Haryana Wakf Board v. Hon’ble Mr

Mr.G.S.Bhatia, Advocate for the petitioner Jasbir Singh, J. (Oral) This writ petition has been filed with a prayer to quash a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 18.12.2008, proposing to acquire land measuring 139.08 acres, for a public purpose, namely, ‘to develop residential sector 9(part) and sector 10(part) at Dadri. Further challenge is to a declaration, issued under Section 6 of the Act on 17.12.2009. The petitioner is the owner of 56 kanal 15 marla of land. It is contention of the petitioner that the land in dispute, being the Wakf property, cannot be acquired by invoking the provisions of Section 4 of the Act. Counsel for the petitioner, by making reference to Section 91 of the Wakf Act, 1995 (in short 1995 Act), argued that before notifying acquisition of Wakf property, it was incumbent for the Collector to issue a notice to the petitioner. Civil Writ Petition No.3194 of 2011 2 We are not convinced with the argument raised. Provision of Section 91 of the 1995 Act reads as under:- “91. Proceedings under Act 1 of 1894. If, in the course of proceedings under the Land Acquisition Act, 1894 or under any law for the time being in force relating to the acquisition of land or other property, it appears to the Collector before an award is made that any property under acquisition is wakf property, a notice of such acquisition shall be served by Collector on the Board and further proceedings shall be stayed to enable the Board to appear and plead as a party to the proceeding at any time within three months from the date of the receipt of such notice. Explanation. The reference to the Collector in the foregoing provisions of this sub-section shall in relation to any other law referred to therein, be construed, if the Collector is not the competent authority under such other law to make an award of the compensation or other amount payable for acquisition of land or other property thereunder, as a reference to the authority under such other law competent to make such award. (2) Where the board has reason to believe that any property under acquisition is wakf property, it may at any time before the award is made appear and plead as a party to the proceeding. (3) When the Board has appeared under the provision of sub- section (1) or sub-section (2) no order shall be passed under section 31 or section 32 of the Land Acquisition Act, 1894 or under the corresponding provisions of the other law referred Civil Writ Petition No.3194 of 2011 3 to in sub-section (1) without giving an opportunity to the Board to be heard. (4) Any order passed under Section 31 or section 32 of the Land Acquisition Act, 1894 or under the corresponding provisions of the other law referred to in sub-section (1) without giving an opportunity to the Board to be heard, shall be declared void if the Board, within one month of its coming to know of the order, applies in this behalf to the authority which made the order.” This provision mandates that notice be issued in case the Collector, before passing an award, finds that the property is a Wakf property. Reading of sub-sections 3 and 4 clearly indicates that this provision was made with a view to settle dispute with regard to apportionment of compensation under the provisions of Sections 31 and 32 of the Act. These provisions nowhere mandate that before notifying property for acquisition, a notice is necessary to be served upon a land owner. Further contention of the petitioner is that, as per provisions of Section 45 of the Act, notice was not served upon the petitioner, as such, acquisition cannot be sustained. We feel that reliance upon provision of Section 45 of the Act is misconceived, as that provision only lays down the procedure and provides that a notice be issued to a land owner before disposal of objections filed under Section 5-A of the Act. It has nothing to do so far as issuance of a notification under Section 4 of the Act is concerned. It is an admitted fact that in the present case, despite publication of the notification under Section 4 of the Act in the locality, no objection under Section 5-A of the Act was Civil Writ Petition No.3194 of 2011 4 filed by the petitioner. If that is so, in terms of the ratio of judgment of the Hon’ble Supreme Court in Delhi Administration v. Gurdip Singh Uban and others, AIR 1999 SC 3822, this writ petition is not maintainable. It is also apparent from the record that after the lapse of mandatory period to file objection under Section 5-A of the Act, the petitioner filed an application on 10.11.2010 i.e. after issuance of Section 6 notification, before the Land Acquisition Collector with a prayer that the property in question be not acquired. It has also come on record that after issuance of a notification under Section 6 of the Act, another application was moved by some individuals for release of the land under acquisition. That application was disposed of by the Land Acquisition Collector vide order dated 19.8.2010 (P7). Relevant portion of the order reads thus:- “The khasra No.251, 252, 253 as described in the above marked on the Aksh Shijra submitted by the District Town Planner, Bhiwani, the Khasra No.251, 253 falls in Sector 9 Part, 10 part and Khasra No. falls on 252 Narnaul-Jhajjar Road. Accordingly Khasra No.251 measuring 15 kanal 6 marla, khasra No.253 measuring 41 kanal 9 marla were included in the notification under section 4 dated 18.12.2008 of the above sector. Regarding above khasra numbers against section 4, no objection letter has been received in this office under section 5A. Hence the above khasra numbers have been included in section 6 of dated 17.12.2009. The last date of announcing the award of the above sector is 16.12.2011. A copy of the Aksh shijra is enclosed.” In that order, it is specifically stated that no objection was filed at the relevant time against the proposed acquisition. Otherwise also, we Civil Writ Petition No.3194 of 2011 5 feel that the land falls in the middle of the residential sector and possibly, it cannot be left out of acquisition. Dismissed. (Jasbir Singh) Judge

22.02.2011 (Rakesh Kumar Garg) Judge