Pratap Singh vs State of Haryana and Others

Surya Kant, J.—The petitioner seeks quashing of the notifications dated 14.07.2010 and 07.07.2011 (Annexures P3 & P5) issued under

Sections 4 & 6, respectively of the Land Acquisition Act, 1894 (in short, ''the Act''). The precise claim of the petitioner is that the impugned

notifications are contrary to settled principles of law on the acquisition of land and is also violative of the provision of the Ancient Monuments and

Archaeological Sites and Remains Act, 1958 (in short, ''the 1958 Act''). The acquired land in the instant case measuring 4 kanal 16 marlas is

owned by the petitioner and his brother and is situated within the revenue estate of Jhajjar which is a Municipal area. The land has been acquired

for a public purpose, namely, for the Sector-dividing road of Sec. (sic)2-8 and 1-7 of Urban Estate, Jhajjar.

The petitioner lays his challenge to the acquisition mainly on three grounds viz.:-

(i) the objections submitted by him and his co-owner have not been decided equitably ignoring the fact that the petitioner has already got the

building plans sanctioned from Municipal Committee, Jhajjar and has constructed a residential unit consisting three bed rooms, one hall, kitchen,

cattle-shed and store-rooms etc;

(ii) his petition u/s 8 of the National Capital Region Planning Board Act, 1985 is yet to be adjudicated by the National Capital Region Planning

Board, who is solely the competent authority to determine the use of areas falling in the National Capital Region;

(iii) the acquired land abuts the historical ''Tombs'' notified as ''Monuments of National importance'' by the Archaeological Survey of India vide

Notification dated 11.12.2002 (Annexure P7) and no construction within radius of 100 mtrs. from the protected limits of the monument is

permissible;

The Land Acquisition Collector, Urban Estates, Rohtak has filed the reply/affidavit maintaining that though the alleged structure-cum-residential

house has been constructed by the petitioner unauthorisedly evading conversion and development charges, nevertheless, ''the residential house

falling outside the demarcation boundary of the road has not been acquired''. The reply/affidavit further clarifies that one room constructed

separately with a verandah, boundary wall and the vacant area, total measuring 4 kanal 16 marlas have been acquired as it falls ''in the alignment of

road''.

We have heard learned counsel for the parties and gone through the record.

The aforesaid plea taken by the respondents if read in conjunction with the photographs (Annexure P11) placed on record by the petitioner

leaves no room to doubt that the residential house which is a separate unit, stands exempted from the acquisition and only a temporary structure

raised in the other side corner of the petitioner''s land along with its boundary wall has been acquired.

As regards the petition, if any, submitted by the petitioner before National Capital Region Planning Board, no meaningful argument could be

advanced as to how on submission of such a petition the acquisition proceedings under the Act must come to a halt, even if the land proposed to

be acquired is needed for a bona fide public purpose.

Adverting to the third contention, namely, the alleged violation of Notifications dated 16.06.1992 and 11.12.2002, we may firstly refer to the

reply/affidavit filed by the Archaeological Survey of India - respondent No. 5, which in extenso refers to the historical importance attached to the

monuments duly acknowledged by the framers of our Constitution. The reply thereafter explains the provisions of the 1958 Act as amended in the

year 2010 inserting Sections 20A and 30A whereunder the distance of 100 mtrs. in all directions from a ''protected area or monument'' shall be

treated as ''prohibited area''. Under sub-Section (3) of Section 20-A, even ''public work'' or any ''project essential to the public'' cannot be carried

out in the ''prohibited area'' unless permitted by the Central Government or the Director General for the reasons to be recorded in writing, the

violation whereof entails award of punishment for unauthorized construction in the ''prohibited area''. So far as the subject site is concerned, it is

averred that the Tombs have been declared ''Monument of National importance'' and it being a ''prohibited area'', the State Government cannot

carry out any ''construction'' without prior permission of the competent authority u/s 20-A(3) of the 1958 Act.

The Land Acquisition Collector in his reply/affidavit refers to the amended definition of ''construction'' as given in Section 2(dc) of the 1958 Act

which reads as follows:-

(dc) ""construction"" means any erection of a structure or a building, including any additional or extension thereto either vertically or horizontally, but

does not include, any reconstruction, repair and renovation of an existing structure or building, or, construction, maintenance and cleansing of

drains and drainage works and of public latrines, urinals and similar conveniences, or, the construction and maintenance of works meant for

providing supply of water for public, or, the construction or maintenance, extension, management for supply and distribution of electricity to the

public; or provision for similar facilities for publicity,

(Emphasis applied)

It is urged that construction and maintenance of works like supply of water, distribution of electricity etc. ''or provision for similar facilities for

public'' do not fall within the meaning of'' construction'' and construction of a ''public road'' is unarguably a facility for public, hence no permission

u/s 20-A(3) of the 1958 Act is required.

In our considered view no case to interfere with the impugned Notifications or acquisition of the petitioner''s land is made out. We say so for

the reason that the petitioner''s residential house has already been excluded from the acquisition. A temporary structure of one room apparently

raised unauthorisedly and a part of the boundary wall along with the vacant area only has been acquired after minutely following the mandatory

procedure laid down for acquisition under the Act. No procedural illegality in this regard could be pointed out on behalf of the petitioner.

Coming to the alleged violation of Notifications issued by Archaeological Survey of India declaring the adjoining site a ''Monument of National

importance'', firstly we have serious doubts on the locus standi of the petitioner to raise this issue. The writ petition has not been filed in pro bono

publico. In fact the petitioner''s own case is that he wanted to construct the acquired land, hence it does not lie in his mouth to say that no

construction can be raised by the State Government who has stepped into his shoes through the statutory acquisition. Secondly, the definition of

construction"" does make out an arguable case in favour of the State Authorities as it is their categoric stand that no building except a public road is

to be constructed on the acquired land.

Whether laying of a public road amounts to ''construction'' of the nature prohibited u/s 20-A(3) of the 1958 Act is a debatable issue. It is also

the case of State Authorities that the proposed road is likely to be 100 mtrs. away from the Tomb''s site. We need not to express any opinion on

this issue for the reason that there is no exemption against prosecution to the State Authorities if they raise any ''construction'' contrary to the

provisions of the 1958 Act. If it so happens, the law shall take its own course. Mere acquisition of the petitioner''s land or vesting of its ownership

in the State on payment of compensation, undoubtedly does not violate provisions of the 1958 Act. For the reasons afore-stated, we do not find

any merit in this writ petition which is accordingly dismissed.