YASHBIR SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) In this petition filed under Articles 226/227 of the Constitution of India, the petitioners have challenged order dated 28.5.2010, Annexure P. 18 passed by respondent No. 1 in compliance to the order passed by this Court in CWP No. 1917 of 2006 dated 29.10.2007, Annexure P. 16, whereby the representation filed by them for release of their land falling in Khasra No. 103/12/1 measuring 2 kanals 16 marlas situated in the revenue estate of Village Harsaru, Tehsil and District Gurgaon, has been rejected. Briefly, the facts necessary for adjudication of the controversy involved, as narrated in the petition, may be noticed. The petitioners are joint owners in possession of land measuring 2 kanals 16 marlas situated in the revenue estate of Village Harsaru, Tehsil and District Gurgaon over which they have constructed their respective residential houses by spending their savings. The said houses of the petitioners are situated quite close to the extended abadi of Village Harsaru and are also depicted in the Khasra Girdawan even since 1996. There are houses of their collaterals towards the southern side and a Human Trust where Gurukul is running. The residential houses of the petitioners alongwith other land became the subject matter of acquisition vide notification dated 29.1.2003, Annexure P. 7 issued under section 4 of the Land Acquisition Act, 1894 (in short, "the Act"). The petitioners filed their objections under Section 5A of the Act on 5.3.2003, Annexures P. 8 and P. 9. Without hearing the petitioners in terms of Section 5A(2) of the Act, notification under Section 6 was issued on 28.1.2004, Annexure P. 10 by the State Government. Notices under Section 9 of the Act were issued on 6.1.2006, Annexure P. 12 asking the petitioners to appear before respondent No. 2 on 24.1.2006. The said notices were in violation of Section 9 of the Act as no 15 days' clear notice was given to the petitioners. On 27.1.2006, Annexure P. 14, award under Section 11 of the Act was announced qua the land underneath the houses of the petitioners. Clause 5 of the said award provided that since no valuation report had been received from the concerned department, supplementary award regarding superstructures shall be pronounced later on. On 27.2.2007, Annexure P. 15, supplementary award was pronounced regarding superstructures. The petitioners are still in actual physical possession of the said residential houses. No procedure as provided under Order 21 Rule 35 CPC was followed to take possession of the houses of the petitioners. Even otherwise, the possession could not be taken as there was stay of dispossession in favour of the petitioners as on 27.2.2007 granted by this Court in CWP No. 1917 of 2006 vide order dated 9.2.2006. The said writ petition was disposed of with liberty to the petitioners to file a representation to the respondent-authorities. Vide impugned order dated 28.5.2010, Annexure P. 18, respondent No. 1 refused to release the land by holding that the Government had no power under section 48 of the Act as the process of acquisition stood completed. According to the petitioners, in the case of Raj Singh etc., the said authority vide order dated 10.10.2008, Annexure P. 20 released the land despite the fact that acquisition process had already been completed in the said case. Even this Court in CWP No. 18610 of 2005, Annexure P. 21 while dealing with similar issue directed the respondents to issue release order in favour of the petitioners. Aggrieved by the action of the respondent-authorities in not issuing release order in favour of the petitioners in respect of their land, they are before this court through the present writ petition.

(2.) Learned counsel for the petitioners submitted that there exists a residential house which has been constructed on the land in dispute measuring 2 kanals 16 marlas prior to issuance of notification under Section 4 of the Act. It was urged that the petitioners continue to be in physical possession of the said land since 1996 and 'A' class construction at site is existing. The land appurtenant to the aforesaid land measuring 5 kanals 4 marlas and Khasra No. 19 have already been released. According to the learned counsel for the petitioners, unless the land vests absolutely in the State under Section 16 of the Act, the State was not legally authorised to execute conveyance deed in favour of respondent No. 4. Reliance was placed upon following observations of the Apex Court in Prahlad Singh and others v. Union of India and others, 2011 5 SCC 386:-

(3.) Learned counsel for the petitioners prayed for release of land in view of the following findings recorded by the appropriate authority in the order impugned:-