Writ petition challenging forest land notifications and seeking compensation for agricultural land deprivation due to conflicting expert reports.
Writ petition dismissed regarding the order of 30.01.2006 by remitting to reconstitute committee; Compensation inquiry ordered covering 38 months non-use.
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CWP No. 2728 of 2006 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 2728 of 2006 Date of decision : January 24 , 2012
Randhir Singh and others
...........Petitioners
Versus
State of Haryana
..............Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. M.L.Sarin, Sr. Advocate with Mr. I.S.Ratta, Advocate
for the petitioners
Mr. D.D.Gupta, Additional A.G. Haryana
Paramjeet Singh, J.
The instant writ petition has been filed under Articles 226/227 of the Constitution of India, with a prayer for quashing the order dated 30.01.2006 (Annexure P-7) passed by the Commissioner and Secretary to Government, Haryana and notifications dated 05.08.1994 (Annexure P1 and P2), issued under Sections 3 and 4, of the Punjab Land Preservation Act, 1900 (hereinafter referred to as Act) respectively; and also for issuance of mandamus directing the respondents to pay appropriate compensation on account of loss caused by the respondents by notifying petitioners' agricultural land under Section 3 of the Act and thereby imposing restriction under Section 4 of the Act and further to direct the respondents to pay compensation at the rate of 40,000/- per acre, per year as the adjoining land to the land of the petitioners is yielding crop worth 40,000/- per acre, per year.
Brief facts of the case are that petitioner nos. 3 and 4 and
CWP No. 2728 of 2006 2
others purchased land measuring 96 acres out of land measuring 113 acres of agricultural land comprising of rectangle no. 30 to 32, 37 to 39, 44, 45, 52 to 54 and 60 situated in Revenue Estate of Bilaspur Hadbast No. 279, Tehsil Jagadhri, Distt. Yamuna Nagar vide sale deed dated 21.05.2002. The State of Haryana issued two notifications dated 05.08.1994 (Annexures P1 and P2) imposing restrictions from using the land as agricultural land and also cutting of trees etc. Earlier, regarding the same notifications, Ramesh Kumar and others had filed Civil Writ Petition No. 7090 of 2003 challenging the order dated 30.01.2003 (Annexure P7). Ramesh Kumar and others had sold the share of that land to petitioner nos. 1 and 2 and others. In Civil Writ Petition No. 7090 of 2003, this court, vide order dated 23.05.2005, has passed the following directions :
Thereafter, a speaking order was passed on 30.01.2006 by the Commissioner and Secretary to Government of Haryana, Forest Department - respondent no. 1 (Annexure P-7).
The petitioners are now impugning the notifications as well as the order dated 30.01.2006 (Annexure P-7). Petitioners had averred in the petition that the land on three sides i.e. North, East and West is surrounded by the agricultural fields and on the southern side is the abadi of the village Bilaspur. As such, only part of the land, referred to above has been notified under the provisions of the Act, which is clearly against the objectives of
CWP No. 2728 of 2006 3
the Act, discriminatory and action of the authority is arbitrary. On these grounds, the present writ petition has been filed.
I have heard the learned counsel for the parties and perused
the record.
Before, I consider the contentions of the learned counsel for the parties it would be appropriate to mention here that this matter was partly heard by a Division Bench of this Court on 10.07.2007 and the following order was passed :
“ CM No. 1352 of 2007 and
CWP No. 2728 of 2006
Present : Mr. Ashok Aggarwal, Senior Advocate with Mr. Narinder Hooda, Advocate for the petitioner.
Mr. Anil Rathee, Additional Advocate General, Haryana.
CM No. 1352 of 2007
CM is dismissed as withdrawn.
CWP No. 2728 of 2006
Arguments partly heard.
It appears that the petitioners’ land is surrounded on all the sides by agricultural fields which are under cultivation. The petitioners’ area is the only which is covered by the provisions of Section 5 of the Punjab Land Preservation Act, 1900 and there is prohibition of cultivation.
The report of the Committee dated January 10/20, 2006 which was relied upon by the Commissioner and Secretary to Government Haryana, Forest Department, states that the petitioners’ land is prone to soil erosion and if the vegetative cover is removed, large gaps created will make the area prone to soil erosion.
In order to examine the validity of the findings of the Secretary (Forest), it is necessary to examine the status of the land in the neighbourhood of the petitioners’ land to see the extent of
CWP No. 2728 of 2006 4
erosion, if any, which has taken place by the use of the land to which it has been put. This will also help the Court to properly determine whether agricultural use is detrimental to the land and whether it causes significant erosion or not. Therefore, the same Committee, which was constituted for the earlier inspection, shall now examine the impact of cultivation on soil erosion, vegetation and forestry in the entire revenue estate of village Bilaspur, Tehsil Yamuna Nagar and send its report to this Court directly on or before the next date of hearing. The Committee shall also associate the Tehsildar and call for the revenue records to assist it in the task.
Adjourned to 28.8.2001.
A copy of this order be given Dasti.
In the order, it was mentioned that earlier a committee had been constituted, which had submitted its report on January 10/20, 2006. The same Committee was ordered to examine the impact of cultivation on soil erosion, vegetation and forestry in the entire Revenue Estate of village Bilaspur, Tehsil Jagadhri, District Yamunanagar and to send its report to this Court.
The Committee, in compliance with the orders dated 10.07.2007 of the Division Bench, has submitted its report on 24.08.2007 alongwith its Annexures, which is at pages 80 to 120 of the paper book.
Learned Senior Counsel for the petitioners has raised an argument that as per the report of the Committee, the land of the petitioners on three sides i.e. Noth, East and West is surrounded by
CWP No. 2728 of 2006 5
agricultural fields and on the Southern side of the land is abadi of village Bilaspur, Tehsil Jagadhri, District Yamunanagar and a few brick kilns are also in existence there. The land slope of the Revenue Estate of village Bilaspur is North East to South West. Water from the land of the petitioners falls into Saraswati Nadi, which flows at a distance of about 1 kilometre from the western boundary of the land, on southern western side of village Bilaspur. The Petitioners have contended that since the area around the land of the petitioners is agricultural and crops are being sown, only petitioners are being singled out to keep the land as it is thereby depriving the petitioners from its use. They are not being permitted to cultivate the land in view of the notifications issued under sections 3 and 4 of the Act. The learned counsel for the petitioners further submitted that the Divisional Conservator of Forests, Yamuna Nagar has made a report dated 8.1.1999 (Annexure P/3) to release the agricultural land situated at village Bilaspur, but the Forest Conservator, North Circle, Haryana vide order dated 9.2.1999 (Annexure P4) refused to release it and asked for separate report. Even notice was given by the petitioners through counsel to the authorities, but the authorities have passed a wrong order dated 30.01.2006 (Annexure P7).
Learned State counsel has opposed the contention of the learned counsel for the petitioners and has submitted that it is true that the area around the land of the petitioners is being used for agricultural purposes and abadi exists there on the one side but the land of the petitioners creates a saucer like situation which acts as a funnel for absorbing the water, which helps in preventing soil erosion and the petitioners land resembles as sub-catchment area of the Saraswati watershed and if the vegetative cover is removed from that part, soil erosion will be enhanced in the adjoining land. The expert Committee has already concluded that soil erosion will increase if the area is allowed to be
CWP No. 2728 of 2006 6
used for agricultural purposes.
I have considered the rival contentions of the parties. I am of the view that the report clearly states that the soil of the Bilaspur Estate is sandy to sandy loam and is friable and prone to soil erosion where proper leveling, terracing and bunding has been done. As a result of it soil erosion is within permissible limits. However, in the eventuality of heavy downpour or flash floods from the hill sides, the soil erosion will increase. It is also admitted that the area surrounding the land of the petitioners is also used for agricultural purposes. The crops mainly wheat, rice and sugarcane are cultivated in that part and one side is abadi of village Bilaspur. In this situation, I am of the view that action of the authorities appears to be against the actual situation existing at the spot. It is beyond imagination, how, the area which is surrounded by agricultural area from three sides wherein crops are sown, is notified as forest area, in spite of the recommendation of the Conservator of Forest, Haryana (Annexure P4). It would be further appropriate to mention that the Committee has already reported that the area is undulating and the slopes are generally gentle to moderate and difference ranges between one to one and a half metres. Once the authorities have come to a conclusion that soil erosion is within the permissible limits and erosion will only be there when there is heavy downpour or flash floods from the hill sides, it is very strange that the area of the petitioners has been singled out by only submitting that it acts as a funnel, being a saucer shaped and absorbs the water in that part. It is mentioned by the Committee that the flow from the western side of the land of the petitioner is about 1 kilometer when it enters the Sarswati Nadi and in between all the area is the agricultural land and crops mainly sugarcane, wheat and rice are being grown there.
In such a situation, it would be appropriate if the case is remanded to the authorities to reconsider the entire process of notifications
CWP No. 2728 of 2006 7
and pass appropriate orders specifically stating that when the area around the land of the petitioner is subject to agricultural crops, why the area of the petitioners is being singled out. It cannot be used as an instrument to cause loss to the petitioners. For this purpose, I would like to suggest that a new Committee be constituted to examine the feasibility of releasing this area.
So far as the second prayer is concerned, petitioners are certainly affected due to the notifications issued under sections 3 and 4 of the Act. They are entitled for reasonable compensation as is required to be paid under section 4 of the Act, as under this Act the Deputy Commissioner is required to carry out the enquiry to consider the claim and award compensation in accordance with the provisions of the Act, as the petitioners have been deprived of use of their land. The Deputy Commissioner will enquire into the facts and assess the compensation under Section 15 of the Act and the same will be paid to the petitioners within 6 months of receipt of certified copy of this order.
In view of the above, the respondent is directed to reconsider the matter and reconstitute a new Committee, consisting of senior officials of the concerned department of the State Government as well as senior officials of Government of India, Ministry of Enviornment and Forests. In the above terms, the case is remanded to the respondent to re-consider with regard to issuance of notification and the restrictions imposed and respondent will direct the Collector to assess compensation and petitioners be paid arrears of the same in lieu of non use of their land, 38 months prior to the date of filing the present writ petition till the date petitioners are not allowed use of the land.
( PARAMJEET SINGH ) JUDGE
24.01.2012 Kamal
3 issues framed by the court
Whether notifications impeding agricultural land use under the Punjab Land Preservation Act require reconsideration due to conflicting expert reports on soil erosion.
Whether the petitioner is entitled to compensation for deprivation of land use under Section 4 of the Act.
Whether the enquiry officer should assess arrears of compensation for the period of non-use prior to the writ petition filing date.
3 provisions across 2 enactments
Randhir Singh and others
State of Haryana
Paramjeet Singh
As recorded by the court registry
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