CWP N14452 of2010 et c v. St at eofHaryanaand ot hers

t he High Court issued in CWP m Q 0 Cm 0 4 Z Q Ar Z 08 10 t m m Z Vlo C NoA767of 2008 t o decide t he for grantof I icence for rem aining landwit hin t hiee m ont hs it 1S st at edt hat aft er affordinghearingt o t he and t heir counsel t he file was forwardedt o t he governm entfor Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document lJl 340 e 1 m r 0 0 CD c 2 t m 1 1C C Clo 41 Z Z CWP No14452 of2010 et c 11 Sect ion 3 f t he 1975 Act deals wit h t he m akingof an applicat ionfor licencebyt he owners ofland paym entoflicence fee conversloll chargest o developa colonyDirect or 1e has been t o consider byt akinglnt o considerat iont he param et ers undersubsect ion 21of Sect ion3 which int eralia relat est o t he t it le of t he land ext ent and Slt uat lon of t he I and capacit yt o developcolonyt he lay out oft he colonyet c Rule 30f 1976 Rules t he m anner of m aking and docum ent st o be annexed t heret o Rules 4 and 5 require cert aln condit ionst o be fulfllled for of t he colonywhereas Rule 8 deals wit h t he powers of t he Direct or t o hold an enquiryand Rule 9 dealswit h t he oft he I n consonance wit h Sect ion3 of t he 1975 Act t he St at eGovernm ent forgrant oflicencevide m cm o dat ed 2881991I t was decidedt o acquireland not only by HUDA and Privat e Sect or for but even individuals were t o acquireland for t o a licence I t was furt her decided in cases have appliedfor llcence or have acquiredland but could not applyfor licence before t he issue of acquisit ionnot iflcat ion releaseof landcould be considered on individualm erit sofeach case Thispolicywas reit erat edvide policy dat ed 6 2 000 where under it was G furt herdecidedhat where t he land is by t he Colonizer before issuanceofnot iflcat ion under Sect ion 40ft he Land Act and t he Direct or Town and Count ryPlanningHaryanadecides t o issue licence Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 341 CWP No14452 of2010 et c 12 releaseof such land from m ay be allowed for 7 policywas furt herm odifledon 3092007 where under t he releasewas 7 5 This allowed aft er and passingof t he award under t he Land Act where t he owners cont lnue t o be in or have obt ainedst ayorders wit h regardt o t heir in t heir replyhave not dealt wit h t he relat ingt o t he possesslon of t he t he t ract of lands subj ectm at t erof t hese writ pet it ionst hough pet it ionershave speciOcaIly pleadedt hat t hey cont in ue t o be in oft heland even at t er t he passlngof t he award t lll t he dat e of filingof t hesepet it ionsSuch averm ent shave been m ade in 9 and 10 of t he writ pet it ionsI n addit ion t o t he averm ent s lI l t he period 2007 t heyhave also placedon record Khasra for t he 1 t wo years aft er t he passingof t he award t o subst ant iat et he fact umof t heir These averlnent shave not been denied in replyt o t hese Wit h a view t o avoid t he answer t o t he speciflcaverm ent s it 1S pleadedt hatHUDA and Land Acquisit ionOfflcer Roht ak have not been as part y as t heyalone can com m ent on t he claim of t he t he physicalpossesslon I n have referred t o RapatRoznalncha which also est ablishes t hat was allowed t o relnain wit h t he m 1r 0 0 C I 2 A Ol 4C 2 O O 4rava Z Ll owners ln view of Rabi crops st andingin t he year 2005 The C t he t he land cannot be disput edas t here is no m at erial on recordt o est ablish t hat at any t im e before or aft er t he passingof award t he was t aken over from t hem byt he Land Acquisit ionCollect or Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 4 Fe 411Al4edVWaV 41 041Ae4eb524473 4 342 J CWP No14452 of2010 et c 13 ot her com pet ent To t he cont rary whlle of CWP NosA767 of 2008 and 4808 of 2008 and 4809 of 2008 vide order dat ed 2032008 st at us quo wit h regardt o t he of t he m aint ained t hought he were also rest rainedfrom raising const ruct lOll and t he nat ure of t he I and This furt her t he pet it ionersclaim of sam e havingbeen prot ecledby t his Court When t he m at t er was heard and reserved St at ewas asked t o produce t he record relat ingt o t he paym entof licence fee scrut inyfee as also considerat ion of t he of t he pet it ionersfor grantof licence and t he possession The t he record I have exam ined t he record I n all t he awards passedlI l respectof land in quest iont hereis st ipulat ionof exist enceof crops over t he land and on oral requestof t he land owners t heywere allowed t o reap t he cropsby3042005 On t he dayof passingof t he awards 1 62005 a docum ent was sayingt hat t he handed over This docum entis neit her signedbyt he land owners nor t he persons t o whom t he is said t o be delivered I t is also relevant t o not e t hat t he t ot al land acquiredby t hese t hree awards is 2804 and t he above relat es t o t he ent ire land wit houl any except ionThe t ot al land of t he pet it ionersis 28095375 acres I have also perusedt he m Q 0 0 C5 Z m O ClO C m m Z CW in Files producedby t he St at eI t has been recorded t hat t he physicalpossessionof t he land has not been t aken and cont inuest o be wit h t he land owners t houghpaper t akenover on t he Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 1 69 t 6 1 1 r 9 4 I O 343 91 1 CWPNol4452of2010et ce 14 of passingof t he awardSaI t hasfurt herbeen recordedt hat t he land owners havenot receivedany for t he acquiredland On t his basist he t o t he Governm ent by t he DTP Bl 24A006 for considerat ion of grantof licence on t he condit ions also com e on recordt hat t he for grant of licence are in order and t heent ire land lor which t he licence has been for is lyingvacant at slt e As t he land of 2010is concem edit has 8450 acres relat ingt o CWP No14452 recordedt hat t his landfalls in Sect ors26 27 and 28 No init iat edlI l of land underSect or 26 andt he of landunderSect or 28 was not I t is furt hernot edt hat only7 3Ol acres ofland falls 111Sect or27 Thus is absolut elyno reason lo refuselicence in respect t o land in Sect ors 26 and 28 The St at e Governm ent have m adespecific from t im e t o t im e t o t he policiesof t he releaseof land right t he t o 30907These policiesare 111operat loI las on dat e All t hese policieslnt er alia forreleaseof t he land not onlyaft er issuanceof under Sect ions4 and 60f t he Land Acqulslt lOn m C 0 0 0 C Z 1 J 045 Co 4r 2 Z 1u Act but even aft er t he passing oft he flnal award t he underSect ion3 oft he 1975 Act has been m adepriort o t he passingof C forconvert ingt he land int o colonyand t he was t he owner of t he landpriort o t he under Sect ion40f t he Act Anot her cat egory1S t he cont inUeSt O be wit h t he owners and Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document l 1 1 1 01 1 1 141 344 1 4 1 m 0 0 CA0 C5 C Z m Q C r o5 ClO 1C Z e I l CWP No14452of2010 et c 15 t hereis st ay against byCourt s Claim sof t he pet it ionersare covered byt he governm entpoliciesreferredt o herevabove Sect ion 48 of t he Land Act providesfor releaseof t he landfrom acquisit ionofwhich hasnot been t aken This Sect ion readsas underl 48Com plet ionof acquisit ionnot t o be awarded when not Except111 t he case providedfor lI l Sect ion 36 t he Governm ent shall be at I ibert yt o wit hdraw from t he any land of which has not been t aken 62Whenevert he Governm ent wit hdraws from any such t he Collect or shall det erm ine t he am ounl of due for t he dam agesuffered by t he owner 111 t he not ice or of any t hereunder and shall pay such am ount t o t he person int erest ed wit h all cost s incurred by him in t he of t he under t his Act relat ingt o t he said land 63Theprovisionsof Part I I I of t his Act shall applySo far as m ay be t o t he det erm inat ionof t he payableunder t his Sect ion I t is com m on case of t he part iest hat t he not iflcat ion under Sect ion 4 Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh 4 I ll Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 7 345 CWP No14452of2010 et ce 16 1 4 was issued 1I A2002 and declarat ionunder Sect ion 6 was m ade on 82003 whereas t he for I icence were m ade on March 2 1 2005exceptland in CWP No4453 of 2010 where t he m adeon 27A2006 undert he of 1975 Act Final award caine t o on 6A2005 I 4romt he record it appearst hat t he act ualphysical oft he landrelnainedwit h t he owners all alongThis Court while of CWP NosA767 of 2008 4808 of 2008 and 4809 of 2008 t he of t he The claim of t he cont rary t akingover t he t he has not been est ablished To t he of t he has not been Neit her m 0 0 0 C5 from t he reply nor rom t he record lS est ablished t hat CJ Z a r C 06 ClO C AaW2 Z Om possessionwas evert aken lrom t he pet it ionersat allV st agePart oft he land has been releasedby t he Governlnent in exercise underSect ion4811oft he Land Act priinarilyon t he groundt hat t he rem ainedwit h t he owners I t is not t he case of t he licence ln t erm s t hat t he pet it ionersare not of Sect ion 30f or ent it ledfor grantof t he 1975 Act and 1976Rules Grant of licence fol partof t he land is t o indicat e t hat t he fulfil under Sect ion3 21 of t he 1975 Act and t he Rules4 and 5 readwit hgoverninentpolicyfor grantof licence There is no of t he of t he for grantof I icence wit hin C t hreem ont hsas by t his Court vide order dat ed 2532008 passed ln CWP NosA767 of 20084808 of 2008 and 4809 of 2008 I n CWP No14453of2010 it 1S byt he t hat Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 4 1 1 V1 t r1 j n 4 1 4 P 346 1 1 CWP No14452of2010et c flled aft er m ore t han one year of t he colnplet lonof t he acquisit ion 17 t he possessionI t is also m ent ionedt hat t herewasno st ay againstt he appliedland in CWP No 14453 of 2010 1frolnt he HighCourt This averlnent I S COllt raryt o even official record oft he governm ent I t is POSI t iOll t hatt helandis lying vacant at sit e I n so far as t hepleaof t he respondent sof filingapplicat ion m ore t han one year is concerned Sect ion48 of t he Land doesnot prescribeany periodfor t he land whent he Act possesslOll could not be t akenover Hencet heplea ployt o a rej ect t he cla I n a 1 Q 0 0 sim ilar m at t er wherelicenseeCOuldnot coinplyt he condit ionsand even Cb failedt o depositt he ainount wit hin t he specifiedt ilne Honble C Z V2 t r 4t O Cl2 Z Qm Court 111t he case of Mls BPJain 82 Associat esVS St at e of Haryana 1992 126consideredt hequest ion and rej ect edt hepleaof t he St at e prim arilyon t he groundt hatno prej udiceis caused t o t he direct ionwas lssuedt o grant t he pennissionfor of t he Pet it ionerslI l t hls pet it ion 206 had earlier also filed CWP NoA808of 2008 This pet lt lonalso cam e t o be CWP NosA767of 2008 and 4809 of2008 de order dat ed253 2008 pasSedbyt his Court I n all t hesepet lt lonspossessionof t he pet lers t heland 111quest ionhasbeenprot ect ed Apartfrom clailningt he Possessionover t he propert yand oft he com pensat ionfor enablingt he t o releaseand t o denot lfy t he propert yand grant llcencet o t he pet lt lonerst he pet it ionershavealso alleged and host llet reat lnent t o lllelll I t is pleadedt hat a 1 j 1 l C Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document t 4aea 1aem 4C 1 1 C 20 0 0 CWP No14452of2010 et c 18 num berof sim ilarlysit uat edpersons have been grant edlicence by t he even aft ert heacquisit ionwhereas111t he case of t he sim ilar t reat m ent has been denied The det ails are givenin 25 of t he writ pet it ionwherein referenceis inade t o Mls East I ndia Hot els Lim it ed Gurgaonin respectof 30 acres of land GopiRai Jai Bhagwan Ram Singhand ot hers in respectof 15337 acres at VillageSalokhara Dist rict GurgaonNirm al Kant a wife of DayaNand in respectof 75 acres on t he basisof collaborat ionagreem entwit h Mls DLF Universal The have also t he replyfiled by t he CWP No059 of 1990 lshok ChopraVS St at e of Haryana C69 and ot herslwherein have adm it t ed t he policydecision and 4t Z t m l t 08 00 4tm L Z t l releaseof I and undert he policydat ed 6 1000 fram edbyt he Govem inent The have also giveninst ancesof various persons whose land was released Such det ailsare cont ained in 27 All t hese fact s have not ben disput edin t he replySt at ecounsel has referred t o a Division Bench of t his Court in t he case of Hari Chand and ot hers VS 467 I nt hiscase Honble Division Bench of t his Court inade observat ions regardingt he policyof t he St at efor releaseof t he land t o be ult ra Vlres of t he provisions ofLand Acquisit ionAct These observat ions oft he Honble Division Bench have been st ayedby Honble Suprem eCourt 111 SpecialLeave t o Appeal 6CivillNo3644 of 2009 vlde order dat ed 2322009 and t he St at e Governm enthas been grant edlibert yt o exercisepower under t he exist ing policyThe relevant direct ionsoft he Honble SuprelneCourt are as underl Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 1 e0a Wv 0P nWbdr e 40 9 t b 5 t t l 34let 1 1 1 4 1 01 I J 5 58kl e r e ai1AbR1dt l1 e ill1 1 6 71 2 1 348 1 14 j 1 1 r 0 0 5 2 r i r 06 00 Z LZ CWP No14452 of2010 et c 19 66There shall be int erimst ayof t he observat ionsin t he im pugned about t he validit yof t he poiicyand t he St at e Governm ent lS at libert yt o exercise powers Ulldert he exist ingpolicy 49 I t is set t led of I aw t hat where t he Governm ent exercises it s power under Sect ion48 of t he Act for wit hdrawal from 111 respectof a part icularland t he landownerswho are sim ilarlysit uat edhave a rightof sim ilar t reat m ent I n t he case of Hari Ram and anot her VS St at e of Haryanaand ot hers201013 Suprem eCourt Cases 621 Honble Suprem eCourt has inade followingobservat ionsl 40I t t rue t hat any act lOI l Or Ordercont raryt o law does not confer any right upon any person for si1nilar t reat m ent I t is equallyt hat a landowner whose land has been acquiredfor publicpurpose by followingt he cannot clalm as a m at t er of rightfor release of hlslher land from but where t he St at eGovernlnentexerclses it s power under Sect ion48 of t he Act for wit hdrawal from acquisit ionln respectof a land t he landownerswho are sim ilarlysit uat ed have rightof sim ilart reat m ent byt he St at eGovernm ent Equalit yof cit izens right slS One of t he fundainent al pillarson which edifice of rule of law rest s All act ions of t he St at ehavet o be fair and for legit im at ereasons 41 The Governm ent has obligat ionof act ingwit h Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document P 349 1 A m t 0 CW 9 t Z r a C C45 12 c m wm Z Clm CWP Noe14452of2010 et ce 20 subst ant ial fairness and in consideringt he of t he landownersfor wit hdrawal from acquisit ionwhose I andshave been acquiredunder t he sam e acquisit ion The St at e Governm ent cannot pick and choose som e landownersand release t heir land from and denyt he sam e benefit t o ot her landowners by creat ingart ific ial dist inct lon Passingdifferentorders in exerclse it s power under Sect ion 48 of sit uat edrelat ingt o t he Act in respectof persons sim ilarly sam e and for sam e publicpurpose is definit elyviolat ive of Art icle 14 t he Const it ut ion and m ust be held t o 55 I t is alsorelevantt o not e t hatt he eligibilit yt heir capacit y andt hevalidit yof t he Schem e offeredbyt hem 1Snot disput edor obj ect ed t o Rat herfromt he not ingson t he flle it has been revealed t hat t he capacit y t he has been cert ifled I t has also been not ed t hat t he has already cert ain areas ln Gurgaonand t hus it hast hecapacit yt o carry out t he act ivit ies have accept edlicence fee and scrut inyfee for ent ire land Pet it ioners have been foundeligiblefor grantof licence on scrut inyas C t he subm it t edby t he pet it ionersconform t o t he t echnicaland norm s fixed byt he as 1S evident 8om t he record I t is also t o not e t hat t he Schem e Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 350 1 1 4 CWP No14452 of2010 et c 21 1 subm it t edbyt he pet it ionerspert aint o ent lre I and afer having t he licence fee and scrut inyfee for t he whole land now cannot t um around t o denyt he claim OI l t ot allynonwexlst ent groundsand are from doingSO Undersim ilarcircum st ancesa Division Benchof t his Court while t he rightand claim of sim ilarly sit uat ed person followingdirect ions in t he case of Mls Pax Propert iesPvt e Lt de GurgaonVS St at eof Haryanaand ot hers 2008 RCR Civill 352 1 opiniont hatt he licence in vlew of t he above we are of t he cannot be deniedt o t he pet it ioner once lt fulfilledall t he param et erswhich it was t o fulfil on t he dat eof purelyon account of and t he denial inact ion on t he part of t he who cannot t urn aroundt o say t hat it should conformt o t he revisedparalnet ersI n any t he shown sufflcient m at erialt o sat isi t he Courtt hat it has beendiscrim inat edagainstas 111ot her cases where nine m et res road was available I icenceshave been as per t he candid adm ission oft he as reflect ed in order dat ed 23 102006 XXX Xxx XXX 121nview of t he above t he writ pet it ionis ordersAnnexure P8 and Pl 1 are set aside and 1 C 0 0 C 1 Z m C Cr 08 I D1 m m Z Clm 1 1 C Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh t 1 Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 4l I l 4 m t r 0 0 C I t 2 2 C 1 08 QO m m Z CWP No14452 of2010 et ce 22 t he are direct ed t o grantt he I icence t o t he fort hwit h wit hin a periodof four weeksfrom t hedat eofcom m unicat ionoft his order I n t he lightoft he fact ual not iced herewabove prim arily t akingint o considerat ion t he fact s t hat t he cont inuet o be in t he ent ire land t he rightundert he governm entpoliciesand t he of Sect ion30f t he 1975 Act and Sect ion48 oft he Land Act have been deniedin a m ost m anner t hese pet it ionsare allowed direct edt o grantlicences t o t he pet it ionerswit hin a period of t wo m ont hspursuantt o t he m adebyt he for t he land det ailedhereabove I t is however observedt hat t he would be liable t o pay t he current 1iceencefee as m aybe on t he dat eof passingof t his order Records be handed over t o t hecounselfor t he St at e 1 I Olan PERMOD KOHLI JUDGE Om 6 e1202010 MFK NOTE Whet her t o be referred t o Y7l1t 71 1 Pooja 2014.05.22 12:24 True Copy of the Original PHHC, Chandigarh 71L71L Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document