Ashok Kumar & Anr. v. State of Haryana & Ors.

Mr. Ajay Jain, Advocate, for the petitioners. Mr. S.S. Pattar, Sr. DAG, Haryana, for respondent Nos. 1, 4 and 5. Mr. Amit Kamboj, Advocate, for Mr. Arun Walia, Advocate, for respondent Nos. 2 and 3.

1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in Yes Yes the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges show cause notice dated 10.11.2008 (P-7), issued by the Director, Urban Estate Department, Haryana-respondent No. 5 and subsequent order dated 24.6.2009 (P-8) withdrawing the release order dated 6.5.1999 (P-5), which was passed in favour of vendor of the petitioners, releasing land measuring 391.11 Square Yards comprised in Khasra No. 1053, Sector 1, Narnual. The petitioners had purchased the land comprised in Khewat No. 879, Khatoni No. 1276, Khasra No. 1053, situated in village Narnaul, on

31.5.2005. The vendor of the petitioners was Smt. Kailash Devi who C.W.P. No. 11688 of 2009 2 executed sale deed through her GPA Shri Ram Kumar Chaudhary. At the time when the land was purchased it was neither under any acquisition nor there was any encumbrances of the State. It is pertinent to notice that at one stage on 30.10.1992 this piece of land was part of the acquisition proceedings initiated under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’). Declaration under Section 6 of the Act including this land also was issued on 28.10.1993. The predecessor-in-interest of the petitioners had challenged the acquisition by filing C.W.P. No. 12523 of 1995, which was dismissed on 13.8.1998. However, the predecessor-in-interest of the petitioners succeeded in persuading the authorities of the State Government to release the area measuring 391.11 square yards, comprised in Khasra No.

1053. A copy of the release order dated 6.5.1999 is on record (P-5). The petitioners have purchased the land after six years of the release order. Even the mutation in favour of the petitioners was sanctioned as is evident from the perusal of Annexure P-1. The petitioners have asserted that Smt. Kailash Devi @ Kaushalya Devi had already constructed two rooms having a corridor (Varanda), kitchen and a boundary wall on the land in dispute. This fact is evident from para 2(v) of the affidavit dated 25.03.2008 filed by Shri D.S. Dhesi, Commissioner and Secretary, Government of Haryana, Department of Town and Country Planning. After purchasing the land, the petitioners have further constructed two rooms, a drawing room, lobby and two bath rooms. The Director, Urban Estate, Haryana-Respondent No. 5 issued a show cause notice to the vendor of the petitioners Shri Ram Kumar Chaudhary on 10.11.2008 (P-7), alleging that the release order dated

6.5.1999 (P-5) passed in his favour was obtained by concealing a material fact of having not filed any writ petition in the High Court whereas he had C.W.P. No. 11688 of 2009 3 filed C.W.P. No. 12523 of 1995, which was dismissed on 13.8.1998. He was asked to reply as to why the release order dated 6.5.1999 be not cancelled. After the reply to the show cause notice, the impugned order dated 24.6.2009 (P-8), has been passed withdrawing the release order dated 6.5.1999. The basic ground for withdrawal of the release order dated 6.5.1999 (P-5) is the concealment of a fact that CWP No. 12523 of 1995 filed by the vendor of the petitioners was dismissed on 13.8.1998. The aforesaid fact was suppressed while filing the affidavit when the release of the land was sought. Mr. Ajay Jain, learned counsel for the petitioners has argued that nine years after the release of the land, a show cause notice has been issued to the vendor of the petitioners. He has submitted that when the land was released there were constructed areas which comprised of two rooms with a corridor, kitchen and a boundary wall on the land in dispute. The aforesaid construction was in existence much prior to issuance of notification under Section 4 of the Act. A further averment has been made in para 2 that after purchase of the land by the petitioners further construction has been raised by adding two rooms, a drawing room, lobby and two bathrooms. Therefore, he has argued that once the ownership of the land has changed and the nature of the property has undergone further alteration then it was highly improper on the part of respondent No. 5 to issue a show cause notice and then to withdraw the release order dated 6.5.1999 (P-5). According to Mr. Jain, all this is being done in order to defend the cause of the State before Hon’ble the Supreme Court where an affidavit has been filed in Civil Appeal No. 5433 of 2000 by respondent No. 5 (P-6). In paragraph 2(v) the details with regard to the release order has been given which shows that the release of the land was based on the report of District Town Planner, Narnaul and Land Acquisition Officer Gurgaon. On the land B-Class construction was found to be in C.W.P. No. 11688 of 2009 4 existence before issuance of notification under Section 4 of the Act. Some portion of the land had already been released at the time of issuance of declaration under Section 6 of the Act. It is in order to defend the allegation of discrimination before Hon’ble the Supreme Court that the aforesaid course has been adopted by respondent No. 5 and the impugned order canceling the release order has been passed. Mr. S.S. Pattar, learned State counsel has advanced only one argument that the predecessor-in-interest of the petitioners has obtained the release order by suppressing material fact of filing of CWP No. 12523 of 1995, which was dismissed on 13.8.1988. According to the learned counsel, the condition of the release order was that the applicant should not have filed any petition before this Court. He has submitted that the petitioners are bound by all the acts of their predecessors-in-interest. This case reveals unfortunate trend. The petitioners are bona fide purchasers and they had purchased land free from al encumbrances by a registered sale deed dated 31.05.2005. The land in question measuring about 391 Sq. Yards, which at one time was part of the acquisition proceedings, was released on the ground that it has ‘B’ Class construction. The earlier owner Smt. Kailash Devi @ Kaushalya Devi had constructed two rooms with a corridor (Veranda), kitchen and a boundary wall on the land in dispute. This fact is discernible from para 2(v) of the affidavit dated 25.3.2008 filed by Shri D.S. Dhesi, Commissioner and Secretary, Department of Town and Country Planning, Government of Haryana. Thereafter the petitioners have raised construction, which is clear from the facts already stated. The constructed area was released by the respondents in pursuance of the State policy vide order dated 6.5.1999 (P-5). The release order has been questioned on 10.11.2008 (P-7) when third party’s rights have come into C.W.P. No. 11688 of 2009 5 existence as the petitioners have purchased the property themselves and have raised further construction. The nature of the property has undergone change and it has exchanged hands. Moreover, there is huge delay in issuing notice to the predecessor-in-interest of the petitioners. The release order was passed on 06.05.1999 (P-5) and cancellation has been ordered on 24.06.2009 (P-8). We are not inclined to accept that factum of filing CWP No. 12523 of 1995, which was dismissed on 13.8.1998 could not be discovered by the respondents for such a long period, especially when respondents themselves were party to the proceedings. Therefore, we are of the view that in the peculiar facts and circumstances the non-disclosure of filing of the writ petition by the predecessor-in-interest of the petitioners would be such a factor as to result in cancellation of release order. We are also of the view that the most significant factor for release of the land was ‘B’ Class construction as per the policy of the State. As a sequel to the above discussion, the writ petition succeeds. The impugned orders dated 24.6.2009 (P-8) is hereby quashed. The petitioners are held entitled to cost which we quantify at Rs. 20,000/-. Respondent No. 1 is directed to prepare a draft of Rs. 20,000/- in the name of the petitioners and send the same to them within two months from the date of receipt of a copy of this order. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) JUDGE March 3, 2010 Pkapoor