Local Acts Reporter 2012(1) L.A.R. ............ Latest Laws

Local Acts Reporter

L.A.R

A Unique Monthly Law Journal

Reporting latest judgments of (Supreme Court of India, Punjab and Haryana High Court, Financial Commissioners of Punjab and Haryana)

on

Local (State) Acts of Punjab, Haryana and Chandigarh

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 Local Acts ReporterApril Part

2012(1)L.A.R.

SUBJECT  INDEX

Constitution of India

Article 14 -- Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim – Reservation of – Extent of -- Whether the policy of allotment of plot to an oustee, a distinct and separate category, is exception to Article 14 of the Constitution of India and whether, there can be any upper limit for allotment of plots to such category – Held, oustees, whose land has been acquired either for residential, commercial, institutional or any other purpose, form a separate and distinct category and are entitled to be considered for allotment of a plot, as a part of rehabilitation process -- Plots for the oustees including all other constitutionally permissible classes of reservation cannot exceed 50%. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948)

Section 23-A -- Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (24 of 1972), Section 2(e),4,5 – Common purposes – Public premises -- Right of Proprietors – Eviction of -- Land is reserved for common purpose i.e. Baisak Mawashian (place of gathering of cattle) and school -- Such land would be public premises as defined under Section 2(e) of the Act -- Collector can issue notice to get unauthorized occupant from such land evicted -- Proprietors of the village can also be evicted from the land reserved for common purpose. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).

Section 23-A -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16(ii) – Common purposes – Vesting of -- In revenue record in the ownership column, names of the proprietors/right holders of the village are recorded and in the cultivation column, the entry is Rafai Aam and under the column of kind of land, the entry is shown as Gair Mumkin (un cultivable)-Baisak Mawashian (place of gathering of cattle) and school – In extract of Register of Consolidation proceedings it has been recorded as Baisak Mawashian (place of gathering of cattle) – From above it is clear that disputed land in the revenue record is reserved for common purposes, so, vests in the Panchayat for management and control. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949

Rule 16(ii) – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23-A -- Common purposes – Vesting of -- In revenue record in the ownership column, names of the proprietors/right holders of the village are recorded and in the cultivation column, the entry is Rafai Aam and under the column of kind of land, the entry is shown as Gair Mumkin (un cultivable)-Baisak Mawashian (place of gathering of cattle) and school – In extract of Register of Consolidation proceedings it has been recorded as Baisak Mawashian (place of gathering of cattle) – From above it is clear that disputed land in the revenue record is reserved for common purposes, so, vests in the Panchayat for management and control. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).

East Punjab Urban Rent Restriction Act, 1949 (III of 1949)

Section 13-B -- NRI landlord – Bonafide need -- Right of the NRI can be defeated by a tenant by showing that the bona fide requirement was a pretext to get the accommodation vacated and the landlord was not owner of the premises. Onkar Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).

Section 13-B -- NRI landlord – Eight shops in one building – Right of eviction -- Landlords established that all the eight shops which are part of the one main building are required by them – Contention that landlord have already got evicted the tenant from another part of the building and therefore they are not entitled to ask for eviction of the tenant as such right can be exercised by the landlords only once in life time, is liable to be rejected -- All the shops which form part of one integral building can be got vacated by a NRI owner/landlord. M/s Bhandhari General Store’s case RCR(Rent) 2006(1) 306 relied. Onkar Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).

Section 13 – Bonafide need -- Landlord is the best judge of his needs and the tenant cannot dictate his terms regarding the suitability of the premises. Onkar Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).

Section 13-B -- NRI landlord/owner – Petition by owner not by landlord – Maintainability of -- Contention that NRI who is the owner of the demised premises was not landlord of the petitioner is liable to be rejected -- NRI owner has a right to seek eviction after a period of 5 years from the date of becoming owner of such building irrespective of the fact that the building is let out by him or her. Smt.Bachan Kaur’s case, 2011(3) L.A.R. 263 (P&H D.B.) relied. Onkar Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).

Section 15(5) -- Revision before High Court – Misuse of process of law – Costs -- Dispossession of tenant from the shop in dispute stayed – Service could not complete, petitioner was directed to supply correct addresses -- After getting the dispossession stayed, on 9.10.2007 and despite the fact that at many stages, the Court has asked the petitioner to serve the respondent dasti, the petitioner failed to do so -- Held, it seems that petitioner is abusing the process of law by not making efforts to serve the respondent and is enjoying the stay order in his favour -- Petition dismissed with costs of Rs. 1 lac. Durga Dutt v. Vidya Sagar, 2012(1) L.A.R. 415 (P&H).

Section 2(a), 2(d), 13-A – Specified landlord -- Building – Non-residential building – When the eviction petition was filed, there was no access to the main residential building through the demised premises (shop) -- Court is to take into consideration the position of the demised premises at the time of the filing of the eviction petition – Held, it has to be essentially accepted that it was segregated portion of the main building and was an independent unit falling within the definition of a building itself in terms of Section 2(a) of the Act – Demised premises is not a residential building -- Since it was let out for non-commercial purpose, the application of the landlord under Section 13-A is not maintainable. M/s Bharat Electricals and another v. Dr. Sukhdev Raj Goyal and another, 2012(1) L.A.R. 422 (P&H).

Section 13-B, 18-A – NRI landlord – Leave to defend -- Admittedly respondent is a British passport holder and settled in U.K, respondent-landlady is of Indian origin – Respondent-landlord has categorically stated that she wants to settle in India and for the purpose she requires the premises in dispute -- A presumption with regard to need of the respondent-landlord is deemed to be drawn in his/her favour as provided under Section 18-A (4) of the Act – Once leave to defend is declined, eviction order has to follow. Harjinder Singh v. Baljit Kaur, 2012(1) L.A.R. 460 (P&H).

Environment (Protection) Act, 1986 (29 of 1986)

Section 3(2)(v) – Punjab Land Preservation Act, 1900 (II of 1900), Section 3 -- Notification dated 14.9.2006 – Prior Environmental Clearance -- Minor Mineral Quarries -- Auction of -- Held, though individual mineral quarries on which mining is proposed to be allowed does not exceed 4.5 hectares which takes the matter outside the notification dated 14.9.2006, the mining mineral quarries covered by the auction notices are certainly of large areas and thus, by using the device of limiting the area of individual quarries to 4.5 hectares, the requirement of environment clearance as per notification dated 14.9.2006 cannot be allowed to be defeated -- Said notification is a statutory notification -- Prior environmental clearance is mandatory -- State cannot proceed with the grant of mining rights in pursuance of impugned notices until environmental clearance is granted in terms of notification dated 14.9.2006. Sandeep Sangwan v. Union of India and others, 2012(1) L.A.R. 454 (P&H DB).

Haryana Canal and Drainage Act, 1974 (29 of 1974)

Section 17 – Change of outlet – Power of Deputy Collector -- Power u/s 55 is only limited to order use or distribution of water and settlement of differences -- No power conferred on Deputy Collector u/s 55 of the Act to shift the area from one outlet to another outlet. Nakchhatar Singh and another v. Superintending Canal Officer, Bhakra Water Services, Circle-II, Hisar and others, 2012(1) L.A.R. 382 (P&H).

Section 17 – Warabandi -- Warabandi (fixing of turn of water) is a temporary arrangement -- It can never be considered as permanent -- Petitioner cannot claim as a matter of right that turn once fixed must continue -- Aggrieved shareholders can at any stage raise the issue of wrong fixation of turn -- Canal Authorities have specifically framed the rules for regulating the turns of water. Krishan Lal v. Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).

Section 17 – Warabandi – Branch water course – Main watercourse -- It is settled principle of law that firstly from the main watercourse, the Branch watercourse will run -- Thereafter, the water will again flow into the main watercourse. Krishan Lal v. Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).

Section 17 – Warabandi – Branch water course – Main watercourse -- Land of the petitioner is on the branch watercourse and is to be irrigated first, whereas, the land of private respondent is at the main watercourse in the end -- So, private respondent is entitled to the jhara (residue) of the water. Krishan Lal v. Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).

Section 17 – Warabandi – Change of – Third party right -- Original owner has not moved any application -- Third party has no right to make a prayer for transfer of area. Gurmeet Singh and others v. Chief Canal Officer (BWSU) Irrigation Department, Sector 2, Panchkula and others, 2012(1) L.A.R. 379 (P&H).

Section 24 – Water Course – Demolition of – Restoration of -- Concurrently finding by Canal authorities of the existence of water course, which was dismentalled by the petitioners -- No other alternative water course for irrigation of land of private respondent – Canal Authorities have rightly ordered the restoration of the water course. Bharat Singh and others v. Divisional Canal Officer and others, 2012(1) L.A.R. 372 (P&H).

Haryana Canal and Drainage Rules, 1976

Rule 7, 11 – Publication of Scheme/Notice – Rules do not require personal service of notices -- Only a publication by beat of drum and the acknowledgment of Lambardar and his statement of having announced and given publicity of the same on the file of the scheme. Tek Ram and another v. The State of Haryana and others, 2012(1) L.A.R. 375 (P&H).

Rule 7, 11 – Publication of Scheme/Notice – Notice – Issuance of – Presumption of -- Held, official acts shall be presumed to have been done correctly and if the records brought before the Court show that the notices had been issued, a disputed question of fact that such notice had not been issued cannot be adjudicated before the High Court. Tek Ram and another v. The State of Haryana and others, 2012(1) L.A.R. 375 (P&H).

Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972)

Section 12(3), 14(2) -- Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 2(3), 10-A -- Haryana Utilization of Surplus and Other Areas Scheme 1976, Paragraph 4 – Permissible area -- Surplus area – Vesting of land in State -- Allotment of land – Held, issue that the assessment of surplus itself was wrong is not an issue that is available at the stage of distribution of the property – Landlords will not have a right to challenge the issue of allotment of the land, after the vesting has taken place. Dona Ram and others v. The State of Haryana through the Collector, District Sirsa and others, 2012(1) L.A.R. 384 (P&H).

Haryana Co-operative Societies Act, 1984 (22 of 1984)

Section 34 – Election petition – Appointment of Administrator – Power of -- Financial Commissioner directed the Assistant Registrar, Cooperative Societies, to treat the petition as an election petition u/s 102 of the Act and to decide the same within a period of 60 days; meanwhile, Administrator was appointed to look into the affairs of the Society – Held, Section 34 of the Act nowhere authorized the Registrar or Secretary to appoint the administrator pending the election petition – Order is without jurisdiction which cannot be sustained in the eyes of law -- Orders to the extent of appointment of administrator stand set aside. Arun Kumar Basra and others v. State of Haryana and others, 2012(1) L.A.R. 419 (P&H).

Haryana Municipal Corporation Act, 1994 (16 of 1994)

Section 347, 348 – Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (41 of 1963), Section 12 -- Repairs – Notice for violation of Act --  Land of the plaintiff falls within the Municipal Limits where Director, Town and Country Planning has no authority to issue notice under the Scheduled Roads Act because the suit property is located within the municipal limits – If at all there is violation, the Municipal Corporation has sufficient powers under the Haryana Municipal Act to initiate action, however, no action under the Scheduled Roads Act can be initiated. Municipal Corporation, Faridabad v. M/s Continental Device (India) Ltd., 2012(1) L.A.R. 370 (P&H).

Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (24 of 1972)

Section 2(e),4,5 – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23-A -- Common purposes – Public premises -- Right of Proprietors – Eviction of -- Land is reserved for common purpose i.e. Baisak Mawashian (place of gathering of cattle) and school -- Such land would be public premises as defined under Section 2(e) of the Act -- Collector can issue notice to get unauthorized occupant from such land evicted -- Proprietors of the village can also be evicted from the land reserved for common purpose. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).

Section 4,5 – Eviction petition – Locus standi -- Contention that it is only the owner who can file an application for eviction against the unauthorized occupants rejected – Held, anyone can bring to the notice of the Collector about illegal occupants of such premises. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).

Section 4,5 – Eviction petition – Notice -- Contention that notice issued by the Collector was defective as no description of the land was mentioned therein – Held, in the column of particulars of premises, it is mentioned that copy of petition attached -- Contention is devoid of any merit. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).

Haryana Urban Development Authority Act, 1977 (13 of 1977)

Section 15, 16, 17 – Delay in instalments -- Resumption order – Validity of -- Whether due to delay in payment, resumption order can be sustained – Held, resumption is very harsh measure and it should be resorted only when the allottee has no intention to pay the instalments. Haryana Urban Development Authority, Faridabad and Another v. R.C. Gupta, 2012(1) L.A.R. 471 (P&H).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority -- Oustees claim – Clause of ownership of the land for a certain period before the issue of notification u/s 4 of the Land Acquisition Act – Sustainability of -- Period of one year or five years prior to the date of publication of notification is without any reasonable basis -- Date of notification u/s 4 of the Act is a reasonable date -- Any other date in the R&R Policy is, therefore, quashed and set aside. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Constitution of India, Article 14 -- Oustees claim – Reservation of – Extent of -- Whether the policy of allotment of plot to an oustee, a distinct and separate category, is exception to Article 14 of the Constitution of India and whether, there can be any upper limit for allotment of plots to such category – Held, oustees, whose land has been acquired either for residential, commercial, institutional or any other purpose, form a separate and distinct category and are entitled to be considered for allotment of a plot, as a part of rehabilitation process -- Plots for the oustees including all other constitutionally permissible classes of reservation cannot exceed 50%. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim – Release of land – Effect of -- Whether, the release of land from acquisition so as to dis-entitle an oustee from allotment of a plot, means release of land in terms of Section 48 of the Act or includes the non publication of the declaration under Section 6 of the Act as well -- Held, the release contemplated in the policies is not the release of land after acquisition u/s 48 of the Land Acquisition Act -- Purpose of policies stands satisfied, when a constructed portion is not included in Section 6 notification as the landloser has some land in his possession for his purposes -- Thus, the expression “released from acquisition” in fact means “released from intention to acquire” -- Therefore, the condition of release of land to dis-entitle an oustee from such status is fair and reasonable. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees policy -- Object of the policy – Object of the policy is to rehabilitate and not to allot alternative land – In order to achieve such objective, the extent of holding acquired or the land not acquired is not relevant as an oustee, whose land has been acquired has some land to bank upon for his use and occupation. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 – Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim -- Whether the condition in the Policies, seeking applications from the oustees before the Sector is floated for sale, is directory and the said condition is satisfied even when the applications along-with earnest money are invited from the general public including from the oustees – Held, oustees form a distinct and separate category and are entitled to reservation -- Such reservation can be given effect to, when the plots available in a sector are determined and the percentage of reservation of each category is fixed – When the HUDA invited applications from the general public along with the applications from the oustees, it substantially complies with the conditions in the policies framed by it -- Condition in the policies to seek applications from the oustees before the floatation of the sector is not mandatory -- Mandatory provision is the right of consideration for allotment of plots -- Condition of inviting applications before the floatation of a sector is a directory provision, as it relates to procedure of allotment of plots. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 – Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim – Failure to apply – Effect of -- Whether the failure to apply for a plot in response to advertisement published at one stage entitles a oustees to apply for allotment of a plot as and when the advertisements are issued subsequently till such time the plots are available within overall limit of 50% of the total plots in a sector – Held, since the oustees form a separate and distinct category, failure to apply in response to an advertisement will not dis-entitle an oustee from submitting application at a subsequent stage as and when advertisement is again issued inviting applications for allotment of plots. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim – Delay and laches -- Whether an oustee can be permitted to raise a grievance in respect of non-allotment of a plot on failure to apply for a plot in pursuance of public advertisement issued for the reason of delay and laches – Held, no merit in the argument that there can be any delay and laches, if an application is not made for allotment of plot in pursuance of public advertisement issued at one stage or the other -- An oustee, whose land has been acquired, does not lose his status as that of an oustee merely for the reason that he has not applied for a plot at an earlier stage -- He has a right to seek allotment of a plot as a separate and distinct category as and when advertisements are issued inviting applications from the eligible applicants including the oustees. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim -- Purpose of acquisition is industrial and institutional – Eligibility to apply residential plot -- Whether an oustee is entitled to an allotment of a plot in the next residential Sector even if the land is acquired for industrial, institutional or such like purposes irrespective of date of acquisition – Held, even if land has been acquired for a purpose other than residential/commercial, an oustee is entitled to apply for a plot in the next residential sector even if acquisition is prior to the circular dated 27.03.2000 -- Entitlement of an oustee for a plot would be as per the existing policy at the time, when an oustee apply for a plot in response to public advertisement. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 – Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees claim – Allotment of plot – Rate to be charged -- What price could be charged from an allottee i.e. price prevailing on the date the allotment or when the Sector is floated first -- 'normal allotment rate' in all circumstances shall be the date when the sector is first floated for sale -- As a matter of fact, the normal allotment rate would be the rate advertised by the HUDA in pursuance of which applications are invited from the general public and the oustees, in pursuance of which the plots are allotted. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Oustees Claim – Procedure of – Right of -- Separate claim – Requirement of -- Finding  that since the claim from the oustees was not separately invited and could not have been clubbed or joined with General Category, therefore, such action is violative of law is not sustainable – Such provision is directory and inviting of applications through a public advertisement along with the applications from the general public meets the intent of the policies -- An oustees is entitled to apply for a plot till such time, the plots falling to the category of the oustees remain unallotted -- Such writ petitioner would be entitled to apply for a plot in pursuance of public notice inviting applications from the oustees, if the plots for such category are available. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Section 15 -- Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority – Ousteees Claim --  Consideration of – Law summarized -- Held, (i) That date of notification under Section 4 of the Land Acquisition Act, 1894 is relevant to determine the eligibility of a land-owner for allotment of a residential plot, even if the acquisition is for the purposes of commercial, industrial or institutional; (ii) That the entitlement of the size of the plot and the procedure for allotment shall be as on the date of allotment in pursuance of an advertisement issued inviting application from the oustees; (iii) That the HUDA or such other authority can reserve plots up to 50% of the total plots available for all reserved categories including that of oustees. As to what extent there would be reservation for the oustees, is required to be decided by the State Government and/or by HUDA or any other authority, who is entitled to acquire land; (iv) That the oustees are entitled to apply for allotment of plot along-with earnest money in pursuance of public advertisement issued may be inviting applications from the general public and the oustees through one advertisement. If an oustee is not successful, he/she can apply again and again till such time, the plots are available for the oustees in the sector for which land was acquired for residential/commercial purposes or in the adjoining sector, if the land acquired was for institutional and industrial purposes etc. The plots to the oustees shall be allotted only by public advertisement and not on the basis of any application submitted by an oustee; (v) That the price to be charged from an allottee shall be the price mentioned in the public advertisement in pursuance of which, the plot is allotted and not when the sector is floated for sale for the first time; (vi) That the State Government or the acquiring authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots ear-marked for reserved categories and after identification of the plots available for the oustees in each sector. Thereafter, the State Government or the acquiring authority shall publish an advertisement inviting applications from such oustees to apply for allotment of plots in accordance with law: and (vii) If in any sector, more than 50% plots have been allotted by way of reservation including to the oustees, then such allotment shall not be cancelled or reviewed in view of the judgment of this court. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB). 

Haryana Utilization of Surplus and Other Areas Scheme 1976

Paragraph 4 – Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 2(3), 10-A -- Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972), Section 12(3), 14(2) -- Permissible area -- Surplus area – Vesting of land in State -- Allotment of land – Held, issue that the assessment of surplus itself was wrong is not an issue that is available at the stage of distribution of the property – Landlords will not have a right to challenge the issue of allotment of the land, after the vesting has taken place. Dona Ram and others v. The State of Haryana through the Collector, District Sirsa and others, 2012(1) L.A.R. 384 (P&H).

Indian Stamp Act, 1899 (Act No. 2 of 1899)

Section 47-A – Sale deed – Registration of – Nature of property – Relevant date -- Nature and user of the building, residential on the date of the purchase -- Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty -- Nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. State of U.P. & Ors. v. Ambrish Tandon & another, 2012(1) L.A.R. 431 (SC).

Land Acquisition Act, 1894 (1 of 1894)

Section 23 -- Market Value of land – Prohibition regarding use of the land for purposes other than agriculture – Effect of -- If there is a prohibition regarding use of the land for purposes other than agriculture, the value of such land on account of the same being put to commercial, residential or industrial use cannot form the basis of determining the market value -- In view of the permanent restriction regarding user, that is it should only be used for agricultural purposes, and the bar in regard to any non-agricultural use, it will have to be valued only as an agricultural land and cannot be valued with reference to sales statistics of other nearby lands which have the potential of being used for urban development. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1) L.A.R. 434 (SC).

Section 23 – Market Value – Sale deed exhibited -- No basis for the assumption that the purchaser of the land must have offered higher price for special reasons -- It was open to the respondent to cross-examine the witness and elicit the special reasons, if any, for sale of land allegedly at a higher price – However, no such question was put to the witness – Mere fact that average sale price of the transactions relied upon by the respondent was substantially less could not be made a ground for discarding sale deed. Chindha Fakira Patil (D) through L.Rs. v. The Special Land Acquisition Officer, Jalgaon, 2012(1) L.A.R. 401 (SC).

Section 23 – Market Value – Report of consultant on trees -- Witness-consultant in Agriculture and Horticulture personally visited the acquired land and gave the details of the trees standing on different parts of the land, their present and future age, condition, height, width, spread and annual fruit production capacity -- Valuation made by him was amply supported by the market rates of fruits fixed by Agriculture and Horticulture Department of Government – In the cross-examination, the witness stood by reports given by him – Held, this being the position, the High Court had no reason to overturn the finding recorded by the Reference Court on the issue of existence of trees on the acquired land and their valuation. Chindha Fakira Patil (D) through L.Rs. v. The Special Land Acquisition Officer, Jalgaon, 2012(1) L.A.R. 401 (SC).

Section 23 – Market Value -- Land under tenancy – Prohibition regarding use of land for any purpose other than agriculture -- Atleast 50% will have to be deducted from the market value of freehold land with development potential to arrive at the market value of such land which can be used only for agricultural purposes. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1) L.A.R. 434 (SC).

Section 23 – Market Value – In so far as the landowner is concerned, the compensation to which he is entitled would be what he would have got if he had sold it in open market to a willing purchaser who could have used it only for agricultural purpose. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1) L.A.R. 434 (SC).

Section 23 – Market Value -- Agricultural land -- Merely by notifying the regional plan showing certain agricultural lands as earmarked for industrial purpose, those lands will not cease to be agricultural lands. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1) L.A.R. 434 (SC).

Limitation

Void order -- Law of limitation does not take away a right but only bars the remedy -- Principle is significant in a situation where a person's right is sought to be defeated by citing an order alleged to have been passed against his interest -- A person defending his right against such a contention is at all times entitled to point out that he had not been himself a party and that he is entitled to ignore the same -- There exists no period of limitation for a person to ignore a void order, so long as a writ is not being filed to declare about the alleged invalidity of the order. Chand Singh (deceased) through his LRs, and others v. The State of Punjab and others, 2012(1) L.A.R. 394 (P&H).

Punjab Land Preservation Act, 1900 (II of 1900)

Section 3 -- Environment (Protection) Act, 1986, Section 3(2)(v) – Notification dated 14.9.2006 – Prior Environmental Clearance -- Minor Mineral Quarries -- Auction of -- Held, though individual mineral quarries on which mining is proposed to be allowed does not exceed 4.5 hectares which takes the matter outside the notification dated 14.9.2006, the mining mineral quarries covered by the auction notices are certainly of large areas and thus, by using the device of limiting the area of individual quarries to 4.5 hectares, the requirement of environment clearance as per notification dated 14.9.2006 cannot be allowed to be defeated -- Said notification is a statutory notification -- Prior environmental clearance is mandatory -- State cannot proceed with the grant of mining rights in pursuance of impugned notices until environmental clearance is granted in terms of notification dated 14.9.2006. Sandeep Sangwan v. Union of India and others, 2012(1) L.A.R. 454 (P&H DB).

Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (41 of 1963)

Section 12 -- Haryana Municipal Corporation Act, 1994 (16 of 1994), Section 347, 348 – Repairs – Notice for violation of Act --  Land of the plaintiff falls within the Municipal Limits where Director, Town and Country Planning has no authority to issue notice under the Scheduled Roads Act because the suit property is located within the municipal limits – If at all there is violation, the Municipal Corporation has sufficient powers under the Haryana Municipal Act to initiate action, however, no action under the Scheduled Roads Act can be initiated. Municipal Corporation, Faridabad v. M/s Continental Device (India) Ltd., 2012(1) L.A.R. 370 (P&H).

Punjab Security of Land Tenures Act, 1953 (10 of 1953)

Section 2(3), 10-A -- Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972), Section 12(3), 14(2) -- Haryana Utilization of Surplus and Other Areas Scheme 1976, Paragraph 4 – Permissible area -- Surplus area – Vesting of land in State -- Allotment of land – Held, issue that the assessment of surplus itself was wrong is not an issue that is available at the stage of distribution of the property – Landlords will not have a right to challenge the issue of allotment of the land, after the vesting has taken place. Dona Ram and others v. The State of Haryana through the Collector, District Sirsa and others, 2012(1) L.A.R. 384 (P&H).

Section 2(3), 2(5-a), 9 -- Eviction order against tenant -- Permissible area – Tenants’ right – Contention that the tenants' right had been subsequently enlarged to proprietary rights and the landlord was attempting to defeat such a claim by contending that by a subsequent order passed by a Collector during the pendency of the proceedings in this Court that his holdings fell within the permissible area of the landlord's – Held, the tenant has only to show that the order set up in defence by a respondent had been passed behind his back and he was entitled to ignore the same -- However, it will be improper to completely ignore the subsequent proceedings which had taken place in 1995 -- Defendants are entitled to apply to the authority for a fresh adjudication, who after serving a notice on the tenants, may take a decision in their presence. Chand Singh (deceased) through his LRs, and others v. The State of Punjab and others, 2012(1) L.A.R. 394 (P&H).

Section 5, 5-B --  Permissible area – Selection of – Relevant date -- Surplus area --Status of possession of property in the year 1953 cannot be transported and applied in the same way while considering selection under Section 5-B -- Landlord, who makes a selection after coming into force of the Amending Act of 1957 by Act 46 of 1957 effective from 11th December, 1957 must exercise his option in such a way that the status of holding as on the date when he makes a selection must be seen. Chand Singh (deceased) through his LRs, and others v. The State of Punjab and others, 2012(1) L.A.R. 394 (P&H).

Section 9, 25 – Ejectment order by Asstt. Collector – Order upheld by Collector and Commissioner -- Civil suit challenging the order passed by the Asstt. Collector – Held, order of AC Ist Grade has merged with those of the Collector and Commissioner and therefore, the suit challenging the order of AC Ist Grade without challenging those of the superiors is not maintainable. Narender Singh and others v. Kewal Krishan and others, 2012(1) L.A.R. 386 (P&H).

Section 9, 25 – Ejectment order by Asstt. Collector – Challenge to – Maintainability of civil suit -- On the one hand the plaintiffs have challenged the order passed by the AC Ist Grade by filing the suit and on the other hand they had challenged the same very order before the superior authorities – As such suit was not maintainable – Further u/s 25 of the 1953 Act, except in accordance with the provisions of the 1953 Act, the validity of any proceedings or order taken or made under this Act shall not be called in question in any court or before any other authority. Narender Singh and others v. Kewal Krishan and others, 2012(1) L.A.R. 386 (P&H).

Section 9 -- Eviction petition u/s 9 of the 1953 Act -- Tenants claiming themselves as tenants since 1941 – Patwari gave evidence to the effect that the property had been the subject of adjudication in surplus area proceedings under the Act -- Matter remitted back to the Assistant Collector for consideration of i) whether the properties covered in the petitions came within the subject of surplus area proceedings under the Punjab Security of Land Tenure Act, 1953; ii) Whether the property had been shown as falling within the permissible area of the landlords, and whether proceedings had been taken to determine the entitlement of the holding of the landlord within the permissible area; iii) whether notices had been served to all the tenants to elicit whether the properties were declared as permissible area of the tenants if the landlords had not shown them as within their permissible area; iv) If the property had been shown as falling within the permissible area of the tenants, whether any further proceedings initiated for grant of proprietary rights of the tenants in the manner contemplated under the Punjab Security of Land Tenure Act, 1953 – Held, the above directions are relevant only to do complete justice for the parties who are not at par. Balraj and others v. The Financial Commissioner, Haryana, Chandigarh and others, 2012(1) L.A.R. 389 (P&H).

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961)

Section 7, 13-A – Eviction petition – Title suit – Res-judicata -- Held, if question of title was raised in earlier proceeding u/s 7 of the 1961 Act and question of title has been decided then no suit would lie under Section 13-A thereafter. Ram Saroop @ Ram Swarup v. Financial Commissioner and Principal Secretary, Haryana, Development & Panchayat Department and others, 2012(1) L.A.R. 468 (P&H).

Rehabilitation & Resettlement Policies framed by Haryana Urban Development Authority

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Oustees claim – Clause of ownership of the land for a certain period before the issue of notification u/s 4 of the Land Acquisition Act – Sustainability of -- Period of one year or five years prior to the date of publication of notification is without any reasonable basis -- Date of notification u/s 4 of the Act is a reasonable date -- Any other date in the R&R Policy is, therefore, quashed and set aside. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Constitution of India, Article 14 -- Oustees claim – Reservation of – Extent of -- Whether the policy of allotment of plot to an oustee, a distinct and separate category, is exception to Article 14 of the Constitution of India and whether, there can be any upper limit for allotment of plots to such category – Held, oustees, whose land has been acquired either for residential, commercial, institutional or any other purpose, form a separate and distinct category and are entitled to be considered for allotment of a plot, as a part of rehabilitation process -- Plots for the oustees including all other constitutionally permissible classes of reservation cannot exceed 50%. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Oustees claim – Release of land – Effect of -- Whether, the release of land from acquisition so as to dis-entitle an oustee from allotment of a plot, means release of land in terms of Section 48 of the Act or includes the non publication of the declaration under Section 6 of the Act as well -- Held, the release contemplated in the policies is not the release of land after acquisition u/s 48 of the Land Acquisition Act -- Purpose of policies stands satisfied, when a constructed portion is not included in Section 6 notification as the landloser has some land in his possession for his purposes -- Thus, the expression “released from acquisition” in fact means “released from intention to acquire” -- Therefore, the condition of release of land to dis-entitle an oustee from such status is fair and reasonable. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Oustees policy -- Object of the policy – Object of the policy is to rehabilitate and not to allot alternative land – In order to achieve such objective, the extent of holding acquired or the land not acquired is not relevant as an oustee, whose land has been acquired has some land to bank upon for his use and occupation. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 – Oustees claim -- Whether the condition in the Policies, seeking applications from the oustees before the Sector is floated for sale, is directory and the said condition is satisfied even when the applications along-with earnest money are invited from the general public including from the oustees – Held, oustees form a distinct and separate category and are entitled to reservation -- Such reservation can be given effect to, when the plots available in a sector are determined and the percentage of reservation of each category is fixed – When the HUDA invited applications from the general public along with the applications from the oustees, it substantially complies with the conditions in the policies framed by it -- Condition in the policies to seek applications from the oustees before the floatation of the sector is not mandatory -- Mandatory provision is the right of consideration for allotment of plots -- Condition of inviting applications before the floatation of a sector is a directory provision, as it relates to procedure of allotment of plots. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 – Oustees claim – Failure to apply – Effect of -- Whether the failure to apply for a plot in response to advertisement published at one stage entitles a oustees to apply for allotment of a plot as and when the advertisements are issued subsequently till such time the plots are available within overall limit of 50% of the total plots in a sector – Held, since the oustees form a separate and distinct category, failure to apply in response to an advertisement will not dis-entitle an oustee from submitting application at a subsequent stage as and when advertisement is again issued inviting applications for allotment of plots. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Oustees claim – Delay and laches -- Whether an oustee can be permitted to raise a grievance in respect of non-allotment of a plot on failure to apply for a plot in pursuance of public advertisement issued for the reason of delay and laches – Held, no merit in the argument that there can be any delay and laches, if an application is not made for allotment of plot in pursuance of public advertisement issued at one stage or the other -- An oustee, whose land has been acquired, does not lose his status as that of an oustee merely for the reason that he has not applied for a plot at an earlier stage -- He has a right to seek allotment of a plot as a separate and distinct category as and when advertisements are issued inviting applications from the eligible applicants including the oustees. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Oustees claim -- Purpose of acquisition is industrial and institutional – Eligibility to apply residential plot -- Whether an oustee is entitled to an allotment of a plot in the next residential Sector even if the land is acquired for industrial, institutional or such like purposes irrespective of date of acquisition – Held, even if land has been acquired for a purpose other than residential/commercial, an oustee is entitled to apply for a plot in the next residential sector even if acquisition is prior to the circular dated 27.03.2000 -- Entitlement of an oustee for a plot would be as per the existing policy at the time, when an oustee apply for a plot in response to public advertisement. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 – Oustees claim – Allotment of plot – Rate to be charged -- What price could be charged from an allottee i.e. price prevailing on the date the allotment or when the Sector is floated first -- 'normal allotment rate' in all circumstances shall be the date when the sector is first floated for sale -- As a matter of fact, the normal allotment rate would be the rate advertised by the HUDA in pursuance of which applications are invited from the general public and the oustees, in pursuance of which the plots are allotted. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Oustees Claim – Procedure of – Right of -- Separate claim – Requirement of -- Finding  that since the claim from the oustees was not separately invited and could not have been clubbed or joined with General Category, therefore, such action is violative of law is not sustainable – Such provision is directory and inviting of applications through a public advertisement along with the applications from the general public meets the intent of the policies -- An oustees is entitled to apply for a plot till such time, the plots falling to the category of the oustees remain unallotted -- Such writ petitioner would be entitled to apply for a plot in pursuance of public notice inviting applications from the oustees, if the plots for such category are available. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Ousteees Claim --  Consideration of – Law summarized -- Held, (i) That date of notification under Section 4 of the Land Acquisition Act, 1894 is relevant to determine the eligibility of a land-owner for allotment of a residential plot, even if the acquisition is for the purposes of commercial, industrial or institutional; (ii) That the entitlement of the size of the plot and the procedure for allotment shall be as on the date of allotment in pursuance of an advertisement issued inviting application from the oustees; (iii) That the HUDA or such other authority can reserve plots up to 50% of the total plots available for all reserved categories including that of oustees. As to what extent there would be reservation for the oustees, is required to be decided by the State Government and/or by HUDA or any other authority, who is entitled to acquire land; (iv) That the oustees are entitled to apply for allotment of plot along-with earnest money in pursuance of public advertisement issued may be inviting applications from the general public and the oustees through one advertisement. If an oustee is not successful, he/she can apply again and again till such time, the plots are available for the oustees in the sector for which land was acquired for residential/commercial purposes or in the adjoining sector, if the land acquired was for institutional and industrial purposes etc. The plots to the oustees shall be allotted only by public advertisement and not on the basis of any application submitted by an oustee; (v) That the price to be charged from an allottee shall be the price mentioned in the public advertisement in pursuance of which, the plot is allotted and not when the sector is floated for sale for the first time; (vi) That the State Government or the acquiring authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots ear-marked for reserved categories and after identification of the plots available for the oustees in each sector. Thereafter, the State Government or the acquiring authority shall publish an advertisement inviting applications from such oustees to apply for allotment of plots in accordance with law: and (vii) If in any sector, more than 50% plots have been allotted by way of reservation including to the oustees, then such allotment shall not be cancelled or reviewed in view of the judgment of this court. Haryana Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB). 

Void order

Limitation – Law of limitation does not take away a right but only bars the remedy -- Principle is significant in a situation where a person's right is sought to be defeated by citing an order alleged to have been passed against his interest -- A person defending his right against such a contention is at all times entitled to point out that he had not been himself a party and that he is entitled to ignore the same -- There exists no period of limitation for a person to ignore a void order, so long as a writ is not being filed to declare about the alleged invalidity of the order. Chand Singh (deceased) through his LRs, and others v. The State of Punjab and others, 2012(1) L.A.R. 394 (P&H).