Bhagat Singh vs National Capital Territory Of ...
1998 Latest Caselaw 618 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioner, who is the co-owner with his brothers Shri Udham Singh and others of land measuring 6 bighas 7 biswas, forming part of Khasra No.670/414/2, Khata Khatauni No.25 min/25, situated within the Revenue Estate of village Kondli, Tehsil Shahdara, Delhi, filed this petition on 1.7.1995 seeking the quashing of notification (annexure-P.4) dated 30.5.1995 issued under Section 4 read with Section 17(1) of the Land Acquisition Act, 1894 (for short "the Act").

2. It is alleged that the petitioner's father Shri Richpal Singh was the bhoomidar of agricultural land measuring 45 bighas 4 biswas within the Revenue Estate of village Kondli, Tehsil Shahdara, Delhi, which also includes the land measuring 9 bighas 15 biswas falling in Khasra No.670/441/2. For the purposes of establishing Dairy Colony, Shahdara about 325 bighas 11 biswas in village Kondli was acquired through notification dated 19.8.1976 for which Award No.4/1979-80 was made. Out of land comprised in Khasra No.670/414/2 only 3 bighas 8 biswas was acquired thereby leaving 6 bighas 7 biswas in tact. It is alleged that after acquisition of the land and delivering of its possession to the Municipal Corporation of Delhi, the purpose of establishing Dairy Colony in Shahdara stood achieved. The petitioner along with the other co-owners had been using, enjoying and utilizing the left out area of 6 bighas 7 biswas, but all of a sudden in 1988 the officials of Delhi Administration started interfering with this land because of which suit No.840/88 had to be filed in the court of Civil Judge, Delhi. During the course of the pendency of the suit, statement was made on behalf of respondents that 6 bighas 7 biswas of land, out of Khasra No.670/414/2 of village Kondli was not acquired. In view of such statement, the suit was withdrawn.

3. It is also alleged that the Delhi Development Authority (for short "the D.D.A.") under some apprehension that their land had been trespassed and unauthorisedly occupied, moved an application before the Tehsildar, who directed demarcation to be carried out. Necessary notices were issued to the concerned parties including the petitioner and the D.D.A. The D.D.A. initially participated in the enquiry but subsequently failed to put in appearance. After completion of necessary formalities, the Patwari of the concerned area submitted his report, according to which the D.D.A. had occupied about 4 bighas of land, over which people are living and on which, according to the D.D.A. staff plots were carved and allotted to public. As per the demarcation report 2 bighas 7 biswas of land was reported to be lying vacant. Thus the D.D.A. was in occupation of 4 bighas land of the petitioner.

4. The petitioner's case is that after this report had been submitted, emergency provisions were invoked for acquiring the petitioner's land, when the impugned notification dated 30.5.1995 was issued under Section 4 read with Section 17(1) of the Act, which notification, according to the petitioner, had been issued without application of mind and in colourable exercise of powers. The petitioner's case is that non-application of mind by the authorities is patent on the record, as notification was issued perlaining to the land on which the D.D.A. had already allotted plots to the public. There is no scheme or purpose for which the present land is sought to be acquired except that it is with malafide and ulterior motive to deprive the petitioner from taking legal recourse of obtaining possession of unauthorisedly occupied land by the D.D.A. There is nothing on record to show any urgency in implementation of the said proposed development, dispensing with the requirement of making summary enquiry, as contemplated under Section 5A of the Act. In the aforementioned back ground, prayer has been made for the quashing of the impugned notification.

5. The respondent/D.D.A. in its reply filed on the affidavit of Shri V.K.Singal, Director (Land Management) D.D.A., Vikas Sadan, New Delhi stated that respondent No.l had acquired a very large tract of land measuring hundreds of bighas in the area for the Planned Development of Delhi and vested the same with the Municipal Corporation of Delhi. The land adjoining the land in question was acquired through notification dated 19.8.1976 and was vested in D.D.A. for development of scheme known as "Kondli Resettlement Scheme". The land in question, namely, 6 bighas 7 biswas, appears to have been left out of earlier acquisition proceedings by mistake. Under bonafide impression that the land in question had been acquired by respondent No.l, the D.D.A. had taken possession of the same and developed it by making various constructions thereupon. A very important Master Plan Road with a width of 30 Mtrs., connecting NOIDA with Shahdra is passing through this land. When it was realized that the land in question had not been acquired and a joint survey with respondent No.l was made, a requisition was sent to respondent No.l for acquiring the land in question for the execution of the Scheme. Copy of the joint survey has been annexed to the reply of respondent No.2. It is stated that consequently the impugned notification was issued. The reply further stated that the possession of the land was already taken over by the D.D.A. and because of the fact that very important road is passing through the land in question emergency clause was rightly invoked on due application of mind.

6. Respondent No.l in its reply filed on the affidavit of Shri Vinay Kumar, S/D.M./Land Acquisition Collector in Deputy Commissioner's Office, Delhi had also taken a similar stand that emergency provisions were rightly invoked, because of the fact and circumstances of the case, when it was found that part of the land had been left out from acquisition.

7. Learned counsel for the parties were heard and we have gone through the entire record.

8. The impugned notification admittedly was issued, after it came to the notice of the authorities that part of the land in question was already occupied by construction, which already stood allotted for the purpose of the Scheme. Existence of road is also evident from the record, which was made available. Documents filed on 19.4.1997, which are on pages 111, 112 and 113 are the copies of Master Plan, Zonal Plan and Lay Out Plan respectively showing the utilization of the area in question for the purpose of the Scheme. The mere fact that in the Khasra Girdwari correct factual position is not reflected, wherein the land is recorded as abadi and khali (vacant), will not make any difference since as per the petitioner also an area to the extent of 4 bighas is already occupied by the respondent/D.D.A. and as per the stand taken by the respondent/D.D.A. the remaining 2 bighas 17 biswas of land is a part of important Master Plan Road with a width of 30 Mtrs. connecting Shahdara with NOIDA, In the light of these facts the question to be considered is whether respondent No.l was justified, in the facts and circumstances aforementioned, to invoke the emergency clause, in exercise of its powers under Section 17(4) of the Act and thereby dispensing with the enquiry contemplated under Section 5A of the Act. To the facts of the case in hand, as noticed above, the decision in State of U.P. and another v. Kesho Persad Singh would squarely be applicable, in which case exercise of power under Section 17(4), invoking emergency clause and thereby dispensing with the enquiry under Section 5A of the Act was held to be justified, when the land in question in that case was found to have already been occupied in the compound and boundary wall of the P.W.D. office building. The very fact that considerable land in the instant case had been acquired for the purpose of Scheme, at public expense, which was a public purpose, in case by mistake some land was left out and the respondent/D.D.A. bonafide considering the same to have been acquired, utilized the same for the purpose of the Scheme, the exercise of such power for acquiring the land is definitely warranted under law. It can neither be said to be colourable exercise of power, nor an arbitrary exercise of power, in view of the ratio in Kesho Persad Singh's case (supra). Accordingly, the writ petition, which has no force, is dismissed and the interim stay vacated.