M/s. National Bricks Company v. State of Haryana & Ors.

CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. M.L.Sharma, Advocate, for the petitioner Ms. Palika Monga, DAG, Haryana Mr.Arun Walia, Advocate, for respondent No.4 Mr. Vishal Gupta, Advocate, for respondent No.6 Mr. Sunil Goyal, Advocate, for Mr.Jagdish Manchanda, Advocate, for respondent No.14 ----- JASBIR SINGH, J (Oral) : This order will dispose of CWPs No.8002 and 8331 of 2009 in which common facts and law are involved. Petitioner is a brick kiln owner. It has challenged the issuance of notification under Section 4 of the Land Acquisition Act, 1894 (in short 'the Act'), proposing to acquire 305 acres 5 kanals and 15 marls of land for a public purpose namely to set up an industrial estate, Phase II in village Ghari Banjara etc. Further challenge is to a declaration dated

10.7.2008 showing intention of the respondent-authorities to acquire land CWP No.8002 of 2009 & CWP No.8331 of 2009 -2- measuring 259 acres 6 kanals and 17 marlas. As per admitted facts on record, petitioner is the owner of land falling in the following khasra Nos.; "2//18(7-14), 19(7-6), 5//15/2(3-3), 5//17/2/1(1-12), 24(7-13), 25(8-0), 16/2/2(1-16), 16/2/3(1-1), 17/2/2(1-3), 8//4(10-4), 7/1(4-0), 7/2/1(0-17), 8/1(1-17), 8/2/1(0-19), 8//23/1/1(1-3), 24/1(1-11)" Learned counsel for the petitioner states that when notification under Section 6 of the Act was issued, about 45 acres of land was released from acquisition, whereas despite objection raised, similar relief was not granted to it without any justification. In response to notice issued to the respondents, reply has been filed wherein it has been stated as under ; "That the petitioner is seeking release of his land based on the fact that there is a brick kiln on the land under acquisition. In this regard, it is respectfully submitted that the Haryana State Industrial and Infrastructure Development Corporation Limited (hereinafter referred to as the HSIIDC), the implementing agency of the project, suggested following parameters to the Government for release of land while issuing declaration under Section 6 of the Act in the instant land acquisition :- i) Existing running industrial units shall be recommended for release. ii) Thickly built up area in compact shape/near the village abadi shall be recommended to be released. iii)Scattered residential houses/farm-houses/shops/ cattle sheds/boundary wall/plinth/godowns/workshops and vacant agriculture land and allied uses etc. Cannot be permitted in the area proposed for industrial use. iv)Religious buildings, village ponds and running petrol pump shall also be recommended for release. v) The brick kiln falling in urbanizable area of the development plan shall not be released. Having accepted the recommendations of the HSIIDC, the CWP No.8002 of 2009 & CWP No.8331 of 2009 -3- state Government included the land of the petitioner while issuing declaration dated 10.7.2008 issued under Section 6 of the Land Acquisiton act, 1894, as the brick kiln of the petitioner falls in the urbanizable area of the development plan and it is not covered in the parameters formulated by the HSIIDC for the release of land while issuing declaration under Section 6 of the Act. That it is further submitted that as per Section 7 of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963, a brick kiln is not permissible within the controlled area of a town. The Section 7 of the Act is reproduced as under :- "7(i) No land within the controlled area shall, except with the permission of the Director, (and on payment of such conversion charges as may be prescribed by the Government from time to time) be used for purposes other than those for which it was used on the date of publication of the notification under sub section (1) of Section 4, and no land within such controlled area shall be used for the purposes of a charcoal kiln, pottery kiln, lime kiln, brick kiln or bricks field or for quarrying stone, bajri, surkhi, kankar or for other similar extractive or ancillary operation except under and in accordance with the conditions of a license from the Director on payment of such fees and under such condition as may be prescribed. (provided that any fee or charges leviable, if not paid within the specified period, shall be recoverable as arrears of land revenue)." At the time of arguments, it was brought to our notice by the learned State counsel that out of released 45 acres of land, more than 31 acres of land is reserve forest and accordingly, it was kept out of acquisition to maintain and protect the environment in the area under acquisition. After hearing learned counsel for the parties, we are satisfied that remaining about 14 acres of land was rightly released from CWP No.8002 of 2009 & CWP No.8331 of 2009 -4- acquition, by taking note of the parameters set up by the government to release the land, which is under running industrial unit, thickly built up area in a compact shape, residential buildings and ponds etc. Before issuance of notification under Section 6 of the Act, it was decided by the authorities concerned that the land falling under a brick kiln shall not be released from acquisition. Otherwise also as per law, a brick kiln cannot be allowed to run in an industrial estate. The respondents have rightly relied upon the provisions of Section 7 of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963, to say so and we are satisfied with the same. To prove that a discrimination has been done with the petitioner, nothing has been brought on record to show that others, whose land was released, were also similarly situated like the petitioner. It is also not stated that any vacant plot was kept out of acquisition. Furthermore, as per admitted position, after the year 2009 licence to a run brick kiln was not issued by the competent authority in favour of the petitioner. However, it is made clear that as per the policy of the State Government, the petitioner may seek rehabilitation package as per law. In view of the facts mentioned, No case is found to make interference. Dismissed. As the main case is being dismissed, therefore, the civil miscellaneous applications have been rendered infructuous. (JASBIR SINGH) JUDGE 15th Nov., 2010 (AUGUSTINE GEORGE MASIH) JUDGE