Brigadier Raj Singh Phaugat vs State of Haryana

Surya Kant, J.—This writ petition is the petitioner''s second attempt within a span of less than two months to retain and re-possess a piece of land measuring 202 square yards situated within the revenue estate of village Sarhaul, District Gurgaon.

The petitioner is said to have purchased the above mentioned plot vide registered sale deed dated 2nd July, 1990. The piece of land is surrounded by the residential locality known as DLF, Phase II, at Gurgaon.

The State of Haryana included the above mentioned piece of land in the notification issued u/s 4 of the Land Acquisition Act, 1894 dated 26th August, 2003 whereby more than 50 acres land of various villages was proposed to be acquired for the ''public purpose'' of development of "residential, commercial, institutional, green belt Sector 24-25-25A at Gurgaon". The petitioner filed objections pointing out that his plot was surrounded by the DLF-II on all four sides and its acquisition would serve no public purpose. His objections did not find favour and consequently the land was included in Section 6 notification published on 10th August, 2004. The Award was passed on 04th August, 2006.

The petitioner-"Raj Singh Phogat" approached this Court through CWP No. 5088 of 2014 seeking quashing of the above mentioned acquisition with a specific plea that "the physical possession of the above said land has not been taken till today and the compensation has not been paid". It was, thus, claimed that in view of Section 24[2] of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, the acquisition is deemed to have lapsed.

The petitioner had also placed the photographs of land on record of the above stated case and on perusal thereof, this Court was fully satisfied that no construction was permissible on the said piece of land as it was abutting the main road and the same could well be utilised only for the purpose to develop the green belt. The writ petition was thus disposed of on 19th March, 2014 with the following order:-

The petitioner''s plot measuring 202 square yards, situated within the revenue estate of village Sarhaul, District Gurgaon, was acquired way back vide notifications dated 26.08.2003 and 10.08.2004 issued under Sections 4 & 6 of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act''), respectively, followed by the Award dated 04.08.2006. The petitioner claims that since he has retained the possession of that plot, the benefit of Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, ''the 2013 Act'') is admissible to him.

From the averments made in the writ petition itself coupled with the photographs placed on record, we are satisfied that the piece of land is not in possession of the petitioner nor any construction thereupon can be raised. The question of releasing such land thus does not arise. However, if the petitioner is entitled to compensation under the new Act of 2013, he can undoubtedly raise such a claim before the Competent Authority.

We, thus, dispose of this writ petition with liberty to the petitioner to approach the appropriate forum for assessment/re-assessment of the compensation under the new Act of 2013 and in accordance with law.

The petitioner after slightly changing the format of Memo of Parties, has now filed this second writ petition seeking the same relief but this time on the ground that :-

That although before instituting the above said writ petition, the petitioner was under the bonafide impression that the physical possession of the land owned by him which was the subject matter of acquisition had not been taken but after the disposal of the above said writ petition the petitioner on 30.03.2014 acquired the knowledge that the authorities under the Act had taken the possession of the above said land on the date of the passing of the award itself, i.e., 4.8.2006 and a rapat Roznamcha [Annexure P-6] qua the said fact stood recorded.

[Emphasis applied].

The petitioner has further contended that "the land in question having remained un-utilised even after passage of a period of more than five years from the date of taking over the possession", the impugned acquisition proceedings are deemed to have lapsed and he is entitled to the return of un-utilised land in view of Section 101 of the 2013 Act.

We have heard learned counsel for the petitioner.

It appears to us that the petitioner in his desperate anxiety to re-possess the acquired land is taking one or the other contradictory pleas. The ground now taken by him for invoking the provisions of new Act of 2013 was very much available to him at the time of filing of the previous writ petition. Contrarily, what has been admitted in this writ petition, was denied in the previous one. The principles emanating from Order 2 Rule 2 read with Section 11 of the CPC thus debar the petitioner from re-agitating the matter in this second writ petition.

Notwithstanding the fatal technicalities, the plea taken in the instant petition otherwise merits rejection. The petitioner though has not chosen to attach the photographs in this second petition, but on summoning of the record his earlier petition, it stands crystalised as per its location, the subject plot can be "utilised" only as an open space/green belt. In fact, no construction can be allowed abutting the road even to the State Agency [HUDA] or the private builder. It is, thus, farcical to say that the land has not been ''utilised'' for the purpose of its acquisition when one of such purpose is "green belt" also.

We, thus, find no merit in this writ petition and dismiss the same, though with the same liberty as was granted to the petitioner in the previous case.

Dasti.