SITA RAM Vs STATE OF HARYANA
Bench: V. GOPALA GOWDA,ADARSH KUMAR GOEL
Case number: C.A. No.-010532-010532 / 2014
Diary number: 34428 / 2011
Advocates: KAMALDEEP GULATI Vs
SUMITA HAZARIKA
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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10532 OF 2014 (Arising out of SLP(C) NO. 5346 OF 2012)
SITA RAM ………APPELLANT
Vs.
STATE OF HARYANA & ANR. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
2. This appeal is directed against the final
judgment and order dated 05.07.2011 passed by the
High Court of Punjab and Haryana at Chandigarh in
Civil Writ Petition No. 9710 of 2003 dismissing
the Writ Petition.
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The facts of the case are briefly stated
hereunder:-
3. The appellant started his factory for
manufacturing fireworks in the year 1990 at
Village Kasar, Tehsil Bahadurgarh, District
Jhajjar and was granted a licence by the Chief
Controller of Explosives for storage of
explosives under the Explosives Rules, 1983
framed under the Explosives Act, 1884.
4. Under the Explosives Rules, it is mandatory
to maintain open radial safety distance of 71
meters from all sides around the magazine storing
2 Lakh Kgs. of fireworks. The letter dated
05.03.2001 was issued to the appellant’s firm by
the Joint Chief Controller of Explosives,
Faridabad, stipulating that 71 meters of safety
radial distance must be maintained from all sides
of the magazine storing 2 Lakh kgs of fireworks.
The explosive rules further mandate that land of
71 meter radius around the magazine should also
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be free from construction for the continuance of
the explosive license.
5. As per document Annexure P-9-H dated
28.05.1990, it appears that the permission was
granted to store the explosives only to the
extent of 1,700kgs. So far as the requirement
for keeping 71 meters of mandatory safety
distance, it is applicable only in cases where
permission has been granted to store explosive to
the extent of 2 lakh kgs. This fact is evident
from the document P-9-Q.
6. A letter dated 05.03.2001 was issued by the
Department of Explosives. Initially, the
appellant got permission for manufacture of
fireworks of 1700 kgs. but later on the
Department of Explosives granted licence to the
appellant’s firm for storing 2 lakh kgs of
fireworks in the magazine situated at the
appellant’s land. The said letter dated 5.03.2001
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is written to M/s Gupta and Co. and it states
thus:-
“Adverting to your letter dated 2.3.2001, it is clarified that minimum land required for a firework factory having 6 processing sheds may be computed as follows as required under the Explosive Rules, 1983. The magazine accommodating 2,00,000 kgs of fireworks should observe radial safety distance of 71 mts. from all sides.”
7. Vide letter dated 27.10.1999, the Department
of Explosives, Government of India, granted
amended permission for possession and sale of
fireworks to the extent of 2 lakh kgs at magazine
situated at village Kasar, District Rohtak,
Haryana which reads as under :-
“Licence No.E.25(11) 51 dated 31.03.1992 is hereby amended for possession and sale of fireworks (Class 7, Divn. 2 sub-divn. 1 &2) – 2,00,000 kgs. from your magazine at village Kasar, Distt Rohtak (Haryana).”
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But as stated above, the land in question is
necessarily required as per the mandate of
Explosive Rules.
8. On 24.01.2001 the Government of Haryana issued
Notification under Section 4 of the Land
Acquisition Act, 1984 (hereinafter referred to as
“the Act”) for acquisition of land of villages
Kassar, Sankhol, Jhakhodha and Saidpur, Tehsil-
Bahadurgarh, District-Jhajjar including land
measuring 71 Kanals owned by the appellant for
the purpose of development of area.
9. Objections filed under Section 5-A of the Act
for release of the appellant’s land was
considered and found to have merit and part of
the appellant’s land was released from
acquisition. Following the same, the notification
was issued under Section 6 of the Act, under
which the remaining part of the appellant’s land
that was not released from acquisition was
acquired whereas land belonging to other
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industries such as M/s. Rockwell Industries Pvt.
Ltd., M/s H.B. Plastics Pvt. Ltd., M/s Rocklight
Chemicals and Resins Pvt. Ltd., M/s Prag Auto
Products Ltd. were released from acquisition and
these industries were even given permission for
change of land use. It is argued that the
respondents thus had adopted a pick and choose
policy, which is a clear case of discrimination,
violative of Article 14 of the Constitution &
also amounts to unreasonable and arbitrary action
by them.
10. Being aggrieved by the same, the appellant
filed Civil Writ Petition No. 9710 of 2003 before
the High Court of Punjab and Haryana at
Chandigarh. The High Court was pleased to grant
interim restraint order against the respondents
in favour of appellant in regard to possession of
the land in question and passed order dated
03.07.2003 in CWP No. 9710 of 2003 in terms of
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order dated 25.11.2002 passed in a connected CWP
No. 13557 of 2002.
11. During the pendency of the said writ
petition, the State Government framed a
comprehensive policy dated 26.10.2007 for
releasing land from acquisition proceedings and
placed reliance upon certain relevant following
clauses:
“1. No request will be considered after one year of award. Only those requests will be considered by the Government where objections under Section 5-A were filed. 2. XXX XXX XXX XXX 3. Any factory or commercial establishment which existed prior to Section 4 will be considered for release. 4-5. XXX XXX XXX XXX 6. That the Government may also consider release any land in the interest of integrated and planned development for where the owner have approached the Hon’ble Courts and have obtained by stay against dispossession.
Provided that the Government may release any land on the grounds other than stated above under
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Section 48 (1) of the Act under exceptionally justifiable circumstance for the reasons to be recorded in writing.”
Under this policy, land having construction
prior to issuance of notification under Section 4
of the Act were not included in the acquisition.
The factory and commercial establishments which
existed prior to issuance of notification under
Section 4 of the Act were also to be released
from acquisition. The constructed area of ‘A’ and
‘B’ grade should be left out from acquisition.
Further, in cases where the owners of land
approached the Courts and got stay order against
their dispossession were also to be considered
for release from acquisition.
12. This Court considered the said policy in the
case of Sube Singh & Ors v. State of Haryana &
Ors.1 and granted ‘Stay of dispossession’ in
1
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similar matter involving the same policies issued
by the State of Haryana for releasing the land,
in SLP (c) No.15645 of 2008, Kishan Das & Ors. v.
State of Haryana & Ors. vide order dated
18.07.2008. Further, this Court by its order
dated 05.01.2011, granted ‘Leave’ in the same
matter along with batch of other matters, wherein
also the same policy of the State of Haryana is
involved for releasing such land covered under
the policy from acquisition.
13. The High Court after examining the facts,
evidence produced on record and circumstances of
the case observed that the permission was granted
to the appellant to set up a fire cracker factory
and as per Annexure P-9-H dated 28.05.1990, the
said permission was granted to store the
explosives only to the extent of 1700 kgs. On the
statutory requirement of keeping 71 meters of
mandatory safety distance, the High Court held
that it was applicable only in cases where
(2001) 7 SCC 545
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permission was granted to store explosives to the
extent of 2,00,000 kgs. which was evident from
Annexure P-9-Q. It was further held that the
documents put on record indicate that in the year
1991, permission was granted in favour of the
appellant to set up a fire cracker factory as per
document P-9-H dated 28.05.1990 and that there
was nothing on record at any time that permission
was granted to the appellant by the Joint Chief
Controller of Explosives, North Circle, Faridabad
to store 2,00,000 kgs. of explosives was either
cancelled or modified. From the perusal of the
photographs produced that the industrial unit was
not in working condition, there was wild growth
of grass, and the doors and window panes of the
building were also found to be missing is the
contention urged by the respondents. The High
Court held that there was no visible activity in
sight so far as the premises is concerned in the
photographs and that after getting the license;
the so-called industrial unit was not in
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operation. Therefore, the objections raised by
the appellant under Section 5A of the Act to the
preliminary notification are not tenable in law
and the High Court held that no legal flaw has
been shown to the Court by the appellant that
acquisition proceedings are bad in law.
Therefore, the High Court opined that there is
nothing to interfere with the acquisition
proceedings at the instance of the appellant and
dismissed the petition.
14. The correctness of the said impugned
judgment and order of the High Court is
challenged by the appellant by filing this Civil
Appeal urging various legal contentions. Brief
and relevant facts are stated for the limited
purpose in this case as we have examined the
application filed by the appellant under Section
24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
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and Resettlement Act, 2013 (for short ‘the Act of
2013’).
15. This Court vide order dated 19.03.2012 issued
notice and dasti in addition to the ordinary
process and directed to maintain “status quo”
with regard to the subject property. The said
interim order is still in force.
16. The learned counsel for the appellant placed
reliance upon the decision of this Court in the
case of Sube Singh (supra) stating certain
relevant facts relating to the land acquisition
of the appellant and referring to the affidavit
of Shri T.L. Satyaprakash, Special Secretary to
Government of Haryana and Director, Industries
and Commerce, Haryana Chandigarh dated 19.04.2011
filed in CWP No. 7218 of 2002 before the High
Court in compliance of its order dated
24.01.2011, where the status of land of various
writ petitions pending before the High Court was
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given including the appellant’s land which reads
thus:
“That it is further respectfully submitted that the State Government issued another notification dated 24.01.2001 under Section 4 of the Land Acquisition Act, 1894 for acquisition of land measuring 616 acres 1 kanal 9 marlas, for a public purpose, namely, for development of industrial area in villages Baadurgah, Kasr Sankhol, Jhakhoda and Saadpur, Tehsil Bahadurgarh, District Jhajjar. A per the provisions of the Act, the said notification was published in the official Gazette dated 24.01.2001 of the State Government and in two daily newspapers, namely “Hari Bhoomi” dated 11.02.2001 and “Financial Express” dated 10.02.2001. The State Government issued notification dated 19.07.2001 under Section 48 of the Act for land measuring 1 acres 7 kanals 17 marlas of village Sankhol. Subsequently, anther notification dated 09.01.2002 was issued under Section 48 of the Act for land measuring 6 acres 1 kanal 15 marlas of village Sankhol. Subsequently, the State
Government after considering the recommendations of the LAC, Jhajjar and the comments of the HSIIDC, issued notification dated
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22.01.2002 under Section 6 of the Act for acquisition of land measuring 576 actres 5 kanals 12 marlas of villages Bahadurgarh, Kassar, Sankhol, Jhakhoda and Saadpur, tehsil Bahadurgarh, district Jhajjar. As per the provisions of the Act, the said notification was published in the official Gazette dated 22.01.2002 of the State Government and in two daily newspapers, namely, “Hari Bhoomi” dated 31.01.2002 and ‘The Pioneer” dated 03.02.2002. The LAC, Jhajjar, announced the Award of the land comprising in villages Bahadurgarh, Kassar, and Saadpur on 08.10.2003 and of villages Saadpur Sankhol and Jhakhoda on 23.12.2003, thus completing the acquisition proceedings.”
The learned counsel for the appellant has also
placed strong reliance upon the additional
affidavit filed by T.L. Satyaprakash, Special
Secretary to Government, Haryana, wherein he has
stated at paragraph 8, the relevant portion of
which reads thus:
“…That the total amount of the entire acquired land measuring 272 acres 3 kanals 15 marlas comes to Rs.9125156/- It is
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further submitted that there were 794 claimants in all out of whom 748 persons have already received their compensation to the tune of Rs. 88177626/-. The balance amount of compensation belongs to the remaining 46 persons including the petitioner amount to Rs.3027530/- out of which the petitioner’s compensation comes to Rs.1652952/- and the said amount stands deposited in the Court on 09.04.2014.”
17. The learned counsel for the appellant has
placed strong reliance upon the interim order of
the High Court dated 03.07.2003 and this Court
vide interim order dated 19.03.2012 passed
“status quo” regarding possession of land
involved in the proceedings which is in force in
support of plea for grant of relief under Section
24(2) of the Act of 2013 as the appellant has
been in actual physical possession of the land
and not been paid compensation in respect of the
acquired land and building. The award was passed
by the Land Acquisition Collector in this case on
08.10.2003 which is more than 5 years as on
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01.01.2014, when the above Act came into force
and undisputedly the deposit of the compensation
payable to this appellant as per the statement of
fact sworn to in the affidavit referred to supra
is on 09.04.2014 which is more than 5 years from
the date of the award passed prior to the
commencement of the Act of 2013.
18. In view of the aforesaid undisputed fact, the
acquisition proceedings of land and building of
this appellant have lapsed under Section 24(2) of
the Act of 2013.
19. The interpretation of Section 24(2) of the
Act of 2013 has been made by this Court in Pune
Municipal Corporation and Anr. v. Harakchand
Misirimal Solanki & Ors.2, Union of India & Others v. Shiv Raj & Others3, Bimla Devi & Others
v. State of Haryana & Others4, Bharat Kumar v.
State of Haryana & Another5 and Sree Balaji Nagar
2 (2014) 3 SCC 183 3 (2014) 6 SCC 564 4 (2014) 6 SCC 589 5 (2014) 6 SCC 586
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Residential Association v. State of Tamil Nadu &
others6. The relevant paras 20 and 21 from the
three Judge Bench judgement of this Court in Pune
Municipal Corporation & Anr. case (supra) are
extracted hereunder:-
“20…….it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the Government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act.
6 Civil Appeal No. 8700 of 2013
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21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals the 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of the 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there
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is no merit in the contention of the Corporation.”
20. Further, this Court in the case of Sree
Balaji Nagar Residential Association v. State of
Tamil Nadu & Ors.7, held that Section 24(2) of
the Act of 2013 does not exclude any period
during which the land acquisition proceeding
might have remained stayed on account of stay or
injunction granted by any court. It was
conclusively held that the Legislature has
consciously omitted to extend the period of five
years indicated in Section 24(2) of the Act of
2013 for grant of relief in favour of land
owners even if the proceedings had been delayed
on account of an order of stay or injunction
granted by a court of law or for any reason.
21. In the light of the above findings recorded
by us on the rival factual and legal
contentions, and considering the averments made
in the application and documents produced on 7 2014 (10) SCALE 388
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record and after examining Section 24(2) of the
Act of 2013 along with the decision of Pune
Municipal Corporation and other cases referred
to supra, we are of the considered view that the
plea of the appellant should be accepted and
relief as prayed for has to be granted for the
undisputed reason that the Award was passed on
08.10.2003 and five years have elapsed long back
and the compensation undisputedly was not paid
within 5 years to the appellant. The conditions
mentioned in Section 24(2) of the Act of 2013
are satisfied by the appellant for allowing the
plea as stated by him that the land acquisition
proceedings in respect of his acquired land and
building must be deemed to have lapsed in terms
of Section 24(2) of the Act of 2013. The above
mentioned three Judge Bench decision and other
cases of this Court referred to supra with
regard to the interpretation made under Section
24(2) of the Act of 2013, would be aptly
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applicable with all fours to the fact situation
in respect of the land covered in this appeal.
22. In view of the aforesaid findings and
reasons recorded by us, the prayer made in the
application of the appellant is allowed holding
that the acquisition proceedings in respect of
the appellant’s land/building have elapsed. I.A.
No. 5 is allowed. The appeal is disposed of in
the above said terms by quashing the acquisition
proceedings of the land/building of the
appellant.
……………………………………………………………J. [V.GOPALA GOWDA]
……………………………………………………………J. [ADARSH KUMAR GOEL]
New Delhi, November 25, 2014
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ITEM NO.1 COURT NO.10 SECTION IVB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS C.A. No. …......./2014 arising from SLP(C) No(s). 5346/2012 SITA RAM Petitioner(s) VERSUS STATE OF HARYANA AND ANR. Respondent(s) Date : 25/11/2014 This petition was called on for JUDGMENT today.
For Petitioner(s) Mrs. Kamaldeep Gulati,Adv. For Respondent(s) Ms. Sumita Hazarika,Adv.
Mr. Sachin Mittal, Adv. Mr. Ravindra Bana,Adv. Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Adarsh Kumar Goel.
Leave granted.
The appeal as well as application(s), if any, are disposed of in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER (Signed Non-Reportable judgment is placed on the file)