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L.A.R
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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).
