High Court of Punjab and HaryanaCWP/2088/2018dismissed

Om Singh & ORS v. State Of Haryana & Others

2022-08-31The Chief Justice,Mr. Justice Arun Palli12 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 2088 of 2018 (O&M) Reserved on : 29.03.2022 Date of Decision: 31 August, 2022 Om Singh and others .... Petitioners

Versus

State of Haryana and others

...Respondents

Present:7 Ms. M.L Sharma, 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.

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The petitioners have filed the instant writ petition seeking issuance of writ in the nature of Certiorari for quashing the notification dated 17.09.2004 and 27.10.2004 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894 and award dated 09.03.2006 in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and have also impugned the order dated 19.12.2016 vide which the claim of the petitioners under Section 24(2) of the Act of 2013 has been rejected by the respondents. 2.

The controversy which cropped up around interpretation of Section 24(2) of Act of 2013 was put at rest by a Constitution Bench of the

Supreme Court of India in case

wherein principles for declaring the acquisition as deemed to have 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 being made to the concluding paragraphs of the judgment, which are reproduced herein below:7 '....

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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 conditions are 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.

The Supreme Court of India 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 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. 4.

As per the case put forth by the petitioners, they are owners in possession of the land bearing Khasra No. 188 (2716), 2451/190 (178), 2454/211 (3711) i.e. 1 Bigha 0.8 Biswa and Khasra no. 217 (179) and 2462/219 (0718) to the extent of their share i.e. 2/15th share situated within the revenue estate of Village Shikohpur, Tehsil and District Gurugram. The said land was acquired by the State of Haryana through Industries Department vide notifications dated 17.09.2004 and 27.10.2004 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894, respectively, followed by Award dated 09.03.2006 for the public purpose namely for setting up of Chaudhary Devi Lal, Industrial Model Township, Phase7V,

Manesar, to be planned and developed as an integrated complex for Industrial, Institutional, Commercial, Recreational and other public utilities on land measuring 956 Acres 5 Kanal 18 Marla of villages Nabada Fatehpur, Naurangpur, Manesar, Lakhnoula, Naharpur Kasan and Shikohpur, Tehsil and District Gurugram. The petitioners have contended that till date they are in physical possession of the land in question and neither the petitioners have received the amount of compensation nor it has been deposited in accordance with law before the Reference Court. Thus, they have prayed for declaring the acquisition proceedings to have been lapsed under Section 24(2) of Act of 2013.

They had earlier approached this Court by filing a Civil Writ Petition No. 17485 of 2014 seeking similar relief from this Court and same was disposed of vide order dated 07.05.2015 with directions to the respondents to decide the representation of the petitioners by passing a speaking order. Thereafter, in compliance of the said order the representation given by the petitioners was considered and decided vide order dated 19.12.2016 and the claim of the petitioners was rejected by observing that possession of the land in question was taken by recording Rapat Roznamcha No. 548 dated 20.03.2006 and Mutation No. 3449 dated 27.06.2013 had also been sanctioned. As regards compensation, it was observed that the majority of compensation had been disbursed and the petitioners had intentionally nor lifted the amount. Thus, in view of the aforesaid facts, the claim of the petitioners was rejected. 6.

The petitioners have challenged the aforesaid order on the ground that finding as regards the possession of the land is wrong and further, since compensation has not been received by the petitioners, the

acquisition proceedings qua the land in question stand lapsed under Section 24(2) of Act of 2013.

Pursuant to issuance of notice of motion, the respondents filed a detailed written statement and thereafter an affidavit in light of the judgment passed by the Supreme Court in Indore Development Authority (supra) to controvert the pleas raised by the petitioners. Mr. Ankur Mittal, learned Additional Advocate General, Haryana has pleaded that out of the total land claimed in the petition, the land comprised in Khasra no. 217 (179) and 2462/219 (0718) of Village Shikohpur was not forming part of the notification dated 17.09.2004 issued under Section 4 of Act of 1894, thus the relief being sought as regards these parcels of land is completely baseless. As regards the rest of the parcels, he submits that the possession of the land was taken by recording Rapat No. 548 dated 20.03.2006 and Mutation no. 3449 dated 27.06.

2013 was sanctioned in favour of HSIIDC. As regards the compensation, he has submitted that the entire amount of compensation was tendered at the time of announcement of award and more than 80% of the total compensation has been disbursed. The undisbursed amount was deposited in the Court vide cheque dated 26.08.2015. This shows that the amount of compensation was duly tendered and the obligation of the State to pay the compensation stands discharged. In view thereof, none of the contingencies provided in Section 24(2) of Act of 2013 are fulfilled and no declaration as to lapsing of acquisition proceedings can be made. Since speaking order dated 19.12.2016 was passed after observing the aforesaid facts, he has contended that the same does not suffer from any illegality.

He further submits that the petitioners had earlier challenged the acquisition proceedings by filing Civil Writ Petition No. 24380 of 2013 seeking release of the land in question comprised in Khasra no 188 (2716), 2451/190 (178), 2454/211 (3711), 217 (179) and 2462/219 (0718) in village Shikohpur, Tehsil and District Gurugram. The said writ petition was disposed of vide order dated 08.11.2013 with direction to authorities to consider and decide their claim in light of the observations made in order dated 15.07.2013 passed in CWP no. 20932 of 2012.

Suffice to mention, the petitioners had challenged the acquisition proceedings on merits and had sought release of their land on the ground that the landowners were induced to sell the land, leading it to be released in favour of the private builders and the roads re7aligned to extend benefit to them. After considering all the contentions, the claim was rejected vide a detailed speaking order dated 09.04.2014 after granting opportunity of hearing to the petitioners. This order was never challenged by the petitioners, meaning thereby that the acquisition proceedings qua the land in question stand upheld and the instant petition is not at all maintainable in view of the law laid down in Indore Development Authority (supra).

Apart from making the aforenoted submissions, Mr. Mittal has further contended that the land in question was acquired for the public purpose, namely, setting up of Chaudhary Devi Lal, Industrial Model Township, Phase7V, Manesar and as per the approved layout plan, the land in question is very much essential to complete the development work as per the planning. So much so it affects the planning of 75 meter wide road and site reserved for school as well as community centre.

10.

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:7 a) 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 Section 24 (2) is available to only those land owners, in respect of whom 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 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.

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The earlier petition filed by the petitioners challenging the acquisition proceedings bearing Civil Writ Petition No. 24380 of 2013 was disposed of with directions to the respondents to decide their claim and the same was rejected by passing a speaking order dated 09.04.2014 which attained finality. The acquisition proceedings stand duly validated and thus, in view of above, the plea of lapsing of the acquisition under Section 24 (2) of the Act of 2013 is not available to the petitioners. a)Though the petitioners have contended that they are 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 Hon'ble 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 which in the present case is by recording Rapat Roznamcha no. 548 dated 20.03.2006 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 retains the possession of the land, he is a trespasser, and such possession of trespasser enures for the benefit and on behalf of the owner i.e. State. Since possession has been taken by recording Rapat Roznamcha no. 548 dated 20.03.2006, therefore, physical possession on the land is of the State. 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.

b) 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 which is substantiated from the fact that the majority of compensation amount stands disbursed to 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:7 # !

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8 0 The afore7stated facts clearly reveal that the amount of compensation was duly tendered so much so the majority of the compensation amount stands disbursed 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.

c)Since none of the contingencies provided in Section 24 (2) of Act of 2013 are fulfilled as the possession of the land stands duly taken by recording rapat no. 548 dated 20.03.2006 pursuant to which the mutation also stands sanctioned and further the amount of compensation has lapsed under Section 24(2) of Act of 2013.

d)Also, there is no point to interfere in the acquisition proceedings when the land in question is essential for development of infrastructure as it is affecting the development

of road and thus, cannot be released from the acquisition proceedings at any cost.

11.

As a sequel of the above discussion and in view of the law summarized in para 363 of Indore Development Authority (supra), specifically after having recorded that in the case at hand, the physical possession of the land in question having been taken, the obligation 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. 12.

Having dismissed the main writ petition, all pending applications, if any, also meet the same fate. The speaking order is accordingly affirmed. Status quo, if any, stands vacated. (RAVI SHANKER JHA) CHIEF JUSTICE (ARUN PALLI) 31 August, 2022 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No