Joginder Kaur & Ors. v. State of Haryana & Ors.

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Paramjit Singh Jammu, Advocate, for the petitioners. Ms. Palika Monga, DAG, Haryana, for respondent Nos. 1, 2 and 3. Mr. Raman B. Garg, Advocate, for respondent No. 4.

2. To be referred to the Reporters or not? Yes Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution seeks a mandamus to the respondents to restore the possession of acquired land measuring 10 Kanals 1 Marlas, comprised in Khasra No. 1879/2 (46-17), situated in the area of village Kalanwali, Tehsil and District Sirsa, belonging to the petitioners as well as legal heirs of Shri Harchand Singh. According to the averments made by the petitioners, Shri Harchand Singh, father of petitioner Nos. 1 to 4 and grand father of petitioner No. 5 was owner in possession of the land in question, which was acquired vide notifications dated 21.12.1971 and 24.10.1972, issued under Sections 4 and 6 read with Section 17(2)(c) of the Land Acquisition Act, 1894 (for brevity, ‘the Act’), for carving out a diggy (pond) for storage of dirty water. On 116.1974, award was announced by the Collector and compensation was disbursed. It is claimed by C.W.P. No. 14218 of 2009 2 the petitioners that no diggy (pond) was carved out at the spot, which was carved out at some other place, resultantly the land belonging to their predecessor-in- interest has remained un-utilised. Due to acquisition of part of their land, their remaining land has been bifurcated into two pieces and the petitioners are unable to harvest their land properly. They are ready to deposit the amount of compensation along with interest or the price of the land at Collector’s rate. Accordingly, the petitioners are seeking restoration of the land in question in their favour. In this regard, the petitioners have placed reliance on a Division Bench judgment of this Court rendered in the case of Jain School Society v. State of Punjab (CWP No. 1829 of 1999, decided on 21.3.2001, Annexure P-3) where the Division Bench has set aside the acquisition proceedings because the land was not utilised for 24 years. In the separate written statements filed by respondent No. 4 and respondent Nos. 1 to 3 the averments made by the petitioners have been denied. It has been asserted that the land in question was never acquired invoking the emergency provisions of Section 17 of the Act, whereas the award was announced after hearing of the objections under Section 5-A of the Act. It has also been pointed out that the petitioners have made misleading averments in the instant petition because the land in question is being utilised for storage of garbage. In support of this, respondent No. 4 has placed on record certain photographs of the area as Annexure R-4/3. It has also been denied that the land of the petitioners has been bifurcated into two pieces. It has also been submitted that the Division Bench judgment of this Court in Jain School Society’s case (supra) has been set aside by the Supreme Court in the case of Haryana State Handloom and Handicrafts Corporation Ltd. v. Jain School Society, 2004 (1) PLR 466. Even otherwise, the petitioners cannot claim restoration of the land after 34 years because once the land vests in the Government free from all encumbrances on finalisation of the acquisition proceedings, the land owner cannot ask for restoration of the possession even if the land is not utilised for the purpose for which it was acquired. In that regard, reliance has been placed by C.W.P. No. 14218 of 2009 3 the respondents on the judgments of Hon’ble the Supreme Court rendered in the case of Northern Indian Glass Industries v. Jaswant Singh, (2003) 2 SCC 335, Chandraganda Ramganda Patil v. State of Maharasthra, (1996) 6 SCC 405, and C. Padma v. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627. After hearing learned counsel for the parties and perusal of record with their able assistance, we are of the considered view that the matter is no longer res integra. The only question whether the acquired land could be de- notified or restored back after the award and proceedings for taking possession under the Act has been undertaken, which arises in the instant petition, has already been answered by us in the cases of Joginder Singh and others v. Chandigarh Administration and others (CWP No. 7391 of 1988, decided on

23.2.2010) Jain School Society v. State of Haryana and another (CWP No. 3772 of 2010, decided on 4.3.2010) as well as by another Division Bench of this Court (of which one of us, M.M. Kumar, J. was a member) in the case of Gurkirpal Singh v. Financial Commissioner (Revenue) and Secretary, Government of Punjab, Department of Revenue and others (CWP No. 10511 of 2007, decided on 9.5.2008). In the above mentioned cases, after referring to the provisions of Section 48 of the Act and various judgments of Hon’ble the Supreme Court rendered in the cases of State of M.P. v. Vishnu Prasad Sharma, AIR 1966 SC 1593; Lt. Governor of H.P. v. Sri Avinash Sharma, AIR 1970 SC 1576; Bangalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508; Pratap v. State of Rajasthan, (1996) 3 SCC 1; Mohan Singh v. International Airport Authority of India, (1997) 9 SCC 132; Printers (Mysore) Ltd. v. M.A. Rasheed, (2004) 4 SCC 460; Mandir Shree Sitaramji alias Shree Sitaram Bhandar v. Land Acquisition Collector, AIR 2005 SC 3581; Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212; Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC 1767; Union of India v. Jaswant Rai Kochhar, (1996) 3 SCC 491; C.W.P. No. 14218 of 2009 4 Ravi Khullar v. Union of India, (2007) 5 SCC 231; State of Maharashtra v. Mahadeo Deoman Rai alias Kalal, (1990) 3 SCC 579; Bhagat Singh v. State