High Court of Punjab and HaryanaCWP/1878/2017dismissed

Anand Nvh Products v. State Of Haryana & ORS

2022-08-31The Chief Justice,Mr. Justice Arun Palli17 pages

CWP No. 1878 of 2017 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 1878 of 2017 (O&M) Reserved on : 29.03.2022 Date of Decision: 31 August, 2022 Anand NVH Products (P) Ltd.

.... Petitioner

Versus

State of Haryana and others

...Respondents

Present:8 Mr. R.S.Kholsa, Sr. Advocate with Mr. Sarvesh Malik, Advocate, for the petitioners. 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 instant writ petition seeking issuance of writ in the nature of Certiorari for quashing the notification dated 15.11.2002 and 12.11.2003 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894 and award dated 18.11.2005 for the public purpose namely, Development of Integrated Complex for Industrial, Institutional, Commercial and Recreational and other public utilities vide which the land of the petitioner was acquired and has further sought declaration to the effect that the acquisition proceedings have lapsed in view of Section 24(2) of Act of 2013.

CWP No. 1878 of 2017 2 2.

As per the case set up by the petitioner, it is an industrial unit having manufacturing facility for automobile parts. The company is in possession of the land situated in Rect No. 14 Killa No. 11/1 (582), 12/2 (58 11), 13 (880), 18/1 (280), 19/1 (680) total measuring 26 Kanal 13 Marla in revenue estate of Village Begampur, Tehsil and District Gurugram. The company purchased the adjoining land measuring 26 Kanal 13 marla, the details of which is given in para no. 5 of the petition for expansion of the existing industrial unit. The said land along with other land came to be notified for acquisition by the State of Haryana through Department of Industries vide notifications dated 15.11.2002 and 12.11.2003 issued under Section 4 and 6 of the Land Acquisition Act, 1894. The notifications were challenged by the

of the petitioner by filing Civil Writ Petition No. 6180 of 2004, which was disposed of vide order dated 16.07.2005 based on the statement of the Advocate General, Haryana thereby offering to constitute a High8Powered Committee which would take decision after considering the grievances of the persons approaching the Court challenging the acquisition proceedings. In the meantime, the status quo was ordered to be maintained till the time decision is taken and same shall be maintained 15 days after the decision of the committee. Accordingly, the petitioner filed a representation date 07.09.2005 before the Director Industries Department Haryana for release of land and was called for personal hearing on 18.10.2005. The High8Powered Committee submitted its report dated 10.11.2005 that the site is lying vacant.

This finding was contradictory to the show cause notice dated 28.09.2005 served upon the petitioner unit to show cause as to why the building has been erected without a valid CLU from the competent authority. During the pendency of the proceedings, award dated 18.11.2005 was announced.

CWP No. 1878 of 2017 3 3.

The report of the High8Powered Committee was challenged by the petitioner in filing Civil Writ Petition No.19742 of 2005. This Court vide order dated 21.11.2008 directed the state to constitute a committee and to consider the case of the petitioner afresh. Accordingly, committee was constituted and as submitted by the petitioner, recommended to release that portion of land which was situated under the shed and all surrounding land was recommended to be acquired as it was lying vacant. The report was submitted before this Court and referring to the affidavit, learned Advocate General, Haryana stated that Government had accepted the report of the Committee with regards to release of land subject to the conditions imposed by the Committee. The writ petition was accordingly disposed of vide order dated 22.12.2009.

The petitioner had given consent to the report of the committee, which now they state to have been given under trauma, as a result of which 6 Kanal land was released from acquisition. The petitioner thereafter filed an application for recall of order dated 22.12.2019, which was dismissed by this Court on 19.02.2010.

Now, the left8over land, which is under acquisition as per the petitioner, is under its possession and neither any compensation has been paid nor deposited in the Reference Court. Therefore, acquisition proceedings qua such land stands lapsed under Section 24(2) of Act of 2013. 5.

Refuting the contentions raised by the petitioner, Mr. Ankur Mittal, learned Additional Advocate General appearing for the respondent8 State of Haryana at the outset has taken an objection as regards the misjoinder of parties by the petitioner. Even though the acquisition proceedings were initiated and concluded by the Department of Industries & Commerce and District Revenue Officer, Gurugram and are proper and necessary party for adjudication of the matter at hand, yet the petitioner has

CWP No. 1878 of 2017 4 impleaded the Department of Housing and Urban Development and Land Acquisition Collector, Urban Estates as a party. He further points out that CM No. 162908CWP82018 was moved for impleading Additional Chief Secretary to Government of Haryana, Industries and Commerce Department, as a necessary party in the petition which was ordered to be listed along with main case vide order dated 13.11.2018, however since thereafter the matter was kept pending awaiting the decision of the Hon'ble Supreme Court of India as regards interpretation of Section 24(2) of Act of 2013, the application could not be taken up for hearing. 6.

We have perused the contents of the application and having found that Department of Industries and Commerce is a necessary party, allowed the said application. The amended memo of parties is taken on record and Additional Chief Secretary to Government of Haryana, Industries and Commerce Department is impleaded as respondent no. 4 in the memo of parties. We deprecate this practice by the counsels of impleading wrong parties when in fact, all the relevant documents such as notifications and award are available with them, revealing as to who would be the necessary and proper party. In the present case, the notifications clearly reveal that they have been issued by Department of Industries and Commerce and yet the Department of Housing and Urban Development has been impleaded which has no relation with Industrial sector. 7.

At this stage Mr. Mittal has suggested that the reply filed on behalf of respondent no. 3 - HSIIDC is sufficient to adjudicate on the matter at hand and there is no requirement of filing separate reply by respondent no.

4. We accept his suggestion and allow him to proceed with contentions based on reply filed by respondent no. 3, which is otherwise the beneficiary department of acquisition.

CWP No. 1878 of 2017 5 8.

On the merits of the case, he has contended that the present petition is not maintainable at the instance of the petitioner as the acquisition proceedings have already been upheld by this Court and the fate of such proceedings has been accepted by the petitioner as well. He submits that the land in question was acquired vide notifications dated 15.11.2002 and 12.11.2003 issued under Sections 4 and 6 of the Land Acquisition Act, 1894 followed by award dated 18.11.2005. At the time when the acquisition proceedings were challenged by the petitioner by filing Civil Writ Petition No. 6180 of 2004, the dispossession was stayed before announcement of award and same was ordered to be continued even after the disposal of the petition vide order dated 16.07.

2005 till the time report is submitted by the High8Powered Committee and further such order shall be continued till 15 days after such decision. Thereafter, when the High8Powered Committee rejected the claim of the petitioner, the same was challenged in Civil Writ Petition No. 19742 of 2005, wherein this Court stayed the dispossession of the petitioner from the land in question vide order dated 05.12.2005. 9.

During the pendency of the writ petition, the committee was constituted to consider the claim of the petitioner and other land owners afresh, which was then considered and as per the report of the Committee, it was found that the petitioner was not owner of the land comprised in Khasra no. 27//9/2/1, 10/2 and 28//16/2. It was further noted that industrial unit has been established in an unauthorized manner without obtaining Change of Land Use and approval of building plans. It was also observed that the petitioner has undertaken the construction of sheds on the subject land in dispute after the announcement of award and as such the majority of land is lying vacant. It goes without mention that the specific finding of the committee was that the construction falls on the alignment of the proposed

CWP No. 1878 of 2017 6 18 meter wide internal circulation road as per the approved layout plan. In view of the aforesaid observations, following recommendations were made by the Committee:8 (i) The writ petition, in so far as it relates to the Khasra no. 27//9/2/1, 10/2 and 28//16/2, deserves to be dismissed straightway as these are not in the ownership of the petitioner as per the revenue records and the acquisition of the land be upheld to that extent. (ii) The acquisition in respect of the area falling in the alignment of the 18 meter wide internal circulation road, as per the approved layout plan, should be upheld since it is covered under criterion proposed under sub para (i) of para II.

This would also mean that the acquisition of land situated under the constructed office block as well as under the shed constructed only recently after announcement of award would be upheld. He would not be entitled to any compensation in respect of the buildings constructed after issue of Section 4 notification as per the law. (iii) Pursuant to the construction of the proposed 18 meter road, the land which would lie in the north of the road is lying vacant. The acquisition of this vacant land merits upholding of the same in terms of criterion set out in sub para (ix) of para 11 of the report.

(iv) The land situated under the shed, on which the industrial unit has been established and is running, though unauthorised, could be considered for release if the Hon'ble Court takes a lenient view in the matter, subject to the petitioner obtaining the CLU and payment of penalty imposed by the Government in addition to the payment of applicable IDC and the EDC to the HSIIDC.

CWP No. 1878 of 2017 7 10.

The aforesaid report was accepted by the Government and also by the petitioner with a rider that the release of land shall be subject to the conditions imposed by the Committee and the writ petition was disposed of vide order dated 22.12.2009 and ultimately status quo order was vacated. In this manner, the status quo was in operation before the announcement of award i.e. 18.11.2005 and continued till 22.12.2009. The petitioner thereafter filed Review application for recalling the order dated 22.12.2009, which was also dismissed vide order dated 19.02.2010 and thus, acquisition proceedings for the land in question was upheld. Eventually, 6 Kanals land falling in Khasra no. 14//19/1 was released from the acquisition proceedings under Section 48 of Act of 1894 vide notification dated 29.12.2016 and the possession of the acquired land comprised in Khasra no. 14//12/2 (5811), 13(880) and 18/1 (280) was taken as per letter dated 18.09.2011. 11.

In the meantime, a representation dated 06.04.2015 was received from the petitioner requesting to delete the road passing through Khasra no. 14//11/1, 12/2, 13 and 18/1 and advised to release/ allot the said land being contiguous to their existing industry by charging EDC/ IDC. Accordingly, 18 meter wide road falling in Khasra no. 14//11/1 and 12 was deleted and plot no. 32 A measuring 4275 sq. meters was disposed of as per the provisions of EMP82015.

12.

As regards the compensation, he submitted that the total amount of compensation assessed as approximately 70 crores was deposited in the account of DRO8cum8LAC, which implies it was duly tendered and was made available to the landowners. Even the compensation amount as regards the land in question is also available for disbursement, which the petitioner is at liberty to receive. In view of the aforesaid circumstances, he submits that the case at hand deserves to be dismissed being squarely

CWP No. 1878 of 2017 8 covered by the judgment passed by the Hon'ble Supreme Court of India in the case of the

, in the following manner:

(a)As regards the maintainability of the instant petition, he submits that it is not maintainable on two accounts. Firstly, 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. He submits that though award was announced on 18.11.2005, however since dispossession was stayed even before the announcement of award and was in operation till 22.12.2009, 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. Secondly, he submits that in earlier round of litigation, the acquisition proceedings were upheld except for the land which was released as per the recommendations of the Committee with the consent to the petitioner.

Once it is so, the proceedings stands concluded and in view of categoric observation of the Supreme Court as regards the stale and dead claims in para 359 of the judgment, lapsing of acquisition proceedings cannot be claimed by the petitioner under Section 24(2) of Act of 2013. (b)Further, the possession of the land except the land which was released, stands taken by recording panchnama which is valid mode of taking possession of the land and once such possession is taken the land vests in the state free from all encumbrances and there can be no divesting thereafter.

CWP No. 1878 of 2017 9 observations made by the Supreme Court such possession is by way of trespassing and not in the form of ownership. (c)As regards the compensation, he submits that tender of the compensation amount is sufficient to discharge the duty of the state to pay compensation. Actual payment or deposit in the Reference Court is not required. Since HSIIDC had deposited the award amount with DRO8cum8LAC Gurugram, the tender was duly made and the petitioner could have received the compensation, which even today it is at liberty to receive. Therefore, the compensation amount also stands "paid" as referred in Section 24(2) of Act of 2013. Thus, none of the contingencies as provided in Section 24(2) of Act of 2013 are fulfilled as the possession stands duly taken and compensation stands tendered.

13.

In order to adjudicate on the controversy before us, it is imperative to understand the scope and extent of applicability of Section 24(2) of Act of 2013 which was in dispute since long time and came to be settled by a Constitution Bench of the Supreme Court of India in the case of

! "thereby laying down principles for declaring the acquisition deemed to have been lapsed under Section 24(2) of Act of 2013. 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 being made to the concluding paragraph of the judgment which is reproduced herein below:8 '....

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The sum and substance of the interpretation of Section 24 (2) of the Act of 2013 by the Supreme Court of India is that to seek lapsing is that 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 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. 1878 of 2017 12 will be excluded while 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. 15.

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 instant writ petition is liable to be dismissed for more than one reason. 16.

The petitioners have invoked the provisions of Section 24 (2) of the Act of 2013 to claim lapsing of the land acquisition proceedings qua the land in question. The Supreme Court of India 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 w.e.f. 01.01.2014. It has been clarified that Section 24 contemplates pending proceedings and not the concluded ones. After making the detailed discussions and placing reliance on the previous judicial pronouncements, the Supreme Court of India in Para No. 359 has made it clear that Section 24(2) cannot be used to revive dead and stale claims and concluded cases as the same cannot be permitted to be canvassed on the pretext of enactment of Section 24. Para 359 and is extracted herein below:8

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It is admitted fact that the petitioner had earlier challenged the acquisition proceedings by filing Civil Writ Petition No. 19742 of 2005, wherein vide order dated 22.12.2009, the acquisition proceedings qua land in question was upheld except 6 Kanals of land which was released from acquisition proceedings subject to the conditions imposed by the committee which were duly accepted by the petitioner. Thereafter, the Review petition filed by the petitioner was dismissed vide order dated 19.02.2010. Thus, once acquisition proceedings were challenged and upheld, in view of aforesaid principle laid down by the Hon'ble Supreme Court, present petition seeking lapsing of acquisition proceedings under Section 24(2) of Act of 2013 is not maintainable being a stale and dead claim. 18.

Further, the petitioner cannot seek any relief in terms of the provision of Section 24(2) of Act of 2013 as the requisite period of five years is not completed as the dispossession of the petitioner from the land in question was stayed even prior to announcement of award which continued till 22.12.2009. It being so, the said period is required to be excluded while computing the window period of 5 years between the announcement of the award and coming into the effect of the Act of 2013 i.e. 01.01.2014 in terms of the principles laid down in Indore Development Authority (supra). In this regard, a reference is made to para 331 of the judgment, which is reproduced herein below:8

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In terms of the aforesaid, we have no hesitation to hold that after excluding such period when interim order was in operation, 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.

20.

Even in respect 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. It has been contended on behalf of the petitioner that it is in actual physical possession of the land in question, however, the said averment is not tenable in view of the interpretation of ' '

made by the Apex Court in Indore Development Authority (Supra) wherein the Supreme Court has categorically held that the word 'possession' used in the Act of 1894 has same meaning as that of physical possession used in Section 24 (2) of Act of 2013. When the State Government acquires the land and draws memorandum of taking possession that amounts to taking of the physical possession of the land and once the possession is taken, there is absolute vesting of the land in the State. Thereafter, even if the landowner

CWP No. 1878 of 2017 15 retains the possession of the land, he is a trespasser, and such possession of trespasser enures for his benefit and on behalf of the owner i.e. State. Since possession has been taken, land vests in the State free from all encumbrances. The factum of possession having been taken is proved from the fact that road stands constructed and even there has been arrangement of exchange between the petitioner and HSIIDC. Thus, the plea of the petitioners that they are in physical possession of the land is thus, hereby rejected. If at all possession has been retained by them, it is only as trespassers and not as owners. As a consequence, thereof one of the essentials for claiming lapsing of acquisition proceedings goes. 21.

As regards the status of compensation, the respondents have categorically pleaded in the reply that the amount of compensation for the entire acquired land was made available to all the landowners. In this regard, Mr. Mittal has asserted that in view of the exposition in Indore Development Authority (supra), the obligation of the State to pay the compensation is discharged if the amount of compensation is tendered which has been interpreted to mean that the amount was made available to the land owners as observed in Para 203 which is reproduced here in below:8

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The aforestated facts clearly reveals that the amount of compensation was duly tendered and thus, the State has discharged its obligation towards making the compensation for the land acquired and thus the plea being raised by the petitioner that they have not been paid the compensation amount is rejected. Since none of the contingencies provided in Section 24(2) of Act of 2013 are fulfilled, it cannot be held that the acquisition proceedings have lapsed under Section 24(2) of Act of 2013. It goes without mention that the land in question is necessary for the overall achievement of the public purpose for which it was acquired and thus, no inter reference can be made by the Court at the stage when the proceedings had attained finality long back.

23.

As a sequel of the above discussion and in view of law summarized in para 363 of Indore Development Authority (supra), specifically after having recorded that in the case at hand, the requisite period of five years remains unfulfilled, claim of the petitioner is dead and stake as acquisition proceedings stands upheld in earlier round of litigation, physical possession of the land in question having been taken, the obligation

CWP No. 1878 of 2017 17 for payment of compensation stands discharged and also considering that the land in question is very much essential to achieve the public purpose, we have no hesitation to hold that in the instant case, the state has fully discharged its obligation qua both the contingencies occurring in Section 24

(2) of 2013 Act and it being so, the instant petition is dismissed. Pending applications, if any, also meet the same fate. (RAVI SHANKER JHA) CHIEF JUSTICE (ARUN PALLI) 31 August, 2022 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No