Lajya Ram Kapur And Ors. vs Delhi Administration And Ors.
1971 Latest Caselaw 234 Del

JUDGMENT

S. Rangarajan, J.

(1) This writ petition filed under Article 226 of the Constitution of India the petitioners, who claim to be owners of khasra number 367, 30 Alipur Road, Civil Lines, Delhi, seek to quash the land acquisition proceedings taken in respect of it on various grounds. An area 1.75 acres corresponding to 8470 square yards (8 " Bighas) in khasra No. 367 situated in Civil Lines, Delhi, was purchased by the first petitioner and the late father of petitioners 2 to 6 after they migrated to Delhi from an area which now forms Pakistan. The object of the petitioners was to demolish the dilapidated house on the property known as 30, Alipur Road, Civil Lines, Delhi and to construct residential and other accommodation for the petitioners and the other members, of the family. It was got released and the other constructions were demolished at considerable cost. The property was further agreed to be divided into plots in order to construct residential houses as per a compromise, dated 14th January 1960 in a partition suit which had been filed for the purpose.

(2) It is alleged in the petition that in the beginning of July 1960 a notice, in Urdu, purporting to be under section 5-A(1) of the Land Acquisition Act dated 24th June, 1960 had been affixed on the property in dispute with an endorsement of service dated 27th June 1960. The petitioners thereupon made enquiries and found that there had been a notification dated 26th May 1960 published in the Delhi Administration Gazette dated 9th June 1960 inviting objections against the proposed acquisition of the property described as follows :

"BUNGALOWNo. 30 Alipur Road Delhi, Khasra No. 463 measuring 10 bighas 19 biswas in area."

(3) It is stated that at that time there was no bungalow in existence nor was the said bungalow situated on khasra No. 463. It is pointed out that Khasra No. 463 relates to No. 6, Ludlow Castle Road, i.e., the residence of the Chief Commissioner Delhi, himself. In addition, the property in dispute is only about 8 " bighas and not 10 bighas 19 biswas, as mentioned in the notification (copy of which is Annexure A to the writ petition). It is further averred in the petition that though the notification did not relate to the property in dispute inasmuch as it related to some bungalow having a different area and situate in a different khasra number they filed objections to the proposed acquisition under advice. The notification under section 4 related to six items of properties, including 30 Alipur Road, and they were stated to be required by the Government for the establishment of schools and construction of residential accommodation for the staff of the Delhi Administration. It was not specified, however, which property, among the six, was required for which purpose. The notification have also been attacked as mala fide, as having been issued with a view to coerce the owners to sell substantial parts of the properties to the nominees of the Delhi Administration at nominal prices. It was further pointed out that there was still plenty of Government land more suitable for schools and Government quarters. An allegation was also made that the properties of those persons, who had agreed to privately transfer their properties, had been released from the Land Acquisition proceedings. To the objections filed by the petitioners before the Land Acquisition Collector to the proposed acquisition the Government filed a, reply; a further replication was also filed by the petitioners and evidence was also led before the Land Acquisition Collector. But the orders passed on those objections were not communicated to the petitioners. When the first petitioner found some officials taking measurements in order to take possession he made enquiries and found that a declaration had been made under section 6 of the Act by notification dated 8th August, 1961. The present writ petition was filed on 19th September 1961.

(4) Though several grounds had been taken in the petition originally filed some were taken later by way of seeking permission to urge additional grounds in Cm 2598/61, Cm 3687/65, Cm 1412/68, Cm 699W/71; 1355/71 and C.M. No. 1505 of .1971.

(5) The petitioners raised the question, which they sought to raise as an additional ground by means of C.M. 1356 (after perusal of the concerned file) that the Chief Commissioner never considered the report under section 5A of the Act or the records of the proceedings containing objections filed by the petitioners before issuing notification under section 6 of the Act. A reply was filed by Shri R. N. Puri, Deputy Secretary, Land and Building Department, Delhi Administration denying the above said allegation and asserting that the appropriate Government was satisfied about the need for the acquisition for a public purpose and that the provisions of the Act had been duly complied with.

(6) The first point urged by Shri S. N. Chopra is that section 4(1) of the Land Acquisition Act had not been complied with because the notification under section 4 referred to a wrong khasra number, 463 instead of 367; the extent had also been given as 10 bighas and 19 biswas instead of 8" bighas, the property was described as a bungalow even after the building therein was demolished. This point has been effectively met by Shri D. K. Kapur, learned counsel for the respondents, by relying upon the very objections filed under section 5A of the Act by the petitioners (copy of which is Annexure B to the writ petition) wherein the very subject matter of the objections is described as follows: "OBJECTIONSunder section 5A........ against the notification of the property known as Bungalow No. 30, Alipur Road, Civil Lines, Delhi under section 4 of the Act published in the Government of India Gazette Part Iv dated 9th June 1960."

Despite the fact that objections had been taken therein to the manner in which the property had been described the petitioners had no doubt understood the property which was notified under section 4 of the Act as the property which they had purchased and in which they are interested, namely, 30 Alipur Road. In view of this the further attack on the Corrigendum issued correcting the said description, in both the notifications under sections 4 and 6 of the Act does not have any validity.

(7) There could not be any serious argument about the propose mentioned in the notification under section 4 of the Act, namely, the establishment of schools and construction of residential accommodation for the staff of the Delhi Administration, being themselves public purposes. A Division Bench of the Andhra Pradesh High Court had upheld the acquisition of land for the purpose of construction of a building for housing departments of Government, as a public purpose justifying the acquisition of land (vide Mirza Nowsherwan Khan and another v. State of Andhra Pradesh and others, ). The purposes for which the acquisition in this case was made being public purposes it could not be later on assailed on the ground that though the acquisition was for two purposes, one of the purpose has been now given up. The purpose for which property is put up for acquisition is "wholly immaterial" (vide observations of Jagdish Sahai, J. in Baldeo Singh and others v. Slate of Uttar Pradesh and others, and of Roy, J. in Secretary of State v. Amulya Charan Banerjee and others Air 1927 Calcutta 874). It will be seen further in this case that it was on account of the later Zonal Plan marking the said area as non-residential that residential accommodation could not be built there. It is also brought out, in a latter noting concerned with Bungalow No. 21, Rajpur Road, that the Chief Commissioner (Shri Dharam Vira) had also pointed out that funds were not available even for that purpose. I shall revert to this later. There could be no attack on the acquisition as a colourable exercise of power merely because the object with which the land acquisition was made is partially or even wholly frustrated later. In fact the Surpreme Court held that it was not absolutely necessary for the validity of the land acquisition proceedings that the statement that the land sought to be acquired was needed for a public purpose should find a place in the notification actually issued and that the requirements of the law will be satisfied if, in substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the la,nd was needed for public purpose, vide Babu Barkya Thakur v. State of Bombay, Air 1969 Supreme Court 1205. The question of colourable exercise of power would obviously arise in a case when the real purpose is found to be a private as opposed to a public purpose, as was pointed out by Sikri, J. (as his Lordship then was) in Arnold Rodricks and another v. State of Maharashtra and others . The Government has the power to issue the notification under the Act for a public purpose, where the notifications were issued for such a purpose there could be no question of any colourable exercise of power. Any later release of any of the properties included in the notification under section 4 on the ground that the persons concerned had agreed to build school thereon, a purpose mentioned in the notification itself, could not have the effect of invalidating a notification which was validly issued.

(8) The question for consideration, raised in C.M. 1356W of 1971, by way of additional ground, is whether the Chief, Commissioner had considered the report of the Land Acquisition Collector after the petitioners raised objections under section 5A and had expressed his satisfaction before the notification under section 6 was issued ? Even though the Notification under section 6 employs the expression "it appears" if is also now settled, by a series of decisions, including that of a Division Bench, of this Court that such satisfaction need not be expressed in the notification itself but when the expression of such satisfaction is challenged it must be shown to exist.

(9) The Land Acquisition Collector had dealt with this question in his report dated 19th September, 1960 (wrongly typed 19th July, 1960). The Collector had observed therein as follows pertaining to 30, Alipur Road, the property with which we are now concerned :    "INrebuttal to all the objections against the acquisition of 30, Alipur Road, it was represented by the Department that some points were irrelevant, some others were denied or not admitted. The Government had to provide buildings for 8 schools already functioning in tents, besides providing residential facilities to a number of its employees."   

He also observed that open sites were not available in the thickly populated city and that the concerned department had said that there was no other place near the city to provide schools for children, it being inconvenient to have schools in far off places. This report itself was sent after not only perusing the objections under section 5A by the petitioners but also after recording evidence and hearing them.   

(10) The Chief Commissioner Shri Bhagwan Sahay had expressed himself on page 47 (Department File No. F.15(107)/60 as follows:    "SECY.LSG/Finance Secy. More than a year ago a notice was issued for acquiring land in the Civil Lines area for various purposes including the construction of schools. After the issue of the notification the question of provision of funds was taken up with the Government of India. I understood that the required amount of money has been sanctioned by Government. Then the question arose of releasing certain properties, because agreements had been made by the people whose land was being acquired with certain school authorities for the sale of land for educational purposes. Also in one case the owner of the land volunteered to construct a school himself if the land was released. Naturally there was no advantage in acquiring such land for school purposes when it was going to be utilised for that purpose either by the owner or the vendees. So I gave instructions that those plots of land should be released and the decision also was that the rest of the land should be quickly acquired and compensation paid to the owners. I cannot understand why delay is occurring in this. Because of the delay the owners keep on making representations to me personally or otherwise and I am unnecessarily embarassed. I would like to know what the position is. Sd: Bhagwan Sahay 24-7-1961."  

522 Thereupon Shri Jagmohan made a note on 8th August, 1961 in the following terms :    "THEposition of this case has been explained by me to the Chief Commissioner. I informed him that we had already vide our note dated the 18th May, 1961 suggested that final notification under section 6 of the Land Acquisition Act might be issued in respect of these bungalows, but the chief Commissioner had instructed that the position should be reviewed in the light of the representations received from certain parties. I further informed the Chief Commissioner that the report of Directorate of Education regarding the bungalows owned by the Jaipuria Trust, was still awaited, as the representatives of the Trust had asked for some time to pass the resolution to the effect that these bungalows would be used for the purpose of schools. Nor had the Superintending Engineer, Delhi State Division, sent detailed estimates of the proposals, etc. The Chief Commissioner desired that the bungalows, excluding those required by the Jaipuria Trust and others for running of schools, should be acquired. If the parties interested in running schools are unable to furnish satisfactory undertaking, separate notification under section 6 of the Land Acquisition Act could be issued at a subsequent stage. The case was subsequently discussed with the Finance Secretary and the Housing Commissioner. It was decided that the final notification should be issued. The draft notification which has already been seen by the judicial Department, is placed below and should be issued. sd/- 8-8-1961."  

Shri Jagmohan had also indicated in the margin that Mr. B. R. Sharma/ Dewan may please checkup and about Housing Commissioner informing Shri Jagmohan on telephone that the Chief Commissioner Would like the notification to issue that day itself. Shri Jagmohan, therefore, directed the notification to issue that day itself before 11 A.M. and on the same day the draft notification is stated to have been checked and put up. But the draft itself does not seem to be available in the file that has been produced.   

ITwill be seen from the note of Shri Jagmohan himself dated 8th August, 1961 extracted above, that he informed the Chief Commissioner about the office note dated 18th May 1961, suggesing that the final notification under section 6 of the Act might be issued in respect of these bungalows but the Chief Commissioner had instructed that the position should be reviewed in the light of the representations received from certain parties. The note of 18th May, 1961 referred to by Shri Jagmohan, was to issue the notification under section 6 which had been mentioned by him in paragraph 6 of his earlier note dated 17th May 1961 (it appears at pages 31 to 33 of the said file). It may be recalled that six items of properties, including No. 30, Alipur Road, were covered by the Section 4 notification and the note of 17th May 1961 by Shri Jagmohan had sugeested (vide paragraph 4) that objections filed against acquisition of properties at S. Nos. 1, 5 and 6 are of general nature and they could be safely ignored; S. No. 6 was 30 Alipur Road.

(11) The report of the Land Acquisition Collector which bears the date 19th July 1960 is an obvious mistake for 19th September 1961 for he appears to have heard the parties and the objections even subsequent to 19th July 1960. It is also seen from the file that even on 24th September 1960, as per the note of that date, the report of the Land Acquisition Collector was available and that the Land Acquisition Collector, who heard the arguments, visited the spot and overruled their objections. Regarding 30 Alipur Road it was noticed that the intention of the owners was to dispose of the properties in bits, in view of the acquisition of the properties, in question, for the establishment of schools and construction of residential quarters for the staff of the Delhi Administration, it was suggested that the objections may be ignored. It was also suggested that the opinion of the judicial department also might be taken; this was taken.

(12) The matter was also held up for a while thereafter pending enquiries made as to whether the necessary funds would be made available from the Ministry of Works Housing and Supply. Even in the note of Shri Jagmohan dated 17th May 1.961 reference was made to the fact that the expenditure sanction, for which Government of India was moved as far back as 25th January 1961, had not been received; but during the course of discussions at the Chief Commissioner's residence, the Housing Commissioner had stated that the Finance Ministry had approved of the scheme and the necessary expenditure sanction was under issue. It was in. this light the Chief Commissioner directed that notification under section 6 of the Land Acquisition Act should be issued, except in the case of some bungalows, which according to the objectors were required for setting up of schools, at 30, Alipur Road; it was also suggested that since the objections were of general nature they could be ignored in respect of 30, Alipur Road (S No. 6) and two other properties. The Chief Commissioner had given directions in his own hand, as referred to above on 17th (or 18th May 1961; he had categorically expressed his satisfaction (that there could be no dispute) about the properties being acquired in the public interest. Susequently, on 24th July 1961, the Chief Commissioner expressed his displeasure about the delay in the matter of issue of notification under section 6 (as seen from his order dated 24th July 1961) resulting in the notification under section 6 issued on 8th August 1961. There is, therefore, no substance in the contention that the appropriate Government was not satisfied concerning the existence of a public purpose before the issue of notification under section 6.

(13) After the judgment was reserved an application (CM. 1505W/71) was filed by the petitioner asking that notice may be taken of certain subsequent events. Among the six items in respect of which land acquisition proceedings were started is a bungalow (21, Raipur Road) measuring 9 bighas and 5 biswas; its owners filed a writ petition (No. 433-D of 1961) which was allowed by Prakash Narain J. on 10th December 1970. A Letters Patent Appeal was preferred and admitted. But it is stated that the respondent entered into an agreement with the owners of that bungalow (copy of which is Annexure P. 1 to CM. 1505W/71). In view of the said compromise the Letters Patent Appeal was withdrawn. That the writ petition (No. 433-D of 1961) was allowed by Prakash Narain J. and that the Letters Patent Appeal was withdrawn in terms of the said agreement are not disputed. Whereas according to the petitioners the above shows the mala fide of the respondents by acquiring property for a purpose which is nonexistent, according to the respondents the same has no bearing on this petition. It is pointed out that out of the six properties under acquisition two of them (Nos. 23 and 24 Rajpur Road) were released because Beni Pershad Jaipuria Trust expressed a desire to run the schools themselves in the said properties and undertook to that effect. It was felt that there was no point in acquiring those properties when the same public purpose for which they were proposed to be acquired was being served equally without incurring any expenditure and without utilising public funds. Hence these two properties were released from the Land Acquisition proceedings and the schools were being run there by Messrs Beni Pershad Jaipuria Trust. The third property, a portion of land in Bungalow No. 2, Ludlow Castle Road was actually being utilised for the purpose of running a school. Out of the three remaining properties the owners of 21, Rajpur Road, and 30 Alipur Road (present petitioner) filed two writ petitions. The assurance which was given by the owners of 21, Rajpur Road was that residential accommodation with roads, passages, etc. as per a layout plan in accordance with the approval of the competent authority would be constructed within the time allowed for this purpose and that any accommodation, either initially or subsequently, was not in the personal use, the same should be offered on rent to the Administrator of Delhi. The said agreement, it is explained in the affidavit of Shri R. N. Puri, Deputy Secretary, Land and Building Department, Delhi Administration, Delhi, dated 3rd August 1971, was entered into in terms of the order passed by the then Chief Commissioner, Shri Dharam Vira, whose order releasing No. 21 Rajpur Road from the acquisition was upheld by Prakash Narain, J.

(14) Shri Dharam Vira stated in his note, dated 17th August 1964, on the representation made by the owners of 21, Rajpur Road, that he had gone through the case carefully and had given it much thought. "The facts of the case are simple", he observed and added, "the plot of land in question was sought to be acquired for the purpose of a school. According to procedure followed at the time the acquisition notification was issued, acquisition processes were not initiated in respect of areas for which lay out plans had been sanctioned by the Corporation. In this case, the lay out plans were approved by the Corporation on the 6th June 1960 and the gazette notification for acquisition of the property appeared on 9th June 1960. There is nothing to show that the Corporation passed by the lay out plans in a mala fide manner and as such, according to the practice in vogue at that time, the land should not have been acquired. However, since the land was acquired for a very pressing utility and purpose, the Delhi Administration had at that time thought that the requirements of education were very important than a mere practice that had been followed in the past. As it is, after some time, the idea of building a school on the plot had to be abandoned and the Delhi Administration decided to acquire the plot for an entirely different purpose, namely, for providing accommodation to the staff of the Administration. The Administration has already a number of plots in its possession, on which building activity has yet to be taken in hand". He then referred to an ad hoc committee which submitted a report. He himself discussed the report with the Housing Commissioner and decided to release the land from the purview of acquisition on two conditions (i) that the writ petition would be withdrawn and (ii) that the land owners give an undertaking that the Delhi Administration would have the first preference, for the purposes of renting on the houses that are built on it by the plotholders, other than those required by them for their personal residence. He further pointed out that it was only the Administration, on the owners, who had second thoughts. He observed as follows :-    "IT is always wrong for a Government to first give a decision and then to start having second thoughts about its decisions. This is more so in this particular case, where somebody's property is involved. Our attitude in this case appears to give an impression that we are bent upon taking the property, and now we are only trying to find excuses for not implementing the recommendations of a committee that was set up by us and on whose recommendations a decision was taken. It has never been the policy of Government to acquire other people's property for property's sake, and we should not do this in this particular case. It is, therefore, directed that the decision taken to release this land be implemented forthwith", etc.  

(15) In his further note, dated 17th November 1964 (after the matter was put up before him again with several nothings) he stated as follows:-    "THEREis no proposal to construct a school on the land. So far as the construction of the residential houses for the staff is concerned, there are no immediate prospects of even such quarters being constructed on the land. .As I have said before the main purpose for which the land was originally to be taken was to construct a school thereon. That scheme has been completely abandoned. We cannot hold on to land for the sake of holding it. The owners have already accepted our conditions."   

(16) He, therefore directed that the order already passed by him to release the land unconditionally may be complied with without further delay.  

(17) It is seen that subsequently his successor Shri v. Vishwanathan, by his order dated 20th July 1965, reversed the decision of Shri Dharam Vira to the extent that the land acquisition proceedings in respect of 21, Rajpur Road should not be dropped since the owners of the land had gone up to the High Court challenging these acquisition proceedings and directed that the decision of the High Court may be awaited.  

(18) Prakash Narain J. held that in respect of 21, Rajpur Road. the, order of Shri Dharam Vira amounted to releasing the said property from the acquisition proceedings and allowed the writ petition (No. 433-D of 1961) by the owners of 21, Rajpur Road. It was against the said decision that the Letters Patent Appeal was filed and was withdrawn in the manner stated above.  

(19) The present petitioners not having approached the Administration for release of this land and no order of release having been passed in respect of this land (30. Alipur Road) the petitioners cannot seek to take advantage of what Shri Dharam Vira had said concerning the release of 21, Rajpur Road, even though the observations made by him releasing it from acquisition proceedings may apply to the present property also. It seems possible that if the petitioners had also approached Shri Dharam Vira in the manner the owners of 21. Rajpur Road had done this property also might have been released from acquisition. The decision to release No. 21, Rajpur Road made by Shri Dharam Vira was not reversed by Shri Viswanathan in principle; all that Shri Viswanathan said was that the matter could be deferred till the High Court decided the writ petition. It is stated by Shri D. K. Kapur at the bar that the plot in dispute is going to be used for a school.

(20) From the facts noticed so far, however, there is nothing to suggest any mala fide or colourable exercise of power to acquire the properties; this has to be adjudged in the light of true conditions obtaining at the time of the concerned notifications. In fact Shri Dharam Vira had himself pointed out in his order, dated 17th August 1964, that there was nothing to show mala fides. He was only referring to the subsequent events making it unnecessary to acquire the lands concerned for the purpose of building accommodation for the staff of the Delhi Administration. Regarding this aspect of the matter it is stated by Shri D. K. Kapur at the bar that residential quarters could not be constructed on account of the same being not possible according to the Zonal Plan. The other requirement, for a school, was abandoned according to the order of Shri Dharam Vira. dated 17th August 1964, so far as plot No. 21, Rajpur Road was concerned. It being possible for the Government to use the property acquired for one public purpose and for another particular purpose or even to achieve the purpose which was abandoned. I am unable to quash the impugned notifications even the one under section 6.

(21) But before taking leave of this case, I consider it necessary to point out that fairness would require that the Delhi Administration considers any request, if it should be made by the petitioners, for release of 30, Alipur Road also from acquisition if they would conform to the conditions which were imposed on the owners of 21, Rajpur Road, in the event of no school being built on this property.

(22) In the result the writ petitions fail; there will be no order as to costs.