Om Parkash vs State Of Haryana & Ors.

VIKAS BAHL, J.(ORAL)

The present order would dispose of 22 writ petitions in which common questions of law and facts are involved.

With the consent of all the counsels, CWP-13631-2021 titled as “Om Parkash vs. State of Haryana and others” is taken up as the lead case.

Prayer in the said writ petition is for the issuance of a writ in the nature of mandamus directing the respondents to allot residential plot to the petitioner in the area adjoining / in close vicinity of Sector 25, Hisar in view of the fact that the residential plot of the petitioner was acquired by the respondent-Haryana Urban Development Authority (now HSVP) under the Land Acquisition Act, 1894 (hereinafter to be referred to as “1894 Act”) for development of commercial sector. Similar prayers have been made in the other writ petitions. In a large number of cases, it is not the residential plot of the petitioner(s) which has been acquired but it is the agricultural land of the petitioner(s) which has been acquired.

Learned counsel for the petitioner(s) in all the writ petitions has submitted that the ground to seek relief in all the petitions is the same. It is submitted that the facts of the case of Om Parkash would be highlighted to make out the case of the petitioner(s) for the grant of the relief prayed for. It is submitted that the said Om Parkash was the owner of residential plot measuring 1 kanal 15 marlas in khewat no.5010/6161 situated in the revenue estate of Hisar which had been inherited by him from his late father Sohan Lal upon his death on 25.05.1992. Learned counsel for the petitioner(s) has referred to the jamabandi for the year 2003-04 to show that Sohan Lal, father of the petitioner was the owner of the property in question and thereafter has referred to the mutation entered in the year 2009 (Annexure P-3) to show that the property was transferred in favour of the petitioner. It is submitted that the Government of Haryana had issued notification under Section 4 of the 1894 Act on 31.03.2008 with respect to the land measuring 303.76 acres which was needed for public purpose i.e., for development of commercial Sector 25, Hisar. It is further submitted that the petitioner had filed objections under Section 5-A of the 1894 Act and thereafter declaration under Section 6 of the 1894 Act was issued on 03.02.2009 vide which land measuring 280.44 acres including the residential plot and agricultural land of the petitioner(s) was acquired and that on 07.01.2011, notice under Section 9 of the Act was issued by the Land Acquisition Collector in pursuance of which the award dated 27.01.2011 was passed.

Learned counsel for the petitioner(s) has submitted that in the year 2009, one Vivek Cooperative House Building Society Ltd., which owned residential land measuring 189 kanals 2 marlas situated in the revenue estate of village Satrod, Tehsil and District Hisar, had filed CWP-9718-2009 and in the said writ petition, challenge was laid to the acquisition and release of land was sought. It is submitted that another CWP-1365-2011 titled as “Taranjeet Singh vs. State of Haryana and others” was filed challenging the acquisition and both the said writ petitions were disposed of by the Co-ordinate Division Bench of this Court vide order dated 16.09.2016. Learned counsel for the petitioner(s) has submitted that his first argument is based on the said judgment as a perusal of the said judgment would show that the State Government had stated that the members of the society could be allotted residential plots of equivalent sizes in a residential area developed by the HUDA in Hisar. It is submitted that once the respondents have taken a stand before the Co-ordinate Division Bench that the residential plots to each of the members could be given, where also the acquisition was for developing the commercial Sector 25, Hisar, then, on the ground of parity, the petitioner(s) should also be given residential plots and the respondents cannot discriminate against the petitioner(s) in the present bunch of writ petitions as they have consented to give relief to the petitioners in the said cases.

Learned counsel for the petitioner(s) has further submitted that the respondent authorities had formulated a policy dated 09.11.2010, which policy, was applicable in the case of the petitioner(s), as the case of the petitioner(s) was squarely covered under clause 8(1) of the said policy. It is submitted that even a public notice dated 20.03.2013 was issued to the persons who were owners before the commencement of proceedings under Section 4 of the 1894 Act and their land was acquired for the purpose of setting up commercial Sector 25, Hisar and it is further highlighted that the said public notice was in pursuance of the policy dated 09.11.2010, which fact, is apparent from the vernacular of public notice (Annexure P-8). It is further argued that the petitioner(s) who was eligible and had applied, in pursuance of the said public notice, for allotment of an oustee category residential plot and had along with the said application submitted a demand draft dated 14.10.2013 for Rs.50,000/- in favour of respondent no.4 and also submitted the necessary documents including the affidavit. It is argued that the respondent authorities, in October 2017, returned the said amount of Rs.50,000/- and had stated to the petitioner(s) that no allotment would be made in favour of any individual due to internal reasons and a fresh public notice would soon be issued. It is submitted that the petitioner(s), immediately thereafter, represented on 18.01.2018 (Annexure P-12) and in the said representation had sought allotment of the plot under the oustee quota and reference had also been made to the judgment of Co-ordinate Division Bench dated 16.09.2016 (Annexure P-6). However, no action was taken on the same and the petitioner(s) filed the present writ petition. It is submitted that the act of the respondent authorities not to allot the residential plot to the petitioner(s) was illegal, against law and was discriminatory and arbitrary and the respondent authorities should be directed to allot a plot to the petitioner(s) as per his entitlement.

Learned counsel appearing for the respondent-HSVP have submitted that subsequent to the policy dated 09.11.2010, instructions/policy dated 11.08.2016 were issued. Reference has been made to the said instructions/policy dated 11.08.2016 which has been annexed as Annexure R-2 along with the written statement filed on behalf of respondents no.2 to 4. Clause 15 of the said instructions/policy has been highlighted to state that an oustee, who had earlier applied under the oustee policy and the said application was pending for decision, as was the case of all the present petitioners, was to apply afresh for allotment of the plot in the fresh advertisement, which was to be issued after determination of reservation and the earnest money which was deposited by the said oustees was to be refunded, along with interest @ 5.5% per annum, from the date of deposit till the date of payment. It is submitted that it is not in dispute that in pursuance of the said clause 15 of the said instructions/policy, an amount of Rs.58,806/- has been returned to the petitioner(s) which included interest @ 5.5% per annum after making the deduction with respect to TDS vide letter dated 17.10.2017. It is submitted that the petitioner(s) kept silent for about 04 years even after receiving the said amount and present writ petitions have been filed in year 2021/2023 but no challenge has been made to the instructions / policy dated 11.08.2016 or the subsequent policies or the amendment which was made on 08.05.2018 and thus the present writ petitions deserve to be dismissed on the said ground alone.

Learned counsel for the respondents have further submitted that the instructions / policy dated 11.08.2016 were issued in pursuance and in compliance to the judgment dated 25.04.2012 passed in LPA-2096-2011 titled as “HUDA vs. Sandeep and others” which has been upheld by the Hon’ble Supreme Court in SLP no.27256 of 2012, which SLP was filed by HUDA authorities and was dismissed vide order dated 06.03.2014. It is further submitted that as per Clause 1 of the said instructions / policy, which is in consonance with the directions passed in the abovesaid case, it was specifically provided that an oustee shall have to submit an application for allotment of plot under the oustees quota along with earnest money in pursuance of the advertisement inviting claims for such allotment and as per clause 2, in case the land has been acquired only for non-residential purposes such as solely for the development of commercial sector as is in the present case, then, the oustee was entitled to seek allotment of plot in the adjoining sector. The details of as to what would be “adjoining sector” has also been mentioned in clause 2 of the said instructions / policy dated 11.08.2016.

Learned counsel for the respondents have further submitted that vide instructions dated 08.05.2018 (Annexure R-1) an amendment was made in the instructions / policy dated 11.08.2016 and clause 2, 3, 11 and 15 of the said oustee policy were amended/substituted. Learned counsel for the respondents has further submitted that respondent No.3 vide advertisement dated 01.11.2018 invited online application for allotment of plots under the oustee category, which was duly advertised in the national newspapers and the petitioner did not apply against the said advertisement for allotment of plot under the oustee quota and thus, his entitlement for allotment of plot under the said quota cannot be considered at this stage, however, in case there is any fresh advertisement, it would be open to the petitioner to apply for the same and the same would be considered as per the prevalent policy. Learned counsel for the respondents has highlighted the fact that the present petition deserves to be dismissed solely on the ground of delay and laches inasmuch as the amount was returned in the year 2017, whereas the petitioner has filed the present petition in July 2021, and thus, it is apparent that the petitioner was satisfied with the action of the respondents-authorities. Learned counsel for the respondents has further submitted that the judgment in the case of Vivek Cooperative House Building Society Limited is on a completely different footing as the said writ petition was filed in the year 2009 and in the said writ petition, challenge was made to the acquisition itself and it was in pursuance of the orders passed by the Court that considering the said case as a special and exceptional case, the allotments were made. It is submitted that in the said case, there was no issue with respect to applicability of the policy/instructions and the Hon’ble Division Bench had granted relief, after taking into consideration all the factors including the fact that the petitioner had challenged the acquisition in the year 2009 itself. It is submitted that in the present case, the relief, as has been sought by the petitioner, on the basis of the policy of 2010, which, on the date of the filing of the present petition stands superseded and thus, no benefit of the said judgment is available to the petitioner.

Learned counsel for the respondents has further submitted that as per the judgment in the case of Haryana Urban Development Authority vs. Sandeep and others reported as (2012) 67 RCR (Civil) 691, a specific direction was given, that the State Government or Acquiring Authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots earmarked for reserved category and it was only after identification of the plots available for the oustees in each Sector, that the State Government was to publish an advertisement inviting applications from such oustees to apply for allotment of plots in accordance with law. It is submitted that further direction was given that the authorities could reserve the plots but only upto 50% of the total plots available, for all the reserved categories including that of the oustees.

Learned counsel has further relied upon the judgment passed by the Full Bench of this Court in the case of Rajiv Manchanda and others Vs. Haryana Urban Development Authority and another reported as 2018(2) PLR 422, to contend that the policy dated 11.08.2016 was upheld by the Full Bench and it was further observed that it was the first duty of the applicant to apply for allotment of plot under the oustee quota and only in case the application was made, the authorities were to consider the said application and it was not that the authorities were bound to offer oustee a plot under the oustee category even without application. It is submitted that the said observations would apply on all fours in the present petitions and are against the petitioners inasmuch as the petitioners never applied in pursuance of advertisement dated 01.11.2018 and thus, it was not the duty of the respondent authorities to have allotted the plot to the petitioners without applying for the same but it was the duty of the petitioners to first apply under the said advertisement.

Learned counsel has also relied upon the judgment of the Hon’ble Supreme Court in the case of Estate Officer Haryana Urban Development Authority and others Vs. Nirmala Devi reported as 2025 INSC 843, to contend that the State’s responsibility is discharged after paying the appropriate compensation and it is only in the rarest of the rare cases that the Government is required to float any scheme for rehabilitation and that too at its discretion and thus, the allotment of plot under the oustee category is not a vested right with the person whose land has been acquired and once the compensation has been paid, the respondents have done their duty and nothing further is required to be done on their part. It is submitted that in the present case, it is not in dispute that all the petitioners have taken compensation and had not even challenged the acquisition and have not been allotted the plot on account of not having applied under the Advertisement of 2018 and thus, no relief can be granted to the petitioners. It is submitted that all the petitions deserve to be dismissed.

We have heard learned counsel for the petitioner(s) as well as learned counsel for the respondent-HSVP and we are of the opinion that no relief can be granted to the petitioner(s) at this stage but in case there is any fresh advertisement with respect to the adjoining sectors of Sector 25, Hisar, then it would be open to the petitioner(s) to apply in pursuance of the same, for the reasons stated hereinafter.

The undisputed facts in the present case are that the Government of Haryana, vide Notification dated 31.03.2008 issued under Section 4 of the Act of 1894 sought to acquire the land measuring 303.76 acres for the public purpose i.e. for development of commercial Sector-25, Hisar. It is the case of the petitioner(s) that their land was also included in the said Notification. The specific case of Om Parkash, which is the lead case, was that his father was the owner of the property in question i.e. land measuring 1 kanal 15 marlas, comprised in khewat No.5010/6161 situated in the revenue estate of Hisar and the petitioner had inherited the same from his father. Notification under Section 6 of the Act of 1894 was issued on 03.02.2009 and the land measuring 280.44 acres was acquired which included the land of the petitioner(s). Notice under Section 9 of the Act of 1894 was issued on 07.01.2011 and the award was passed on 27.01.2011. It is not in dispute that the petitioner(s) had not challenged the acquisition and thus, were satisfied with the same and had also received the compensation and thus, acquisition proceedings qua them had attained finality.

The respondents-State of Haryana had framed Rehabilitation and Resettlement Policy dated 09.11.2010 and a copy of the said Rehabilitation and Resettlement Policy has been annexed as Annexure P-7 along with the present writ petition.

It is the case of the petitioner(s) that his case is covered by Clause 8 of the said policy. It is further the case of the petitioner(s) that public notice was issued in the year 2013 and the petitioner(s) had applied for allotment in pursuance thereof. In the case of Om Parkash, it has been averred that the petitioner had presented the application dated 15.10.2013 for the allotment of an oustee category residential plot and had also paid an amount of Rs.50,000/- by way of demand draft dated 14.10.2013. It is not in dispute that in pursuance of the said application, no draw of lots have been held and no allotment was made in favour of the petitioner(s).

The Division Bench in the case of Haryana Urban Development Authority and others vs. Sandeep and others (supra), while considering the challenge laid to the order passed by the learned Single Judge in respect of rights of oustees for allotment of plots under the Rehabilitation and Resettlement Scheme, as well as, in other connected matters, gave several directions. The said judgment has been upheld by the Hon’ble Supreme Court vide order dated 06.03.2014 passed in SLP no.27256-2012. Para 56 of the judgment of the Division Bench in which directions have been given is reproduced hereinbelow:-

A perusal of the above directions would show that under direction no.(iii) and direction no.(vi), it was specifically stated that the HUDA Authorities (now HSVP) could reserve plots up to 50% of the total plots available for all reserved categories including plot of oustees, and as to what extent, the reservation was to be done was to be decided by the State Authority or by HUDA Authorities (presently HSVP). It is further stated that the State Government or the acquiring authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots earmarked for reserved categories and it is only after identification of the plots available for outstees in each sector that the State Government / acquiring authority was to publish an advertisement inviting application from oustees to apply for allotment of plots in accordance with law.

It is not disputed before us that as per the 2010 policy and even in the subsequent public notice, under which the petitioner (s) had applied, the reservation exercise, as mandated in the abovesaid judgment was not carried out. The Division Bench in the abvoesaid case had further directed that the price which is to be charged from the allottee shall be the price mentioned in the public advertisement in pursuance of which, the plot was allotted and not when the sector was floated for sale for the first time. It was also observed that the plots to be allotted to the oustees shall be allotted only by public advertisement and not on the basis of any application submitted by any oustees and that in case an oustee was not successful then he / she could apply again and again till the time the plots were available for the oustees in the sector for which the land was acquired or in the adjoining sector if the land was acquired for the purpose other than residential purpose, as in the present case.

In pursuance of the said directions, the respondents framed policy / issued instructions dated 11.08.2016. A perusal of the said instructions / policy dated 11.08.2016 would show that under clause 2 it was provided that where the land has been acquired for any non-residential purpose such as industrial, completely commercial Sector, as was in the present case, then, such oustee would be entitled to allotment of plot in the adjoining sector. Importantly, in clause 15 it was stated that the oustees who had earlier made an application for allotment of plot under the oustee policy on any previous occasion and the said application was pending, then, the said applicants were required to apply for allotment of plot in the fresh advertisement, which was to be issued after the determination of reservation and their earnest money was to be refunded along with interest at the rate of 5.5% per annum from the date of deposit till the date of payment. It is the own case of the petitioner(s) that in pursuance of the said policy dated 11.08.2016, the respondents had returned the amount to the petitioner (s). Paragraph 19 of CWP-13631-2021 i.e., Om Parkash’ case which is the lead case, is reproduced hereinbelow:-

It is the case of the respondents that an amount of Rs.50,000/-was returned along with interest at the rate of 5.5% per annum i.e., Rs.58,806/- after deducting TDS, which aspect has not been disputed on behalf of the petitioner (s) before this Court. The action of the respondents to return the money was not challenged by the petitioner(s) and even in the present writ petitions which have been filed after a delay of four years, no challenge has been made to the act of the respondents of returning the money. It would be relevant to note that even the instructions / policy dated 11.08.2016 has not been challenged.

The Full Bench of this Court in the case of Rajiv Manchanda and others vs. Haryana Urban Development Authority and another reported as 2018(2) PLR 422 had framed 14 questions related to oustees and had answered all the said questions. Importantly, all the clauses of the instructions dated 11.08.2016 were considered and none of the clauses were set aside. While considering clause 4 of the policy, which provided that an oustee shall have a right to make an application only till the plots are available in the concerned sector, it was observed that the said clause was inconfirmity with the judgment of the Division Bench in the case of Sandeep Singh (supra) and the said clause was upheld. Policy/instructions dated 11.08.2016 were thus held to be legal. The 14 questions which were framed as stated in para 5 of the said judgment are reproduced hereinbelow:-

With regard to question no.2, the Full Bench had observed that once it was settled law that the respondents have to reserve upto a maximum of 50% of the plots which included the oustee quota, the extent of reservation under the oustee quota was the matter of policy which must be left at least in the first instance to the respondents and it was not for the Court to decide the said extent. Under question no.3 it was observed that the extent/ percentage of the reservation was required to be qua the total numbers of plots in a sector and not qua the number of plots floated each time in a sector and that plots in a sector to the extent of reservation for oustees must be allotted to the oustees. Importantly, under question no.4 it was held that the claims of the oustees were required to be invited through an advertisement in the newspaper and not by individual notices to the oustees personally and after the said advertisement it was for the oustees to make an application for the allotment of plot under the oustees quota and the obligation of the respondent would arise only if an application is made by the oustee. Thus, necessarily meaning that in case no application is filed by the oustee then nothing further is to be considered on the part of the respondents. It is not in dispute that subsequent to the passing of the judgment by the Full Bench on 22.11.2017, the respondents issued a memo dated 08.05.2018 (Annexure R-1) (page 175 of the paper book) which was in partial modification of the policy / instructions dated 11.08.2016. The said memo specifically refers to the Full Bench of this Court in the case of Rajiv Manchanda and others (supra) and in pursuance of the same has amended clauses 2, 3, 11 and 15 of the policy / instructions dated 11.08.2016 and has added clause 19. The substituted clause 3 reads as under:-

A perusal of the above clause would show that it was specifically provided that the plots allotted under all reserved categories shall not exceed maximum limit of 50% of the plots in a sector, which clause is in consonance with the judgment passed by the Division Bench in the case of Sandeep Singh (supra) and also of the Full Bench in the case of Rajiv Manchanda (supra). It is the undisputed case of the parties, as stated hereinabove, that no reservation was made in pursuance of the policy dated 09.11.2010 and it is only after the abovesaid judgments were passed and the policy / instructions dated 11.08.2016 were issued (modified on 08.05.2018), that the respondent authorities, carried out the process of reservation of plots in various sectors which included reservation with respect to the oustees quota in every sector. Thereafter the advertisement dated 01.11.2018 with respect to Hisar Zone was published in the national newspaper inviting online application for allotment of plots for the said Hisar Zone under the oustee quota. Admittedly, the petitioner(s) did not apply under the said advertisement dated 01.11.2018 for allotment of plot under the oustee quota.

From the abovesaid unrebutted facts, it is apparent that the petitioner(s) had received the deposit made by the petitioner(s) and had not made any application in pursuance of the advertisement dated 01.11.2018, which was issued subsequent to the instructions / policy dated 11.08.2016 which instructions / policy were framed in pursuance of the judgment passed by the Co-ordinate Division Bench of this Court which judgment has been upheld upto the Hon’ble Supreme Court. The petitioner(s), in fact, remained silent for a further period of 4 years after receiving the refund before filing the present writ petitions and thus, attract the principle of delay and laches.

Admittedly, the procedure which governs allotment of plots in the oustees quota as it stands now is as follows:-

ii) A public advertisement is then required to be issued inviting the applications from the oustees along with other categorires with respect to various sectors.

iii) After the allottees have given an application in pursuance of the said advertisements, then, a draw of lots is to be held only of the persons who have applied.

iv) Only the persons who are successful in the draw of lots, their eligibility is to be considered by the screening committee.

From the abovesaid undisputed procedure, it is apparent that in case an oustee, who may be eligible, does not apply in pursuance of the advertisement, cannot be permitted to participate in the draw of lots and thus, cannot be considered for the purpose of allotment. It is however not in dispute that merely because a person, who is eligible, has not applied under a particular advertisement would not bar him from applying under a subsequent advertisement and in case any such advertisement is issued and the said allottee applies, then, his right would be considered under the said advertisement. In the present case since, undisputedly, the petitioner(s) did not apply under the advertisement of year 2018 and had accepted the return of money under the earlier application and had also not challenged the said aspect, thus, at this stage no relief can be granted to the petitioner(s).

The reliance sought to be placed upon by the petitioner on the judgment dated 16.09.2016 (Annexure P-6) does not in any way further the case of the petitioners. It would be relevant to note that the said writ petition was filed in the year 2009 in which challenge was made to the acquisition proceedings including the notifications under Section 4 and 6 of the 1894 Act, whereas in the present case it is not in dispute that the writ petitions have been filed in the year 2021/2023 and no challenge has been made to the acquisition. In the abovesaid case, while considering the challenge to the acquisition, the State counsel, vide order dated 16.07.2013 as is apparent from para 18 of the said judgment was granted time to get instructions as to whether the members of the society therein could be allotted residential plots and it is in the said background that the respondent authorities had stated that while considering the matter sympathetically as a special and exceptional case and also in the light of the observations made by the Court, the plots were being allotted and the challenge to the acquisition by the said persons was accordingly adjudicated after taking into consideration the said aspect. Apart from the fact that the facts of the present case are on a completely different footing, it would be relevant to note that in the present case, the petitioner(s) has based his claim on the basis of policy of 2010, which policy, has now been substantially altered in view of the policy / instructions dated 11.08.2016 passed in pursuance of the judgments passed by the Division Bench and Full Bench of this Court. Thus, for the petitioner(s) to succeed before this Court, the petitioner(s) would have to bring his case within the parameters of policy / instructions dated 11.08.2016, subsequently modified by the policy / instructions dated 08.05.2018, as there is no challenge to the said policy / instructions. However, the petitioner(s) has not been able to bring his case within the parameters of the said policy.

Keeping in view the above said facts and circumstances, we are of the opinion that no relief, much less, mandamus can be issued to the petitioner(s) at this stage but the present petitions are disposed of with an observation that in case the respondent authorities issue a fresh advertisement with respect to adjoining sectors of Sector 25, Hisar, then, it would be open to the petitioner(s) to apply in pursuance of the said advertisement and the respondent authorities would consider the said application in accordance with law.