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IN THE HIGH COURT OF PUNJAB AND HARY ANA AT CHANDIGARH

Civil Writ Petition No.18365 of 2001 Date of decision: ~.11.2010

Aggarwal Paper Board and Allied Industries

..... Petitioner

versus

The State of Haryana and another

...... Respondents

CORAM: Hon'ble Mr.Justice Jasbir Singh

Hon'ble Mr.Justice Augustine George Masih

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-, Jasbir Singh, J.

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~ This order will dispose of 14 writ petitions bearing C\VP

Present: Mr.Ashok Aggarwal, Senior Advocate with Mr.Mukul Aggarwal and MLI.S.Brar, Advocate for the petitioner(s)

Mr.Kamal Sehgal, Addl.A.G. Haryana

Nos.6~18, 63)9, 63.20, 6321, 6~22, 63_24, 18~65, 19?35 of 2001, 48}9,

55 J 6, 5916, 6884, 6973, 7631 of 2002, involving similar questions of law

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and facts.

By filing these writ petitions, the petitioners have laid challenge

to a notification dated 21.12.1998, issued under Section 4 of the Land

Acquisition Act, 1894 (in short, the Act), proposing to acquire 158.24 acres

of land for a public purpose, namely, 'development and utilization of land

for residential and commercial area' at Fatehabad. Further challenge is to a

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Civil Writ Petition No.18365 of 2001

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notification issued under Section 6 of the Act dated 20.12.1999, declaring

intention of respondent No.1 to acquire an area measuring 142.22 acres.

In some of the writ petitions, besides as above, challenge has

also been made to award passed by the Land Acquisition Collector on

19.12.2001.

Before dealing with the merits of these cases, it is necessary to

note here that Civil Writ Petition Nos.6318 to 6324 of 200 1 were dismissed

in Iiminie by a Division Bench of this Court by passing a detailed order on

10.5.2001. The petitioners therein went to the Hon 'ble Supreme Court and

on 26.5.2007, Special Leave Petitions filed by the petitioners therein were

allowed by passing the following order..

"Heard learned counsel for the parties.

Delay cononed.

In view of the pendency of nine cases before the High

Court involving similar dispute, we set aside the impugned

orders, without expressing any opinion on the merits so that the

writ petitions can be heard along with the said nine cases,

details of which have been given the rejoinder affidavitfiled on

behalf of petitioner No.2. They are: cryp No. 18365 of 2001,

CWP No.19587 of 2001, CWP No.19935 of 2001, CWP

No.4839 of 2002, CWP No.5516 of 2002, CWP No.5916 of

2002, CWP No. 6884 0/2002, CWP No. 6973 0/2002 and CWP

No. 7631 of2002.

The special leave petitions are, accordingly disposed of"

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together.

It is how all these writ petitions have been put up for hearing

Civil Writ Petition No.18365 of 2001

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For the purpose of dictating order, facts are being mentioned

from CWP No.18365 of 200 1.

It is case of the petitioner that it has purchased 41 kanal 8 marla

of land in the year 1980,. which falls within the Municipal limits of

Fatehabad city. After getting necessary permission to set up an industry, to

manufacture straw board and other allied products, it has spent about more

than ~ 45 lacs to run that factory. On issuance of notification under Section

4 of the Act on 21.12.1998, the petitioner submitted its objections under

Section 5-A of the Act, making prayer for release of its land. The Land

Acquisition Collector made the following recommendations in its report:-

"Applicant was heard and spot was inspected. The

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applicant has constructed Card Board factory on the above-

mentioned land. On the spot he told that investment of Rs. 60 to

70 lacs on machinery has been made and this is sale source of

income. In this factory a treatment plant for controlling the

pollution is being installed so that the residents of the area are

not adversely affected by pollution. Keeping in view the

agricultural development of the area this land should be

excluded/rom acquisition. "

However, ignoring that recommendation, land of the petitioner

was ordered to be acquired by issuing a notification under Section 6 of the

Act.

It is how, this writ petition has been filed.

It is case of the petitioner that recommendation was rejected

without any reasoning whatsoever.

By filing Civil Miscellaneous

~ app lieati on No.5 73 of 20 1 0, an at tern pt was made to show to this Court that land of many other land owners, who were similarly situated, was left out of

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Civil Writ Peti tion N 0.18365 of 2001

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acquisition, whereas, the said relief was not granted to the petitioner .. It was

further said in that application that there is no question of causing any

pollution in the area by the petitioner because the petitioner has been

granted requisite permission to run that factory, by the Haryana State

Pollution Control Board under the provisions of Air (Prevention and Control

of Pollution) Act, 1981 (in short, Air Act) and also Water (Prevention and

Control of Pollution) Act, 1974 (in short, Water Act).

Following seven writ petitions were filed after passing of the

award on 19.12.2001:-

CWP Nos.19935 of 2001 J 5516, 5916, 6884, 6973, 7631, 4839

0[2002.

In the normal course, as per law, these writ petitions could not

have been entertained, however, in all these cases, an attempt has been made

to show to this COUli that land of many other land owners was released from

acquisition, even after passing of the award on the above said date. By

stating as above, an attempt has been made to assail acquisition of the land

being violative of Article 14 of the Constitution. Specific instances of

release of land have been given in civil writ petition No.5916 of 2002. In

the writ petitions, which were filed after passing of the award, besides

ground of discrimination, it was also stated that award having been

pronounced without getting any prior approval of the State Government, as

is mandatory under Section 11 of the Act, deserves to be quashed.

By filing reply in this case, it has been stated that after getting

report of the Joint Inspection Committee, stating that existing of factory is

causing pollution, in the area, the land was ordered to be acquired.

It was further stated that qua some of the petitioner in these writ

petitions, some portion of the land was released and the rest which was

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Civil Writ Petition No.18365 of 2001

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needed for proper development was ordered to be acquired. It was further

stated that no discrimination has been done with the petitioner, land of some

land owners was released from acquisition taking note of situation at the

spot and further that the award was passed as per law after meeting all the

requirements as are mandatory under the Act.

Heard counsel for the parties.

In all these writ petitions, it IS primary contention of the

petitioners that by not releasing their land discrimination has been done to

them because land of others, who were similarly situated, was released from

acquisition. In CWP No.5916 of 2002, paragraph No.1 0 reads thus:.-

"10. That the Land Acquisition Collector announced Award

No.1 for the year 2000-2001 on 19.12.2001 vide which land

measuring 141. 11 acres including the lands of the petitioners

was acquired. As already stated above in the body of the writ

petition, vide declaration under Section 6 of the said Act, total

land measuring 142.22 acres of land was declared fhr

acquisition, whereas in the process of award, land measuring

141.11 only was acquired and the area of Mis Maruti Service

Station was left out of the purview 0/ the said award. A true

copy of the said award is annexed herewith as Annexure P7

When the Collector had made an award under Section 11 of the

said Act on 19.12 . .2001,. possession of land measuring 14 I.1l

acres was taken, whereafter the land vested absolutely in the

State Governmentfree from all encumbrances. The possession

of the said land measuring 141.11 acres was then transferred to

the HUDA for being vested in the same. It may be mentioned

here that vide the aforesaid award, which was made without the

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previous approval of the State Government in terms of Section

11 of the said Act, lands of some persons, namely, Mis Rajiv

Kumar Harish, Rajesh and Gulshan comprised in Khasra

No. 170115 and 611 measuring 7 kanals 11 marlas as also of Mis

Baja) Products Biscuits Limited, comprised in khasra

Nos. 182111413, 1512, 1614, 171111 and 171214 measuring 5

kanals were also acquired and possession taken of meaning

thereby not only that the award was announced with regard to

the aforesaid land but the possession was also taken of, where

upon it vested with the State Government and thereafter in the

HUDA free from all encumbrances. The aforesaid two parcels

of land are situated in quite proximity of the land of the

petitioners. A true map plan showing the entire acquired land

including the land of the petitioners as also that of aforesaid

persons, namely, Rajiv Kumar etc. and Mis Baja} Products

Biscuits Factory is annexed already as Annexure P 1. A bare

perusal of the said pLan shows that the area of Mis Baja)

Products Biscuits Factory, Rajiv Kumar and others is situated

just in close proximity of the land of the petitioners. The area

of 1v1/s Maruti Service Station is situated towards Western side

of the land of the petitioners in its immediate vicinity. A plan

showing the area of Mis Rajiv etc. and the construction raised

thereon is aLso annexed herewith as Annexure P8. A perusal

thereof would also show that only small construction existed in

the said area of Rajiv Kumar etc. which is not substantial in

nature and yet the same has been released from acquisition for

the reasons best known to the respondents and that of the

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petitioners which is huge one has been acquired as is clear

from site plan, Annexure 1 A" "

In the written statement filed on behalf of respondent Nos.1, 2

and 4, the above said paragraph has been replied as under:-

"10. That the contents of para No 1 0 of the Civil Writ Petition

are admitted to the extent that the award in question was

announced after prior approval of the state Govt. on 6.11.2001.

As rergards the land of M/S Rajev Kumar, Harish, Rajesh etc.,

and Bajaj Biscuits etc. mentioned in the C. W.P, it is submitted

that the land in question was released by the State Govt. after

considering the facts, situation and as per rule and regulation

and released on the terms and condition of the Govt. It is

wrong to say that the above mentioned released land are quite

proximity of the land in dispute and area far away from the

land of petitioners. So far as question of the disputed land is

concerned, as replied in earlier paras of the written statement,

it was necessary to acquire the disputed land for proper

planning in view of the proposed sector Hence does not

deserve to be released from the acquisition

As such

contentions raised by the petitioners are baseless. "

In this writ petition also, by moving Civil Miscellaneous

No.573 of 2010, similar ground of discrimination was raised and order

passed in favour of Rajiv Kumar etc. and 1\1/s Bajaj Products Biscuits

Limited, releasing their land was brought on record. It was further said that

the land under many other factories was kept out of the purview of

notification issued under Section 4 of the Act, which were situated at close

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proximity to the land owned by the petitioner. By taking note of release of

land in favour of some of the land owners, a Division Bench of this Court in

CWP No.6973 of2002 on 7.8.2003, passed the following order:-

"We have heard learned counsel for the parties.

Prima facie. the exemptions granted by the State to some

individuals/ institutions and its refusal to grant Similar

exemption to the petitioners appear to be contrary to the

doctrine ofequality enshrined in Article l4 of the Constitution.

In the normal course, we may have struck down the

exemptions already granted, but keeping in view the larger

public interest and the planned development of the area, we

have impressed upon the learned counsel for the respondents

that it would be just and proper to adjust the petitioners within

the existing development plan. If their land falls within the

industrial or commercia! zone, they may be adjusted without

disturbing the present structures and !f their land falls in the

residential area, then the State! Haryana Urban Development

Authority can allot them alternative site and give sufficient time

for shifting

Learned counsel for the respondents requests for time to

seek instructions.

Put up on 8.9.2003 .:'

Thereafter, it appears that an exercise to exclude some parcels

of land which could be released from acquisition was done. Report from the

Committee was sought and an affidavit of Rajesh Jogpal, Land Acquisition

Collector was filed In this writ petition on 10.12.2003. Regarding

rejection of prayer of the petitioner to release its land, facts earlier

Civil Writ Peti tion N 0.18365 of 2001

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mentioned were reiterated.

Regarding release of land of other owners, it

was stated as under:-

"4. That the land of Mis Narain Motors Workshop and Mis

Baja} Products were released by the Govt. in view of the

recommendation oj the committee and both were in running

condition. The building plan oj the Maruti Service Station was

sanctioned. Their land was released on conditions that they

will demolish the constructions within 30 mtr. Wide prohibited

strips of the green belt parallel to the national highway No.1 0.

Moreover they will also spare the land which effects the

planning of the HUDA Jor the green belt. So far as question of

releasing the land of Sh.Rajeev Kumar etc. is concerned, that

was left out from the acquisition by the Government as per

condition mentioned above. "

Narration of facts and orders, mentioned above, clearly

indicates that land of some of the land owners was left out of acquisition,

who were similarly situated like the petitioner in this case. We have seen the

site plan annexed with CWP NO.5916 of 2002, which shows that released

land is situated near to the land owned by the petitioner. In many writ

petitions, it has been admitted by the respondents that construction raised by

the land owners do exists at the spot. It appears that the authorities have not

properly appreciated the situation at the spot when ordering release of land

to some and declining the same relief to the others. In the affidavit filed by

the Land Acquisition Collector dated 10.12.2003, it has vaguely been stated

that property of Mis Narain Motors Workshop and Mis Bajaj Products

Biscuits Limited was released by the government as per the recommendation ~ made by the Committee as both the units were in the running condition. It is

Civil Writ Petition No.18365 of 2001

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further stated that land of MIs Maruti Service Station was released subject to

a condition that the land owner shall demolish the construction falling within

30 meters wide prohibited strips of green belt situated parallel to the national

highway No.1 O. Regarding release of vacant land in favour of Rajiv Kumar

etc., it was only stated that it was released by the government as per

conditions imposed upon them. What were those conditions, was not

mentioned in the affidavit.

A Division Bench of this Court in order dated 7.8.2003, in

CWP No. 6973 of 2001 has clearly said that primia -facie the exemptions

granted by the State to some individuals and its refusal to grant similar

exemption to other land owners, appears contrary to the doctrine of equality

enshrined in Article 14 of the Constitution. It was further said that in the

normal course, the land acquisition under challenge could have been struck

down, however keeping larger public interest in mind and planned

development of the area, the respondents were directed to adjust petitioners

in that writ petition within development plan and if not possible they shall be

granted al ternati ve sites and sufficient time be given to them to sh i It the ir

residences etc. To comply with the above said order, many dates were

sought and ultimately, on 12.12.2003, it was brought to the notice of the

Court that the State government is not prepared to exempt land of the

petitioners in CWP No.6973 of 2002, as directed by this Court vide order

dated 7.8.2003.

We are of the opiruon that once order dated 7.8.2003 has

become final, it was incumbent upon the authorities to comply with the same

and give requisite relief to the land owners. However, that was not done in a

very arbitrary manner. Their Lordships of the Horible Supreme Court in

HE.M£. Employees House Building Co-operative Society Ltd v. State o[

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Civil Writ Petition No.18365 of 2001

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Karnataka and others. AIR 2004 Supreme Court 5054, by noting that the

land owners whose land was not released were similarly situated with those

land owners whose land was released, observed as under:-

"Neither the appellant, nor the State Government has

been able to show us any rational distinction between the case

of the fifth respondent and the cases of the other land owners,

whose lands were excluded from the acquisition When this is

so, it appears to us that the vice of hostile: discrimination infects

and vitiates decision taken by the State Government to continue

with the acquisition against the fifth respondent's land. "

In a latest judgment of the Honble Supreme Court in Harf Ram

and another v. The State o(Harvana and others,JT 2()lD (2) SC 235, taking

note of adopting separate parameters by the authorities in releasing land in

favour of some and not releasing land in favour of the others, who were

similarly situated, it was observed as under:-

40. As a matter of/act, lands of more than 40 landowners

out of the same acquisition proceedings have heen released by

the State Government under Section 48 of the Act. Sante ofthe

release orders have been passed in respect 0/ landowners

who had not challenged the acquisition proceedings

and some of them had challenged the acquisition proceedings

before the lligh Court and whose cases were not

recommended by Joint Inspection Committee for withdrawal

[rom acquisition and whose writ petitions were dismissed. Some

of these landowners had only vacant plots of land and there

·was l"JO construction at all. In most of" these cas es , the award

has been p(lssf:d and, thereafter, the Slate Government has

Civil. Writ Petition No.18365 of2001 12

withdrawn from acquisition It lS not the case of the respondents that withdrawal from acquisition in favour of such landowners has been in violation of any statutory provision or