- (1.) Challenge in the present petition is to the notifications under Section 4 dated 9.6.2003 and Section 6 dated 2.6.2004 of the Land Acquisition Act, 1894 (for short the 'Act'), acquiring the land of the petitioner comprising in Khasra No. 1440 (Min) situated in village Wazirabad, Tehsil and District Gurgaon. Petitioners were the owners of the land measuring 3 bigha 4 biswas comprising in Khasra No. 1440(0-12) and 1454 (2-12). Petitioners claims that they have constructed the residential houses on the aforesaid land and are living for the last more than 25 years.
(2.) Earlier, 2 bigha 9 biswas, 15 biswasi was acquired out of land comprising in Khasra No. 1454 measuring 2 bigha 12 biswas by the respondents vide the Award No. 8 dated 5.7.1990. Out of the said land, land measuring 2 biswas 5 biswasi was released having constructed area vide the communication dated 5.9.1995 (Annexure P-2). The said communication reads as under: You are hereby informed that the total land of Khasra No. 1454 in Sector 55-56, Village Wazirabad is 2 bigha 12 biswas, out of which 2 bigha 9 biswas 15 biswasi was acquired vide Award No. 8 dated 5.7.1990. The remaining land of above said Khasra No. measuring 2 biswas 5 biswasi on which there is a house constructed have been left out from the acquisition.
(3.) Subsequently, vide the notification dated 24.8.2000 under Section 4 of the Act, the remaining land of Khasra Nos. 1454 and 1440 was intended to be acquired. Petitioners filed their objections under Section 5-A of the Act to the effect that there is constructed portion in Khasra No. 1440. In the notification dated 22.8.2001 under Section 6 of the Act, the constructed portion comprising in Khasra No. 1454 was acquired. The petitioners have filed the Civil Writ Petition No. 16156 of 2001, challenging the acquisition in respect of the land comprising in Khasra No. 1440. The said writ petition was disposed of on 5.9.2002 (Annexure P-3) when the following orders were passed: Challenge in this petition is to notifications under Sections 4 and 6 of the Land Acquisition Act dated 24.8.2000 and 22.8.201, respectively. The only ground that has been pressed during the course of arguments is that even though petitioners have made construction on the property in dispute i.e., residential house, the same has been acquired, whereas the land pertaining to 'number of persons, who too, like the petitioners have made constructions, has been left from the purview of acquisition. In response to the notice, respondents No. 1 and 5 have filed reply. Para 2 of preliminary objections of written statement reads thus: - 2. That the petitioner owned the land measuring 0-6 bearing Khasra number 1440 min and Khasra number 1454 (2-12), A & B Class house existed over the land comprising Khasra number 1440 prior to issue of notification under Section 14 of the Act. The constructed portion along with proportionate open area has been released from acquisition. The land comprising in Khasra number 1454 measuring 2-10 was acquired earlier in Sector 55-56. Rest of the land measuring 0-2-5 falling in Sector Road has now been acquired. The Civil Writ Petition filed by the petitioner merits dismissal on this ground also. No replication has been filed to controvert the averments made in the written statement, as extracted above. In view of the averments made in the written statement, we find no merit in the petition and the same is hereby dismissed. At this stage, Mr. Sharma states that leaving out the constructed portion from the purview of acquisition, may be in such a way that the petitioners may not have any access to the constructed area. Mr. Sanjay Vashisht, learned Deputy Advocate General and Ms. Raminder Godhoke, who appear in this matter on behalf of respondents No. 1 and 5 and 2 to 4, respectively, state that passage to the petitioners in the constructed are shall be ensured.;