State of Haryana & Anr. v. Gram Panchayat of village Jharsa & Anr.

the time prescribed in the High Court Rules and Orders, which was enough, but R.F.A. No. 2125 of 2010 [3] still the State always considers it as a matter of right to sleep over the issues. Another fact on which this court would like to comment upon is that why an appeal was filed by the State without an application seeking condonation of delay in filing thereof, when it cannot be disputed that even to the knowledge of the authorities or the Advocate General's office, which is manned by an army of Law Officers that the appeal was beyond limitation. It is least expected from the Advocate General's office that the cases, which are entrusted to it, are given due care without any delay and those are filed in court complete in all respects. The effort should not be just to throw incomplete files in the Registry, which are bound to be returned with objections. The reasons for which the appeal was returned could very well be taken care of even at the time of initial filing. It is a matter of common knowledge that State is the biggest litigant and in case at the time of initial filing the cases are complete and are not required to be returned, unnecessarily wastage of time in this process can very well be avoided. Besides the appeal being without any merit, I do not find any reason to condone the delay in filing or re-filing of the appeal. Accordingly, the applications for condonation of delay in filing, re- filing and the appeals as well, are dismissed. In the facts noticed above, it is apparent that acquisition in the present case was merely for a left out portion of 1.10 acres of land, situated in the revenue estate of village Jharsa. All what the learned court below had done while assessing the compensation for this small portion of land was that it relied upon earlier judgment of Hon'ble the Supreme Court determining compensation pertaining to the acquisition in the area and granted increase @ 12% per annum thereon. The undisputed fact is that acquisition in the present case was for development of Sectors 39 and 46 at Gurgaon. The land acquired earlier was also for the same purpose. During the intervening period of more than 10 years, the area in question must have already been developed and the plots sold by HUDA and consequently, the value of the land must have increased manifold. However, still on a conservative estimate only increase @ 12% per annum was granted. Normally, as per the procedure, the appeals filed by the parties impugning the award under the Land Acquisition Act, 1894 are listed before the Registrar of this court and are admitted as a matter of right. It is only those appeals in which some applications are filed, which are listed before the court at the admission stage. In the present case, the appeal is accompanied by three applications, first being an application seeking condonation of delay of 112 days in re-filing of R.F.A. No. 2125 of 2010 [4] appeal; the second being an application seeking condonation of delay of 238 days in filing the appeal and the third one for stay of execution of the impugned award. The mere fact that the appeal was delayed in filing as well as in re-filing shows the seriousness with which the stay application is to be pressed rather it was filed only for formality. In the appeal filed by the State, respondent No. 1 was shown to be the contesting respondent, whereas respondent No. 2- HUDA was shown as the proforma respondent. Notice in the appeal was issued on 29.4.2010. After service, the respondents were represented through counsel. Counsel for HUDA also put in appearance. HUDA even filed reply to the application seeking condonation of delay stating that it does not have any objection to the condonation of delay, though neither such a reply nor any appearance on its behalf was required, as no relief had been claimed against HUDA. Finding the appeal to be prima facie frivolous, this court sought information from learned counsel for the State as to who opined the case to be fit for filing appeal. Even after seeking repeated adjournment, no affidavit was filed. On 5.10.2010, cost of ` 20,000/- was imposed with liberty to the State to recover the same from the guilty official/officer. Counsel for HUDA was not present on that day. Still on the next date of hearing, i.e., 12.10.2010, affidavit was not filed and this court was again constrained to impost cost of ` 20,000/-. On this date of hearing as well, counsel for HUDA was not present. While recording that engagement of a counsel to put in appearance in a case where HUDA was merely a proforma respondent and still non-appearance of the counsel was prima facie resulting in wastage of public money, Administrator, HUDA, Gurgaon was required to file an affidavit in that regard. It was also required to clarify as to whether HUDA had filed appeal against the impugned award or not. Copy of the order was sent to the Chief Administrator, HUDA for compliance as HUDA remained unrepresented. On the next date of hearing, i.e., 10.11.2010, learned counsel for the State filed affidavit of the Land Acquisition Collector stating that initially the District Attorney opined that the case was fit for filing appeal as the reference court had not appreciated the facts and evidence on record while enhancing the compensation. It was no where noticed that there was earlier acquisition of land, the assessment of compensation for which had been made by Hon'ble the Supreme Court and it was placing reliance thereupon that assessment of value of land in the present case was made by the learned court below. Another important fact which was not noticed was that the aforesaid judgment was produced by the State in its R.F.A. No. 2125 of 2010 [5] evidence before the court below. Affidavit of Mr. Nitin Kumar Yadav, Administrator, HUDA, Gurgaon was filed in court stating therein that interest of HUDA is involved in the appeal as the announcement of award or enhancement of compensation burdens HUDA and its allottees with heavy financial cost. In order to keep a track on the court proceedings and to take necessary action as required from time to time, it is necessary for HUDA to engage counsels to protect its interest. As the counsel appearing for HUDA failed to explain as to how he foresees that amount of compensation will be enhanced even in the appeal filed by the State, when even no appeal had been filed by HUDA impugning the same award, the Chief Administrator, HUDA was required to explain its stand. In the affidavit of Mr. D.P.S. Nagal, Chief Administrator, HUDA dated 12.11.2010 filed in court, interesting stand has been taken. Paragraphs 5 and 7 thereof are extracted below: “5. That the State of Haryana has impleaded HUDA as proforma respondent in these appeals whereupon this Hon'ble Court was pleased to issue notice to HUDA. Para No. 3 of notice is reproduced as under for ready reference: “If no appearance is made on your behalf by yourself, your counsel or by someone by law authorised to act for you in this appeal, it will be heard and decided ex parte in your absence.” xx xx xx

7. That HUDA has a legal right to represent itself in these appeals as vital financial interests of HUDA are involved therein. It has to pay the enhancement to the land owners, but the recovery thereof from the allottees takes quite sometime. Some times allottees do not pay the enhancement and indulge in litigation on the ground that the enhancement is excessive.” Though in paragraph 5 of the aforesaid affidavit, reliance is sought to be placed upon paragraph 3 of the notice issued by this court to submit that in case of non-appearance, the case will be heard and decided ex parte in the absence of the party concerned, but as to what was the relevance as far as appearance or non-appearance for HUDA in the present case is concerned, could not be explained. It is an appeal filed by the State in which challenge is to the award of the learned court below enhancing the amount of compensation with a prayer that the same should be set aside and the award of the Collector be upheld. Even the conduct of the State is quite casual, wherein the appeal was belated by 238 days in R.F.A. No. 2125 of 2010 [6] filing and 112 days in re-filing. HUDA is merely an authority for use of which the land in question was acquired. Whatever amount of compensation is awarded by the Collector or the courts, the burden thereof is borne by the department for whose benefit the same is acquired. Whatever relief the State would have got in the appeal, HUDA would have been automatically benefitted with the same. As far as HUDA is concerned, though it was a party even in the proceedings before the court below, but the fact remains that its counsel merely put in appearance and no evidence was led, as is evident from the impugned award. What adverse order could possibly be passed against HUDA by this court in an appeal filed by the State could not be explained. The contents of paragraph 7 of the affidavit, as have been extracted above, are even more interesting. HUDA has sought to claim its legal right to represent in the appeal filed by the State where it is merely a proforma respondent claiming that vital financial interests of HUDA are involved therein, as it has to pay the enhanced compensation to the land owners. The compensation whatever had been enhanced by the learned court below, HUDA was satisfied with that as no appeal was filed by it. In the appeal filed by the State, how the financial interests of HUDA were involved could not be explained. Now coming to the claim of HUDA that it had legal right to represent itself. Probably, the deponent in the affidavit, namely, Mr. D.P. S. Nagal, Chief Administrator, HUDA considered himself as emperor who only know about his rights. He forgot that he is a public servant who only has to perform certain duties and one of the foremost duty is to work in the best interest of the State or its instrumentality and see that public money is not wasted. The action in the present case is totally to the contrary. This court is constrained to observe that there was no application of mind by any authority before taking a decision to engage a counsel. It was not considered appropriate by them to ascertain before hand as to whether any adverse order could be passed against HUDA in case of its non- representation before the court, especially when it has specifically been impleaded as a proforma respondent in the appeal. In fact, in the appeal, the State sought to take care of the interest of HUDA, which HUDA had not chosen to do, though claimed at the top of the voice in various cases before the court. What has been experienced in number of cases, which came before this court is that in none of the case, whereever HUDA was represented by a counsel, anything was done by him except getting his presence marked. The position is not different event in the proceedings before the court below. To put the record straight, this court would like to extract here the R.F.A. No. 2125 of 2010 [7] facts stated by HUDA in an affidavit dated 15.10.2010, filed in R.F.A. No 1309 of 2010, regarding the amount spent on litigation during the last three years is ` 7,11,00,000/-. The aforesaid figure is not a small amount. As against this, what has been experienced is that practically in none of the case, HUDA has ever led any evidence in the court below, whereever it was impleaded as a party by the land owners or it got itself impleaded later on. Before this court, the position is no good. HUDA files appeals even in cases where the State is already in the appeal before this court impugning the same award. The fact that interest of HUDA and the authority for the benefit of whom the land is acquired is not adverse to each other. In those appeals, either it is claimed that State does not take care of its interest or HUDA will support the State in its stand, as if the State cannot stand of its own and needs support of an entity created by the State. As far as conduct of cases by HUDA in this court is concerned, though the position invariably in all the cases is same, however, this court will just add few examples: In RFA No. 69 of 2000—Ram Kumar (Advocate) v. State of Haryana and others, decided on 22.9.2008 pertaining to more than 300 appeals arising out of acquisition of large chunk of land by the State for use by HUDA for the purpose of development as Sector 3, Fatehabad, the counsel for HUDA was not even present when the arguments were heard by this court. In R.F.A. No. 3008 of 2008—Smt. Poonam v. State of Haryana and another, decided on 25.2.2009, this court was constrained to observe as under: “This court is constrained to comment upon the conduct of the State as well as HUDA for the reason that even though they had notice of the fact that the land owners had produced on record various sale deeds showing the consideration paid therein ranging from Rs. 12,00,000/- to Rs. 80,00,000/- per acre, no documentary evidence was led by the State or HUDA to rebut this evidence. In many cases, earlier HUDA had been raising hue and cry that while determining the compensation payable for the land acquired for their use and benefit, for which though they have to bear the burden of enhanced compensation, no opportunity of hearing is afforded to them. What is generally seen is that practically no evidence is led by HUDA in any of the cases before the Reference Court and similar is the position R.F.A. No. 2125 of 2010 [8] with regard to addressing arguments before the higher courts, where they follow the State. It is probably for the reason that burden of enhanced compensation is permitted to be passed on to the allottees of the plots carved out in the area acquired. The fact cannot be disputed that even though the State is the custodian of the records of registration of sale deeds, all the sale deeds, which are registered in any area acquired subsequently are available with the Registrar. In spite of the State, being in custody of the record, it is generally seen that no effort is made by the State to produce on record the best evidence before the court. Many a times, it is seen that the officials of various departments appear as witnesses for the land owners deposing in their favour even in oral evidence.” In R.F.A. No. 788 of 2006 –Kirpal Singh v. Government of Haryana and others, decided on 17.3.2009, no arguments were raised by the counsel representing HUDA where a bunch of more than 400 appeals were decided by this court regarding determination of value of large chunk of land acquired for setting up Mini Urban Estate, Narnaul. In R.F.A. No. 1 of 2006 –State of Haryana and another v. Jagbir Singh and others, decided on 10.2.2009 this court decided a bunch of 484 appeals pertaining to acquisition of land at Bahadurgarh, District Jhajjar. Though HUDA was re-presented, but no arguments as such were raised. In a bunch of appeals pertaining to acquisition of Gurgaon, which were decided by this court vide judgment in R.F.A. No. 1824 of 2006—Sudama and others v. State of Haryana and another, decided on 1.10.2010, the only argument raised by learned counsel for HUDA was that he adopts the contentions raised by learned counsel for the State. Vide judgment in R.F.A. No. 1971 of 2002 –Naut Ram and others v. State of Haryana and another, decided on 15.10.2010, whereby a bunch of appeals pertaining to District Gurgaon were decided, with a view to seek clarification on certain aspects, notice was directed to be issued to HUDA. Though a special counsel engaged by HUDA addressed arguments on that legal issue, he was categoric while stating that he had been engaged only to address arguments on the issues raised by the court. Though the acquisition of land in the bunch of cases decided therein was for use of HUDA and the land owners were seeking enhancement of compensation but the HUDA did not think it appropriate to defend the same, though had knowledge about the pendency of cases. R.F.A. No. 2125 of 2010 [9] In R.F.A. No. 2130 of 2010—State of Haryana and another v. Hari Om and others, decided on 24.8.2010 filed by the State, whereby 0.89 acres of left over portion of the land of village Jharsa was acquired vide notification dated

12.8.2003, in which HUDA was merely a proforma respondent, but still initially it was represented by a counsel and filed reply to the application seeking condonation of delay by the State, but when the appeal was taken up for final disposal, no one had represented HUDA. The facts of the case in C.M. Nos. 3720-21-CI of 2009 and R.F.A. No. 1316 of 2009—State of Haryana and another v. Ram Kishan and others, decided on 7.9.2010 are even more glaring. It pertains to four appeals which though were filed by the State of Haryana but by private counsels engaged at the cost of HUDA on the plea that interest of HUDA is to be watched as the land was acquired for use by HUDA. The issue under consideration was for valuation of the land acquired for development of land as Sector 21-D, Faridabad, where in a bunch of other appeals arising out of the acquisition, the amount of compensation determined by the Reference Court though was reduced by this court, but still no steps were taken for a period of 8 years and 251 days to re-file the appeals to safeguard the interest of HUDA and consequently the allottees of land. This is not end of it. The position even in other cases where HUDA is party is invariably is similar. The aforesaid facts clearly establish that public money is being wasted by HUDA instead of being used for the betterment of facilities provided to the residents of the areas developed by it. Crores of rupees are being distributed annually without any purpose. HUDA is not concerned because its officers only know about their rights and forget that they are public servants and have been appointed to perform duties and serve the people. The ultimate sufferers are the allottees of plots to whom the burden of enhanced compensation, if any, is passed on along with litigation cost. Time is not far off when the public will question these authorities, the manner they are conducting themselves. The Right to Information Act is already showing its results. A copy of the order be sent to the Chief Secretary, Haryana for information and also appropriate action, if she considers necessary.

15.11.2010 (Refer to Reporter) ( Rajesh Bindal ) Judge R.F.A. No. 2125 of 2010 [10]