Dharam Pal vs State Of Haryana & Ors
- SCC(2009) 2 SCC 397
- Neutral2008 INSC 1434
- AIRAIR 2009 SC 1580
- SCR[2008] 17 SCR 564
Ratio decidendi
The rule this decision rests on
Where a property owner has made a residential structure prior to the issuance of a Section 4(1) notification under the Land Acquisition Act, 1894, and is actually residing in that structure, the acquiring authority must reconsider the acquisition and consider exclusion of the land to the extent occupied by the structure and appropriate open area around it for the beneficial enjoyment of the owner, unless the structure is required to be removed for the purposes of road, hospital, or other civic amenities necessary for planned development. Where objection petitions raise the ground that similar structures made by persons similarly situated have been excluded from acquisition while the appellant's structure has not been excluded, the acquiring authority must reconsider the objections to determine whether exclusion is justified, after affording the appellant an opportunity of hearing. The Secretary of the acquiring authority must, when reconsidering objections for exclusion, determine the factual question of whether the structure existed prior to or subsequent to the Section 4(1) notification, and if prior, determine the extent of the structure that existed at that time, by reference to the evidence and documents produced by the parties rather than by being influenced by the observations made in orders dismissing the appellant's challenge.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Dharam Pal ...... Appellant
Versus
State of Haryana and Ors. ......Respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of
the Punjab and Haryana High Court dismissing the writ petition questioning legality of the Notification dated 24.8.2000 issued under Section 4 of the
Land Acquisition Act, 1894 (in short the `Act') as also the declaration under
Section 6 of the Act dated 22.8.2001. The only ground which was pressed
into service during arguments was that the construction made by the
appellant has been acquired whereas similar kind of constructions made
with regard to others similarly situated persons have been left out. The
High Court did not find any substance in the plea and dismissed it.
3. During the course of hearing, learned counsel for the appellant
placed strong reliance on the judgment of this Court in Jagdish Chand &
Anr. v. State of Haryana and Anr. (2005 (10) SCC 162). This Court in
Jagdish Chand's case (supra) relied on earlier judgment of this Court in
Sube Singh & Ors. v. State of Haryana and Ors. (2001 (7) SCC 545).
4. Though, no one appeared for the respondent-State and its
functionaries in spite of service of notice, a counter affidavit has been filed.
In Jagdish Chand's case (supra) it was observed as follows:
"6. This Court in a similar situation, though on a different ground, dealing with the structures of three different classes, found that there was no justification to exclude the structures of Class `A' only and not to exclude structures of Classes `B' and
2 `C'. In that background, and on the facts of those cases, gave the directions as contained in paragraph 12 of the aforementioned case1 which reads: (SCC p. 549)
"12. In the result, the appeals are allowed. The judgments under challenge are set aside, the orders passed by the State Government rejecting the representation of the appellants are quashed. The Secretary, Urban Estates Department, State of Haryana, Respondent 1 herein, is directed to consider the objection petitions filed by the appellants for exclusion of their properties from acquisition and pass appropriate order excluding such lands having structures on them excepting any land which is required for construction of a road or hospital. Respondent 1 shall give opportunity of hearing to the appellants before taking the decision. The exercise shall be completed expeditiously if possible within three months. There will, however, be no order as to costs."
5. In view of what has been stated in Jagdish Chand's case and Sube
Singh's case (supra), we set aside the impugned judgment of the High Court
and dispose of the appeal on the following terms:
(1) The Secretary, Urban Estates Department, State of Haryana is directed
to consider the objections of the appellant only so far as it relates to
exclusion of the land to the extent occupied by the structure and appropriate
open area around the structure for the beneficial enjoyment of the appellant.
3 However, this direction shall not come in the way of the authorities in
removing the structures, if required for the purposes of road, hospital and
other civic amenities.
(2) The Secretary, Urban Estates Department shall decide not only the
existence of the structures prior to Section 4(1) notification or subsequent
to, he shall also decide the extent of structure which existed prior to Section
4(1) notification.
(3) It is also open to the authorities to make adjustment or readjustment
of plots for the purpose of planned development and in case it becomes
necessary, to give a little additional area from the plots to the appellant. The
appellant shall be bound to take that additional area and also be bound to
pay the cost of such area as is chargeable to other allottees. The appellant
shall also be bound to pay the developmental charges as is charged from
other allottees. It is open to the parties to place documents or material in
support of their contentions.
6. We expect that as far as possible, the respondents shall try to retain
the structures, unless it becomes difficult for them to have a planned
development without removing them in view of what is stated above.
4
7. The above directions will be applicable only to such of the cases
where the residential structures are made prior to the issuance of Section 4
(1) notification and the appellant is actually residing there. However, in case
of any dispute as to whether the structures were made prior to Section 4(1)
notification or later, the Secretary, Urban Estates Department shall
determine that question after affording opportunities to both the parties,
uninfluenced by observations made in the impugned orders of the High
Court.
8. We make it clear that these directions are given on the peculiar facts
of these cases and are not intended for any general application.
9. The appeal is disposed of accordingly.
...........................................J. (Dr. ARIJIT PASAYAT)
............................................J. (Dr. MUKUNDAKAM SHARMA)
New Delhi, December 15, 2008
5
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