SHAKUNTALA YADAV AND OTHERSversusSTATE OF HARYANA AND OTHERS

                            [2016] 2 S.C.R. 406



A                SHAKUNTALA YADAV AND OTHERS
                                     v.
                  STATE OF HARYANA AND OTHERS
                 (Civil Appeal Nos.2174-2175 of2012 etc.)
B                            MARCH 09, 2016
    [KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.]
        Land Acquistion Act, 1894 - s.48 - Release under - Of
  acquired land - Sought by land owner - On the ground that the
C land was coming under Lal Dora - Request for release turned down
  by High Powered Committee on the ground that possession of the
  land had already been taken and handed over to the beneficiary of
  the acquisition - The order was confirmed by High Court - On
  appeal, held: There is nothing on record to show that physical
  possession of the land had already been taken and handed over to
D the beneficiary - lf the land falls in Lal Dora, its release cannot be
  denied - Matter remitted to High Powered Committee to ascertain
  whether the land falls in Lal Dora.
          Allowing the appeals, the Court
          HELD: 1. There being no Rojnama to show that the physical
E   possession bad already been taken, nor any pleadings in that
    regard, it cannot be said that the possession bad already been
    taken and banded over to HUDA. Unless the property is taken
    possession of, in accordance with law, there arises no question of
    banding over the property to HUDA. Symbolic possession will
F   not serve the purpose. [Para 13] [411-A-B)
          Ragl1bir Singh Sehrawat vs. State of Haryana and
          others 2011 (14) SCR 1113 : (2012) 1 SCC 792 - relied
          on.
          2. In case the land of the appellants is in Lal Dora, there is
G   no reason to deny, a similar treatment as bas been granted to
    Millennium Industries Private Limited. However, on the
    pleadings available before this Court, it is difficult to arrive at a
    definite conclusion in that regard. Therefore, it is just and proper
    to remand the matter to the High Powered Committee. It is
H   clarified that the request of the appellants shall not be turned
                                    406
                              '<




        SHAKUNTALA YADAV v. STATE OF HARYANA                                  407



down, on the ground of operation of Section 16 of the Land                     A
Acquisition Act. [Paras 14 and 16) [411-A-C, E)
                        Case Law Reference
      2011 (14) SCR 1113                  relied on.          Para 13
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2174-                    B
2175 of2012
      From the Judgment and Order dated 09.05.2008 and 04. 12.2009
in CWP No. 7706 of 2008 and Review Application No. 399 of 2009
passed by the High Court of Punjab & Haryana at Chandigarh
      Diljit SinghAhluwalia,Amarjit Singh Bedi, Md. Asfar Heyat Wasi,          C
Advs,, for the Appellants.
     Rahul Verma, AA.G, Sanjay Kumar" Visen, Adv., for the
Respondents .. ,
                                   WITH
                                                                               D
      C.A. '!\)o. 2176-2177/2012
      The Judgment of the Court was delivered by
      KURIAN, J. I. We have heard learned counsel for the parties.
       2. The appellants are aggrieved since their request for release of      E
1.23 acres ofland falling in Khasra No. 23/8/1, 8/2, 9/2, 12/2 and 13/1 in
village Sahaul, Tehsil and District Gurgaon and .25 acres ofland falling
I Khasra No. 23/10/1 in the same village has been rejected.
       3. Placing reliance on the letter of the Finance Minister ofHaryana,
for releasing lands coming under Lal Dora, the appellants approached
                                                                               F
the High Powered Committee, It appears that the High Powered
Committee turned down the request on the ground that possession of
the property had already been taken, pursuant to Award passed on
12.3.2004 and that the same had already been handed over to Haryana
Urban Development Authority (in short 'the HUDA'). That decision of
the High Powered Committee was challenged before the High Court                G
leading to the impugned judgments.
      4. The High Court endorsed the view taken by the High Powered
Committee and has held that once the acquired land has already been
taken possession of, there is no question ofrelease under Section 48 of
the Land Acquisition Act, 1894 (in short 'the Act').                           H
408               SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A               5. Learned counsel appearing for the State sought to establish
        that the land had already been taken possession of, by inviting our attention
      · to the order passed by the High Powered Committee on 28.3.2008,
        wherein it is stated as follows :-
              "8. In fact the petitioner had two pockets ofland measuring 1.23
B             acres falling in Khasra No. 23/8/1, 8/2, 9/2, 12/2, 13/1and0.25
              acres falling in Khasra No. 23/1 Oil. The applicants had applied ·
              for change of land use of these khasra numbers for setting up of
              information technology unit on 5.12.2005 in the office of Director,
              Town and Country Planning. The said application was returned
              vide No. G-l 72 I -AD(B)-2006/9881 dated 21,4,2006 mentioning
 c            that the applied land is under acquisition and the applicants were
              asked to get the land released and then apply for change of land
              use permission. The land is already acquired and HUDA has
              taken a possession of land of other land owners vide Rapat
              Rojnamcha dated 12.3.2004. It was also informed by ChiefTown
 D            Planner (HUDA) that HUDA has planned industrial plots on this
              land and allotted 11 No. such plots. It was noted that land of the
              applicant is lying vacant. Since. as mentioned above the land is
              awarded, possession of the adjoining land stands taken and also
              stands allotted by HUDA, therefore, the land of the petitioner
              mentioned in CWP No. l 0294/2004 and 14669 of2005 cannot be
 E            considered for release."
               6. We find it difficult to appreciate the contention of the learned
       counsel for the State, that the High Powered Committee had taken note
       of t_he fact of taking possession. On the other hand, what is revealed
       from the order is that the lands which were taken possession and handed
 F     over to HUDA was that of other land owners. The stand inthe counter
       affidavit is not clear on the aspect of taking possession. On the other
       hand, the appel Iants assert that they have never been dispossessed from
       the land.
              7. In the above circumstances, this Court on 7'h July, 20 I 0 passed
 G     the following order:-
              "Learned counsel for the petitioners submits that in pursuance of
              the orders of the Finance Minister ofHaryana, issued in the year
              1981, two acres ofland of Lal Dora on all four sides of the lands
              in Village Sarhaul, Tehsil and District Gurgaon was left free from
 H            acquisition and this has been confirmed by the Land Acquisition
       SHAKUNTALA YADAV v. STATE OF HARYANA                                    409
                    [KURIAN, J.]

       Officer, Urban Estate, Gurgaon, Haryana by letter dated 2.3 .2005        A
       and by the District Town Planner Enforcement, Gurgaon in his
       letter dated 9.6.2006 addressed to Millennium Industries Private
       Limited who are neighbours of petitioners. He also submits that
       on the basis of the said direction, the land of Millennium Industries
       Private Limited has been left out of acquisition. It is .submitted
                                                                                B
       that the land of the petitioners also falls within the two acres area
       around the village as in the case of Millennium Industries Private
     - Limited but the High Powered Committee (HPC) has erroneously
       refused to leave out the land of the petitioners.
      In view of the said submissions, issue notice. Status quo regarding
      possession."                                                              c
       8. Thereafter it is seen that the matters were adjourned from
time to time, to 13.9.2010, 9.11.2010, 22.2.2011, 30.3.2011, 4.5.2011 all
before the Registrar and on 22. 7.2011 before the Court. Thereafter, on
26.8.2011, this Court passed a specific order that the counter affidavit
was vague on the aspect of Lal Dora and Millennium Industries Private           D
Limited, specifically referring to in the order dated 7'h July, 2010. The
order dated 26.8.2011 reads as follows :-
            "We find that the counter affidavit filed on behalf of
      respondents 1 to 3 does not deal with the submission that was
      recorded by this Court in the order dated 7.7.2010.                       E
            At this stage, learned counsel for the respondents submitted
      that an additional affidavit with reference to the order dated
      7.7.2010will be filed.
             Finally, adjourned by four weeks."
                                                                                F
       9. On 23 .9.2011, since time was sought for additional affidavit, a
detailed order was passed, which reads as follows :-
      "By order dated 7.7.2010, we had noted the submission of the
      petitioner that on the orders of the Finance Minister of Haryana,
      issued iri the year 1981, two acres of land of Lal Dora on all four
                                                                                G
      sides in village Sarhaul, Tehsil and District Gurgaon was left free
      from acquisition and this has been confirmed by the Land
      Acquisition Officer, Urban Estate, Gurgaon, Haryana by'fotter
      dated 2.3.2005 and by the District Town Planning and Enforcement
      by letter dated 9.6.2006. The contention of the petitioner was
      that on tlfat ground the lands of Millennium Industries Private           H
410               SUPREME COURT REPORTS                            [2016] 2 S.C.R.


A            Limited who are neighbours of petitioners were left out of
             acquisition, but their land, which is similarly situated, has not been
             left out.
             In the counter filed, this issue was not dealt with and consequently
             on 26.8.2-011, when we drew the attention to this fact, the learned
B            counsel for the respondent submitted that an additional affidavit
             will be filed. But the said additional affidavit has not been filed.
             Learned counsel for respondents I to 3 again seeks time. We
             find no reason to grant further time. However, finally four weeks'
             time is granted to file an additional affidavit subject to deposit of
             Rs.2500/- as costs with the Supreme Court Legal Services
C            Committee and producing acknowledgment within that period.
             List thereafter."·
              I 0. Despite the State being put on cost for filing additional affidavit,
      it was noted by this Court when the matter was taken up thereafter on
      21.11.2011, that the additional affidavit had not been filed. Hence four
D     weeks' more time was granted and the matter came up before this Court
      again on 3.1.2012. It was noted that neither the cost was deposited nor
      the affidavit filed. Therefore, this Court imposed a further cost of Rs.5000/
      - and gave one more opportunity, by way of last indulgence, to file the
      additional affidavit. Yetthe additional affidavit was not filed and therefore,
 E    on JO•h February, 2012, this Court passed the following order :-
             "Right of the respondents to file additional affidavit is closed.
             Delay condoned in filing special leave petitions.
             Leave granted.
             List the matters for hearing at an early date.
 F           In the meanwhile, interim order to continue."
            11. We have extensively referred to the background of the case
      before this Court on1y to indicate that there was no assistance on the
      two crucial aspects which are actually pivotal for ~'decision in the case.
             12. The High Court, unfortunately, has gone only on one tangent
 G
      that the land having vested with the Government on operation of Section
      16 of the Act, the request for release under Section 48 cannot be
      considered. An attempt for review, when the appellants pointed out the
      instance ofMillennium Industries Private Limited, in similar circumstances,
      was also turned down, without going into. those aspects, by passing a
 H    cryptic order.
         SHAKUNTALA YADAV v. STATE OF HARYANA                                   411
                      [KURIAN, J.]

        13. There being no Rojnama to show that the physical possession          A
 had already been taken, nor any pleadings in that regard, we find it
 difficult to appreciate the submission made by the learned counsel for
 the State that the possession had already been taken and handed over to
 HUDA. Unless the property is taken possession of, in accordance wit~
 law, there arises no question of handing over the property to HUD,(.
                                                                                 B
 Symbolic possession, as has been held by this Court in (2012) I SCC
 792 titled as Raghbir Singh Sehrawat versus State ofHaryana and others,
 will not serve the purpose .
         I4. In case the land of the appellants is in Lal Dora, we find no
. reason to deny, .a similar treatment as has been granted to Millennium
  Industries Private Limited. However, on the pleadings available before
                                                                                 c
  this Court, we find it difficult to arrive at a definite conclusion in that
  regard.' Therefore, we deem it just and proper to remand the matter to
  the High Powered Committee.
       15. In the above circumstances, the appeals are allowed, the
 impugned orders passed by the High Court are set aside. The impugned            D
 order passed by t11e High Powered Committee is also set aside. The.
 request made by the appellants for release of their land are remanded to
 responden!'No.3 - High Powered Committee for consideration afresh.
        16. We make it clear that the request of the appellants shall not
 be turned down, on the ground of operation of Section 16 of the Act. In         E
 case it is found that the land is in Lal Dora, they shall also be granted
 similar treatment, as has been given to Millennium Industries Private
 Limited.
       I 7'. The orders, as above, shall be passed expeditiously by
 Respondent No.3 - High Powered Committee, at any rate, within a                 F
 period of three months from the _date of production of copy of this
 judgment. In the event of any delay beyond the said period, the members
 of the Committee shall be personally liable for costs to the tune. of
 Rs.500/- (rupees five hundred only) each per day.
        18. Till orders are passed, as above, the interim orders passed by       G
 this Court to maintain status quo, with regard to possession, will continue
 to operate.
        19. No order as to costs.
 Kalpana K. Tripathy                                         Appeals allowed.
                                                                                 H