High Court of Punjab and HaryanaCWP/94/2018dismissed

Sant Pal And ORS v. State Of Haryana And ORS.

2022-02-03The Chief Justice,Mr. Justice Arun Palli21 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 94 of 2018 (O&M) Date of Decision: 03.02.2022 Sant Pal and others

...Petitioners

Versus

State of Haryana and others

...Respondents

Present:5 Mr. Adarsh Jain, Advocate, for the petitioners. Mr. Ankur Mittal, Addl. Advocate General, Haryana with Mr. Saurabh Mago, Assistant Advocate General Haryana, with Ms. Kushaldeep Kaur Manchanda, Advocate, for the respondents.

(The aforesaid presence is being recorded through video conferencing since the proceedings are being conducted in virtual Court). ***** The prayer of the petitioners as has been made in the writ petition is to quash the award dated 07.10.1991 made by the Land Acquisition Collector in pursuance to the notification dated 02.08.1989 and 01.08.1990 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894 and further to quash the award dated 08.02.1995 announced by the Land Acquisition Collector in pursuance to the notification dated 07.09.1992 and 17.09.1993 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894 on the ground that the acquisition proceedings qua land of the petitioners acquired vide aforesaid proceedings have lapsed in view of the provisions of Section 24 (2) of Act of 2013.

Before entering into the respective pleadings by the parties, it needs necessary mention that owing to the pendency of interpretation of the provisions of Section 24 (2) of the Act of 2013 before the Hon'ble Supreme Court of India, the petition including the present one wherein the writ jurisdiction of this Court under Article 226 of the Constitution of India was sought to be invoked, were kept pending; awaiting the outcome of the issue at hand by the Hon'ble Supreme Court of India. After seeing various interpretations, the controversy erupted was finally set at rest by a Constitution Bench of the Hon'ble Supreme Court of India in the case title as

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That the sum and substance of the interpretation of Section 24

(2) of the Act of 2013 by the Supreme Court of India is that the first and

foremost condition 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 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 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 Hon'ble 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.

(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.

Having perused the judgment passed by the Supreme Court of India in Indore Development Authority (supra) and the principles laid down, now we proceed to test the factual matrix of the case in hand pleaded before us on to the afore reproduced laid down principles by the Hon'ble Supreme Court of India.

Since learned Counsel for the State had pointed out discrepancies in the facts narrated in the writ petition and has taken objection that the petitioners have failed to challenge the actual notifications and award vide which their land was acquired by the State, it is first important to refer to the facts narrated in the writ petition by the petitioners. 6.

As per the case put forth by the petitioners, they are co5sharers and co5owners in possession of the land comprised in Khasra No. 50//15/2 (750), 42//16/2 (253), 24 (850), 25/1 (2517), 96//4/2 (257), 5 (850) and Khasra No. 95//1 (850), 2/1 (4516) situated in revenue estate of Village Mewla Maharajpur, Tehsil and District Faridabad. The land comprised in Khasra No. 50//15/2 was purchased by the petitioners from its previous owner namely Abdul Wahid Khan and the remaining land was previously owned by one Rumali who had executed will in favour of Chandri and after Chandri, the petitioners became owner in possession of the land. The petitioner no. 1 i.e. Sant Pal is stated to have raised construction of residential house before 1985 which continues to exist till date and similarly petitioner no. 2 & petitioner no. 3 have also stated to have raised construction of a separate residential house which are existing before 1985 and 1995 respectively.

As pleaded by the petitioners in para 10 of the writ petition, aforesaid land except the land comprised in Khasra No. 96//4/2 (257) was acquired by State of Haryana vide notifications dated 02.08.1989 and 01.08.1990 issued under Section 4 and Section 6 of the Act of 1894, followed by award dated 07.10.1991 for the public purpose namely for development and utilization of land as residential and commercial sector 45, Faridabad - Ballabgarh controlled area. As regards the land comprised in

Khasra No. 96//4/2 (257) it is stated in para 13 of the writ petition that it was acquired by the State of Haryana vide notification dated 07.09.1992 and 17.09.1993 issued under Section 4 and Section 6 of Land Acquisition Act, 1894, followed by award dated 08.02.1995. Despite having acquired the aforesaid land, it is the case of the petitioners that the possession of the land has not been taken by the State and though the compensation for the land in dispute has been received by the petitioners which they are ready to deposit back, however, neither any award has been announced for the super structure/houses standing on the acquired land nor any compensation for the same has been paid to the petitioners till date. Therefore, the petitioners while relying upon the judgment passed by the Hon'ble Supreme Court of India in the case of = >2

2 cited as 2014(3) SCC 183 have contended that the acquisition proceedings qua the land in question have lapsed in view of Section 24 (2) of the Act of 2013. On the same cause of action, the petitioners had earlier filed Civil Writ Petition No. 14222 of 2015 which was disposed of vide order dated 17.07.2015 with the directions to the respondent authorities to decide the representation of the petitioners by passing a speaking order, however, as per the petitioners that till date no speaking order has been passed in compliance of the order passed by this Court on 17.07.2015. Hence, the instant petition has been filed by them. 8.

Refuting the contentions raised by the petitioners, a short reply by way of affidavit on behalf of respondent nos. 1 & 2 was filed, on the strength of which Mr. Ankur Mittal, Ld. Additional Advocate General, Haryana has vehemently contended that the writ petition is full of incorrect statement of facts as the petitioners have failed to disclose the entire factual

background while presenting their case. He submits the land in question was in fact acquired vide three different set of acquisition proceedings whereas the petitioners have sought lapsing of only two sets of acquisitions. As per the record the land comprised in Khasra No. 50//15/2, 42//16/2, 42//24 and 42//25/1 was acquired vide notifications dated 02.08.1989 and 01.08.1990 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894 followed by award dated 07.10.1991 for the public purpose namely for development and utilization of land as residential and commercial area in Sector - 45, Faridabad and Ballabgarh Controlled Area. The possession of the said land was taken vide rapat No. 66 dated 07.10.

1991 and was handed over to the beneficiary department. It is specifically pleaded by the respondent5State that the land involved in the petitioner was vacant at the time of issuance of notification under Section 4 of Act of 1894 and further it has been submitted that as far as khasra No. 50//15/2 (750) is concerned, the petitioners were not recorded as owners for the said land and infact same was purchased by petitioners after the issuance of notification under Section 4 of the Act of 1894 on 02.08.1989. Therefore, as regards the land comprised in Khasra No. 50//15/2 (750), the petitioners are subsequent purchasers and thus, have no right to question the validity of the acquisition proceedings on any ground what so ever in view of the judgment passed by the Hon'ble Supreme Court of India in the case of ?

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He further submits that the land comprised in Khasra No. 96//4/2 (257) and 5 (850) situated in revenue estate of Village Mewla Maharajpur Tehsil and District Faridabad was acquired vide notification dated 07.09.1992 and 07.09.1993 issued under Section 4 and Section 6 of

the Land Acquisition Act, 1894 respectively, followed by award dated 08.02.1995 for the public purpose namely development and utilization of land as residential and commercial Sector 44547 Faridabad. The possession of the said land was taken by recording rapat No. 237 dated 08.02.1995 and at the time of acquisition, the land in question was vacant. 10.

He submits that as far as the land comprised in Khasra No. 95//1 (850) and 95//2/1 (4516) situated at Mewla Maharajpur, Tehsil and District Faridabad is concerned, the said land was acquired vide notification dated 22.08.1988 and 07.07.1989 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894 respectively; followed by award dated 30.03.1990 for the public purpose namely for development and utilization of land as residential and commercial Sector 46, Part 2, Faridabad. However, it is suffice to mention that the petitioners have not challenged the aforesaid notifications and the award rather has claimed the lapsing of acquisition proceedings with respect to the aforesaid land wherein the aforesaid land does not forms part of such notification.

Irrespective of the said fact, he submits that even the possession of the said land has been taken by the State by recording rapat No. 448 dated 30.03.1990 and the said land was also vacant at the time of issuance of notification under Section 4.

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50//15/2 (750), Section 4 5 02.08.1989 Section 65 01.08.1990 Award - 07.10.1991 Section 4 5 02.08.1989 Section 65 01.08.1990 Award - 07.10.1991 Khasra No.

42//16/2 (253), 24 (850), 25/1 (2517), Section 4 5 02.08.1989 Section 65 01.08.1990 Award - 07.10.1991 Section 4 5 02.08.1989 Section 65 01.08.1990 Award - 07.10.1991 Khasra no.

96//4/2 (257) Section 4 5 07.09.1992 Section 6 5 17.09.1993 Section 4 5 07.09.1992 Section 6 5 17.09.1993

Award 5 08.02.1995 Award 5 08.02.1995 Khasra No.

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95//1 (850), 2/1 (4516) Section 4 5 22.08.1988 Section 6 5 07.07.1989 Award 5 30.03.1990 Section 4 5 02.08.1989 Section 65 01.08.1990 Award - 07.10.1991 11.

We highly deprecate the way pleadings in the instant case have been made in the writ petition. Despite the notifications being self5speaking and indicating the details of the land being acquired, wrong notifications are being challenged and the entire development process is being held up for years altogether. Such a practice reflects how the diligence required while drafting the petitions is diminishing and the constitutional courts are being treated nothing more than a post office. In view of the aforesaid, there is no point and in fact scope in the petition to entertain the challenge to the acquisition proceedings which has not been specifically impugned in the petition as mere mentioning of the details of the land, without there being supporting notifications is not sufficient to even entertain much less to grant any relief. This is de hors the fact that even if such notifications would have been impugned, in view of the facts as noticed below and the settled law in this regards, petitioners are not entitled to any relief. 12.

As regards the status of compensation, he submits that admittedly the compensation for the land in question i.e., entire land claimed in the petition, stands received by the petitioners as mentioned in Para No. 17 of the writ petition which shows that the compensation amount was not only duly tendered by the State but was also duly received by the petitioners and now after the conclusion of the acquisition proceedings in all aspects i.e. in terms of taking of possession as well as payment of compensation, the present petition seeking lapsing of the acquisition

proceedings is not maintainable at all. By placing reliance on Indore Development Authority (supra) he submits that the case in hand is squarely covered by the said decision and as such the present petition merits dismissal.

13.

As regards the non5announcement of award for the superstructures, he has contended that same would have no bearing on the acquisition proceedings and it cannot be pleaded as a ground for declaring the acquisition proceedings to have been lapsed as the appropriate remedy for the same is to file reference under section 18 of the Act of 1894 and for substantiating the same he has placed reliance on the judgment passed by the Hon'ble Supreme Court of India in the case of

and various other judgments passed by the various High Courts wherein the dictum laid down in the case of Mohanji (Supra) has been followed.

14.

Having heard the respective arguments, going through the respective pleadings and above all the exposition of Indore Development Authority (supra), we are of the considered opinion that the instant petition is liable to be dismissed for more than one reason. .

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The petitioners in the instant petition have claimed to be in the physical possession of the land in question. Positive case set up by the petitioners is that even though the award was announced way back but yet the physical possession of the land has not been taken from them. In this regard, the respondents have filed the reply submitting therein that after the announcement of the award, possession of land comprised in Khasra No. 50//15/2, 42//16/2, 42//24 and 42//25/1 was taken vide rapat No. 66 dated

07.10.1991; possession of Khasra no. Khasra No. 96//4/2 (257) and 5 (850) was taken vide rapat No. 237 dated 08.02.1995 and possession of Khasra no. Khasra No. 95//1 (850) and 95//2/1 (4516) was taken vide rapat No. 448 dated 30.03.1990. The Hon'ble Supreme Court of India in Indore Development Authority (Supra) has categorically held that the recording of panchnama is the valid mode of taking possession of the land and amounts to taking of physical possession of the land. Once the possession of the land is taken, it vests in the State free from all encumbrances and any person who retains the possession of the land thereafter is a trespasser. The reference in this regard is made to the following paragraphs from the judgment:5

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The respondents have categorically pleaded in the reply that the amount of compensation for the entire awarded land was made available to all the landowners. Further admittedly the compensation amounts have been received by the petitioners. As observed by the Supreme Court of India in Indore Development Authority (Supra) that there is no provision for depositing back the amount of compensation and thus, the contention of the petitioners that they are ready to deposit back the same would not change the fact that the land stands vested in the State free from all encumbrances and the petitioners have accepted the fate of the acquisition proceedings. &+ '% +! &%$&*+&!$+

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The Supreme Court of India in Indore Development Authority (supra) has 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. The Hon'ble Supreme Court of India has observed that word "or" occurring in Section 24

(2) of the Act of 2013 must be read as "and/nor". Relevant paras from the judgment are reproduced here in below:5 3 8+ 9 */ )

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In the case in hand as reflected from the reply filed, it is evident that after the award the physical possession was taken by recording the Rapat and as far as the compensation part is concerned, it stands duly admitted in the petition that the amount has been received. In view thereof, both the contingencies as provided in Section 24 (2) of the Act of 2013 are not fulfilled.

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In this regard, it is required to be noticed that the aforesaid judgment was over5ruled by the Hon'ble Supreme Court of India in Indore Development Authority (supra) in Para No. 362 which is extracted here in below:5 /("

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20.

As far as the reliance being placed on the other judgments passed by the Hon'ble Supreme Court of India are concerned, we have gone through those judgments as well. Since all the judgments being relied have been passed prior to the exposition in Indore Development Authority (supra), same are of no help to the petitioners as their case is squarely covered by Indore Development Authority (supra) against them. V.

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Mr. Ankur Mittal on the strength of the facts recorded in the reply submits that the land in question as acquired for the public purpose namely, Residential and Commercial sector and has been planned as per the development plan of the sector duly approved by the competent authority. The land is therefore, necessary for achieving the public purpose. We have considered this part of arguments raised by the respondents and are in complete agreement with the same as it is an essential factor to be kept in mind while dealing with the case arisen out of the acquisition of the land. /+ + ,$&*& &> && #&!+(+&% ' ,' #)+ %#!%#+ 22.

As regards the plea of the petitioner with respect to non5 announcement of award for superstructures is concerned, the issue is no more res integra that it cannot be a ground to claim lapsing of the acquisition proceedings and at best it would be case of non5assessment of proper compensation for which the appropriate remedy is filing application for reference under section 18 of the Act of 1894. Mr. Mittal in this regard has drawn our attention towards various cases, of which the leading one is the judgment passed by the Hon'ble Supreme Court of India in the case of

$ #= !!8%-& E. 8!!, wherein while adjudicating upon the issue as to whether announcement of award of superstructure after 2 years from the date of issuance of declaration under section 6 of Act of 1894 would result in lapsing of acquisition proceedings or not, the Hon'ble Court held as under:

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The court proceeded to hold as above on the threshold that the definition of land includes anything fastened to it and if the award of land is announced under section 11 of Act of 1894 it will automatically include the assessment of all those things which are fastened to the land and if some components are not taken into consideration, there lies no supplementary award for the same, however, filing of reference under section 18 of Act of 1894 is the appropriate remedy.

25.

This aspect was also considered by the Full Bench of this Court in @="9 8$!! 6G

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26.

Recently, the Delhi High Court in = D #$ ;

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!. However, said contention was repelled as the Hon'ble Supreme Court of India disposed of the said petition without dealing with

the reference. Thus, as on date the Mohanji's (supra) is law governing the filed. The relevant paragraphs are reproduced herein below:5 -89 & ) + +"

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Therefore, in view of the settled proposition of law the arguments being raised by the petitioners with respect to the announcement of award for superstructures are untenable.

28.

As a conspectus of what all has been discussed here in above especially the fact that after the announcement of the award, the possession was taken by recording rapat Roznamcha and the obligation to pay the compensation stands discharged and also that the land in question is very much essential to achieve the public purpose, for which it is acquired; we are of the considered opinion that no ground is made out in the petition to interfere in the acquisition proceedings much less holding that the acquisition proceedings are deemed to have lapsed and thus, the claim made by the petitioners is rejected and the petition filed is hereby dismissed. Since the main petition has been dismissed, all the pending applications, if any, stand disposed of. Status quo order, if any, is hereby vacated. Dismissed accordingly.

(RAVI SHANKER JHA) CHIEF JUSTICE (ARUN PALLI) 03.02.2022 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No