perused the record.

The petitioners are seeking lapsing of acquisition proceedings in terms of Section 24(2) of Act of 2013 on the ground that neither the

CWP No. 22202 of 2016 10 possession of the land in question has been taken by the Government nor they have been paid the compensation. Therefore, two issues need to be addressed while deciding the question of lapsing i.e., whether possession of the acquired land has been taken by the State and whether compensation for the land in question stands "paid" or not? 8.

The interpretation of Section 24(2) of Act of 2013 had remained subject matter of controversy for quite a while until it was settled by the Constitution Bench of the Supreme Court in the case of Indore Development Authority (supra). The principles of interpreting the provision were summarized in the penultimate paragraph-366 of the judgment in the manner as follows:

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Apparently, the sum and substance of the interpretation of Section 24 (2) of the Act of 2013 by the Supreme Court is that the first condition to seek lapsing is that both the contingencies provided i.e. about the physical possession and the payment of compensation is to be fulfilled. Meaning thereby, if either of the conditions 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. For it would mean that compensation amount was made available to the land owner. And, if that was not accepted by the land owners, they cannot assert and claim that they have not been paid the compensation.

Similarly, word "deposit" has been interpreted to mean depositing with the LAC or the treasury or the Reference Court. Further, 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. The Supreme Court has further clarified that the period for which any interim order was in operation, will be excluded while computing the gap period of five years. Similarly, it has also been clarified that Section 24 (2) of the Act of 2013 does not give rise to a new cause of action to question the legality of acquisition proceedings that have already been concluded.

CWP No. 22202 of 2016 13 it applies only to those cases, wherein the proceedings were pending on the date of enforcement of Act of 2013.

10.

In fact, we have had an occasion to comprehensively deal with and explain the entire gamut of discussion made by the Supreme Court in Indore Development Authority (Supra), while deciding a bunch of petitions (lead case being CWP No. 8878 of 2018 titled as Sehdev Singh and others v. State of Haryana and others) decided on 11.11.2020 and encapsulated the principles laid down by the Court as follows:- +

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11. Testing the factual matrix of the case against the touchstone of the principles laid down by the Supreme Court, it transpires that in total 4.14 acres of land comprised in Khasra No. 1 (1B-18B), 1876/1 (2B-09B), 39(0B- 2B), 40 (1B-12B) and 4 (0B-11B-10B) situated in Village Faridabad belonging to the petitioners was acquired vide award No. 5 dated 15.04.1982 for development of Sector-28 Faridabad. The possession of said land was taken by recording Rapat Roznamcha No. 429 dated 15.04.1982 and it was handed over to the beneficiary department. And land measuring 1.44 acres comprised in Khasra No. 116//6/2 (1K-16M), 15 (7K-3M) and 16/1 (2K-11M) situated in Village Mewla Maharajpur belonging to the petitioners was acquired vide Award No. 4 dated 15.04.1982 for the afore stated public purpose.

Possession of the said land was also taken by recording Rapat Roznamcha No. 378 dated 15.04.1982. Significantly, the Supreme Court in Indore Development Authority (Supra) categorically held that recording of panchnama is the valid mode of taking possession and would amount to taking physical possession of the land. Therefore, once the possession of the land is taken, it vests in the State free from all encumbrances and any person who still retains possession of the land is a trespasser.

CWP No. 22202 of 2016 16 judgment:-

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12.

As noted above, learned senior counsel of the petitioners has made an attempt to persuade this Court to believe that physical possession still remains with the petitioners by placing reliance on letter dated 19.09.1994 and contending that they have constructed a residential house and shops on the land in question and even submitted that the land claimed by them was not even acquired. However, we do not find any merit in this contention for the Supreme Court, as indicated earlier, has laid down unequivocally that recording of Rapat Roznmacha denotes that the physical possession of the land has been taken by the government. And, if despite that possession is retained by the erstwhile landowners in any form, their possession over the acquired land would be of a trespasser and not of an owner.

Therefore, at present, if there is any construction existing on the land at the instance of the petitioners, the same is unauthorised. Even otherwise, the State has clarified that on two occasions the land of the petitioners was released from the acquisition proceedings i.e. 2.48 acres (situated in Village Faridabad) was released at the time of Section 5-A on account of construction and 1.39 acres (situated in Village Faridabad and Mewla Maharajpur), as depicted in the Part Demarcation Plan (Annexure R-2), after announcement of the award. This fact is so recorded in the letter dated 19.09.1994 itself, upon which reliance has been placed by the petitioners, which states that in total 3.87 acres of land (2.48 acres + 1.39 acres) has been released from acquisition proceedings and rest of the land measuring 4.

155 acres situated in village Faridabad and Mewla Maharajpur is under acquisition.

CWP No. 22202 of 2016 18 holding up of development works.

13.

The letter dated 19.09.1994 (Annexure P-5) records reasons for release of land and same is attributable to the petitioners, who refused to hand over the possession of the acquired land and were blocking the development works in the Sector. In no manner does this letter can be read to mean that the land in question is not under acquisition. The Part Demarcation plan (R-2) appended with the written statement clearly depicts the area, which stands released, area which is acquired and the land which is to be exchanged.

14.

Rather, on the contrary, we are constrained to observe that the aforesaid letter dated 19.09.1994 shows the inequitable conduct of the petitioners, who first took advantage of illegally possessing the acquired land; got the land released and now again by misreading the release letter issued in their favour, are trying to project that there is no acquisition for the land and in case land was acquired, possession has not been taken by the State Government. Thus, the facts of the present case prove that the petitioners have retained possession of the land illegally even though it stood vested in the State.

15. It is further pertinent to mention that the Revised Layout Plan of Sector-28, Faridabad, depicts that the land in question affects the planning of plot Nos. 9, 43 and 44 of Sector-28 Faridabad. A perusal of the layout plan reveals that except the land released in the manner indicated above, rest of the land is the acquired land. And the land in question forms integral part of the planning of the Sector. Even on this ground, the prayer of the petitioners seeking release of the land cannot be countenanced.

CWP No. 22202 of 2016 19

16. As regards the compensation, the specific stand set out in the written statement is that the compensation for the acquired land was made available to all the landowners. Therefore, the amount due to the petitioners was/is available for disbursement and the petitioners are at liberty to receive the same. This shows that compensation amount was duly tendered and thus the obligation of the State to pay the compensation stands duly discharged. It would be apposite, at this stage, to refer to the observations rendered by the Supreme Court in para-205 in Indore Development Authority (supra):- 2

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17. Accordingly, we hold that the State has discharged its obligation towards making the compensation for the acquired land. As a consequence, second contingency for claiming lapsing of acquisition proceedings is also not available to the petitioners.

18. As shall be material to reiterate, the Supreme Court in Indore Development Authority (supra) clearly observed that for deemed lapsing of acquisition proceedings under Section 24 (2) of the Act of 2013, both the conditions i.e. payment of compensation and taking of possession must not be fulfilled i.e. if either of the condition is fulfilled, the lapsing cannot happen. Further, it has been observed that word "or" occurring in Section 24 (2) of the Act of 2013 must be read as "nor" or "and" :- +

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19. Since the possession of the acquired land stands taken and the compensation amount has also been tendered, we hereby hold that none of the conditions prescribed in Section 24(2) of the Act of 2013 are fulfilled. Therefore, the said provision cannot be relied upon by the petitioners to claim lapsing of the acquisition proceedings. Accordingly, in conspectus of the aforesaid and especially in view of the exposition of law in Indore Development Authority (supra), we dismiss the instant petition and vacate the interim order.

20.

Having dismissed the main writ petition, all pending applications, if any, also meet the same fate. The writ petition is dismissed.

24 .04.2023 ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No