Suraj Pershad vs Municipal Corporation Of Delhi ...
1990 Latest Caselaw 485 Del

JUDGMENT

Usha Mehra, J.

(1) Pursuant to the Resolution No. 813 dated 29th August, 1985 passed by the Standing Committee of the Municipal Corporation of Delhi thereby accepting the recommendation of its Commissioner to acquire the land of the petitioner for public purpose, the matter was placed before the General Body of the Municipal Corporation of Delhi. The General Body of the MCD. vide its Resolution No. 661 accepted the recommendation of the Standing Committee and accorded the approval to acquire the land measuring 250 sq. yds. each bearing plot No. 1 & 2 comprised in Khasra No. 286 Mauja Tihar known as Ajay Enclave belonging to the petitioner.

(2) Petitioner Along with Shri Ram Dularey had purchased plots No. 1, 2, 7 & 8 in Kharsa No. 286 vide registered sale deed dated 28th November, 1953. Subsequently, by oral partition the petitioner became sole owner of plots No. 1 & 2. Municipal Corporation of Delhi wanted to raise boundary wall on these plots which was objected by the petitioner by filing a civil suit bearing No. 269/76. In the said suit, respondent-corporation took the plea that the plots were transferred to it by the Coloniser for development of park and that the land in dispute has been shown as park in the approved lay-out plan of the colony. However, the civil court decreed the suit in favor of the petitioner for injunction holding that respondent-corporation had no title over the suit plots. Appeals filed by the Municipal Corporation of Delhi before the Additional District Judge as well as in the High Court were dismissed. Special Leave Petition was filed by the M.C.D. in the Supreme Court of India bearing No. 9131/82. The same was also dismissed on 8th March, 1983.

(3) Petitioner thereafter submitted plan for sanction for construction of building, Municipal Corporation of Delhi however refused to accord sanction on the plea that these plots formed part of park as per the approved lay-out plan.

(4) The Commissioner, Municipal Corporation of Delhi, taking into consideration the public purpose decided to acquire the plots in question as per the provisions of Section 198 of the Delhi Municipal Corporation Act (hereinafter called the 'Act'). He, therefore, started negotiation with the petitioner regarding terms and conditions as well as price of these plots. The petitioner was called upon to indicate the price for which he was prepared to transfer the plots in question. The petitioner submitted his terms and conditions but no agreement could be arrived at. Failing to acquire the plots on the basis of mutual agreement as stipulated under Section 198 of the Act, the Commissioner, M.C D. recommended the acquisition of the plots in question under Section 199 of the Delhi Municipal Corporation Act, 1957,

(5) Section 198 envisages the acquisition of immovable property by agreement. title pre-condition for acquiring the immoveable property under Section 198 of the Delhi Municipal Corporation Act is that there must be mutual agreement on such terms and at such price as may be approved by the Standing Committee and that the Commissioner could invoke this provision only for the purposes of this Act. The requirement of mutual agreement between the Commissioner and the owner of the property regarding the terms and the price of the immoveable property was lacking in this case. Therefore, in the absence of the same, the Commissioner could not unilaterally invoke the provisions of Section 198 of the Act, particularly when the parties had not agreed on such terms and at such price which could be approved by the Standing Committee of the Municipal Corporation of Delhi. Since the property in question as per the approved lay-out plan was required for public purpose i.e. using it as public park for the colony, therefore, the commissioner, Municipal Corporation of Delhi deem it fit to acquire the same under Section 199 of the Delhi Municipal Corporation Act, 1957 without the agreement of the owner,

(6) Provision of Section 199 of the Delhi Municipal Corporation Act, 1957 which is reproduced :- "WHENEVER the Commissioner is unable to acquire any immovable property under Section 198 by agreement, the Central Government may at the request of the Commissioner procure the acquisition thereof under the provisions of the Land Acquisition Act, 1894 (I of 1894) and on payment by the- Corporation of the compensation awarded under that Act and of the charges incurred by the Government in connection with the proceedings, the land shall vest in the Corporation."

(7) A bare reading of Section 199 of the Act would show that the discretion to acquire the land for public purpose vest with the Commissioner, Municipal Corporation of Delhi. The function of the Central Government to notify the acquisition thereof is only administrative in nature. The word "May" here would mean shall. As soon as recommendation at the behest of Commissioner under the provision of Section 199 of the Act are received by the Central Government, the Central Govt. shall accede to the request of the Commissioner and procure the land by issuing requisite notification under the Land Acquisition Act.

(8) In this case as pointed above, the Standing Committee of the Municipal Corporation of Delhi approved the acquisition as recommended by the Commissioner and forwarded the same to the General Body. The General Body of the Municipal Corporation of Delhi also approved the acquisition of the plots in question and, therefore, recommended the same to the Central Government for issuing the Notification. So-much-so from the perusal of the counter affidavit filed by the Municipal Corporation of Delhi, it is clear that the Municipal Corporation of Delhi is prepared to pay the compensation to the owner of the plots in question. Since the Municipal Corporation of Delhi vide its Resolution No. 661 has expressed the desire to acquire the plots in question for public purpose, both the conditions of acquisition in this case have been fulfillled i.e. public purpose and satisfaction and recommendation of the Commissioner Municipal Corporation of Delhi.

(9) The word used in Section 199 of the Delhi Municipal Corporation Act, "the Central Government may at the request of the Commissioner does not mean that it leaves any discretion with the Central Government to withhold the sanction to procure the land in question under the Land Acquisition Act nor it gives power to the Central Government to refuse the request of the Commissioner to procure the acquisition thereof under the provision of the Land Acquisition Act provided the Corporation is prepared to pay the compensation awarded under the Act and the charges incurred by the Government in connection with the proceeding.

(10) In this case since the requirements of the provision under Section 199 of the Act are fulfillled, and the Corporation being prepared to pay compensation there is no reason why the Central Government should not accede to the request of the Commissioner sent through the Municipal Corporation of Delhi vide Resolution No. 661 and thereby accord the sanction for procuring by acquisition the plots No. 1 & 2 in Khasra No. 286 under the provision of the Land Acquisition Act.

(11) This is a peculiar case where till date neither the land has been acquired nor the plans submitted by the petitioner have been sanctioned by the Corporation. Delhi Administration as well as the Lt. Governor and the Land Acquisition Collector are party to these proceedings. They have not placed on record and ground whatsoever for not accepting the request of the Commissioner for procuring the plots in question under the provisions of the Land Acquisition Act. The fate of the petitioner cannot hang for all times to come. Therefore, in the interest of justice and equity we direct the respondents No. 2 to 4 to issue the notification as required under Section 199 of the Delhi Municipal Corporation Act, 1957 within three months which is only a formality in view of the fact that the Corporation had already recommended acquisition of the plots in question vide Resolution No. 661. Writ Petition is allowed. Rule is made absolute. Counsel fee Rs. 2000.00 .