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IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice Surinder Gupta
CWP No.19096 of 2011
Sant Singh & Ors.
v.
State of Haryana & Ors.
{Decided on 20/12/2013}
(A) Land Acquisition Act, 1894, S.4 & 6--Notification--Agreement to Sell--Held; it is unlawful to enter into ‘Agreement to Sell’ or ‘Collaboration Agreements’ in respect of land under acquisition and sale deed even if executed would be null and void having no existence in eyes of law. (Para 79 to 82)
(B) Constitution of India, 1950, Art.226--Sale after notification--Setting aside of--Writ Jurisdiction--Held; A writ Court is competent to annual a sale transaction executed in violation of and on playing fraud on the Statute--Land Acquisition Act, 1894, S.4 & 6. (Para 80 & 81)
(C) Constitution of India, 1950, Art.226--Writ Jurisdiction--Quashing of acquisition--Held; Constitutional Court while performing its solemn duty as a Trustee of the Fundamental rights of the citizens shall thus be well within its right to lift the veil and unmask the private object behind an acquisition carried out in disregard to the mandate of Art.14 and 300-A of Constitution--Land Acquisition Act, 1894, S.4 & 6. (Para 81)
(D) Land Acquisition Act, 1894, S.4 & 6--Grant of Licence to Builder--Quashing of Licence--Award for land acquired was passed in April 2005--But it was created that land is going to be released--Land owners out of distress executed sale deeds in January 2007 in favour of builders--License was issued to Builder after award and before execution of sale deed--Meaning thereby, licence was granted when builder did not own even one inch of land--Issuance of licence was a fraud played on the policy behind the 1975 Act--Builder was never ‘owner’ of the land within meaning of 1975 Act--Licence granted pertaining to acquired land quashed--Haryana Development and Regulation of Urban Areas Act, 1975. (Para 86)
(E) Land Acquisition Act, 1894, S.4 & 6--Quashing of notification 441.11 acres of land acquired for public purpose of development of ‘Residential/Commercial Sector’--After granting of award an impression was created by officers of State Government, including Deputy Commissioner that, acquired land is going to be released--Builder succeeded in entering into distress sale agreements with the desparte owners who were sandwiched and had no other choice but to give for a comparatively better offer--Builder was even granted licence for development at time even when he was not owner of such land--Every such transaction in respect of the acquired land is null and void having no existence in eyes to law--Notification quashed--Certain direction issued regarding relief granted.
[i] Since the subject acquisition neither intended nor has achieved its ‘public purpose’, the notifications dated 11th April, 2002 and 8th April, 2003 issued under Sections 4 and 6 of the Land Acquisition Act, 1894 are hereby quashed in entirety. As a result thereto, the subsequent awards passed on 06th April, 2005 can not sustain and are consequently quashed;
[ii] As a necessary corollary, the licences granted to respondent No. 11- Builder-cum-Developer dated 12th June, 2006, 1st August, 2006, 1st September, 2006 or issued thereafter, even if not not brought on record but pertaining to the acquired land, are hereby declared null and void and quashed;
[iii] Consequently, the release orders like dated 12th June, 2006 [P-28 and P-29] or any such like release orders pertaining to the land acquired vide the notifications dated 11th April, 2002 and 08th April, 2003, passed in purported exercise of powers under Section 48[1] of the 1894 Act are hereby quashed;
[iv] As a result of the declaration and directions issued at [ii] and [iii] above, the Sale Deeds executed in favour of respondent No. 11 on different dates in January, 2007 in respect of the acquired land are declared to be null and void and non-existent in the eyes of law;
[v] Those landowners who have neither received compensation nor entered into any Collaboration or Agreements to Sell with respondent No. 11, shall be restored with the possession of their respective land forthwith.
[vi] Those landowners who have received compensation but have not entered into any Collaboration or Agreements to Sell with respondent No. 11, shall also be returned their respective land subject to their deposit of the entire amount of compensation along with simple interest at the rate of 9% as prescribed under Section 28 of the Land Acquisition Act, 1894. The possession shall be restored in their favour within one week of refund of the compensation amount;
[vii] Those landowners who have entered into Collaboration or Agreements to Sell with respondent No. 11, shall be given option to return the Sale Consideration received by them from respondent No. 11 along with simple interest @ 7% per annum within a period of three months from the date of receipt of certified copy of this order. If any one of them has received compensation from the State, he/she shall be required to refund the same in the manner as laid down for the landowners falling in direction No. [vi] above. On doing so, the possession of their acquired land shall be restored to them within one week;
[viii] If any of the landowners falling in Category [vii] above fails to return the sale consideration to respondent No. 11 or the compensation amount to the State, title of his/her land to that extent, shall stand transferred in favour of respondent No.11;
[ix] If the landowners fail to return the consideration amount to the private Builder as directed above and Respondent No. 11 perfects its title qua their land, the State Government would be free to grant Licence to the said respondent to the extent of such land, if so permissible under the 1975 Act;
[x] Respondent No. 11 shall be entitled to seek refund of the Licence fee, CLU or other statutory charges from the State, within a period of six months but without any interest, to the extent and for the land which shall stand released in favour of the original owners;
[xi] There shall be cost of Rs.50,000/- [Fifty Thousand] in each case on respondent No. 11 which it shall deposit within one month with [i] Mediatioin and Conciliation Centre and
[xii] Lawyers’ Welfare Fund of High Court Bar in equal share. (Para 94)
Mr. Surya Kant, J.:- This order shall dispose of CWP Nos. 19096, 21403 to 21411 and 23331 of 2011 and also CWP Nos. 2631 and 2654 of 2013 as on the point of commonality, all these cases lay challenge to the notifications dated 11th April, 2002 and 08th April, 2003 issued under Sections 4 and 6 as well as notices like dated 04th March, 2005 issued under Section 9, followed by the Award dated 06th April, 2005 passed under Section 11 of the Land Acquisition Act, 1894 mostly on the similar and over-lapping grounds. While the facts of the lead case are being referred to extensively, the distinguishable facts of connected cases are also briefly noticed.
CWP NO. 19096 OF 2011 [Sant Singh & Ors. Vs. State of Haryana & Ors.]
2. The three writ petitioners are sons of Ishwar Singh, residents of village Garhi Bohar, District Rohtak. They impugn the above mentioned notifications, notice and the Award as their land, fully described in Para No. 1 of the writ petition, situated in the revenue estate of their village is a part of the impugned acquisition. Besides alleging that the impugned acquisition is hit by various Articles such as Article 14, 19, 21 and 31 of the Constitution, they also allege it to be in contravention of provisions of the 1894 Act. The petitioners are said to have constructed their residential house[s] over a piece of land measuring 2 kanals 14 marlas which too has been acquired. The acquisition is alleged to be a glaring example of hostile discrimination and a colourable exercise of power for the private benefit of respondent No. 11 – a private Builder-cum- Developer. The petitioners also seek that the Sale Deeds executed in favour of respondent No. 11- the Builder-cum-Developer be declared null and void after the passing of the Award and the release of that land in favour of the Builder-cum-Developer be held a fraudulent and discriminatory exercise of power. The consequential prayer for the quashing of the release orders [Annexures P-28 and P-29] has also been made. In addition, the petitioners seek quashing of the Licence [s] [Annexure P-27] granted to respondent No. 11 – Builder-cum- Developer under the Haryana Development and Regulation of Urban Areas Act, 1975 [in short 1975 Act]. The petitioners have also assailed constitutionality of the Ordinance, followed by the Amendment Act whereby Haryana Ceiling on Land Holdings Act, 1972 has been amended retrospectively w.e.f. 22nd December, 1972 for totally non-agrarian purposes and to help private Builder-cum- Developers. The amending law is statedly hit by Article 13 and various other provisions of the Constitution.
3. The State of Haryana, vide notification dated 11th April, 2002 issued under Section 4 of the Act proposed to acquire land measuring 850.88 Acres situated within the revenue estates of Villages Garhi Bohar, Kheri Shad and Pehrawar, Tehsil & District Rohtak “for a public purpose, namely, for residential/commercial Sector 27-28, Rohtak under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority”.
4. The petitioners and various other landowners submitted objections under Section 5-A of the Act, which were duly considered by the Land Acquisition Collector, who recommended to release their residential houses as each petitioner was found to have constructed a residential house in an area measuring 2 kanals 13 marlas in Khasra No. 12 and Rect. No. 33. Since the three petitioners had filed their individual objections, the Land Acquisition Collector also made separate recommendations to exempt their constructed houses ‘A’ class construction. The recommendations made by the Land Acquisition Collector, however, did not find favour with the State Government.
5. Declaration under section 6 was notified on 08th April, 2003 [P-9] whereunder only 441.11 Acres [as against the proposal of 850.88 Acres], was decided to be acquired.
6. The Land Acquisition Collector passed three Awards, namely, No. 1, 2 and 3 on 06th April, 2005
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