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TMI Blog2018 (3) TMI 1964X X X X Extracts X X X X X X X X Extracts X X X X ..... to transactions with the builders/private entities. The transactions so entered into between the landholders and the concerned builders/private entities could not be said to be voluntary and free from any influence. The unnatural and unreasonable bargain was forced upon the landholders by creating fa ade of impending acquisition. The inescapable conclusion, therefore, is that there was an unholy nexus between the governmental machinery and the builders/private entities in devising a modality to deprive the innocent and gullible landholders of their holdings and jeopardize public interest which the acquisition was intended to achieve - the initiation of class action and filing of Writ Petition in the present matter was perfectly justified and all the submissions made by the learned Counsel appearing for various builders/private entities are dismissed - The appeals stand allowed. - CIVIL APPEAL NO.8788 OF 2015, 8794 of 2015, 8791 of 2015, 8782 of 2015 - - - Dated:- 12-3-2018 - ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ. For the Appellant : Mr. Ranbir Singh Yadav, AOR, Mr. Puran Mal Saini, Adv., Mr. P. Kakra, Adv., Ms. Anzu K. Varkey, Adv. For the Respondent : Mrs. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention, illegally and in violation of the provisions of the Land Acquisition Act. The same is vitiated by fraud and all transactions including the sale deeds etc. are liable to be set aside without invoking the provisions of Part VII of the Act and with a further prayer for an enquiry/investigation through an independent agency in respect of the entire fraud played by the respondents and their officials; . 3. The relevant facts leading to the filing and disposal of the aforesaid writ petition were:- (i) On 27.08.2004 Haryana Government, Industries Department issued a Notification under Section 4 of the Land Acquisition Act, 1894 ( Act for short) for acquiring lands admeasuring about 912 Acres from three villages namely, Manesar, Lakhnoula and Naurangpur, Tehsil and District Gurgaon for setting up Chaudhari Devi Lal Industrial Township, to be planned as an Integrated Complex for residential, recreational and other public purposes. The notification was duly published in newspapers. The landholders including some of the writ petitioners filed their objections under Section 5A of the Act. (ii) Soon after the initiation of acquisition, various sale deeds were executed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as notified that certain parcels of land have been released by Government on the recommendation of Minister s Committee separately. Some of these parcels are acquired in the land acquisition proceedings under consideration. Further, Town and Country Planning Department has also informed that there are several cases wherein builders applied for licence/CLU on the land which also form part of the acquisition proceedings. Furthermore, in a number of cases the courts have stayed dispossession of land. In the circumstances, it is difficult at this stage to make up a view as what could be the shape and size of the land eventually being acquired by Government. It will not be appropriate to go ahead with these proceedings in the present form. State Government has, therefore, ordered that a fresh notification be issued in place of the present proceedings indicating therein as to which are the lands that are available for acquisition without any encumbrances. (viii) On 20.09.2007 Haryana State Industrial and Infrastructure Development Corporation (for short HSIIDC) submitted a proposal to constitute an Inter Departmental Committee to survey the area and submit its recommendations for ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement filed by Respondent No.3 ABW Infrastructure Limited, it was submitted that the answering respondent had obtained requisite licences for its residential as also commercial/group housing project namely ABW Niketan and had raised loans to the tune of Rs.170, 00, 00, 000/-. (xvii) In their written statements, Respondent Nos.4 and 5 namely Metropolis Realtors Pvt. Ltd. and Flair Realtors Pvt. Ltd. submitted that both these Companies were incorporated on 03.02.2006; that the prices of lands in and around Gurgaon were increasing as Gurgaon city was developing fast and another factor causing rise in prices was that Master Plan for the area i.e. Gurgaon Development Plan was notified on 05.02.2007. (xviii) The written statement submitted by Respondent No.6 Metropolis Infrastructure Pvt. Ltd. stated that said Company was incorporated on 19.04.2006. Rest of the submissions were on lines similar to that of Respondent Nos.4 and 5. (xix) On 06.12.2012 written statement was filed by State of Haryana justifying its action of withdrawal of acquisition. It was submitted that the writ petitioners had approached the Court more than 4 years after the decision of the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M 3. Villages Lakhnaula, Naurangpur, Manesar Manesar Manesar, Khoh, Kasan Fazilwas, Kukrola, Kharkhri, Bas Lambi, Mokalwas, Seharavan Fakharpur Fazilwas, Kukrola, Kharkhri, Bas Lambi, Mokalwas, Seharavan Fakharpur. 4. Purpose Setting up of Chaudhary Devi Lal Industrial Model Township, Manesar, to be planned as an integrated complex for residential, recreational and other public utilities. Setting up of Chaudhary Devi Lal Industrial Model Township, Manesar, to be planned as an integrated complex for residential, recreational and other public utilities Setting up of the Industrial Model Township, Manesar, to be planned and developed as an integrated complex for industrial, residential, recreational and other public utilities, etc. Setting up of Chaudhary Devi Lal Industrial Model Township to be planned as an integrated complex for Industrial, Commercial and other public utilities by the HSIIDC. Setting up of Chaudhary Devi Lal Industrial Model Township to be pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so executed by them in their favour, deserved to set-aside. However we are unable to agree with the said contention raised by the Ld. Counsel for the petitioners as at no stage did the petitioners ever raised hue and cry viz. the said acquisition proceedings. Even when the writ petitions were filed by them in the year 2005 impugning the said acquisition proceedings, then also no grievance was raised by them in this regard and in fact during the pendency of these writ petitions, they even sold off their land to the private respondents for consideration and even got sale deeds executed in their favour. Even when the said writ petitions were dismissed as infructuous vide order dated 09.10.2007, then also no such distress or grievance was raised by them before this Court. Until the filing of the present writ petition, no action much less coercive action was taken by the petitioners against the respondents viz. setting aside of the sale deeds on the ground of fraud which thus apparently shows that not only did they acquiesced to the dropping of the said acquisition proceedings by the State Government but also waived off their right to challenge the same as well as the sale deeds execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, as a matter of fact, were granted after the issuance of Notification under Section 6 of the Act. (b) He submitted that the purchases made by the builders in the present case were after the lands were notified under Section 4 of the Act on 27.08.2004. At least sixty sale deeds were executed between the issuance of Notifications under Sections 4 and 6 of the Act while four sale deeds were executed on the date of declaration under Section 6 i.e. on 25.08.2005 and fifty sale deeds were executed after the issuance of Notification under Section 6 and prior to the dropping of acquisition vide decision dated 24.08.2007. The fact that the builders had enhanced the price and sold the lands at a price of Rs.80 lakhs and above per acre after the issuance of notice under Section 9, clearly indicated that they were aware that the land acquisition proceedings would be dropped. (c) Though the declared intent while initiating acquisition was to sub-serve public interest, the State Government kept on granting licences in respect of lands covered under acquisition in the teeth of its relevant policy. A colourable exercise of power was evident and substantiated by the Report dated 26.03.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them in the writ petition that they were informed of such acquisition proceedings and were therefore, asked to sell their interests. It would appear that rather than running the risk of what the award would amount to and having to contest the matter for the grant of the award, the purchasers transferred their interest to the builders, who on their part, as based on the CBI Report, appear to have used every effort to ensure that the acquisition proceedings were themselves dropped. 7. xxx xxx xxx 8. In these circumstances, should this Hon ble Court find that the case of the Petitioners/landholders is made out, and that they were in fact fraudulently enticed to sell their lands and there appears to be very suspicious circumstances in which the acquisition proceedings itself was dropped, the following could be considered:- a. Insofar as the areas where no construction has been made and no third party interests through registered instruments to ultimate purchasers (not other builders) have been created, that the said sales be declared void and the lands restored to the original landholders who be directed to return the monies received by them; b. Where third party intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be returned could be in the manner as held by this Hon ble Court in the case of Uddar Gagan Properties Ltd. v. Sant Singh reported as 2016 (11) SCC 378. h. So far as the conduct of the acquisition proceedings and culpability of persons, government officials and builders in this regard, the CBI may continue its investigation and decide if any action is warranted, and take such action as is found to be necessary. 7. In his memo dated 05.04.2017 it was submitted :- 1. Should this Hon ble Court conclude that there was a fraud in the entire proceedings, it should result in just restitution depending on the Parties involved in the fraud (in pari delicto) and the parties not so involved. 2. Should this Hon ble Court hold that the land owners were not in pari delicto the reliefs as suggested in Memo No. 2 dated 28.03.2017 may be considered. 3. Should this Hon ble Court hold that the land owners were also in pari delicto, the following may be considered:- a. There were 4 Parties involved in the entire net of transactions:- i. The landowners; ii. The Builders; iii.The Officers of the State; and iv. The State itself (as paterfamilias of the public) 4. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be retained by the State for use for a public purpose of the area, providing of housing, rehabilitation, etc. by applying the principles of Section 88 of the Indian Trusts Act, 1882. 8. Mr. Vikas Singh, learned Senior Advocate appearing on behalf of respondent No.3 - ABW Infrastructure Limited filed an extensive list of dates and relevant material detailing various transactions under which his client came to purchase the lands in question. The transactions referred to in the list of dates and accompanying documents, put in tabular chart by us are as under: S. No Date Name of Purchaser Area purchased No. of Sale Deeds Price Paid Average [Price paid ed Deeds per acre] 1 20.10.04 To 17.11.04 M/s Indo Asian Construction Co. Pvt. Ltd. 14.997 Acres Eight (8) 3, 81, 71, 875/- 2545301/- 2 2.11.04 To 3.1.05 M/s NCR Properties Pvt. Ltd. 10.409 Acres Eight (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 16.1.06 M/s Galaxy Colonisers Pvt. 3.656 Acres Three (3) 1, 46, 25, 000/- 40, 00, 274/- 14 23.2.07 ABW Infrastructure Ltd.=Respondent No.3 11.4406 25 Acres Three (3) 9, 72, 46, 500/- 85, 00, 104/- 15 26.2.07 Respondent No.3 1.475 Acres One (1) 1, 18, 00, 000/- 80, 00, 000/- 16 2.3.07 Respondent No.3 0.88958 3333 Acres One (1) 80, 00, 000/- 89, 92, 974/- 17 18.06.07 To 20.08.07 M/s Jassum Towers Pvt. Ltd. 6.46 Acres Seven (7) 4, 88, 00, 000/- 75, 54, 180/- 18 20.6.07 To 21.8.07 M/s Jassum Estates Pvt. Ltd. 13.250 Acres Eight (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s associate companies namely; Frost Falcon Industries Ltd., Iceberg Industries Ltd., Mount Valley Estate Pvt. Ltd., Yorks Hotel Pvt. Ltd., Miraj Overseas Pvt. Ltd., Galaxy Colonires Pvt. Ltd., Dough Man Engineers Pvt. Ltd., Jassum Infrastructure Pvt. Ltd., Sheel Buildcon Pvt. Ltd., Progressive Buildcon Pvt. Ltd., Eco Tech Buildcon Pvt. Ltd., Indo Asian Construction Co. Ltd., Beeta Promoters Pvt. Ltd., Divya Jyoti Enterprises Pvt. Ltd., NCR Properties Pvt. Ltd., applied for licence to set up a Township alongwith Demand Draft for Rs.85 lakhs towards Scrutiny and Licence fees. The area was stated to be 190 Acres. Paras 5 and 7 to 9 of the application were:- 5 .Whether applicant is income tax player, if so, the amount of income tax paid during each of the last three years YES PAN : AAECA 5466H NIL in last three years because of construction work in progress 7. Whether the applicant had ever been granted permission to set a colony under any other law, if so, details thereof. NO 8. Whether the applicant had ever established a colony ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d licence Nos.283 and 284 and sold 33.55 acres of land covered by such licences to DLF Homes Developers Pvt. Ltd., this Court directed respondent No.3 to file statement of profit made by it in respect of such transactions and the following statement was filed by Respondent No.3: PROFIT MADE BY RESPONDENT NO.3 BY TRANSFERRING LICENSE NO.283 284 AND SELLING 33.55 ACRES OF LAND TO DLF HOMES DEVELOPERS PVT. LTD. 1 Amount received by Respondent No.3 by transferring License No.283 284 and selling 33.55 Acres of land to DLF Homes Developers Pvt. Ltd. 150, 95, 55, 301.00 2 Amount paid by Respondent No.3 for purchasing controlling stake and land in following companies w.r.t. Licence No.283 (13.89 Acres of Land): (a) Dugman Engineering Pvt. Ltd. 3, 05, 53, 666.68 (b) Sheel Buildcon Pvt. Ltd. 2, 32, 33, 836.69 (c) Yorks Hotels Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 Profit made by Respondent No.3 (1-9) 8, 00, 31, 203.00 The aforesaid statement indicates that various entities who had initially purchased the lands from the landholders, had sold the said lands to Respondent No.3 and were paid sums reflected at Sl. Nos.2 and 5 above amounting to Rs.17.70 crores (approx.) for acquiring such interest in said lands. Thereafter, amount of Rs.5.45 crores (approx.) was paid by way of fees to the Government. However, more than Rs.150 crores was received on transfer to DLF Homes Developers Pvt. Ltd. For an applicant who reportedly paid income tax only once during last three years, this by itself constitutes phenomenal earning. From and out of such earnings an amount of Rs.119.695 crores was paid by Respondent No.3 under Settlement-cum Cancellation of Agreement of Sell as indicated at Serial No.8. 11. On an inquiry by this Court regarding details of such amounts paid by respondent No.3 as indicated at Serial No.8, those documents were filed on record. The documents make an interesting reading. By way of sample, documents pertaining to transactions betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. 3. That all the expenses of the execution and registration of the documents shall be payable and borne by the purchasers . 4. That the actual physical and vacant possession of the above said land shall be delivered by the Seller to the Purchasers at the time of registration of the land after receiving the full and final payment. (b) By Settlement Agreement-cum-Cancellation of Agreement to Sell executed on 30.08.2008 between the aforesaid parties, the earlier arrangement entered vide Agreement of Sale dated 09.10.2007 was cancelled. While cancelling that arrangement, settlement amount of Rs.3.50 crores per acre was paid to the vendee as full and final settlement between the parties and discharge of all claims. The document narrates that though the cheque for Rs.1 lakh was given on the date when the agreement to sell was executed on 09.10.2017, said cheque was never encashed and was returned to the vendee. Thus, the land which was agreed to be sold @ Rs.58 lakhs per acre was not sold at all but by way of settlement Rs.3.5 crores per acre was made over to the vendee. Interestingly, nothing was received by the vendor by way of advance/earnest through Bank channe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid total settlement amount Rs.42, 00, 000/(Forty two lakhs only) shall be paid on or before 31.03.2009 as per the schedule enclosed. 4. That on receipt of full and final settlement amount, the second party hereby completely and expressly waives, releases, relinquish and forever discharges all claims against the land as acquired by the second party through agreement to sell dated 9th October, 2007 for sale of 0.12 acres of land in Village Manesar, District Gurgaon, Haryana. Identical agreements for sale followed by Settlement Agreementscum-Cancellation of Agreements to sell were entered into by all the concerned, as set out hereafter. 12. The details of the relevant agreements to sale and Settlement-cumCancellation agreements to sell as filed by respondent No.3 are put in a tabular chart by us. Except in the case at Serial No.1 where part of earnest money was deposited in cash, in all other cases, earnest was paid by cheques. However, in none of the cases any cheque which was issued as advance-cum-earnest money was encashed. The relevant recitals in these agreements are identical to those extracted hereinabove. The compensation paid to the vendee in every case is on or ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.10.2007 Rs.52,65,000 10,00,000 27.08.2008 3,37,05,000 5 Jassum Infrastructure Pvt. Ltd. Shree Bihari Forgings P. Ltd. 1.3 10.10.2007 Rs.76,05,000 24,00,000 30.08.2008 4,53,00,000 Dasna Steel Pvt. Ltd. .21 10.10.2007 Rs.12,28,500 200000 30.8.2008 75,50,000 6 Miraza Overseas Pvt. Ltd. Arison Builders Pvt. Ltd. 0.4 10.10.2007 Rs.23,44,000 5,00,000 30.08.2008 1,40,00,000 7 Mountvally Estates P. Ltd. Ramdoot Steels P.Ltd. 1 19.10.2007 Rs.58,45,000 10,00,000 30.08.2008 3,60,00,000 Maya Industries 1.13 22.10.2007 Rs.23,20,000 20,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Global Alloys P. Ltd. .61 23.10.2007 Rs.35,71,550 10,00,000 30.08.2008 2,13,50,000 33.55 119,69,50,000 13. Mr. Vikas Singh, learned Senior Advocate also invited our attention to the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as the Haryana Act ) and submitted that the Haryana Act provided for colonization encouraging private participation wherein builders or colonizers become partners with State in ensuring planned development. It was submitted that the writ petition in the present case was bereft of any material particulars and suffered from non-disclosure of collaboration agreements entered into between the builders and the writ petitioners whereunder certain additional benefits were given to the landholders. In his submission, the High Court was justified in dismissing the petition and exemplary costs ought to be imposed on the writ petitioners for embarking on what he termed as ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be affirmed. Similar submissions were made by Mr. Kapil Sibal, learned Senior Advocate for the same client in a different matter. In his submission, if at all any disgorgement as suggested by the learned Amicus Curiae is to be made, it ought to be by respondent No.3 i.e. the client of Mr. Vikas Singh, learned Senior Advocate and not by DLF Home Developers Pvt. Limited which had paid market value for the land it purchased. Mr. Suri, learned Senior Advocate appearing for flat purchasers from DLF Home Developers Pvt. Ltd. submitted that his clients, coming from middle class, had put in all their savings in purchase of flats. Out of 1348 flats constructed in the complex, 1237 flats were sold and more than 500 apartments were already registered in the names of apartment purchasers. 15. Mr. Nidhesh Gupta, learned Senior Advocate appearing for Earl Infotech Pvt. Ltd. and for Frontier Infrastructure Developers Pvt. Ltd. made similar submissions. He submitted that the case in hand was completely different from the fact situation considered by this Court in Uddar Gagan (supra) in as much as neither was there any distress sale by the land owners nor was there any award made under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State in the present case was colourable and such exercise was fraud on power, then not only should the guilty be booked on criminal side, but on the civil side the mechanism suggested by the learned Amicus Curiae be adopted. 19. Though copies of the interim report of CBI were not given to the parties, some factual aspects dealt with in the report, namely the allegations in the FIR and certain bare minimum facts as found from the record, need to be adverted to. Paras 2 and 18 to 21of the Report were as under:- 2. It is alleged in the FIR that the Government of Haryana had issued notification u/S 4 of the Land Acquisition Act, 1894 on 27.08.2004 and u/S 6 on 25.08.2005 of Land Acquisition Act, 1894 for acquisition of land measuring about 912 acres for setting up an Industrial Model Township in Villages Manesar, Naurangpur and Lakhnoula in Distt. Gurgaon. A large number of land owners, in haste, had sold out about 350 acres of land at throw away rates of Rs.20 to 25 lakhs per acre. It is further alleged that when some land was not sold by the farmers, the Government issued notification u/S 9 of Land Acquisition Act and, thereafter, the private builders had purchased remaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 M/s Earl Infotech Pvt. Ltd. 5/71 WEA Padam Singh Road, Karol Bagh, New Delhi 3 1 15 M/s Gurunanak Infrastructure Developers Pvt. Ltd. 0 5 12.5 Total 8 8 14.5 5. Indo Asian Construction Co. Pvt. Ltd., Rectangle-1, D4, Saket District Centre, Saket, New Delhi 14 7 3 NCR Properties Pvt. Ltd. Rectangle-1, D4 Saket Distt. Centre, Saket, New Delhi 11 2 5 Divya Jyoti Enterprises Pvt. Ltd. Rectangle-1, D4, Saket District Centre 3 0 19 Sheel Buildcon Pvt. Ltd. Rectangle-1 D4, Saket District Centre, Saket, New Delhi 45 1 6 Ecotech Buildcon Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi 1 1 12 8. Blue Ocean Construction Pvt. Ltd. A-9/23 Vasant Vihar 1 0 11 9. DK Steels and Metals Sales Pvt. Ltd. A-21/1 Naraina Indl. Area, Phase II, New Delhi (Seller) 4 4 13 10. Metropolis Realtors Pvt. Ltd., 20-A, Rajpura Road, Civil Lines, New Delhi 18 0 16 Flair Realtors Pvt. Ltd., 20-A, Rajpura Road, Civil Lines, New Delhi 2 5 9 Metropolis Inf. Pvt. Ltd. 20-A, Rajpura Road, Civil Lines, New Delhi 9 0 18 Total 29 7 3 11. PP Realtors Pvt. Ltd. B-15, Freedom Fighter Enclave, Neb Sarai, New Delhi 5 7 17 12. Logic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total land measuring around 44 acres 7 kanal 13.5 marla. That Sh. Atul Bansal had also taken over the following companies along with their lands measuring about 204 acres during this period, which were purchased by the different builders/directors of these companies:- SI. No. Name of the Company Land purchase (in acre). Date of purchase of land from villagers Date of transfer of land along with company to Atul Bansal 1 NCR Properties Pvt. Ltd. 11 acres 2kanal 5marla November, 2004 to January, 2005 29.06.2007 2 Yorks Hotel Pvt. Ltd 24 acres 6kanal 16marla August, 2005 to December, 2005 02.03.2007 3 Dugman Engineers Pvt. Ltd. 23acres 0kanal 3marla May, 2005 to November 2005 02.03.2007 4 Miraz Overseas Pvt. Ltd. 9acres 1kanal 9marla August, 2005 to November, 2005 02.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation further revealed that the above case of grant of license to M/s Aditya Buildwell Pvt. Ltd. was examined in the department of Town and Country Planning, Haryana. The Department of Town and Country Planning obtained the report from the HSIIDC regarding status of acquisition of land. The HSIIDC vide letter No. 2206 dated 19.01.2007 intimated that the land in question had been notified u/S 6 of LAA, 1894 by the department of Industries for providing dedicated labour housing to the plot holders/industrial workers in IMT Manesar and requested that the application should be rejected. Despite the above report of HSIIDC, the Town Country Planning Department vide letter dated 25.01.2007 asked the applicant to deposit the deficit amount of license fee of Rs.15, 11, 00, 696/-. However, the applicant instead of depositing the deficit amount of license fee had submitted request vide letter dated 14.03.2007 that the area applied for grant of license (total 190 acres) may be segregated as under:- Commercial 3 acres Group housing 25.39 acres Group Housing 13.94 acres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated Zone, ii) 17.5.2: Highway Corridor Zone, iii) 17.5.3: Natural Conservation Zone and iv) 17.5.4: Agriculture (Rural) Zone outside Controlled/Development/Regulated Areas. Para 17.5 stipulates, The elaboration of the land use details and zoning regulations would be incorporated in the Sub-regional Plans and Master/Development Plans by the respective State Governments. Para 17.5.1 further clarifies as under:- The local authority according to the prescribed uses in the Master/Development Plans will govern detailed land uses within the urbanisable area. The Master/Development Plans of all the towns will be prepared within the framework of the Regional Plan-2021 and Sub-regional Plans. In case any amendment is required in the acts to implement the policies of Regional Plan 2021 that be done by the respective State Governments appropriately. The Master/ Development Plans in respect of all towns, in terms of Para 17.5.1, were thus required to be prepared within the framework of the Regional Plan 2021. C] Final Development Plan for Gurgaon Manesar Urban Complex was published by Government of Haryana, Town and Country Planning Department vide notification dated 05.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sector through Town and Country Planning Department have also played prime role in achieving planned development in Gurgaon-Manesar Urban Complex. The Haryana Urban Development Authority and the licenced colonizers collectively have developed about 8000 hectares land for residential, commercial, institutional and industrial purposes to meet the increasing demand of the public. The areas of Gurgaon-Manesar Urban Complex which have so far been developed in public and private sector including existing town and village abadies would accommodate 22 lakhs population. In order to cater the future demand of Gurgaon-Manesar Urban Complex an additional area of 21733 hectares has been added in the form of urbanisable area for the said complex to accommodate 15 lacs additional population. Thus, the total urbanisable area of Gurgaon-Manesar Urban Complex would accommodate 37 lakhs population by 2021 AD. This Explanatory Note brings out the potential and importance of Gurgaon-Manesar Urban Complex. It shows that 8000 Hectares of land was already put to residential, commercial, institutional and industrial purposes and additional 21733 Acres of land was to be added to meet the ever increas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment works in case of cyber city or cyber park. Unlike sub-Section (1) which uses the expression owner , the expressions applicant and colonizer are used in sub-Section (3) onwards. Section 3AA deals with Establishment and constitution of Board while the Functions and Powers of Board are dealt with in Section 3AC. In terms of sub-Section (2) of Section 3AC, the Board is to act as a Nodal Agency to coordinate all efforts of the Government regarding the development and implementation of infrastructure sectors and infrastructure projects for the benefit of State, involving private participation and funding from sources other than those provided by the State budget. Sub-clauses (f) and (g) of said subSection(2) deal with functions such as formulating clear and transparent policies and identifying sectoral concessions to attract private participation. Section 3AE empowers the Government to issue such directions to the Board on matters concerning the infrastructure sectors and the infrastructure projects in the State and states that the Boards shall be bound by such directions. F] The directions were issued by the Government from time to time, in exercise of the power so vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Financial Commissioner and Principal Secretary to Government of Haryana, Town and Country Planning Department. Paragraph 5 of this Memo dated 19.12.2006 was:- 5) Land Acquisition and Licensing:- Where applicants/land owners have applied for licence before the issue of acquisition notification under section 4 of the Land Acquisition Act, 1894, release of land could be considered on individual merits of each case. This Policy was given effect from 07.06.2005. H] There were similar Policy statements between 07.08.1991 and 19.12.2006 and even after 19.12.2006 as dealt with and discussed by the High Court of Punjab and Haryana in its Judgment in Amita Banta Another v. State of Haryana (2010) 1 RCR (Civil) 412. Relevant portion of para 11 of said decision is as under:- . Policy dated 6.1.2000 Memorandum Minister-in-Charge Town and Country Planning Minister Administrative Secretary Commissioner and Secretary to Govt. Haryana, Town and Country Planning Department Sub: Release of land from acquisition where Developers/colonizers have purchased land before the issue of notification under Section 4 of the Land Acquisition Act but submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd obtained the concurrence of the Government for the same, may be released from acquisition. Policy dated 26.10.2007 5. Any land in respect of which an application underSection 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 has been made by the owners prior to the award for converting the land into a colony, may also be considered for release subject to the condition that the ownership of the land should be prior to the notification under Section 4 of the Act. 6. That the Government may also consider release ofland in the interest of integrated and planned development for the lands where the owners have approached the Hon'ble Courts and have obtained stay dispossession. Provided that the Government may release any land on the grounds other than stated above under Section 48(1) of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing. .. 21. From consideration of afore-stated statutory framework, it is clear:- A. The Regional Plan of 2021, notified on 19.09.2005 contemplated that Master/Development Plans in respect of towns were required to be prepared within the framework of said Region ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. Same thought was expressed in the Policy dated 26.10.2007, .that the ownership of the land should be prior to the notification under Section 4 of the Act. Further, the extent of such participation ought to be in terms of zonal requirements set out in Annexure B to the Final Development Plan dated 05.02.2007. 22. It must be noted at the outset that the aforementioned Policy dated 06.03.2000 was considered by this Court in Uddar Gagan (supra) and in paragraph 21 of its judgment, this Court had observed, the policy is applicable only to release of such land from acquisition as is owned/purchased by the developers before the issue of notification under Section 4 of the Land Acquisition Act, 1894. This condition was required to be strictly complied with and no person other than original owners prior to acquisition could directly or indirectly avail of the said policy . In the present case, notification under Section 4 of the Act was issued on 27.08.2004. After considering various objections made under Section 5A of the Act, the requirement of 688 Acres of land was assessed and declaration under Section 6 to that effect was issued on 25.08.2005. The material placed on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter as evident from facts as narrated above and the statutory framework, need to be noted:- (a) The concerned lands fall in National Capital Region to which the provisions of Regional Plan, 2021 prepared under the NCR Act and Final Development Plan for Gurgaon-Manesar Urban Complex prepared by Government of Haryana do apply. The Explanatory Note set out in Annexure A to said Final Development Plan brings out the potential of the lands in Gurgaon-Manesar and acknowledges its proximity with Delhi, locational advantages and importance of said lands. (b) Though Regional Plan, 2021 and Final Development Plan for Gurgaon-Manesar Region Complex were notified on 19.09.2005 and 05.02.2007 respectively, it can well be assumed that stages anterior to preparation and notification of said plans coincided with the initiation of acquisition in the present case. In any case, the potential of said lands was not something which arose out of the blue for the first time in 2007 and it can safely be inferred that such potential was to the knowledge of everybody concerned. (c) All the transactions in the present case under which the builders/private entities purchased the lands, were entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er acre. This further discloses, as rightly submitted by Mr. Dhruv Mehta, learned Senior Advocate that builders/private entities were aware that the award would not be declared but the land acquisition proceedings would be dropped. (h) At least 60 sale deeds were executed between the issuance ofNotifications under Sections 4 and 6 of the Act, four sale deeds were executed on the day the declaration under Section 6 was issued and 50 sale deeds were executed after the issuance of Notification under Section 6 and prior to the dropping of acquisition on 24.08.2007. Thus about 114 sale deeds were executed after the initiation of acquisition and prior to the dropping of acquisition vide decision dated 24.08.2007. (i) The sale deeds in favour of the builders/private entities do not even mention the factum about the issuance of any Notification under Section 4 of the Act, nor any urgency or necessity for the family to dispose of its holdings find any specific clear mention. The sales in question were effected only because of impending acquisition. (j) The material placed on record by Mr. Vikas Singh, learned Senior Advocate discloses a disturbing feature. The lands which were purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion which arose for consideration inter alia, was whether the power of the State to withdraw from acquisition under Section 48 of the Act after the award had been passed, was utilized to facilitate transfer of title of the land of original owners to a private builder to advance the business interest of the builder. In that case, the builder had purchased the interest of the original landholders after the acquisition was initiated like in the present case and at his instance the lands were released from acquisition at which stage the original landholders had invoked writ jurisdiction and challenged the entire action. The High Court set aside the release orders, quashed the acquisition and went on to direct that the lands be restored to the original land-owners. While considering the matter in an appeal at the instance of the builder, this Court dealt with the observations of the High Court in Paragraph 5. Paragraphs 70 and 80 of the High Court judgment which were inter alia quoted by this Court were as under:- 70. To say that the landowners entered into varied contracts with Respondent 11 voluntarily, willingly or without undue pressure is too farcical to be believed. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounts to transfer of resources of poor for the benefit of the rich. It amounts to permitting profiteering at the cost of livelihood and existence of a farmer. This is against the philosophy of the Constitution and in violation of guaranteed fundamental rights of equality and right to property and to life. What cannot be done directly cannot be done indirectly also. 19. .. It is patent that the State has enabled the builder to enter the field after initiation of acquisition to seek colonisation on the land covered by acquisition. In the absence of the State s action, it was not possible for the builder to enter into the transactions in question which was followed by withdrawal from acquisition. 22. .. When the land sought to be acquired for a public purpose isallowed to be transferred to private persons, any administrative action or private transaction could be held to be vitiated by fraud. 23. . Fraud on power voids the action of the authority. Mala fides can be inferred from undisputed facts even without naming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible. We are also of the view that if the authorities have proceeded to entertain applications for licence to give undue benefit to the builder by way of helping him to take over land under the cloud of acquisition, it may call for action against those who have misused their power and to find out the considerations for such misuse. 30. Land is scarce natural resource. Owner of land has guarantee against being deprived of his rights except under a valid law for compelling needs of the society and not otherwise. The commercial use of land can certainly be rewarding to an individual. Initiation of acquisition for public purpose may deprive the owner of valuable land but it cannot permit another person who may be able to get permission to develop colony to take over the said land. If the law allows the State to take land for housing needs, the State itself has to keep the title or dispose of land consistent with Article 14 after completion of acquisition. If after initiation of acquisition, process is not to be completed, land must revert back to owner on the date of Section 4 notification and not to anyone else directly or indirectly. This is not what has happened. .. 33. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 33.9. The State Government may enquire into the legality and bonafides of the action of the persons responsible for illegally entertaining the applications of the builder and releasing the land to it, when it had no title to the land on the date of the notification under Section 4 of the 1894 Act and proceed against them in accordance with law. 33.10. This judgment be complied with within one year. 33.11. Quarterly progress report of the action taken in pursuance ofthis judgment be filed by the State in this Court and final report of compliance may be filed within one month after expiry of one year from today for such further direction as may become necessary. 28. Apart from the decisions of this Court in Uddar Gagan (supra) following decisions of this Court are noteworthy: a] In Collector (DM) v. Raja Ram Jaiswal (1985) 3 SCC 1, it was observed bythis Court:- 26. Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means 'for legitimate reasons'! Where power is exercised for extraneous or irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of power came up for consideration of this Court. In paragraph 43 this Court quoted the observations of Krishna Iyer J in State of Punjab v. Gurdial Singh (1980) 2 SCC 471 and later made following observations in paragraph 49:- 43. In this context, it will be useful to notice the observations made in State of Punjab v. Gurdial Singh. In that case, while pronouncing upon the correctness of the order passed by the Punjab and Haryana High Court which had quashed the acquisition of the respondents land on the ground of mala fide exercise of power, this Court observed: (SCC p. 475, para 9) 9. Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power- sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amongst them being: S. Pratap Singh v. The State of Punjab (1964) 4 SCR 733, Express Newspapers Pvt. Ltd. and others v. Union of India and others (1986)1 SCC 133 and observations by R.M. Sahai J in Shrisht Dhawan (Smt) v. Shaw Bros. (1992) 1 SCC 534, at page 553 : The issue concerning unjust enrichment was dealt with by this Court very succinctly in Indian Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161, at page 234 as under : 151. Unjust enrichment has been defined as: Unjust enrichment.-A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. See Black s Law Dictionary, 8th Edn. (Bryan A. Garner) at p. 1573. A claim for unjust enrichment arises where there has been an unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience . 152. Unjust enrichment has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 160. While the term restitution was considered by the SupremeCourt in South Eastern Coalfields Ltd. v. State of M.P. (2003) 8 SCC 648 and other cases excerpted later, the term unjust enrichment came to be considered in Sahakari Khand Udyog Mandal Ltd. v. CCE Customs (2005) 3 SCC 738. This Court said: (Sahakari Khand case, SCC p. 748, para 31) 31. unjust enrichment means reten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt which was found to be bad but sustained acquisition to sub-serve public interest . 31. If we consider the established or crystallized facets of the matter as stated above, in the light of the principles emerging from the decisions rendered by this Court, in our considered view the decisions dated 24.08.2007 and 29.01.2010 were taken to confer advantages and benefits upon the builders/private entities rather than to carry out or effectuate public purpose. The record indicates that various entities including certain middlemen cornered unnatural gains and walked away with huge profits taking the entire process of acquisition for a ride. Substantial sums have exchanged hands in the form of settlement money. All the steps and stages show that the builders/private entities were well aware that the acquisition would not go through but the landholders were confronted with the smoke screen of acquisition and were cornered and persuaded in entering into transactions with the builders/private entities. The transactions so entered into between the landholders and the concerned builders/private entities could not be said to be voluntary and free from any influence. The unnatural and un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of power in arriving at decisions dated 24.08.2007 and 29.01.2010 as well as entertaining of applications for licence from those who had bought the lands after the acquisition was initiated, to be fraud on power; we now have to consider what relief be granted in the present matter. The relief to be granted must depend upon who the real victim is and to what extent solace can be granted to such real victim. If the landholders are considered to be the real victim, Mr. Dhruv Mehta, learned Senior Advocate is absolutely right in his submissions. If the result of forcing land holders to enter into unnatural and unreasonable bargain was achieved by wrongful utilization of the power conferred under the Act, in its writ jurisdiction a superior court would be justified in granting the relief of invalidating such transaction as a consequential relief, while holding the State action to be bad and invalid. The law laid down by this Court is quite clear and the objection that instead of a class action in the realm of public law, each individual land holder must make good his submissions on individual facts and seek relief of annulment of transaction entered into by him has to be rejected. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and substantial restoration would be to ensure that the acquisition proceeds in the logical direction and the public purpose is sub-served. In a way, the directions required in the present matter may go beyond what Uddar Gagan (supra) did. 35. In certain cases this Court, considering typical fact situation has passed directions to complete the process of acquisition, for instance: (a) In Bhimandas Ambwani (Dead) through Lrs. V. Delhi Power Company Limited (2013) 14 SCC 195 it was found, there had been no proceedings regarding acquisition of the land in dispute . However, as the authorities had taken over possession of the land and developed the same, this Court observed : In such a fact situation, the only option left out to the respondents is to make the award treating Section 4 notification as, on this date i.e. 12.02.2013 and we direct the Land Acquisition Collector to make the award after hearing the parties within a period of four months from today. (b) In K.B. Ramachandra Raje Urs(Dead) by L.Rs. V. State of Karnataka and Others (2016) 3 SCC 422, having held that the acquisition and allotment of 55 acres of land to respondent No.28- Society to be contrary to la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on power as a result of which unnatural and unreasonable gains have been derived by certain builders/private entities, we consider it our duty to grant full restitution. The restoration in real and substantial terms has to ensure that the public purpose, the acquisition was intended to achieve, stands sub-served. In our considered view, this is an appropriate case where this Court has to declare that there was a completed acquisition and the award deemed to have been passed on the date when it was supposed to be pronounced i.e. on 26.08.2007. The suggested relief by the learned Amicus Curiae is also on similar lines. 37. There are certain other elements which need attention at this stage. The Act now stands replaced by The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 . In terms of Section 24(1)(b) of said 2013 Act, where an award had been made under Section 11 of the Act, the proceedings under the provisions of the Act would continue as if the Act had not been repealed. Thus, even if a direction is passed that an award be deemed to have been made on 26.08.2007, the provisions of the Act would still continue to oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a superior Court finds that the exercise of power by the executive was mala fide or that there was fraud of power, the full and substantial relief must be granted. The principles of restitution and concept of unjust enrichment as explained in cases referred to hereinabove show that no person who directly or indirectly was a party to the fraud of power be allowed to reap or retain any unjust enrichment. Though, it is through the acts on part of the landholders that the builders/private entities were brought on the scene, we don t hold them to be pari delicto alongwith builders/private respondents. But at the same time they cannot be given benefit of annulment of transactions and restoration of their holdings. The greater victim in the matter was the public interest. The land holders in any case had received considerations which were greater than what was awarded in Awards dated 09.03.2006 and 24.02.2007, which were the most proximate awards in terms of time. However, even when we propose to take the matter to its logical end and say that there was a deemed award, those who had not sold away their holdings and had not in any manner either directly or indirectly, tried to jeopard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition on 24.08.2007 and subsequent decision dated 29.01.2010 have been set aside, the period between 24.08.2007 and upto the date of this judgment shall not be counted for the purposes of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (e) All transactions entered into during the period from 24.08.2007 till 29.01.2010, pursuant to which the original landholders transferred their holdings in favour of builders/private entities or third parties shall be subject to and the interest of the respective parties shall be governed by the directions issued hereafter. (f) Consistent with directions issued in Para 33 of Uddar Gagan (Supra), the builders/private entities will not be entitled to recover the consideration paid by them to the landholders. The sale consideration paid by the builders/private entities to the landholders shall be treated towards compensation under the award and the landholders will not be required to refund any amount to such builders/private entities. The landholders will be at liberty to prefer Reference under Section 18 of the Act within a period of three months from today. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respective claimants on the same terms and conditions. Except for such verified and accepted claims, the remaining area or apartments will be completely at the disposal of HUDA or HSIDC, as the case may be, which shall be free and competent to dispose of the same in accordance with the prevalent policy and procedure. In order to facilitate such exercise all third parties who had purchased or had been allotted the plots or apartments shall prefer claims within one month from today, which claim shall be verified within two months from today. (i) As found by us in the preceding paragraphs, substantial sums were made over to middle men . In the pending investigation, the CBI may do well to unravel the truth. In any case, such hefty sums which were made over to middle men cannot be said to be rightfully earned by and belonging to them. In fact, this actually represents the return for being able to garner the lands in question and getting requisite licences under the provisions of the Haryana Act and a benefit derived out of fraud on power. In our view this money rightfully belongs to the State and none other. We direct the authorities of the State as well as the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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