M/s Magic Promoters Pvt. Ltd v. State of Haryana & Ors.

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr.J.K.Sibal, Sr. Advocate with Mr. Sanjay Vij ,Advocate for the petitioner

1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioner has challenged notification dated 19.1.2007 (P.1) issued under Section 4 of the Land Acquisition Act, 1894 (for brevity 'the Act') and declaration made on 18.1.2008 (P.2) under Section 6 of the Act. The petitioner claims to be a sister concern of M/s Parsvnath Developers Ltd., a reputed construction company which has acquired tremendous knowledge and expertise in the field of setting up residential and commercial colonies. The petitioner further claims to be owner in possession of land measuring 3 Bighas 1 Biswa 3.5 Biswansis (1.912 acres) comprised in khasra No. 1954/1 min, 1955 min, 1959 min, 1960 min, 2407 and 2413. The land is situated in the revenue estate of village Wazirabad, Tehsil and District Gurgaon. The land sought to be acquired vide impugned notifications dated 19.1.2007 and 18.1.2007 has eventually culminated in passing of an award on 27.11.2009. The petitioner has initially filed the instant petition on 26.11.2009. On account of some defects in the CWP No. 4352 of 2010 2 presentation of the petition, the Registry raised objection on 27.11.2009. It was on 27.11.2009 that award was announced and possession of the land was taken by the respondent- State. It was further handed over to Haryana Urban Development Authority which has to develop the land. The casual attitude of the petitioner can be gauged in the light of the fact that the petition returned on 27.11.2009 has been refiled only on 11.3.2010. The aforesaid factual position depicts that the writ petition has been re-filed after the announcement of the award which brings him in existence of his irreversible rights. The respondent- State acquired proprietary rights and the land vest in the State free from all encumbrances after the award and taking of the possession. The aforesaid factual position is clear from the following para of the award : “ POSSESSION OF THE LAND: The possession of the land acquired vide this award, has been taken over after offering the compensation to the land owners and the Rapt No.140 dated 27.11.09 has also been entered in the Roznamcha Wakayati of Patwari Halqa, Wazirabad. The land thus acquired of which the possession has been taken, vests in State of Haryana and on transfer now vests in Haryana Urban Development Authority, free from all encumbrances from today, i.e. 27.11.2009.” It is thus obvious that not only the possession has been taken by the respondent- State it has further been transferred to the Haryana Urban Development Authority. It follows that the land free from all encumbrances vests in the Authority w.e.f. 27.11.2009. Mr. J.K.Sibal, learned senior counsel has, however, argued that CWP No. 4352 of 2010 3 question of obtaining of possession is a question of fact which depends on facts and circumstances of each case. In support of his submission, learned counsel has placed reliance on the observations made in para 28 of the judgement rendered by Hon'ble the Supreme Court in the case of Balwant Narayan Bhagde v. M.D. Bhagwat (1976)1 SCC 700. He has also drawn our attention to certain observations made by Hon'ble the Supreme Court in another judgement titled as National Thermal Power Corporation v. Mahesh Dutta and others (2009) 8 SCC 339. After bestowing our thoughtful consideration on the submissions made by the learned senior counsel, we are of the view that the instant petition lacks merit and is thus liable to be dismissed. It is well settled that possession of the land can always be taken by visiting the spot and making entry in the rapat roznamcha. For the aforesaid proposition, reliance may be placed on para 4 of the judgement rendered by Hon'ble the Supreme Court in the case of Bal Mokand Khatri Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 212 which reads thus: “4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory 1241 acquisition. The normal mode of taking possession is drafting the Panchanama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent CWP No. 4352 of 2010 4 thereto, the retention of possession would tantamount only to illegal or unlawful possession.” It is thus obvious that normal rule of taking possession is entry in the rapat roznamcha (Panchnama), taking of possession and giving delivery to the beneficiary. It is further pertinent to mention that retention of possession by the land owner thereafter would tantamount to illegal and unlawful possession. The contention of the learned counsel based on the judgement of Hon'ble the Supreme Court in the case of Balwant Narayan Bhagde (supra) has failed to persuade us to deviate from the settled principle of law that once award is announced and possession is taken then the writ petition is not maintainable because the observations made in para 28 on which reliance has been placed are not different in contents and substance than the one made in the case of Balwant Narayan Bhagde (supra). In the present case, the petitioner has approached this Court on

26.11.2009. On account of the fact that the petition was incomplete it was returned to the petitioner on 27.11.2009. However, the petitioner did not re- file the petition for more than three months and it could be refiled only on

11.3.2010. It appears that the petitioner not only allowed the award to be passed, possession to be taken and given to the beneficiary Authority but also failed in refiling the petition which was delayed by more than three months. The delay is regarded as fatal. For the proposition that no writ petition is maintainable after the passing of the award, reliance may be placed on C.Padma v. Deputy Secretary to the Government of Tamil Nadu (1997)2 SCC 627 and Star Wire (India) Ltd. v. State of Haryana (1996) 11 SCC 698. CWP No. 4352 of 2010 5 As a sequel to the above discussion, the writ petition fails and the same is dismissed. (M.M.Kumar) Judge (Jitendra Chauhan) Judge

27.4.2010