Krishan Chander vs The State Of Haryana

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7317 OF 2019 (Arising out of SLP (Civil) No.3213 of 2016)

Krishan Chander & Anr. .…Appellant(s)

Versus

State of Haryana & Ors. …. Respondent(s)

JUDGMENT

A.S. Bopanna,J.

Leave granted.

2. The appellants are before this Court assailing the

order dated 21.10.2015 passed by the High Court for the

States of Punjab and Haryana in CWP No.22656/2015.

The said writ Petition was disposed of along with the writ

petition bearing CWP.No.22652 and 22653 of 2015 Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2019.09.17 through a common order. Through the said order the 17:06:35 IST Reason:

case sought to be made out by the appellants seeking

Page 1 of 15 release of the land from the process of acquisition is not

considered favourably. The writ petitions are accordingly

dismissed by the High Court.

3. The brief facts are that the lands bearing Khasra

No.19/2, 9 measuring 16 kanal situated in Village Para,

District Rohtak, to which the appellants’ claim that their

father was the owner, among other lands of several other

land owners was acquired for development of Sector 36,

Rohtak by issuing the Notification dated 15.12.2006

issued under Section 4 of the Land Acquisition Act, 1894

(‘L.A. Act’ for short). The final declaration under Section

6 was issued on 14.12.2007. The appellants contend

that the land has not been utilised for the purpose for

which it was acquired and in respect of several other

lands acquired for the same purpose, it has been deleted

from the process of acquisition and as such the lands

belonging to the appellants also be deleted. In that

regard the appellants, at the first instance, had

approached the High Court through CWP.No.5836 of

2014. The said writ petition was disposed of through the

Page 2 of 15 order dated 27.03.2014 whereby the High Court on

taking note of the contentions had issued direction to the

respondents to verify the claim of the appellants and on

objective consideration of the whole matter if the

authorities are of the view that there is no likelihood of

utilisation of the appellants’ land for any public purpose,

consider the desirability of releasing the same subject to

the condition that the compensation if any received be

refunded. Pursuant thereto the representation dated

20.02.2014 which had already been made by the

appellants was taken note and an order dated

10.11.2014 was passed by the Secretary­cum­Director

General, Urban Estates Department Haryana, rejected

the claim of the appellants. Against such rejection, the

appellants were before the High Court in the present

round of litigation assailing the order dated 10.11.2014

which has led to the instant appeal. The respondents

through the counter affidavit filed herein on behalf of the

respondent No.2 have opposed the instant appeal.

Page 3 of 15

4. Heard Shri J.B. Mudgil, learned counsel for the

appellants, Shri B.K. Satija learned counsel for the

respondents and perused the appeal papers.

5. As noticed the claim put forth on behalf of the

appellants is that the land bearing Khewat No.599/553

Khatoni No.671, Killa No.19/2 (8­0) and 9(8­0) total

measuring 16­0 situated within the Revenue Estate of

Mouza Para, Hadbast No.67, Tehsil and District Rohtak

though sought to be acquired under the Notification

dated 15.12.2006 and 14.12.2007 for forming the Sector

36 layout, the said land has not been utilised. In that

regard seeking release of unutilised and unused land the

appellants had made the representation dated

20.02.2014. Since the request made through the

representation is rejected through the order dated

10.11.2014 the writ petition bearing C.W.P.

No.22656/2015 was filed which is dismissed. A perusal

of the order dated 21.10.2015 passed by the High Court

would disclose that the High Court, having taken note

that the impugned order discloses that while considering

Page 4 of 15 the representation the State Government has found that

the land was vacant at the time of publication of

Notification under Section 4 of the Act and it is still lying

vacant, the release in view of the Policy dated

26.10.2007, modified on 24.01.2011 is not tenable since

the said policy pertains to release of land over which the

residential buildings have been constructed. Taking

note of the same the High Court has dismissed the

petition without any further consideration.

6. At the outset, it is necessary to take note that the

writ petition was dismissed at the threshold without

directing notice to the respondents and considering the

grievance of the appellants in the backdrop of the

contention urged. In a normal circumstance we do not

find that there would be any impediment to dispose of at

the threshold. However, in the present facts we notice

that the order dated 10.11.2014 which was impugned

before the High Court was an order which was passed

pursuant to the direction issued in earlier order dated

27.03.2014 passed by the High Court in CWP

Page 5 of 15 No.5836/2014. In the said writ petition the High Court

had taken note of the grievance that had been put forth

by the appellants that the respondents had acquired the

land much more than what was needed for the notified

public purpose and after utilisation of such land for the

said public purpose, a substantial part of the acquired

land is lying unutilised. It was also taken note that the

appellants had averred that they are still in possession of

the land as is evident from the entries in the Revenue

record and the photographs. Having taken note of the

case put forth, the Court had also observed that the High

Court has already taken a view in another matter that

the acquisition of land in excess to what is needed for a

bonafide public purpose is also detrimental to public

interest as it would be an unwarranted burden on the

State Exchequer. Having observed so, the High Court

had indicated that the question as to whether or not the

appellant’s unutilised land is still needed for a bonafide

public purpose has to be essentially determined by the

authorities only. It is in that light a direction had been

issued for consideration of the representation.

Page 6 of 15

7. In that background a perusal of the order dated

10.11.2014 impugned in the present writ petition bearing

CWP.No.22656/2015 would disclose that the competent

authority has noted that as per the fresh site survey, the

land of the appellants is lying vacant. It is further

observed that as per the layout plan of Sector 36 which is

approved, the appellants’ land has been planned for

institutional plot, green belt and parking area. In that

circumstance, it is stated that the C.A., HUDA has

recommended not to release any land in favour of the

appellants. In that circumstance when presently the said

order had been assailed in the writ petition challenging

its correctness, that too when such order had been

passed pursuant to the direction issued earlier by the

High Court, a deeper examination was required by the

High Court after calling for objections from the

respondents.

8. It is no doubt true that presently in the instant

appeal before this Court the respondents have filed their

objection statement and have sought to contend that the

Page 7 of 15 land is required for the purpose of the layout; that the

land in question being vacant land and since the

appellants had not filed the objections under Section 5­A

of the L.A. Act the consideration for deletion under the

Policy does not arise. Relying on objection statement the

learned counsel for the respondents has vehemently

contended that the possession of the land has been taken

under ‘Rapat Roznamcha’ on 09.12.2009. Reference to

the same is made indicating that out of the 88.24 acres of

which possession was taken the land bearing No.19/2 of

the appellants also forms a part. To contend that the

possession being taken by drawing a Panchnama is the

approved mode of taking possession, the learned counsel

has relied upon on the decisions in the case of Sita Ram

Bhandar Society, New Delhi vs. Lieutenant Governor,

Government of NCT, Delhi & Ors. (2009) 10 SCC 501;

in the case of M. Venkatesh vs. Commissioner,

Bangalore Development Authority (2015) 17 SCC 1

and in the case of Indore Development Authority vs.

Shailendra (2018) 3 SCC 412.

Page 8 of 15

9. The learned counsel for the respondents has

further relied on the decision in the case of V. Chandra

Sekaran and Anr. vs. Administrative Officer & Ors.

2012 (12) SCC 133 to contend that the land once

acquired cannot be restored even if not used. At this

stage itself it is necessary to be noticed that the said

decision was in the circumstance where a subsequent

purchaser had approached the Court and further in the

instant case a policy is adopted by the respondents for

release of land and appellant is seeking consideration on

parity which is a matter for consideration one way or the

other.

10. The learned counsel for the appellants, on the

other hand, contended that the Panchnama drawn for

taking possession was not at the spot and in that regard

has relied on the decision in the case of Banda

Development Authority, Banda vs. Moti Lal Agarwal

and Ors. 2011 (5) SCC 394. In that background though

the fact of taking possession would become relevant in a

circumstance to de­notify the land in terms of Section 48 Page 9 of 15 of the L.A. Act, the other aspects of the matter would

also arise herein, in view of the nature of consideration

made by the High Court in the earlier round and in that

background the correctness of the impugned order

passed by the competent authority dated 10.11.2014 was

to be noted in the present round of litigation. In so far as

the contention urged by the learned counsel for the

respondents that the appellants had entered into a

collaboration agreement with M/s Sharad Farm and

Holdings (P) Ltd. on 23.04.2007 after issuance of

Notification under Section 4 of the L.A. Act and has

received a sum of Rs.28,20,000/­ from them, the same

would have arisen for consideration and denial of relief at

the threshold only if the said M/s Sharad Farm and

Holding (P) Ltd based on such collaboration agreement

had approached the Court seeking for deletion of the

land. In the instant proceedings the appellants being the

owners of the notified land are seeking deletion and the

validity of such agreement would be an inter­se issue. Page 10 of 15

11. Though the respondents have further contended

that the Policy for deletion provide for consideration only

if objections under Section 5­A is filed and it is contended

that no such objection was filed by the appellants, the

representation dated 20.02.2014 (Annexure P.1) filed by

the appellants indicates that the appellants have stated

therein that the applicants have filed objections under

Section 5­A of the L.A. Act to the proposed acquisition.

Though at this stage we are not in a position to determine

the correctness of the contrary rival contentions that is

also one of the aspects which required consideration by

the High Court to come to a conclusion as to whether the

benefit of the policy is available. Further the Notification

for acquisition was issued far back as on 15.12.2006.

The consideration pursuant to the earlier order dated

27.03.2014 passed in CWP No. 5836/2014 was made by

the competent authority on 10.11.2014. Even as on that

day, admittedly the lands belonging to the appellants is

kept vacant though the competent authority states that

in the layout plan of Sector 36 the lands of the appellants

is kept for institutional plot, green belt and parking area.

Page 11 of 15 The appellants on the other hand by relying on the layout

plan of sector 36 produced before this Court seek to

contend that the lands surrounding the lands of the

appellants has been released.

12. In the backdrop of such contentions and keeping

in view that the writ petition filed before the High Court

was in a certiorari proceeding, it was necessary for the

High Court to secure the records and consider as to

whether the possession had been validly taken and

handed over to HUDA as claimed. Further whether in the

layout plan as referred in the order dated 11.10.2014

impugned in the writ petition, the very item of land

belonging to the appellants was reserved for the

institutional plot, green belt and parking areas as

claimed and as to whether the surrounding area had

been developed by HUDA by forming the residential plots

was also to be considered, though not in the nature of an

appeal, but to satisfy itself on perusal of relevant records.

The further contention on behalf of the appellants is that

in respect of the very same layout this Court in the case

Page 12 of 15 of Patasi Devi Vs. State of Haryana & Ors. (2012) 9

SCC 503 has directed that the land involved therein be

released. It is no doubt seen that in the said case the

appellant who was the owner of the land which was

acquired had constructed a house and in that light there

being no document to indicate that the possession was

taken over by putting a lock, it was held that the

possession was not taken. Though that be the position it

is also indicated that the case of the appellant therein

was required to be considered in the same manner as

was done in the case of M/s Sharad Farm and Holdings

(P) Ltd. Apart from the said decision which relates to the

very same layout, the learned counsel for the appellants

has also relied on the decision in the case of Hari Ram

& Anr. vs. State of Haryana & Ors. (2010) 3 SCC 621

wherein with reference to the Policy dated 26.10.2007 it

is indicated that the similar land owners should receive a

similar consideration when representation is made for

deletion.

Page 13 of 15

13. Having taken note of all the above aspects, the fact

of the possession actually having been taken would

require determination at the outset based on examination

of records. Secondly the aspects as pointed out relating

to the deletion of similar lands and as to whether the

land acquired from the appellants is lying vacant and if

so whether the appellant is similarly placed as that of the

other land owners whose case was considered under the

Policy for deletion are aspects which are to be examined

by the High Court by notifying the respondents and

permitting them to file their objection statement and also

after securing the records and verifying the same. Since

such exercise was not undertaken by the High Court,

though was required in the present facts and

circumstances it would be appropriate to set aside the

order and restore the writ petition to the file of the High

Court for consideration in accordance with law. Any of

the observations contained herein are limited to the

disposal of this appeal and the High Court shall dispose

of the writ petition by a considered order on its own

merits. All contentions in that regard are left open.

Page 14 of 15

14. Accordingly, the order dated 21.10.2015 passed in

CWP No. 22656/2015 is set aside and the petition

bearing CWP No. 22656/2015 is restored on board of the

High Court for the States of Punjab & Haryana at

Chandigarh for consideration afresh after affording

sufficient opportunity to both parties and disposal in

accordance with law.

15. The appeal is allowed in part with no order as to

cost. All pending applications shall stand disposed of.

……………………….J. (R. BANUMATHI)

……………………….J. (A.S. BOPANNA) New Delhi, September 17, 2019

Page 15 of 15