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Section 4 in The Land Acquisition Act, 1894
The Land Acquisition Act, 1894
Article 21 in The Constitution Of India 1949
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Punjab-Haryana High Court
Haryana Urban Development ... vs Sandeep & Others on 25 April, 2012

LPA No.2096 of 2011 & other connected cases 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

L.P.A.No.2096 of 2011

& other connected cases

Date of Decision: 25.04.2012

Haryana Urban Development Authority & others ...Appellants

Versus

Sandeep & others ...Respondents

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA

HON'BLE MR. JUSTICE A.N. JINDAL

Present: Mr. Neeraj Jain, Senior Advocate, with Mr. Siddharth Batra, Advocate, for the appellants.

Mr. Puneet Bali, Advocate, for the respondents.

HEMANT GUPTA, J.

This order shall dispose of LPA No.2096 of 2011 preferred

under Clause X of the Letters Patent arising out of an order passed by the

learned Single Judge of this court on 16.05.2011 in respect of the rights of

oustees for allotment of plots, as part of Rehabilitation & Resettlement

Scheme as well as other connected matters, list of which is appended as

Annexure - A.

Large number of writ petitions were taken up for hearing by the

learned Single Judge and decided by common order. Even before this

Court, large number of writ petitions are listed for hearing raising one or the

other questions arising out of the Rehabilitation & Resettlement Policies

framed by Haryana Urban Development Authority (for short 'the HUDA')

and/or by the State Government from time to time. The arguments have LPA No.2096 of 2011 & other connected cases 2

been heard in respect of all the issues arising out of the policies so framed.

Such issues are being dealt with in the present appeal though such questions

does not arise out of the facts of the present appeal. The findings recorded

herein would be relevant for most of the writ petitions heard along with the

present appeal.

The question of allotment of the plots to the oustees, came up

for consideration before the Hon'ble Supreme Court in State of U.P. Vs.

Smt. Pista Devi & others AIR 1986 SC 2025, wherein the Hon'ble Court

was considering the acquisition of land by Meerut Development Authority.

The Court directed that where large tracts of land for the purposes of land

development in urban areas is acquired, the developing authority should

provide a house or shop site of reasonable size on reasonable terms to each

of the expropriated persons, who have no houses or shops/buildings in the

urban area in question. The said direction was issued in view of the

provisions of Section 21(2) of the Delhi Development Act, 1957, which

contemplates settlement of those land-owners, whose land has been

acquired. Various facets of such directions have come up for consideration

before the Hon'ble Supreme Court as well as by the High Courts including

this Court earlier.

In State of Madhya Pradesh Vs. Narmada Bachao Andolan &

another (2011) 7 SCC 639, the Hon'ble Supreme Court negated the

argument that in case of land acquisition, the plea of deprivation of right to

livelihood under Article 21 is sustainable. It was held to the following

effect:

"26. It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other LPA No.2096 of 2011 & other connected cases 3

activity on the land acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on the terms settled with due regard to the price at which the land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case.

27. In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition. The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands.

"10. ... A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens." (Mahanadi Coalfields Ltd. Vs. Mathias Oram (2010) 11 SCC 269)

For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. (Vide State of U.P. v. Pista Devi AIR 1986 SC 2025, Narpat Singh v. Jaipur Development Authority AIR 2002 SC 2036, Land Acquisition Officer v. Mahaboob (2009) 14 SCC 54, Mahanadi Coalfields Ltd. v. Mathias Oram (2010) 11 SCC 269 and Brij Mohan v. HUDA (2011) 2 SCC 29.) The fundamental right of the farmer to cultivation is a part of right to livelihood. "Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity." India being a predominantly agricultural society, there is a "strong linkage between the land and the person's status in [the] social system".

28. However, in case of land acquisition, "the plea of deprivation of right to livelihood under Article 21 is unsustainable". (Vide Chameli Singh v. State of U.P. (1996) 2 SCC 549 and Samatha v. State of A.P. (1997) 8 SCC 191). This Court has consistently held that Article 300-A is not only a constitutional right but also a human right. (Vide Lachhman Dass v. Jagat Ram (2007) 10 SCC 448 and Amarjit Singh v. State of Punjab (2010) 10 LPA No.2096 of 2011 & other connected cases 4

SCC 43). However, in Jilubhai Nanbhai Khachar v. State of Gujarat 1995 Supp. (1) SCC 596, this Court held: (SCC pp. 620 & 632, paras 30 & 58)

"30. Thus it is clear that right to property under Article 300-A is not a basic feature or structure of the Constitution. It is only a constitutional right. ...

* * *

58. ...The principle of unfairness of the procedure attracting Article 21 does not apply to the acquisition or deprivation of property under Article 300-A giving effect to the directive principles."

29. This Court in Narmada Bachao Andolan Vs. Union of India (2000) 10 SCC 664 held as under: (SCC pp. 702-03, para 62)

"62. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress." (...emphasis supplied)

30. In State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46, this Court held as under: (SCC p. 95, paras 102-03) "102. Article 21 deals with right to life and liberty. Would it bring within its umbrage a right of tribals to be rehabilitated in their own habitat is the question?

103. If the answer is to be rendered in the affirmative, then, for no reason whatsoever even an inch of land belonging to a member of Scheduled Tribe can ever be acquired. Furthermore, a distinction must be borne between a right of rehabilitation required to be provided when the land of the members of the Scheduled Tribes are acquired vis-à-vis a prohibition imposed upon the State from doing so at all."

(...emphasis supplied)

31. Thus, from the abovereferred judgments, it is evident that acquisition of land does not violate any constitutional/fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned."

LPA No.2096 of 2011 & other connected cases 5

In the aforesaid judgment, under the head 'land for land', the

Hon'ble Court observed that Constitution requires removal of economic

inequalities and provides for provision of facilities and opportunities for a

decent standard of living and protection of economic interests of the weaker

segments of the society. Every human has a right to improve his standard of

living. The Court concluded that allotment of land in lieu of land acquired

in view of the Rehabilitation & Resettlement Policy (for short 'R&R

Policy'), the State Authorities are under obligation to allot land to the

allottees as far as possible. The expression 'as far as possible' has been

explained in para 38, which read as under:

"38. The aforesaid phrase provides for flexibility, clothing the authority concerned with powers to meet special situations where the normal process of resolution cannot flow smoothly. The aforesaid phrase can be interpreted as not being prohibitory in nature. The said words rather connote a discretion vested in the prescribed authority. It is thus discretion and not compulsion. There is no hard-and-fast rule in this regard as these words give a discretion to the authority concerned. Once the authority exercises its discretion, the court should not interfere with the said discretion/decision unless it is found to be palpably arbitrary. (Vide Iridium India Telecom Ltd. v. Motorola Inc. (2005) 2 SCC 145 and High Court of Judicature for Rajasthan v. Veena Verma (2009) 14 SCC 734). Thus, it is evident that this phrase simply means that the principles are to be observed unless it is not possible to follow the same in the particular circumstances of a case."

The Hon'ble Supreme Court further held that the Government

has the power and competence to change the policy on the basis of ground

realities and that State Government is competent to frame policy and a

public policy can be challenged, where it offends some constitutional or

statutory provisions. It observed as under:

"35. In State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117, this LPA No.2096 of 2011 & other connected cases 6

Court while examining the State policy fixing the rates for reimbursement of medical expenses to government servants held: (SCC pp. 129-30, paras 25-26 & 29)

"25. ...When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints.

26. ...For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right, finances are an inherent requirement. Harnessing such resources needs top priority.

* * *

29. No State of any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible."

36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Singh Vijay Pal Singh v. State of U.P. (2007) 6 SCC 44, Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561 and State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46.)

37. Thus, it emerges to be a settled legal proposition that the Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only be challenged where it offends some constitutional or statutory provisions."

The Hon'ble Court in Narmada Bachao Andolan Vs. State of LPA No.2096 of 2011 & other connected cases 7

M.P. (2011) 12 SCC 333 has held that it is impermissible in law to read a

part of the document in isolation. The document is to be read as a whole.

(see para 44). In Jage Ram & others Vs. Union of India & others 1995 Supp

(4) SCC 615, the Hon'ble Supreme Court considered the earlier judgment in

Pista Devi's case (supra) and held that since the acquisition is only for

defence purposes, the allotment of alternative site would create innumerable

complications and that allotment of alternative sites depends upon the

purpose of acquisition as well. It was held to the following effect:

"1. The only question raised in these two writ petitions is whether an observation is to be made by this Court to the effect that the petitioners would be entitled to allotment of alternative sites by the Delhi Development Authority. It is true that the lands of the petitioners were acquired for a defence purpose, viz., establishment of Radar. They were duly paid the compensation demanded of. One of the reliefs sought in the writ petitions is that since they have been displaced from their holdings, they need some site for construction of their houses and that, therefore, the Government of India may make an effort to provide them alternative sites. We are aware of the decision rendered by this Court in State of U.P. v. Pista Devi AIR 1986 SC 2025 (SCC at p. 260). But it depends upon the acquisition for which it was made. In that case, acquisition related to planned development of housing scheme by Meerut Development Authority. Therefore, though no scheme was made providing alternative sites to those displaced persons whose lands were acquired and who themselves needed housing accommodations, a direction was given to the Meerut Development Authority to provide alternative sites for their housing purpose. Since the acquisition is only for defence purpose and if the request is acceded to, it would create innumerable complications, we are constrained not to accede to forceful persuasive argument addressed by Mr R.P. Gupta, learned counsel for the petitioners."

In S. Gurdial Singh & others Vs. Ludhiana Improvement Trust

(1995) 5 SCC 138, considering the Pista Devi's case (supra), the Hon'ble

Supreme Court held that the general ratio therein cannot be uniformly and LPA No.2096 of 2011 & other connected cases 8

mechanically extended to all the cases unless there is any express scheme

framed by appropriate authorities and the scheme is in operation. The

Hon'ble Supreme Court was considering the allotment of alternative sites

for commercial purposes, as a local displaced persons in terms of

acquisition of land by the Improvement Trust. It was observed as under:

"4. It is then contended, relying upon the decision of this Court in State of U.P. v. Pista Devi AIR 1986 SC 2025 that the appellants are entitled to allotment of alternative sites for commercial purpose. Therein, the land was acquired for housing development and the persons whose properties were sought to be displaced were directed to be provided housing accommodation under the schemes formed thereunder. The general ratio therein cannot be uniformly and mechanically extended to all the cases unless there is any express scheme framed by appropriate authorities and the scheme is in operation. Under these circumstances, we cannot give any express direction in this behalf. However, when the grievance was made by the appellants, an admission was made in the counter-affidavit filed in the High Court thus:

"The petitioners could get a plot of land as local displaced persons in lieu of their acquired land according to rules on the subject."

In Amarjit Singh & others Vs. State of Punjab & others (2010)

10 SCC 43, it has been held that rehabilitation is not a recognized right

either under the Constitution or under the provisions of the Land

Acquisition Act. Any beneficial measures taken by the Govrnment are,

therefore, guided only by humanitarian considerations of fairness and equity

towards the landowners. The rehabilitation of the property owners is a part

of the right to life guaranteed under Article 21 of the Constitution and that

acquisition made in exercise of power of eminent domain for public purpose

and that individual right of ownership over land must yield place to the

larger public good. It was held as under:

"16. As regards the question of rehabilitation of the expropriated LPA No.2096 of 2011 & other connected cases 9

landowners, Mr Subramanium, submitted that rehabilitation was not a recognised right either under the Constitution or under the provisions of the Land Acquisition Act. Any beneficial measures taken by the Government are, therefore, guided only by humanitarian considerations of fairness and equity towards the landowners. The benefit of such measures is however subject to the satisfaction of all such conditions as may be stipulated by the Government in regard thereto. The policy relied upon by the appellants being only prospective cannot be made retrospective by a judicial order to cover acquisitions that have since long been finalised. xxx xxx xxx

49. We must, in fairness to Mr. Gupta mention that he did not suggest that rehabilitation of the oustees was an essential part of any process of compulsory acquisition so as to render illegal any acquisition that is not accompanied by such measure. He did not pitch his case that high and in our opinion rightly so. The decisions of this Court in New Reviera Coop. Housing Society v. Land Acquisition Officer (1996) 1 SCC 731 and Chameli Singh v. State of U.P. (1996) 2 SCC 549 have repelled the contention that rehabilitation of the property owners is a part of the right to life guaranteed under Article 21 of the Constitution so as to render any compulsory acquisition for public purpose bad for want of any such measures.

50. In New Reviera case (supra), this Court held that if the State comes forward with a proposal to provide alternative sites to the owners, the Court can give effect to any such proposal by issuing appropriate directions in that behalf. But a provision for alternative sites cannot be made a condition precedent for every acquisition of land. In Chameli Singh case (supra) also the Court held that acquisitions are made in exercise of power of eminent domain for public purpose, and that individual right of ownership over land must yield place to the larger public good. That acquisition in accordance with the procedure sanctioned by law is a valid exercise of power vested in the State hence cannot be taken to deprive the right to livelihood especially when compensation is paid for the acquired land at the rates prevailing on the date of publication of the preliminary notification.

51. There is, thus, no gainsaying that rehabilitation is not an essential requirement of law for any compulsory acquisition nor can acquisition made for a public purpose and in accordance with the procedure established by law upon payment of compensation that is fair and reasonable be assailed on the ground that any such acquisition violates the LPA No.2096 of 2011 & other connected cases 10

right to livelihood of the owners who may be dependent on the land being acquired from them".

In Ludhiana Improvement Trust Vs. Smt. Pritam Kaur & others

2010 (2) RCR (Civil) 561, a Division Bench of this Court held to the

following effect:

"10. In State of UP v. Pishta Devi, (1986) 4 SCC 251, it was observed that when as a result of acquisition of land for providing residential accommodation to people, a person is rendered homeless, such person should be eligible for relief at par with provision contained in section 21 (2) of the Delhi Development Act, 1957. In New Reviera Coop Housing Society v. Special Land Acquisition Officer, (1996) 1 SCC 731, para 9, it was observed that the issue of alternative sites had to be considered in accordance a scheme but in absence thereof, the acquisition could not be held to be violative of Article 21 of the Constitution.

11. A scheme of allotment of alternative sites to rehabilitate persons displaced by acquisition has a purpose and provisions of any such scheme have to be interpreted to advance such purpose. ..."

Soon after Pista Devi's case (supra) was decided, it was on

10.09.1987, the HUDA issued a circular for allotment of residential

plots/commercial sites to the oustees in the various Urban Estates. All the

Policies issued from time to time contemplate sizes of the plot to be allotted

keeping in view the extent of land acquired. There is no challenge to such

sizes of the plots offered. However, the issue is regarding eligibility and the

process of allotment. Brief reference to each of the Policy is made

hereinafter keeping in view the contentions raised.

In the Policy dated 10.09.1987, a landowner, who was owner of

land proposed to be acquired for one year before the issue of notification

under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') was

eligible provided 75% of the total land owned by the landowner is acquired. LPA No.2096 of 2011 & other connected cases 11

Apart from the size of the plots to be allotted, it was communication as

under:

"I am directed to address you on the subject cited above and to inform you that formulation of policy for allotment of plots to the oustees has been engaging attention of HUDA since long. Thus, after due consideration, the Haryana Urban Development Authority decided that the plots to the oustees will only be offered, if they were owners of land proposed to be acquired for one year before the issue of notification under Section 4 of the Land Acquisition Act of 1894 and the plots will be made available, only if 75% of the total land owned by the landowners is acquired. The plots will be allotted to such persons as under: xxx xxx xxx

The persons, whose part of land or some houses have been released from the acquisition and the remaining land stands acquired, should not be considered in the category of oustees for allotment of plots under this category.

The Hon'ble Supreme Court has also decided in a number of cases that land should be allotted for a house/shop to all those persons, whose land has been acquired. Legally, it becomes the responsibility of Haryana Urban Development Authority to allot/reserve some commercial sites for oustees. The commercial sites/buildings are sold by auction and under these circumstances, such sites/buildings could be considered for allotment to oustees on reserve price and when the auction for the same is held. As and when these sites/buildings are put to auction, the oustees who want to purchase the sites/buildings could represent forehand for allotment so that requisite number could be reserved for them."

In continuation of the aforesaid communication dated

10.09.1987, another circular was issued on 09.05.1990 in order to remove

the ambiguities in the instructions for allotment of plots. It was

communicated that a landowner would be entitled to allotment of plot, if he

was owner for a continuous period of five years before the publication of

the notification under Section 4 of the Act and that in case there are number

of co-sharers and that such plots should be offerred to the oustees only if he LPA No.2096 of 2011 & other connected cases 12

does not own any house/shop/plot in any of the Urban Estates of that town.

It was also communicated that the persons, whose house or part of land has

been released from acquisition shall not be considered under the category

for allotment of such plots. The relevant clauses read as under:

"(i) Plots to the oustees may be offered if the land proposed to be acquired is under the ownership of the oustee for a continuous period of five years before the publication of the notification under Section 4 of the Land Acquisition Act and if 75% or more of the total land owned by the landowners in that Sector is acquired. xxx xxx xxx

(iv) Such plots should be offered to the oustees only if he does not own any house/shop/plot in any of the Urban Estates of that town; (v) The persons whose house or part of land has been released from acquisition shall not be considered under the category for allotment of such plots.

(vi) Allotment of plots to the oustees will be made at the normal sector rate of HUDA.

As regards allotment of commercial sites to the oustees, the matter is under re-examination and the decision as and when arrived at would be communicated.

Claims of the oustees shall be invited before the Sector is floated

for sale."

On 18.03.1992, the HUDA in pursuance of its meeting held on

20.02.1992, decided that the plots to the oustees will only be offered if they

were owners of land proposed to be acquired subject to the condition that if

they were owners prior to the publication of the notification under Section 4

of the Act and 75% or more of the total land in that sector is acquired.

There were conditions restricitng the entitlement of the co-sharerers. Such

issue in respect of right of each of the owner is not the subject matter of the

present bunch of cases. Such issue shall be dealt with separately in another

bunch of cases. The other relevant conditions are as under: LPA No.2096 of 2011 & other connected cases 13

"(i) Plots to the oustees would be offered if the land proposed to be acquired is under the ownership of the oustee prior to the publication of the notification under Section 4 of the Land Acquisition Act and if 75% or more of the total land owned by the landowners in that Sector is acquired.

xxx xxx xxx

(iv) If the land of any landowners is released from acquisition, he/she would not be eligible to avail of any benefit under this policy (irrespective of the area of land released).

(v) As per the policy, the oustee shall be entitled to a developed plot/plots. The size of which would depend upon the area of his acquired land, subject to a maximum of 500 sq. yards. The oustee shall be entitled to this benefit under this policy only once in the same town where his land was situated/located. However, in case where the land of a person situated in the same town is acquired in pockets at different times, the owner shall be entitled to claim the benefit on account of the entire area acquired (at different times) for purpose of claiming the benefit under this policy. (vi) Allotment of plots to the oustees will be made at the allotment rates advertised by the Haryana Urban Development Authority for that sector. Land owners will be given compensation for their land which is acquired.

Claims of the oustees for allotment of plots under this policy shall be invited by the Estate Officer, Haryana Urban Development Authority concerned before the Sector is floated for sale. (vii) The Commercial sites/building are sold by auction. The sites/buildings be also allotted to oustees on reserve price as and when the auction of the same is held. While putting such sites/buildings to public auction, the oustees who want to purchase the sites/buildings could represent before hand for allotment, so that requisite number could be reserved for them. However, if the area acquired of the commercial site is equivalent or less to the area of booth/shop-cum-flat being auctioned by HUDA, they may be given a booth/S.C.O. sites keeping in view the size of acquisition under this policy."

Still later on 12.03.1993, another circular was issued to

regulate the procedure to examine the claim of the eligible oustees. It was LPA No.2096 of 2011 & other connected cases 14

communicated that benefit under the Policy is not to be allowed to those

oustees, who have got residential/commercial plots from HUDA in that

Urban Estate and that screening committees should settle the claims within

the time frame as indicated in the procedure. The procedure was given in

Annexure 'A' appended with the said circular. Annexure 'A' read as under:

"Annexure 'A'

Procedure for inviting, scrutinizing, deciding of claims and mode of allotment to the oustees.

(i) Filing of Claims

L.A.O. concerned will prepare a list of eligible oustees at the time of announcement of award and send the same to the Estate Officer for reference and record. The Estate Officer concerned shall invite the claims through press/news-papers for allotment of plots under the oustees policy much before floatation of the sector. Each applicant would be required to send the application in the prescribed proforma, along with the supporting documents and earnest money equivalent to 10% of the cost of the plot of the sector in question and if the price has not been determined till then, of the previous sector floated in the same urban estate. (ii) The allotment of plots under oustees policy be restricted to the claimants within the sector for which the land has been/is being acquired.

(iii) The past claims which have also been received in different offices of HUDA/Urban Estates for allotment of residential plots under Oustee policy be scrutinized by the proposed Committee in terms of the policy applicable at the relevant time. Such past claims will be considered and got decided within a time-frame of 4 months, as one time measure.

(iv) The onus to file the claims under oustee policy shall rest with the claimants and Estate Officer concerned will publish a public notice through press/News Paper for inviting such claims within one month of taking possession of the land. However, the record of LAO's office will be consulted for verification of these claims by a Screening Committee, constituted for the purpose.

(v) Scrutiny and acceptance of claims

The documents received with the application will be scrutinized LPA No.2096 of 2011 & other connected cases 15

with reference to the record supplied by LAO. For the purpose of a Screening Committee is proposed to be constituted, which will make its recommendations within one month of the last date of filing of the claims:

1. Zonal Administrator (concerned) Chairman

2. Land Acquisition Officer of the area Member

3. District Town Planner of the area Member

4. Estate Officer of the Urban Estates Member Secretary

The Committee shall forward its recommendations to the Chief Administrator for accepting the claims of such applicants. (vi) Mode of Allotment

After the claims have been finally accepted by the Competent Authority, the applicant's claims will be kept in a live register and applicants shall be asked to deposit the earnest money equivalent to 10% of the cost of the plot as and when sector scheme is to be floated. The allotment of plots to such claimants shall normally be done prior to or at least along with other applicants, who have been declared successful in the draw of lots after the floatation of the scheme. By doing so, the number of plots, which are to be offered in general draw will be identified after the claims of the oustees have been scrutinized/accepted and the residual plots are earmarked for the general draw. Those allottees who do not prefer their claims within the stipulated period along with requisite information will have no right for consideration of their claims after the general draw is over in respect of that sector."

The said policy was later on modified on 28.08.1998 in view of

the problems being faced by HUDA at the implementation stage in respect

of allotments to be made within the sector for which land has been acquired.

It was found that if the acquired land is being developed by HUDA for the

purposes other than for residential/commercial i.e. recreational sector,

institutional zones, group housing societies and industrial purposes etc.,

then the residential/commercial plots shall be offered in the next residential

Sector of that Urban Estate. The relevant extract reads as under: LPA No.2096 of 2011 & other connected cases 16

"The present policy on the subject, in force, envisages that the allotment of residential/commercial plots under oustee policy shall be restricted to the allotments within the Sector for which the land has been acquired. This stipulation of the policy has been creating a practical problem at the implementation stage. Sometimes, the acquired land belonging to the landowners/oustees, is developed by HUDA for the purposes other than for residential commercial like recreational sector, institutional zones, group housing societies and industrial purposes etc. etc. Then the landowners/oustees of the particular Sector are totally out of the purview of the policy and the landowners are not entitled for allotment of residential plots in lieu of their acquired land.

After careful consideration, the Authority in its 74th meeting held on 20.08.1998, vide Agenda Item No.A-74(7) in partial modification of the policy on the subject in force have decided that if the plot under the oustees policy cannot be offered to the oustees in the same sector, then they should be offered residential/commercial plots in the next residential Sector of that Urban Estate, which may be floated and developed by HUDA. This amendment/provisions will be made applicable prospectively. All other terms and conditions shall, however, remain the same."

Another circular was issued on 27.03.2000 to the effect that the

land owners, whose land was acquired prior to 10.09.1987 shall have prior

right for allotment of plots if the plots are still available in view of the

judgment of this Court in CWP No.14708 of 1990 titled "Suman Aneja Vs.

State of Haryana".

All the aforesaid policies were framed and circulated by

HUDA. For the first time, thereafter, the State Government notified

Rehabilitation and Resettlement Policy on 07.12.2007, inter alia,

contemplating allotment of plots by Haryana Urban Development Authority

and Haryana State Industrial Infrastructure Development Corporation

Limited. The relevant extract from Annexure 'A' appended with the policy

reads as under:

LPA No.2096 of 2011 & other connected cases 17

"2. Allotment of plots by Haryana Urban Development Authority and Haryana State Industrial Infrastructure Development Corporation Limited. (i) The allotment will be made to each co-sharer depending upon his share in the land acquired for Haryana Urban Development Authority and Haryana State Industrial Infrastructure Development Corporation Limited as per scale mentioned in the entitlement. (ii) Plots under this policy would be offered if the land proposed to be acquired is under the ownership of oustees on the date of publication under Section 4 of Land Acquisition Act and if 75% or more of the total land owned by the owner in that Urban Estate is acquired. Only one time benefit of this policy will be given to the land owner whose land is acquired in pocket at different times. In case, the land owner becomes entitled for a bigger size plot due to subsequent acquisition of his land then differential of the plot already allotted to him shall be allowed to him.

(iii) This benefit will not be allowed to applicant whose land has been released and he will not make such request to the Government for release of his land.

(iv) No litigation should be pending except that of enhanced compensation in any Court.

(v) The maximum size of the plot to be allotted will be restricted to 350 sq. yards. Since livelihood of the farmers predominantly depends upon his agriculture income and shops, in order to provide the affected land owners / farmers a long term sustainable source of income, in addition to the residential plot, commercial sites, measuring 2.75 x 2.75 mtr. may be allotted in Haryana Urban Development Authority Sectors. Such allotment shall be made to each co-sharer provided his share exceeds 2.5 acres, otherwise all the co-sharers will be allotted a single site. Director, Town and Country Planning, Haryana will allow additional component of commercial use in the Sector if the booths are separately provided. In respect of Haryana State Industrial Infrastructure Development Corporation Ltd. mixed land use of residential and commercial will be allowed for which a detailed scheme shall be worked out by Haryana State Industrial Infrastructure Development Corporation Limited.

(vi) In case the land is acquired for purposes other than residential sectors, the plots as mentioned in para (v) above will be allotted in the residential sector to be developed next in that urban estate." LPA No.2096 of 2011 & other connected cases 18

xxx xxx xxx

4. The policy for allotment of plots will be applicable only for lands acquired for Haryana Urban Development Authority and Haryana State Industrial Infrastructure Development Corporation Ltd.

5. This policy will be applicable with effect from 5th March, 2005 and cover all those cases of acquisition in which awards of compensation were announced on or after 5th March, 2005."

On 28.04.2008, the HUDA circulated that above said R&R

Policy notified by the State Government is in super-session of Policy

guidelines on the subject circulated by it from time to time. To give effect to

the notified R&R Policy, the HUDA issued operational guidelines on

25.8.2008. The relevant guidelines are as under:

"1. After the announcement of the Award, the Land Acquisition Collector will send the details of the land owners including their area acquired for determining the eligibility and entitlement of the land owners. These details will be sent to the concerned Estate Officers within one month of the announcement of the Award.

2. The Estate Officer will issue a public notice through two newspapers inviting the Oustee's Claim for allotment of residential plot and / or commercial booth as the case may be. The period for inviting the claims will be 30 days from the date of publication of the above notice.

3. The applicants will have to deposit a tentative amount of Rs.50,000/- with their applications. This amount will be deposited against the price of the plot. Those oustees, who do not prefer their claims within the stipulated period alongwith the requisite application amount will have no right for consideration subsequently.

4. The Zonal Committee headed by the Administrator and consisting of Estate Officer and Land Acquisition Collector will determine the eligibility and entitlement of the applicants within 60 days of the last date for receipt of the applications. Each applicant will be informed about the eligibility and entitlement as per the decision of the Zonal Committee.

5. Before the floatation of the Sector, the Oustees will be asked to submit their applications under Oustees' Quota as per their entitlement determined by the Zonal Committee. Each applicant will deposit 10% of the amount so demanded after adjusting the amount of Rs.50,000/- already paid by the Oustees at the time of submission of application. The actual LPA No.2096 of 2011 & other connected cases 19

plots will be given through draw of lots by the Estate Officer. After the draw of lots, the remaining plots will be floated to the general public.

6. If the Zonal Committee finds the claims unacceptable under the Policy, the amount will be refunded to the applicants within 30 days of the decision taken by the Zonal Committee. Any appeal against the decision of the Zonal Committee can be made to the Chief Administrator. The period for such an appeal will be 30 days from the date of communication of the decision of the Zonal Committee.

7. Those oustees who do not apply against the flotation will be refunded the amount of application money without any interest within 60 days of the holding of draw for the Oustees."

Another R&R Policy has been notified by the State

Government on 09.11.2010 which, inter alia, provided for allotment of

alternative plots. The relevant extract reads as under:

"3. Effective Date:

The revised floor rates, the policy of payment of 'No Litigation' incentive, and the revision in various parameters of the R&R Policy will be applicable to all such acquisition cases where awards have been announced on or after 7th September, 2010 irrespective of the date of notification under Section 4 of the Land Acquisition Act, 1894.

xxx xxx xxx

5. Allotment of residential plots in cases where a self-occupied residential house is acquired for unavoidable reasons: (i) Recognizing the sensitivity involved in acquisition of built-up residential houses / structures for unavoidable reasons, the Government has decided to accord the highest priority to the resettlement of this category of persons. In the first instance, all efforts will be made by the acquiring departments to leave out the residential structures existing in the form of clusters from acquisition except where it becomes absolutely unavoidable either due to its stand alone character or its location being within the Right of Way of Infrastructure projects such as roads, canals, railway line etc.

(ii) Accordingly, it has been decided that wherever any self-occupied residential structure/house has to be acquired for unavoidable reasons in the process of acquisition of land by the Government for LPA No.2096 of 2011 & other connected cases 20

any purpose, such owners of build up residential structures would be offered assured allotment of residential plots as per the following scale:

Scale of residential plots in cases where an existing self-occupied house/residential structure is acquired

xxx xxx

(iii) As the affected persons would be entitled to compensation on account of acquisition of land and the structures constructed thereon, the price/cost of the plots to be allotted in favour the affected persons as per above scale would be payable by the allottee;

(iv) The benefit of allotment of a residential plot in this category would be admissible only if the acquired residential house/structure was self-occupied and was in existence on the date of issue of Section 4 notification, and further subject to the condition that such residential house had not been constructed by way of any encroachment on the public/community/government land. The self-occupation of such house by the landowner's family as their regular residence would be an essential condition for this purpose. Residential structures used for rental purposes or those in the form of Kothras in the fields would not be reckoned as 'residential houses' for this purpose;

(v) While assessing the entitlement for size of the plot to be allotted, the land under the existing residential house only would be taken into account and not the appurtenant facilities for other farm operations. Further, while computing the area under such Residential House, the plinth area of the constructed house and equal area towards admissible open space shall be taken into account. Appendix-4 may be referred for the basis of calculation of area;

(vi) Development and allotment of the residential plots under this part would be the responsibility of the acquiring Department/agency. Such plots, to the extent, possible, would be carved out in the area adjoining/in close vicinity of the village abadi deh so that the displaced/rehabilitated persons continue to remain a part of their social milieu. While HUDA, HSIIDC, and the HSAMB would plan their residential blocks for this part as well as for the 'oustee' category as one cluster, the other acquiring departments would LPA No.2096 of 2011 & other connected cases 21

have to acquire additional land specifically for this purpose also; (vii) The rates of plots allotted under this category by HUDA and the HSIIDC shall be 20% lesser than the nodal price of the plot determined for the general public. In all other cases, the rates of plots would be determined by the allotting agency based on the actual costs taking into account (a) the cost of acquisition of land; (b) cost incurred on provision of minimum amenities/services and (c) loading of the areas under roads/streets/services and utilities on to the plotted area.

(viii) The affected landowner would be required to submit his claim in the prescribed Application Form-4."

We have heard learned counsel for the parties. The arguments

raised by the counsel for the parties are being dealt with by framing the

following questions.

Question No.1. Whether the fixation of different dates of eligibility in different policies including the date of award mentioned in the Policy dated 07.12.2007 framed is justified and rational or such condition is arbitrary; discriminatory and unjustified and that the eligibility of an oustee for allotment of plot, is the date of notification intending to acquire land under Section 4 of the Land Acquisition Act, 1894?

In the first policy dated 10.09.1987, a land-owner, who was

owner of the land for a period of one year before the issue of notification

under Section 4 of the Act was eligible for allotment of a plot, but such

period was extended to five years before the publication of notification

under Section 4 of the Act in the circular dated 09.05.1990. However, in the

policy circulated on 18.3.1992, it was again stipulated that the land-owner

should be owner of the land on the date of notification under Section 4 of LPA No.2096 of 2011 & other connected cases 22

the Act. But again, in the policy notified on 7.10.2207, the date of award

has been made the basis to determine the eligibility.

We find that the date of notification under Section 4 of the Act

is just and reasonable in view of the fact that such date is relevant for the

purposes of determination of the market value in respect of compensation

payable to the land-owners for the land acquired. It is said date, when the

acquisition process is set in motion. The period of one year or five years

prior to the date of publication of notification is without any reasonable

basis and has no nexus with the objective to be achieved i.e. resettlement of

the land-owner, who are rendered homeless on account of acquisition of

land. The policies referred to above and/or so framed are ostensibly in

furtherance of the said objective. The fixation of different dates in different

policies lead to conflicting rights and interests and, therefore, to have

uniformity in respect of applicability of the policies for allotment of plots to

the oustees, the date of notification under Section 4 of the Act is a

reasonable date. Any other date in the R&R Policy is, therefore, quashed

and set aside.

Question No.2. Whether the policy of allotment of plot to an oustee, a distinct and separate category, is exception to Article 14 of the Constitution of India and whether, there can be any upper limit for allotment of plots to such category?

Mr. Neeraj Jain, learned senior counsel appearing on behalf of

the HUDA, has not disputed the fact that the oustees, whose land was

acquired prior to 10.09.1987 are eligible for allotment of plots in view of

the judgment of this Court in Smt. Suman Aneja's case (supra). It is also not LPA No.2096 of 2011 & other connected cases 23

disputed by the counsel for all the parties that the oustees form a distinct

class and as a class are entitled to reservation of plots, not exceeding 50% of

the plots in each sector including reservation for the constitutionally

permissible classes to avoid the vice of arbitrariness and discrimination

guaranteed under Article 14 of the Constitution of India. The said view is

also expressed by a Full Bench of this Court in Jarnail Singh & others Vs.

State of Punjab & others AIR 2011 Punjab and Haryana 58.

Learned Single Judge has allowed the writ petitions holding

that HUDA had not invited applications from the oustees prior to the

floating of sector though it has been held that the oustees constitute a

separate category. The relevant extract read as under:

"The doubt, if any, in this regard was clearly dispelled by the policy instructions dated 12.3.1993. The procedure for inviting, scrutinizing and finally selecting the claims of oustees was made and annexed with this policy as Annexure A. Since the obligation was put on the Estate Officer to invite applications, this policy provided for a method to invite claim and it was to be through press/newspapers for allotment of plots under `oustees policy' and this was to be much before floating of sector. As per the mode of allotment, the claim of the applicants was required to be kept in a live register and the applicants were required to deposit earnest money equivalent to 10% of the cost of the plot as and when the sector scheme was to be floated. The allotment of plots to such claimants was to be done prior to or at least alongwith other applicants who have been declared successful after the flotation of the scheme. Number of plots to be offered in a general draw were to be identified after having considered the claims of oustees and only the residual plots were to be offered for general draw of lots. Once the claims had been so invited and if any allottee had failed to prefer the claim within the stipulated period, then he was to loose right for consideration of his claim.

This Court had to deal with the situation where the respondent-HUDA in considering the claim of oustees in violation of the policies had put the name of such oustees alongwith the general draw of lots. In the case of Dharampal Vs. State of Haryana and others, 2006 (2) ILR Punjab and LPA No.2096 of 2011 & other connected cases 24

Haryana 291, the land of the petitioner was acquired on 5.11.1996. The petitioner applied for allotment of 10 marlas plot on 18.11.2002. His claim was considered in the draw of lots meant for General Category. The petitioner in this case pleaded that this ought to have been considered separately under the `oustees quota' as envisaged by the policy dated 10.9.1987 and 12.3.1993. This Court has held that the policy instructions recognize the right of an oustee as a separate category and none of the policies envisages consideration of oustees in a draw of lots meant for General Category. The Court then made reference to the relevant provisions of these policies and to the mode of allotment, as was provided in policy instructions dated 12.3.1993. The Court in this case has observed that in none of the policies, it is envisaged that the cases of oustees were to be considered in the draw of lots alongwith General Category. The category of oustees has been considered as a distinct and a separate category requiring a different and a distinct treatment. The respondents were found to have treated both the distinct categories alike, which was held to be in flagrant violation of policies. Directions, therefore, were issued to allot the residential plot to the petitioner measuring 10 marlas within a period of two months from the date the certified copy of the order was produced before the respondents."(emphasis supplied)

The oustees, whose land has been acquired either for

residential, commercial, institutional or any other purpose, form a separate

and distinct category and are entitled to be considered for allotment of a

plot, as a part of rehabilitation process. It is not disputed by any of the

parties that oustees form a well defined category for which the reservation

to achieve the larger social objective of rehabilitation is warranted.

Therefore, for such category, there could be reservation for plots. A Full

Bench of this Court in Jarnail Singh's case (supra), while considering

question No.1, returned a finding that the policy contemplating the plots for

oustees is nothing, but a reservation of plots for such class. Question No.3

formulated therein was; whether certain percentage of plots is required to be

reserved for oustees or that the oustees are entitled to preferential allotment LPA No.2096 of 2011 & other connected cases 25

of plots first without allotting the same to the general public? It was held

that the reservation in respect of the constitutionally permissible classes can

be only within the limit of 50% of plots for the reason that reservation in

excess of the upper limit contravenes the mandate of Article 14 of the

Constitution. The relevant extracts read as under:

"The question which arises is whether reservation of plots exceeding 50% shall contravene the equality clause contained in Article 14 of the Constitution of India and the concept of maximum reservation to the extent of 50% can be applied in respect of allotment of plots as well.

xxx xxx xxx

In view of the above, the writ petitions are disposed of with the following orders and directions:

1. The oustees, whose land is compulsorily acquired for a public purpose, form a class in itself, having a rational basis with the object of resettlement;

xxx xxx xxx

4. However, the oustees, as a class in themselves, would be entitled to reservation of plots to such an extent as the State Government may deem appropriate;

5. That the State Government shall be at liberty to reframe policy for reservation of plots to constitutionally permissible classes and within limit of 50% of plots; and

xxx xxx xxx"

In Dharampal Vs. State of Haryana & others 2006 (2) ILR

(Punjab and Haryana) 291, a Division Bench of this Court has held that the

rehabilitation policy recognizes the rights of oustees as a separate category,

but none of the Policies envisage consideration of the claims of the oustees

in the draw of lots meant for general category. In the aforesaid case, an

oustee has applied for a plot in response to an advertisement published

inviting applications from the general public and oustees, but the LPA No.2096 of 2011 & other connected cases 26

application was considered as a general category candidate. In these

circumstances, the direction was issued for allotment of a plot.

In view of the aforesaid decisions and the fact that none of the

learned counsel for the parties disputed such principle of law in respect of

upper limit on reservations, the plots for the oustees including all other

constitutionally permissible classes of reservation cannot exceed 50%.

Question No.3. Whether, the release of land from acquisition so as to dis-entitle an oustee from allotment of a plot, means release of land in terms of Section 48 of the Act or includes the non publication of the declaration under Section 6 of the Act as well?

It is also argued that this Court has rightly upheld the R&R

Policy, which dis-entitles a land-owner for allotment of a plot for the reason

that his land has been released after publication of notification under

Section 4 of the Act. It is argued that the terms of the policy are to be read

and understood in the context and the purpose of the policy. Reliance is

placed on Division Bench judgment of this court in CWP No.15409 of 2007

titled "Man singh Vs. State of Haryana & others" decided on 28.11.2008,

wherein the argument that the release of land is only after publication of the

notification under Section 48 of the Act was negated. Reliance is also

placed on CWP No.22143 of 2011 titled "M/s Shiv Shakti Foods Vs. State

of Haryana & others" decided on 29.11.2011, wherein the stand of the

HUDA that the land-loser has lost status as an oustee, was accepted as the

land was released and was asked to deposit development charges.

The release contemplated in the policies is not the release of LPA No.2096 of 2011 & other connected cases 27

land after acquisition under Section 48 of the Act. Such expression has to be

given contextual meaning keeping in view the purport and object which is

sought to be achieved by these polices. If the State Government does not

publish declaration for acquiring the land under Section 6 of the Act, may

be for the reason that there is constructed portion or for any such other

reason, the acquisition proceedings as against the land owner comes to an

end. Keeping in view the purposive interpretation, the land not included in

pursuance of the objections filed under Section 5A of the Act, shall also

mean land released as well. The purpose of policies stands satisfied, when

a constructed portion is not included in Section 6 notification as the land-

loser has some land in his possession for his purposes. Thus, the expression

"released from acquisition" in fact means "released from intention to

acquire". Therefore, the condition of release of land to dis-entitle an oustee

from such status is fair and reasonable.

We do not find any reason to take a different view than what

has been taken by this Court in Man Singh and M/s Shiv Shakti Foods cases

(supra) that the condition in the policies that the release of any part of the

land acquired will include into its ambit that land which is intended to be

acquired as the non inclusion of such land in a declaration under Section 6

of the Act excludes such land from acquisition. Such exclusion in the

notification leads to the abandonment of the acquisition proceedings as

against the oustees. Such action will dis-entitle an oustee from the benefit of

the policies, as he gets benefit of accommodation in the overall developed

Sector.

However, the apprehension expressed by the learned counsel LPA No.2096 of 2011 & other connected cases 28

for the oustees that even release of one yard will dis-entitle the allotment of

plot as an oustee, is not required to be examined in the present case, as it is

hypothetical and for such hypothetical argument, the policy cannot be said

to be illegal. It may be a case of an illegal or arbitrary action under a valid

policy. However, we do not find any merit in the argument raised that 75%

of the land is to be taken into consideration, if the land is situated only in

one khewat and not when the landowner owns land in different khewats in

the same village. The condition for an allotment of a plot for the reason that

75% of the land has been acquired, may be located in one or more parcels,

cannot be said to be unjustified, as the land-owner is owner of the remaining

land, which the policy-makers have found sufficient as a part of

rehabilitation process. The object of the policy is to rehabilitate and not to

allot alternative land. In order to achieve such objective, the extent of

holding acquired or the land not acquired is not relevant as an oustee, whose

land has been acquired has some land to bank upon for his use and

occupation.

Question No.4. Whether the condition in the Policies, seeking applications from the oustees before the Sector is floated for sale, is directory and the said condition is satisfied even when the applications along-with earnest money

are invited from the general public including from the oustees?

The condition that the claim of the oustees shall be before the

sector is floated for sale, was introduced for the first time in the circular

dated 09.05.1990 and reiterated in the circular dated 18.03.1992. It was on LPA No.2096 of 2011 & other connected cases 29

12.03.1993, while issuing the circular, the procedure for allotment of plots

as rehabilitation process was specified. Clause (i) contemplated filing of

claims and preparation of list of eligible oustees by the Land Acquisition

Officer at the time of announcement of award. It also contemplates that the

Estate Officer shall invite claims through press/news-papers for allotment of

plots under the oustees policy "much before floatation of the sector". It was

also specified that each applicant would be required to send the application

along with the supporting documents and earnest money equivalent to 10%

of the cost of the plot of the sector and if the price has not been determined,

then the earnest money was in terms of the previous sector floated in the

same urban estate. Such claims were to be scrutinized by the offices of

HUDA. As per Clause (iv), the onus to file the claims under oustee policy

shall rest with the claimants and the Estate Officer concerned was to publish

a public notice through press/News-paper for inviting such claims. The

documents received with the application were to be scrutinized by

Screening Committee and, thereafter, on acceptance of the claim by the

competent authority, the plots were to be allotted. On the basis of such

conditions in the aforesaid policies, it is argued by the learned counsel

appearing for the oustees that since the applications were invited from the

oustees along with the applications from the general public and not before

the floatation of sector, as is stipulated in the policies, mentioned above,

therefore, the procedure adopted by the respondents contravenes the policies

instructions.

Learned counsel for the appellant has vehemently argued that

the learned Single Judge has erred in law in issuing directions to the LPA No.2096 of 2011 & other connected cases 30

appellant to invite applications from all the oustees, as a one time measure

for the reason that the applications were not invited prior in time before the

floatation of Sector. It is contended that R&R policies has two components;

one is mandatory component and the other is directory. The mandatory

component is consideration for allotment of a plot as an oustee, but the

procedure for allotment of a plot to an oustee is a directory procedure.

Therefore, the substantial compliance of the directory provisions satisfies

the requirement of R&R policies. It is pointed out that as a matter of fact,

whenever a Sector was floated, the applications were invited from the

oustees. If an application has been submitted along with earnest money, the

appellant has allotted plots to all such applicants irrespective of number of

plots without maintaining overall reservation limit of 50% contemplated for

all categories. It is contended that the oustees have approached this Court

alleging violation of the policy that the plots have not been offered to them

before floatation of Sector but the jurisdiction of this court has been

invoked after more than three years and in certain cases even after ten years

though the cause of action arose when the advertisements were published

inviting applications from the general public and the oustees. Since no

grievance was made for long number of years, the invocation of jurisdiction

at this stage suffers from gross delay and laches. The rehabilitation process

cannot brook any delay as delay frustrates the basic objective of

resettlement. The resettlement is necessary soon after the possession is

taken and does not survive after long years of dispossession.

In Chander Kanta Vs. State of Punjab 1996 (1) RRR 374, a

Division Bench has held that no indefeasible right came to vest in an oustee. LPA No.2096 of 2011 & other connected cases 31

The policy could have been scrapped in toto and that an oustee cannot claim

allotment of a plot only because the application had been made before the

scrapping of the policy. In Savitri Devi Vs. State of Haryana & others 1996

(3) PLR 644, the Hon'ble Supreme Court has held that an oustee is entitled

for allotment of a plot on fulfillment of conditions and subject to the

guidelines laid down in the policies. In another Division Bench of this Court

in Smt. Bhagwanti Vs. The Haryana Urban Development Authority 2002 (1)

PLJ 17, the Court considered the argument raised that only after oustees are

allotted plots, the remaining plots can be offered to general public for

allotment. The Court found that since an oustee has not applied for

allotment of plot in terms of the advertisement published from the general

public including from the oustees, therefore, the application submitted after

four years of the advertisement cannot be entertained. Another Division

Bench in a judgment reported as Amit Bakshai & another Vs. Union

Territory of Chandigarh & others 2006 (3) PLR 577, has held that there is

no absolute right vested with the oustees to get a dwelling unit in the same

area from which they have been ousted as a consequence of the acquisition.

It has been held that the scheme framed by the Chandigarh Administration is

an attempt to rehabilitate the affected persons, but such scheme is also

subject to the rules and regulations of the Board and it cannot be said that

every person, whose land has been acquired, would be entitled to a dwelling

unit as a matter of right. The oustees can be considered for allotment of the

unit subject to the conditions of the Scheme and the rules & regulations of

the Board. Reliance is also placed upon a Single Bench judgment of this

Court in RSA No.2499 of 2008 "Keshar Singh & others Vs. Haryana Urban LPA No.2096 of 2011 & other connected cases 32

Development Authority, Panchkula & others" decided on 18.12.2008,

wherein while considering the scheme of allotment of plots in a

rehabilitation process, it has been held that the intent of such a policy cannot

be to grant a bonanza to the oustees. The sole purpose is to rehabilitate

them. It was held that the Policies of 1992 & 1993 are germane keeping in

view the various factors viz. present day pressure on the land and its

paucity.

Another Division Bench in CWP No.4654 of 2010 titled

"Sadhu Ram & others Vs. Haryana Urban Development Authority and

others" decided on 16.03.2010, has upheld the cutoff date as 05.03.2005, on

which award was announced on or after the said date. It was held that the

prescribing cut off date is a matter of Policy and such Policy cannot be said

to be arbitrary. It is, thus, contended that the oustees cannot claim any right

to claim allotment of plot otherwise than in terms of the policy applicable

when the sector was floated for sale. The condition of inviting claim from

oustees earlier in time being directory, the applications could very well be

invited along-with applications form general public. Therefore, it is argued

by the learned counsel for the HUDA, that the judgment of the learned

single Judge is not sustainable in law.

On the other hand, learned counsel for the oustees have argued

that rehabilitation is a right created in favour of the oustees in terms of the

policies issued from time to time in pursuance of the directions of the

Hon'ble Supreme Court, therefore, such policies have to be construed

strictly. The State or its instrumentalities cannot be permitted to raise an

argument that having framed policies, they are not bound to follow the LPA No.2096 of 2011 & other connected cases 33

same. Therefore, the oustees have a right for consideration of allotment of a

plot. Admittedly, no individual offer was made to any land-loser, before the

applications were invited from general public, therefore the action of

inviting applications from the oustees when applications were invited from

general public is not in terms of the policies framed and, therefore, the

HUDA authorities cannot take shelter of the illegalities committed by them.

Reliance is placed upon Smt. Suman Aneja's case (supra),

wherein a Division Bench of this Court noted that the purpose underlying

the rehabilitation schemes for oustees is basically one involving an

obligation on the State to take care of a touching human problem and if it is

at all possible to lean, the Court shows lean on the side of the helpless

individual whose land has been acquired. It would be anomalous to hold

that while acquiring the land for the purpose of land development to provide

houses and other facilities to one section of the populace, those persons

whose land had been acquired, should be adversely treated or left homeless

and without shelter. In the aforesaid writ petition, the argument that the

policy dated 10.09.1987 is not applicable to the acquisition prior to issuance

of the said policy, was negated.

The learned counsel for the oustees have relied upon another

Division Bench judgment in LPA No.399 of 2010 titled "Haryana Urban

Development Authority & another Vs. Vinod Kumar & another" decided on

25.03.2010. In the said case, the land was acquired for setting up a

commercial sector. The learned Single Judge issued direction to consider the

claim of an oustee for allotment of residential plot in a residential sector in

terms of the Policy framed by HUDA. The appeal against the said direction LPA No.2096 of 2011 & other connected cases 34

was dismissed, as the direction was for consideration of allotment of

residential plot.

Another Division Bench in CWP No.4952 of 2007 titled

"Abhey Ram Dahiya Vs. State of Haryana & others" decided on 09.12.2008,

wherein a plot was allotted to the petitioner as an oustees was cancelled for

the reason that the plot allotted does not form part of the acquired land. The

Court held that the condition, that the plot will be allotted only in the sector

for which land has been acquired, has been removed by the circular dated

27.03.2000, therefore, a land owner whose land was acquired prior to the

issuance of the said policy shall be entitled to allotment of a residential plot

in the next sector if the land has been acquired for non-residential purpose.

Consequently, the cancellation of plot was set aside.

In none of the judgments, referred to by the parties, the nature

of the policy decisions has been raised or examined, as to which part the

afore-said policies is mandatory or directory. In Chander Kanta's case

(supra), a Division bench has held that policy could have been scrapped in

its entirety, whereas the Hon'ble Supreme Court in Savitri Devi's case

(supra), has observed that an oustee is entitled for allotment of a plot only

on fulfillment of conditions and subject to the guidelines laid down in the

Policies. Similar is the view in the other judgments, referred to by the

learned counsel for the appellants.

On the other hand, the direction to allot plot in Vinod Kumar's

case (supra) was issued, as the land was acquired for setting up of a

commercial sector and the application was made for allotment of a plot in

residential area. The direction was rightly issued to consider the claim of LPA No.2096 of 2011 & other connected cases 35

the respondent for allotment of a residential plot in view of the policy

framed. Similarly, in Abhey Ram Dahiya's case (supra), the plot was not

allotted for the reason that the land has been acquired prior to policy dated

27.03.2000 for a commercial or industrial purposes. This Court has rightly

set aside the action of the HUDA in rejecting the claim of the oustee.

The question required to be examined is; as to which part of the

policies is mandatory and which part is directory. The principles, as to

when a provision can be said to be mandatory or directory needs to be

discussed.

In MRF Limited Vs. Manohar Parrikar & others (2010) 11 SCC

374, the Hon'ble Court has quoted from Halsbury's Laws of England,

wherein the distinction between mandatory and directory provisions has

been delineated. It reads as under:

"50. Reference can be made to certain passages from Halsbury's Laws of England, 4th Edn. Reissue, Vol. 44(1) at Paras 1237 and 1238: "1237. xxx xxx xxx

1238. Mandatory and directory enactments.--The distinction between mandatory and directory enactments concerns statutory requirements and may have to be drawn where the consequence of ailing to implement the requirement is not spelt out in the legislation. The requirement may arise in one of two ways. A duty to implement it may be imposed directly on a person; or legislation may govern the doing of an act or the carrying on of an activity, and compel the person doing the actor carrying on the activity to implement the requirement as part of a specified procedure. The requirement may be imposed merely by implication.

To remedy the deficiency of the legislature in failing to specify the intended legal consequence of non-compliance with such a requirement, it has been necessary for the courts to devise rules. These lay down that it must be decided from the wording of the relevant enactment whether the requirement is intended to be mandatory or merely directory. The same requirement may be LPA No.2096 of 2011 & other connected cases 36

mandatory as to some aspects and directory as to the rest. The court will be more willing to hold that a statutory requirement is merely directory if any breach of the requirement is necessarily followed by an opportunity to exercise some judicial or official discretion in a way which can adequately compensate for that breach. Provisions relating to the steps to be taken by the parties to legal proceedings (using the term in the widest sense) are often construed as mandatory. Where, however, a requirement, even if in mandatory terms, is purely procedural and is imposed for the benefit of one party alone, that party can waive the requirement. Provisions requiring a public authority to comply with formalities in order to render a private individual liable to a levy have generally been held to be mandatory.

Requirements are construed as directory if they relate to the performance of a public duty,and the case is such that to hold void acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without at the same time promoting the main object of the legislature. This is illustrated by many decisions relating to the performance of public functions out of time, and by many relating to the failure of public officers to comply with formal requirements. On the other hand, the view that provisions conferring private rights have been generally treated as mandatory is less easy to support; the decisions on provisions of this type appear, in fact, to show no really marked leaning either way.

If the requirement is found to be mandatory, then in a case where a duty to implement it is imposed directly on a person, non- compliance will normally constitute the tort of breach of statutory duty, while in a case where it is to be implemented as a part of a specified procedure, non-compliance will normally render the act done invalid. If the requirement is found to be directory only then in either case the non-compliance will be without direct legal effect, though there might be indirect consequences such as an award of costs against the offender. It has been said that mandatory provisions must be fulfilled exactly, whereas it is sufficient if directory provisions are substantially fulfilled.

Where the requirement is complied with at the relevant time, the act done is not vitiated by later developments which, had they occurred before that time, would have meant that the duty should have been LPA No.2096 of 2011 & other connected cases 37

performed in a different way."

In Dattatraya Moreshwar v. State of Bombay AIR 1952 SC 181,

a Constitutional Bench of the Hon'ble Supreme Court observed that law

which creates public duties is directory but if it confers private rights it is

mandatory. Relevant passage from the judgment is quoted below:

"7. ... It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."

In May George Vs. Special Tehsildar & others, (2010) 13 SCC

98, the Hon'ble Supreme Court considered its earlier judgments in State of

U.P. Vs. Babu Ram Upadhya AIR 1961 SC 751; Raza Buland Sugar Co.

Ltd. Vs. Municipal Board, Rampur AIR 1965 SC 895; State of Mysore Vs.

V.K. Kangan AIR 1975 SC 2190; Sharif-ud-Din Vs. Abdul Gani Lone AIR

1980 SC 303; Rubber House Vs. Excelsior Needle Industries (P) Ltd. AIR

1989 SC 1160; State of Haryana Vs. Raghubir Dayal (1995) 1 SCC 133 and

Gullipilli Sowria Raj v. Bandaru Pavani (2009) 1 SCC 714 as to when a

provisions can be said to be directory or mandatory. It observed:

15. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.

LPA No.2096 of 2011 & other connected cases 38

xxx xxx xxx

25. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non- compliance with the provision could render the entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject- matter and object of the statutory provisions in question. The Court may find out as to what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance with the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.

Recently, the Constitutional Bench in a judgment reported as

Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal,

(2011) 1 SCC 236, held:

31. Of course, some of the provisions of an exemption notification may be directory in nature and some are mandatory in nature. A distinction between the provisions of a statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. In TISCO Ltd. Vs. State of Jharkhand (2005) 4 SCC 272, this Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning if the same is directory in nature.

In view of the principles laid down, we find that the procedure

to invite an application for allotment of plot before the flotation of a sector LPA No.2096 of 2011 & other connected cases 39

is only directory provision. When the HUDA invited applications from the

general public along with the applications from the oustees, it substantially

complies with the conditions in the policies framed by it. The requirement

of allotment of plots to the oustees prior to the floatation of sector is for the

purpose that the claims of the oustees have to be accepted in priority over

the claim of the general public. In terms of the decision on question No.2,

referred to above, the oustees form a distinct and separate category and are

entitled to reservation. Such reservation can be given effect to, when the

plots available in a sector are determined and the percentage of reservation

of each category is fixed. Having done so, the HUDA is required to invite

applications, may be separately for each category or may be through one

advertisement inviting applications from each category. It is a matter of

convenience to invite applications through one advertisement from all

eligible applicants, may be the general category and from one or more

reserved categories. One advertisement would facilitate the disposal of

plots in expeditious manner, whereas the different advertisements for each

category will only delay the process of allotment of plots. In fact, the public

advertisement is the best mode to invite applications from the separate and

distinct category including from the oustees, as it avoids the dispute

regarding receipt of the notice or otherwise an argument that they were not

made aware of the plot being available, as part of the rehabilitation process.

Such process provides opportunity to all the similarly situated oust4es to

apply for the plots. It provides for equal opportunity to all. Thus, we are not

inclined to accept the argument that condition in the R & R policies to seek

applications from the oustees before the floatation of the sector is LPA No.2096 of 2011 & other connected cases 40

mandatory. In fact, the argument of learned counsel for the appellant that the

policy for rehabilitation by way of allotment of plots to the oustees is in two

parts is more acceptable. The mandatory provision is the right of

consideration for allotment of plots. The condition of inviting applications

before the floatation of a sector is a directory provision, as it relates to

procedure of allotment of plots.

Question No.5. Whether the failure to apply for a plot in response to advertisement published at one stage entitles a oustees to apply for allotment of a plot as and when the

advertisements are issued subsequently till such time the plots are available within overall limit of 50% of the total plots in a sector?

Since the oustees form a separate and distinct category, failure

to apply in response to an advertisement will not dis-entitle an oustee from

submitting application at a subsequent stage as and when advertisement is

again issued inviting applications for allotment of plots. The failure to

apply in response to one or more advertisements does not deprive the

oustees of their rights of rehabilitation or their status as that of an oustee.

The advertisements inviting applications for allotment of plots are to be

issued after determining the plots available in each sector for reserved

categories including that of oustees. HUDA is expected to invite

applications in respect of such plots in each sector. Therefore, the failure to

apply in response to an advertisement at one stage will not dis-entitle an

oustee to apply for a plot at a subsequent stage.

Question No.6. Whether an oustee can be permitted to raise a grievance LPA No.2096 of 2011 & other connected cases 41

in respect of non-allotment of a plot on failure to apply for a plot in pursuance of public advertisement issued for the reason of delay and laches?

We do not find any merit in the argument raised by Mr. Jain

that there can be any delay and laches, if an application is not made for

allotment of plot in pursuance of public advertisement issued at one stage or

the other. An oustee, whose land has been acquired, does not lose his status

as that of an oustee merely for the reason that he has not applied for a plot at

an earlier stage. He has a right to seek allotment of a plot as a separate and

distinct category as and when advertisements are issued inviting

applications from the eligible applicants including the oustees.

Question No.7. Whether an oustee is entitled to an allotment of a plot in the next residential Sector even if the land is acquired for industrial, institutional or such like purposes

irrespective of date of acquisition?

A Division Bench of this Court in Smt. Suman Aneja's case

(supra) has held that policies of rehabilitation are applicable irrespective of

date of acquisition. The R & R policies are applicable even if the

acquisition is for a purpose other than residential/commercial purposes as in

such case, the entitlement of an oustee is for a plot in the residential sector

in terms of the policy dated 27.03.2000. Therefore, even if land has been

acquired for a purpose other than residential/commercial, an oustee is

entitled to apply for a plot in the next residential sector even if acquisition is

prior to the circular dated 27.03.2000. The entitlement of an oustee for a

plot would be as per the existing policy at the time, when an oustee apply

for a plot in response to public advertisement.

LPA No.2096 of 2011 & other connected cases 42

Question No.8. What price could be charged from an allottee i.e. price prevailing on the date the allotment or when the Sector is floated first?

It is argued by learned counsel for the appellant that the price,

applicable on the date of allotment, is chargeable from an allottee and not

the price, which was once fixed at the time of floatation of sector. It is

contended that price of the plots keep varying keeping in view the cost of

acquisition, development work and other numerous factors which go into

determination of the price. It is contended that the judgment of Hon'ble

Supreme Court in Brij Mohan's case (supra) is of no help to the oustees. In

the said case, the appellant was not allotted plot when HUDA offered

residential plots in Sector - 4, Karnal. The two questions arose for

consideration before the Hon'ble Supreme Court. In respect of first question

i.e. whether HUDA should charge only the actual land cost plus

development charges for the plots allotted to an oustee and not the market

price/normal allotment price; the Court returned a finding that the Land

Acquisition Act, 1894 contemplates only only benefits like solatium,

additional amount and higher rate of interest to the oustees and not

allotment of plots at cost price. HUDA or the State Government does not

have any scheme providing for allotment of plots at actual cost of oustees.

Therefore, it is not possible for the Court to direct the State Government or

the Development Authority to allot plots to the oustees at a reasonable cost.

It was held to the following effect:

"17. Where there is a scheme, but it does not regulate the allotment price, it may be possible for the court to direct the State Government/Development Authority to allot plots to land-losers at a LPA No.2096 of 2011 & other connected cases 43

reasonable cost, and in special and extraordinary circumstances, it may also indicate the manner of determining the allotment price. But where the scheme applicable specifies the price to be charged for allotment, its terms cannot be ignored. If any land-loser has any grievance in regard to such scheme, he may either challenge it or give a representation for a better or more beneficial scheme. But he cannot ask the court to ignore the terms of an existing or prevailing scheme and demand allotment at cost price."

In respect of second question i.e. what is the meaning of the

words "normal allotment rate", the Court found that as a matter of fact the

land-loser has made an application in the year 1990 for allotment of plot. A

direction was issued by the Court in the year 1992, but the HUDA delayed

allotment to the appellants. Therefore, the rate for which plots were initially

offered was ordered to be charged. The said question has been answered

keeping in view the facts of the aforesaid case, wherein application was

submitted by an oustee, but still plot was not allotted to him. The said

judgment does not lay down that the 'normal allotment rate' in all

circumstances shall be the date when the sector is first floated for sale. As a

matter of fact, the normal allotment rate would be the rate advertised by the

HUDA in pursuance of which applications are invited from the general

public and the oustees, in pursuance of which the plots are allotted.

Another Fact

Before we could pronounce the order, we come across a news-

paper report in 'The Tribune' Chandigarh published on 21.04.2012 in respect

of identical issue dealt with by another co-ordinate Bench of this Court. On

inquiry, it was found that CWP No.17208 of 2010 titled "Ved Pal Vs. State

of Haryana" and other connected cases have been decided on 18.11.2011. In

the aforesaid case, the oustees were claiming allotment of plots though in LPA No.2096 of 2011 & other connected cases 44

the advertisement published by HUDA, no plots were advertised for

oustees. The Court has struck down such action of the HUDA. The

Division Bench has approved the judgment of the learned Single Judge in

CWP No.19927 of 2009 titled "Sandeep Vs. State of Haryana & others". In

the aforesaid order, the Bench was not apprised of the fact that letters patent

appeal against the judgment of the learned Single Judge in the Sandeep's

case is pending consideration before this Court. The question whether the

applications have to be invited from the oustees prior to floatation of sector

or could be invited along with the applications from the general public, was

not the issue raised either in Ved Pal's case (supra) or in Sandeep's case

(supra). The said issue has been dealt with in the present judgment.

Therefore, though it may look like that there is some conflict, but on careful

analysis, we find that there is no contradiction in the ratio laid down in the

aforesaid cases and the principles of law discussed and findings recorded by

us.

In CWP No.19927 of 2009, out of which the present appeal has

arisen, the learned Single Judge has allowed the writ petition holding that

since the claim from the oustees was not separately invited and could not

have been clubbed or joined with General Category, therefore, such action is

violative of law. Such finding is not sustainable. It has been held that such

provision is directory and inviting of applications through a public

advertisement along with the applications from the general public meets the

intent of the policies. Therefore, such finding is set aside. But, it has also

been held that an oustees is entitled to apply for a plot till such time, the

plots falling to the category of the oustees remain unallotted. Therefore, LPA No.2096 of 2011 & other connected cases 45

such writ petitioner would be entitled to apply for a plot in pursuance of

public notice inviting applications from the oustees, if the plots for such

category are available.

Thus, the present appeal as well as the other connected matters

are disposed of with the following directions, in addition to the decision on

the questions of law discussed above.

(i) That date of notification under Section 4 of the Land Acquisition Act, 1894 is relevant to determine the

eligibility of a land-owner for allotment of a residential plot, even if the acquisition is for the purposes of commercial, industrial or institutional;

(ii) That the entitlement of the size of the plot and the procedure for allotment shall be as on the date of

allotment in pursuance of an advertisement issued

inviting application from the oustees;

(iii) That the HUDA or such other authority can reserve plots up to 50% of the total plots available for all reserved categories including that of oustees. As to what extent there would be reservation for the oustees, is required to be decided by the State Government and/or by HUDA or any other authority, who is entitled to acquire land; (iv) That the oustees are entitled to apply for allotment of plot along-with earnest money in pursuance of public advertisement issued may be inviting applications from the general public and the oustees through one

advertisement. If an oustee is not successful, he/she can apply again and again till such time, the plots are

available for the oustees in the sector for which land was acquired for residential/commercial purposes or in the adjoining sector, if the land acquired was for institutional and industrial purposes etc. The plots to the LPA No.2096 of 2011 & other connected cases 46

oustees shall be allotted only by public advertisement and not on the basis of any application submitted by an oustee;

(v) That the price to be charged from an allottee shall be the price mentioned in the public advertisement in pursuance of which, the plot is allotted and not when the sector is floated for sale for the first time;

(vi) That the State Government or the acquiring authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots ear-marked for reserved categories and after identification of the plots available for the oustees in each sector. Thereafter, the State Government or the acquiring authority shall

publish an advertisement inviting applications from such oustees to apply for allotment of plots in accordance with law: and

(vii) If in any sector, more than 50% plots have been allotted by way of reservation including to the oustees, then such allotment shall not be cancelled or reviewed in view of the judgment of this court.

The letters patent appeal and the writ petitions as in Annexure

'A' are disposed of accordingly.

(HEMANT GUPTA)

JUDGE

(A.N. JINDAL)

April 25, 2012 JUDGE Vimal