DHARAM PAL Vs. STATE OF HARYANA & ORS.

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Date of judgment:
15/12/2008
Hon'ble Judges:
Arijit Pasayat, MUKUNDAKAM SHARMA

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the Punjab and Haryana High Court dismissing the writ petition questioning
legality of the Notification dated 24.8.2000 issued under Section 4 of the

Land Acquisition Act, 1894 (in short the `Act') as also the declaration under

Section 6 of the Act dated 22.8.2001. The only ground which was pressed

into service during arguments was that the construction made by the

appellant has been acquired whereas similar kind of constructions made

with regard to others similarly situated persons have been left out. The

High Court did not find any substance in the plea and dismissed it.

3. During the course of hearing, learned counsel for the appellant

placed strong reliance on the judgment of this Court in Jagdish Chand &

Anr. v. State of Haryana and Anr. (2005 (10) SCC 162). This Court in

Jagdish Chand's case (supra) relied on earlier judgment of this Court in

Sube Singh & Ors. v. State of Haryana and Ors. (2001 (7) SCC 545).

4. Though, no one appeared for the respondent-State and its

functionaries in spite of service of notice, a counter affidavit has been filed.

In Jagdish Chand's case (supra) it was observed as follows:

"6. This Court in a similar situation, though on a different
ground, dealing with the structures of three different classes,
found that there was no justification to exclude the structures of
Class `A' only and not to exclude structures of Classes `B' and

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`C'. In that background, and on the facts of those cases, gave
the directions as contained in paragraph 12 of the
aforementioned case1 which reads: (SCC p. 549)

"12. In the result, the appeals are allowed. The
judgments under challenge are set aside, the orders
passed by the State Government rejecting the
representation of the appellants are quashed. The
Secretary, Urban Estates Department, State of
Haryana, Respondent 1 herein, is directed to
consider the objection petitions filed by the
appellants for exclusion of their properties from
acquisition and pass appropriate order excluding
such lands having structures on them excepting
any land which is required for construction of a
road or hospital. Respondent 1 shall give
opportunity of hearing to the appellants before
taking the decision. The exercise shall be
completed expeditiously if possible within three
months. There will, however, be no order as to
costs."

5. In view of what has been stated in Jagdish Chand's case and Sube

Singh's case (supra), we set aside the impugned judgment of the High Court

and dispose of the appeal on the following terms:

(1) The Secretary, Urban Estates Department, State of Haryana is directed

to consider the objections of the appellant only so far as it relates to

exclusion of the land to the extent occupied by the structure and appropriate

open area around the structure for the beneficial enjoyment of the appellant.

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However, this direction shall not come in the way of the authorities in

removing the structures, if required for the purposes of road, hospital and

other civic amenities.

(2) The Secretary, Urban Estates Department shall decide not only the

existence of the structures prior to Section 4(1) notification or subsequent

to, he shall also decide the extent of structure which existed prior to Section

4(1) notification.

(3) It is also open to the authorities to make adjustment or readjustment

of plots for the purpose of planned development and in case it becomes

necessary, to give a little additional area from the plots to the appellant. The

appellant shall be bound to take that additional area and also be bound to

pay the cost of such area as is chargeable to other allottees. The appellant

shall also be bound to pay the developmental charges as is charged from

other allottees. It is open to the parties to place documents or material in

support of their contentions.

6. We expect that as far as possible, the respondents shall try to retain

the structures, unless it becomes difficult for them to have a planned

development without removing them in view of what is stated above.

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7. The above directions will be applicable only to such of the cases

where the residential structures are made prior to the issuance of Section 4

(1) notification and the appellant is actually residing there. However, in case

of any dispute as to whether the structures were made prior to Section 4(1)

notification or later, the Secretary, Urban Estates Department shall

determine that question after affording opportunities to both the parties,

uninfluenced by observations made in the impugned orders of the High

Court.

8. We make it clear that these directions are given on the peculiar facts

of these cases and are not intended for any general application.

9. The appeal is disposed of accordingly.

...........................................J.
(Dr. ARIJIT PASAYAT)

............................................J.
(Dr. MUKUNDAKAM SHARMA)

New Delhi,
December 15, 2008

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ENDSHERE