M/s Mann Cold Storage & Ors. v. M/s Mann Cold Storage & Ors.

CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.M.L.Sareen, Senior Advocate with Mr.Hemant Sareen, Advocate for the petitioners In CWP Nos.4542 of 1990, 6339 of 1990, 16363 of 1990 and 16638 of 1990 Mr.Arun Palli, Senior Advocate with Mr.Sunil Garg, Advocate for the petitioners In CWP No.10929 of 1990 Mr.Ram Chander, Advocate for the petitioners In CWP No.12024 of 1990 Mr.Ashish Aggarwal and Mr.Vijay Singh Kajla, Advocates for the petitioners in CWP No.13381 of 2004 Mr.Gaurav Mohunta and Ms.Sonia Jain, Advocates for respondent No.3 in CWP No.13381 of 2004 Mr.Kamal Sehgal, Addl.A.G. Haryana Civil Writ Petition No.4542 of 1990 3 Jasbir Singh, J. This judgment will dispose of under mentioned seven writ petitions. In CWP Nos.4542 of 1990, 16363 of 1990, 16638 of 1990, 12024 of 1990 and 13381 of 2004, challenge has been laid to notification dated 8.2.1989 (P7) issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act), proposing to acquire land measuring 369.94 acres situated in village Karnal. Further challenge has been made to declaration issued under Section 6 of the Act dated 7.2.1990 (P9) notifying acquisition of land measuring 334.97 acres. In CWP Nos.6339 of 1990 and 10929 of 1990, notification dated 12.4.1990 issued under Section 4 of the Act, proposing to acquire an area measuring 7.47 acres in village Karnal is under challenge. It is necessary to mention here that CWP Nos.4542 of 1990 and 6339 of 1990 have been filed by the same land owner. To dispose of the above said writ petitions, facts are being mentioned from CWP Nos.4542 of 1990 and 6339 of 1990. In all these writ petitions, it is case of the petitioners that they are carrying on business of cold storage at Karnal in which main shareholder was Mr.Surjit Singh Mann, who had been elected as Member of Legislature Assembly (MLA) State of Haryana in 1968 and for two subsequent terms thereafter. He also remained a Cabinet Minister in the State of Haryana when Mr.Banarsi Dass Gupta was the Chief Minister of the State. Mr.Mann died in the year 1980. It is further stated that earlier another cold storage owned by the petitioners along with land underneath was acquired in the year 1975. With that compensation amount, the Civil Writ Petition No.4542 of 1990 4 petitioners purchased seven acres of land, which now is in dispute in the above said two writ petitions. The petitioners also set up a cold storage in the land so purchased. On 25.2.1983, respondent No.1 issued a notification under section 4 of the Act seeking to acquire a vast track of land including land of the petitioners. Thereafter declaration under section 6 of the Act was issued on 20.2.1986. It is case of the petitioners that when they came to know about the notifications mentioned above, they moved an application for release of their land from acquisition. Their request was accepted vide letter dated 29.8.1986 (P3). It is apparent from the records that qua the released land, the petitioners also entered into an agreement with the respondents on

14.10.1986 (P5). It is further case of the petitioners that they received a letter on 27.4.1987, communicating final decision of the government to release their land, however due to some inadvertence, area of released land was shown as 3.06 acres instead of 7 acres of land, for release of which, application was moved. The petitioners have further stated that after release of the land they have spent huge amount and had made construction and improvements which were necessary to run a cold storage. It is coming out from the records that in fact, after entering into an agreement with the petitioners, the State allowed the notifications issued under sections 4 and 6 of the Act in the years 1983 and 1986 respectively, to lapse. Subsequent thereto, fresh notification under section 4 of the Act was issued on 8.2.1989 (P7), proposing to acquire 369.94 acres of land in village Karnal. It is case of the petitioners that they sent their objections under Section 5-A of the Act on 2.3.1986, through registered post, to respondent No.3. To show the above said fact, receipt No.691 issued by the postal authorities was shown to us at the time of arguments. It is further case of Civil Writ Petition No.4542 of 1990 5 the petitioners that objections were also handed over to respondent No.3 personally. It is case of the petitioners that without giving an opportunity of hearing and without deciding their objections, declaration under section 6 of the Act was issued on 7.2.1990, notifying acquisition of 331.97 acres of land. It is positive case of the petitioners that vide declaration mentioned above, entire land of the petitioners was acquired except for Khasra Nos.8306, 8307 and 8273, which comprised mainly the constructed area of the Cold Store. It is stated by the petitioners that their land was acquired only because the then government wanted to harm the family of Mr.Surjit Singh Mann, who had been a minister in the Congress Government. Upon notice, reply has been filed by the respondents in which it was stated that for most of the land acquired, compensation amount was paid on 19.12.1990 when award was pronounced by the Collector. Thereafter the competent Court enhanced the compensation, that amount was also paid to the land owners as directed. It is specifically stated that the petitioners never filed any objections under Section 5-A of the Act, as alleged. So far as others are concerned, their objections were heard on

28.11.1999 and thereafter notification under section 6 was issued on

7.2.1990. In this case it is an admitted fact that 3.06 acres of land, which was released from earlier acquisition, was also not made part of the declaration which was issued under section 6 of the Act on 7.2.1990. However, by filing this writ petition, the petitioners want to retain their entire land measuring 7 acres. CWP Nos.6339 of 1990 and 10929 of 1990 have been filed to lay challenge to a notification issued under section 4 of the Act, proposing to acquire land which was earlier left out from acquisition. Declaration Civil Writ Petition No.4542 of 1990 6 under section 6 of the Act was issued on 7.2.1990 qua the previous acquisition proceedings. Mr.M.L.Sareen, learned Senior Advocate, appearing for the petitioners has vehemently contended that land of the petitioners measuring about 7 acres was exempted when earlier, the process to acquire land was initiated in the year 1983. Thereafter they made many improvements after spending huge amount and as such at this stage, their exempted land cannot be again put for acquisition. To support his contention, he has placed reliance upon a division bench judgment of this Court in Savitri Devi v. State of Haryana and others, 2007(4) The Punjab Law Reporter 240. Contention raised has vehemently been opposed by Mr.Sehgal, who by making reference to the documents Annexures P3 to P6, has argued that only 3.06 acres of land was exempted when earlier acquisition proceedings were issued in the year 1983. The petitioners were satisfied with the same. They never asked for exemption of rest of their land. It is a different matter that the State of Haryana allowed the notifications to lapse. He further stated that whatever area was under construction i.e. about 3.06 acres, the same was not included in the acquisition when declaration was issued under section 6 of the act on 7.2.1990. He further argued that there is no prohibition to acquire the land, if necessity arises, which was earlier released for acquisition. To support his contention, he has placed reliance upon a division bench judgment of this Court in M/s Balwant Singh Sher Singh Rice Mills v. State of Haryana and another, 2007(3) R.C.R. (Civil)

839. After looking at the documents on record, we are not inclined to accept contention of Mr. Sareen that at the time of earlier acquisition process, entire land of the petitioners was left out/exempted. Documents on Civil Writ Petition No.4542 of 1990 7 record Annexure P3 dated 29.8.1986 Annexure P4 dated 16.9.1986 agreement between the parties dated 14.10.1986 and letter dated 27.4.1987 (P6) clearly indicates that only an area of 3.06 acres was left out from the acquisition proceedings, which were initiated in the year 1983. It is an admitted fact that notifications issued under sections 4 and 6 of the Act in the years 1983 and 1986 respectively, were allowed to lapse and subsequently acquisition proceedings were again initiated by issuing notifications which are under challenge in this writ petition. It is also an admitted fact that 3.06 acres of land which was released earlier was also not included when declaration under section 6 of the act was issued on

7.2.1990. It has also come on record that on remaining land of the petitioners, no construction was in existence. It was a vacant area and accordingly the same was acquired. Contention of Mr.Sareen that no vacant area has been left for proper utilization of cold store is also liable to be rejected. We have seen the building plan Annexure P10 put up on record by the petitioners. The cold storage is situated only in an area of 90 ft x 90 ft (two chambers measuring 90 ft x 45 ft each). It has also a verandha 50 ft. wide and 3 to 4 rooms constructed nearby. The left out area is more than 3 acres and as such, we feel that the same is sufficient for proper use of the cold storage. In the case of Savitri Devi (supra), regarding re-acquisition of land, which was earlier exempted, it was observed as under:- “17. The respondents once having allowed the petitioners by giving specific and explicit permission to change land use and develop the area as an industry cannot now turn around after 26 years to say that the same is required to be developed for residential purposes. We find the action of the Civil Writ Petition No.4542 of 1990 8 respondents to be clearly arbitrary and without application of mind. Before land is to be acquired for a particular purpose, not only revenue record but also the fact situation of the area is required to be seen after conducting survey of the area. Executive exercise is required to be under taken to identify the existing structures on land, their nature whether they are authorized or unauthorized and other similar and relevant parameters. It stands established that such executive exercise has not been carried out by the respondent rendering their action illegal.” We feel that in view of facts of this case, ratio of the judgment cannot be read in favour of the petitioners. Whatever land was released earlier, the same was not made part of the impugned declaration issued on

7.2.1990. Rest of the area was acquired and as such the petitioners cannot raise any objection for release of the same. Otherwise also, a Division Bench of this Court in the case of M/s Balwant Singh Sher Singh Rice Mills (supra), has specifically held that if circumstances so require, area exempted earlier from acquisition can be re-acquired by giving justification for the same. Next objection of Mr.Sareen that objections filed by the petitioners under Section 5-A of the Act were not disposed of, is liable to be rejected out rightly. It was case of the petitioners that objections were sent to the Collector through registered letter on 2.3.1986 and to support this contention, reliance was placed upon receipt No.691 issued by the postal authorities. In the written statement filed, it was specifically stated that the petitioners had not filed any objection under Section 5-A of the Act. So far Civil Writ Petition No.4542 of 1990 9 as others are concerned, their objections were heard on 28.11.1989. At the time of arguments, we have perused the receipt, on which, reliance was placed. Date of dispatch of the registered letter is not legible. Furthermore, as per this receipt, registered letter was sent to the Administrator, HUDA at Chandigarh and not to the Collector, who issued notification for acquisition of the land of the petitioners. In view of above, objection raised by Mr.Sareen stands rejected. It is further argument of Mr.Sareen that the substance of the notification under Section 4 of the Act was not properly published in the locality where the land, subject matter of acquisition, was situated. To buttress his arguments, he has made reference to Rapat Roznamcha (P2) annexed with CWP No.16363 of 1990 and stated that in it, mode, manner etc. of the publication has not been mentioned. He has argued that on account of that defect, the acquisition proceedings cannot be sustained. To support his contention, he has placed reliance upon a Single Bench Judgment of this Court in Ghansham Dass Goyal and others v. The State of Haryana and others, 1982 P.L.J. 146. Mr.Sehgal has refuted arguments raised by Mr.Sareen and stated that as per norms, the substance of the notifications under Sections 4 and 6 were published in the newspapers and also proclamation was made in the locality concerned. In the written statement filed by the respondents, it has been averred as under:- “10. That the contents of this paragraph are denied as incorrect. Provisions of section 4 were complied with. The notification was published in 2 newspapers, (Hindi) “Dainik Civil Writ Petition No.4542 of 1990 10 Tribune” dated 14.2.89 and (English) “Indian Express” dated

13.2.89. It is because of this and the fact that munadi was done that 64 objections were received and heard under section 5A. That it is denied that the petitioners filed objections before the competent authority. Despite the fact that the petitioner did not file objections, the constructed portion alongwith proportionate vacant area of their land was released after ‘on the spot survey’ which was carried out in accordance with Govt. instructions.” We have perused the Rapat Roznamcha (P2) and its vernacular. Proclamation in the locality i.e. village Karnal was made through Jai Singh Chowkidar. In this document, it is specifically mentioned that on 9.2.1999, in and around village Karnal, proclamation was made regarding proposed acquisition of land by loud words of mouth and also by beat of drum in the locality concerned. It was further stated that copy of the notification was also affixed on the wall of Patwarkhana. It was also stated that the affected persons were informed that Shajra and development plans of the land proposed to be acquired can be inspected in the office of Land Acquisition Collector, Kothi No.879, Sector 8, Panchkula and objections be filed within 30 days from the date of proclamation. We are of the opinion that the contents of the document mentioned above satisfies conscious of the Court that the proper declaration was made in and around the locality where land proposed to be acquired was situated. If that is so, no benefit can be given to the petitioners of the ratio of the judgment of this Court in the case of Ghansham Dass Goyal and others (supra), wherein this Court found it as a matter of fact, that there was no evidence of the proclamation and further that as per averment made, a Civil Writ Petition No.4542 of 1990 11 copy of the notification was pasted at a thoroughfare, whereas in the present case, a copy of the notification was pasted in the Patwarkhana, which generally is in the knowledge of all residents of the village. It is further contention of Mr.Sareen that purpose of acquisition, which was shown when notification was issued under Section 4 of the Act, was changed at the time of issuance of declaration under Section 6 of the Act. He argued that such a change is not permissible under law. We have gone through the notifications issued under Sections 4 and 6 of the Act on 8.2.1989 and 7.2.1990, respectively and are not convinced with the argument raised. In notification under Section 4 of the Act, the purpose of the proposed acquisition was mentioned as under:- “Development and utilization of land as residential and commercial area under the Haryana Urban Development Authroity Act, 1977 by the Haryana Urban Development Authority in the village Karnal, Hadbast No.1, Tehsil and District Karnal.” When declaration under Section 6 of the Act was issued, it appears that the purpose was not changed, rather it was made more specific. In the declaration, it was stated as under:- “Development and utilization of land as residential and commercial Sectors 4 and 5 additional at Karnal under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority in the village Karnal, Hadbast No.1, Tehsil and District Karnal.” We are convinced that purpose, for which land was proposed to be acquired, remained the same and it was not changed. Civil Writ Petition No.4542 of 1990 12 Further contention of Mr.Sareen, that the land was acquired without any request from Haryana Urban Development Authority, is liable to be rejected. We have seen the original acquisition file and it is coming out from the records that the acquisition proceedings were initiated on a proposal and request made by HUDA on 14.3.1986. It has also come on record that except land, which is subject matter of these writ petitions, other acquired land stood utilised for the Scheme, for which, it was acquired. So far as CWP No.12024 of 1990 is concerned, in the written statement, it has been said that constructed portion of the petitioners along with adequate vacant area was not included in the declaration issued under Section 6 of the Act. Regarding vacant land in all these cases, the petitioners have failed to make out any case for exemption/ release. In all these five writ petitions, the petitioners were also not successful in showing that any discrimination was done with them rather they are the beneficiaries and qua some of them constructed portion of the land along with proportionate vacant area was left out from acquisition. In the end, Mr.Sareen has raised an objection that to the land exempted in favour of the petitioners in CWP No.4542 of 1990, no passage is available. This fact has vehemently been denied by Mr.Sehgal. Be that as it may, the petitioners may make an application for providing an access to their land, if need be. The authority shall consider their request sympathetically and take action as per law. Subject to above said observations, all the five writ petitions stand dismissed. Regarding CWP No.13381 of 2004, we feel that it is Civil Writ Petition No.4542 of 1990 13 belated one. The acquisition proceedings were initiated in the year 1990. The petitioners kept on waiting and this writ petition was filed after about 14 years of the issuance of the notification under Section 4 of the Act. Their Lordships of the Hon’ble Supreme Court in Sawaran Lata etc. v. State of Haryana and others AIR 2010 Supreme Court 1664 have not approved challenge to the acquisition proceedings at a belated stage. Otherwise also, it is only contention of counsel for the petitioners that before passing the award, notice under Section 9 of the Act was not issued to them. Record reveals that the land in dispute is shamlat deh land and the petitioner was shown as one of the co-sharers. It is not his case that none of the co-sharers was given notice under Section 9 of the Act. Furthermore, award has already been passed many years earlier and writ petition at this stage, cannot be entertained, in view of ratio of the judgments in Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited, (1996) 11 SCC 501; Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C. Padma v. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008 (2) SC 280. In CWP Nos.6339 of 1990 and 10929 of 1990, challenge has been made to a notification issued under Section 4 of the Act on 12.4.1990, proposing to acquire 7.47 acres of land, which was earlier left out from acquisition, as discussed in preceding paragraphs of this judgment. It is case of Mr.Sareen that notification was issued in a mala fide manner and that the government in power, wanted to harm interest of the petitioners because they are relatives of Mr.Surjit Singh Mann, who had been Member of Legislative Assembly and Cabinet Minister. To show that notification Civil Writ Petition No.4542 of 1990 14 was issued with ill-intention, he has made reference to a fact that in CWP No.4542 of 1990, challenging notifications issued earlier for acquisition of their land, stay was granted by this Court on 4.4.1990 and the impugned notification was issued on 12.4.1990 to deny benefit to the petitioners of order passed in their favour. He also made reference to the notice issued to the petitioners under the provisions of Punjab Schedule Road and Controlled Area Restriction of Unregulated Development Act, 1963 for demolition of their construction and recording of an FIR against them. Be that as it may, only a notification under Section 4 of the Act has been issued. When the writ petition was filed by them, further proceedings were stayed on 3.5.1990. Much water has flown since then. The petitioners may approach the authorities concerned by filing objections under Section 5-A of the Act. The land, which is subject matter of notification dated 12.4.1990 was earlier released by the authorities by taking a conscious decision and as per information supplied, it also does not interfere in the development of the main scheme (which virtually stood implemented except for the area involved in these writ petitions), it is expected that the authorities will consider their case in a sympathetic manner. The petitioners are permitted to file objections within a period of three weeks from today, which shall be considered by the authorities concerned in a very rational and reasonable manner. disposed of. With above said observations, these two writ petitions stand A copy of order be placed on the files of connected cases. (Jasbir Singh) Judge Civil Writ Petition No.4542 of 1990 15

7.10.2010 (Augustine George Masih) Judge