Prem Singh v. State of Haryana & Ors.

Present: Mr. Hemant Saini, Advocate for the petitioner.

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J.

1. The instant petition filed under Article 226 of the Constitution prays for issuance of direction to the respondents to release the land belonging to the petitioner situated in the Revenue Estate of Village Kherikalan, Tehsil and District Faridabad, which has been acquired for the construction of the master plan roads of Sectors 75 to 89, as per the development plan of Faridabad. A further prayer has been made for quashing of notification dated

14.08.2008 (P-3) issued under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894 (for brevity 'the Act') and declaration dated 30.08.2008 (P-4) issued under Section 6 read with Section 17 (6) of the Act.

2. It is appropriate to mention that a Division Bench of this Court in a bunch of petitions including CWP No. 6363 of 2010 CWP No. 22219 of 2011 -2- (Lovkesh Chander v. State of Haryana), has quashed the declaration made under Section 6 of the Act and kept the notification issued under Section 4 of the Act intact by following the earlier Division Bench judgment of this Court rendered in CWP No. 9065 of 2010 decided on 22.11.2010 (Rohtash and others v. State of Haryana and others). As a consequence of the judgment dated 22.11.2011, the writ petition was allowed in the following terms: “In terms of ratio of the judgment mentioned above, notification dated 30.08.2008 issued under Section 6 of the Act needs to be quashed qua the petitioners. In this case an interim stay order was passed on 21.10.2008, therefore, the period from that date till today is to be excluded from consideration for calculating the time within which an award is to be passed as per the Act. Thus, the competent Authority still has time to pass a fresh award after giving due opportunity of hearing to the land owners. In the circumstances, we allow these writ petitions in terms of the observation as mentioned above and direct the petitioners/land owners to file objections under Section 5-A of the Act against the proposed acquisition within 30 days from today, before the Land Acquisition Collector, Faridabad. The Land Acquisition Collector, Faridabad, thereafter will give notice to them for hearing and CWP No. 22219 of 2011 -3- then make a recommendation as per law to acquire the land or otherwise. The State authorities shall not be influenced by any action taken by them earlier to the filing of these writ petitions and take an independent decision afresh on recommendations made by the Land Acquisition Collector.”

3. It has also come on record that the award in respect of the land in question was announced on 21.08.2010. However, on account of Division Bench judgment dated 27.05.2011, the operative part, which is reproduced above, the petitioners/ land owners of that petitions were permitted to file objection under Section 5-A of the Act against the acquisition within 30 days from the date of announcement of the judgment dated 27.05.2011. The petitioner in the instant petition now prays for permission to file objections when the time of filing objections given by the Court had expired on

27.06.2011.

4. We have heard Mr. Hemant Saini, learned counsel for the petitioner at a considerable length and are unable to persuade ourselves to accept his submissions. The first argument by learned counsel that in the cases where urgency clause is invoked, the principle that a person has come after the award, would not be attracted. In support of his submission, learned counsel has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Satendra Prasad Jain v. State of U.P. 1993 (4) SCC 369. CWP No. 22219 of 2011 -4- The other submission made by learned counsel is that in view of the judgment dated 27.05.2011, he would also be entitled to file objections.

5. Having heard learned counsel, we are of the considered view that the first submission made by the learned counsel does not require any detail consideration because in the present case, this High Court has quashed the notification under Section 6 read with Section 17 of the Act granting 30 days' time to all the land owners to file objections under Section 5 of the Act. The ratio of the judgment rendered in Satendra Prasad Jain's case (supra) would not apply because it is laid down therein that in cases where possession has been taken after the notification under Section 6 read with Section 17 (P-4), there would be no possibility for the land owner to come to the Court and then the writ Court has to exercise jurisdiction even after taking of possession.

6. However, in the present case, after issuance of declaration under Section 6 read with Section 17 of the Act, the possession was not taken and there was interdiction made by the land owners by filing a bunch of petitions including CWP No. 6363 of

2010. That was filed before the announcement of the award. It is also clear that on taking of possession in emergent situation when Section 17 of the Act is invoked, 80% of the compensation has to be disbursed and a draft award is announced. Even that is missing in the present case which shows that possession was not taken. The possession actual and on record continues to be of the owners. The CWP No. 22219 of 2011 -5- judgment in Satendra Prasad Jain's case (supra) does not apply. Therefore, at this stage, we cannot grant permission to the petitioner to file objections under Section 5-A of the Act. Once the petitioner has not filed objections under Section 5-A of the Act then petition would not be maintainable as per authoritative pronouncement of Hon'ble the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and others (2005) 7 SCC 627. The other submission that the petitioner is entitled to the benefit of order dated 27.05.2011 is also liable to be rejected because opportunity has been given for filing objections under Section 5-A of the Act but the petitioner has missed the same. There is thus no merit in the petition and it does not merit admission.

7. As a sequel to the above discussion, the writ petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (RAJIV NARAIN RAINA) JUDGE December 05, 2011 Atul