Meera Sahni & Anr. vs Lt. Governor Of Delhi & Ors.
2000 Latest Caselaw 1310 Del

ORDER

ARUN KUMAR, J.

1. The award with respect to land in dispute was made on 12th December 1997 as per the provisions of the Land Acquisition Act, 1984. According to the learned counsel for the petitioners the respondents cannot take any proceedings for taking possession of the petitioners' land under section 16 of the said Act. He relies on the provisions of the Delhi Lands (Restrictions on Transfer) Act, 1972 (hereinafter referred to as the 1972 Act) in support of his contention. The facts are that the petitioners purchased the land in question on 5th June 1980. The land was admittedly notified under section 4 of the Land Acquisition Act as per notification dated 24th October 1961. The declaration under section 6 of the said Act was issued on 4th January 1969.

2. As per the case of the petitioners the vendors had obtained permission under section 5 of the Delhi Land (Restrictions on Transfer) Act, 1972 for transfer of the land and the petitioners purchased the same on the strength of the said permission. The entire case urged before us on behalf of the petitioners is based on the alleged permission under section 5. At this stage it will be appropriate to refer to the relevant provisions of the 1972 Act.

"4. Regulation on transfer of lands in relation to which acquisition proceedings have been initiated

No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union territory of Delhi, which is proposed to be acquired in connection with the Scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the Central Government under Section 6 of the Land Acquisition Act, 1894 (1 of 1894), the Central Government has not withdrawn from the acquisition under Section 48 of that Act.

5. Application for grant of permission for transfer under Section 4

(1) Any person desiring to transfer any land referred to in Section 4 by sale, mortgage, gift, lease or otherwise may make an application in writing to the competent authority containing such particulars as may be prescribed.

(2) On receipt of an application under sub-section (1), the competent authority shall, after making such enquiries as it deem fit, may, by order in writing, grant or refuse to grant the permission applied for.

(3) The competent authority shall not refuse to grant the condition applied for under this Section except on one or more of the following grounds, namely:-

(i) that the land is needed or is likely to be needed for the effective implemention of the Scheme;

(ii) that the land is needed or is likely to be needed for securing the objects of the Delhi Development Authority referred to in Section 6 of the Development Act;

(iii) that the land is needed or is likely to be needed for any development within the meaning of clause (d) of Section 2 of the Development Act or for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools and other educational institutions, hospitals and public open spaces and other categories of public uses.

(4) Where the competent authority refuses to grant the permission applied for, it shall record in writing the reasons for doing so and a copy of the same shall be communicated to the applicant.

(5) Where within a period of thirty days of the date of receipt of an application under this Section the competent authority does not refuse to grant the permission applied for or does not communicate the refusal to the applicant, the competent authority shall be deemed to have granted the permission applied for."

3. Relying on sub-section (3) of section 5 the learned counsel for the petitioners submitted that the permission granted in the present case established that the land is not needed and is not likely to be needed for implementation of the scheme for which it had been acquired. It was further contended that the permission also showed that the land was neither needed nor it was likely to be needed for securing the objects of the Delhi Development Act referred to in section 6 of the said Act.

4. Drawing strength from the provisions of section 5 of the 1972 Act, the learned counsel for the petitioner further argued that the fact that the permission was granted for transfer of lands in question shows that all aspects were examined by the Competent Authority and it was felt that the land was no longer required for any public purpose.

5. In reply the learned counsel appearing for the respondents have challenged the very assertion of the petitioners that permission under section 5 of the 1972 Act had been granted. They submit that the petitioners never sought permission under section 5 of the 1972 Act nor any such permission was ever granted.

6. Reference to section 5 shows that permission is to be granted or refused by the Competent Authority. "Competent Authority" has been defined in section 2(b) of the Act as under:--

" "competent authority" means any person or authority authorised by the Administration, by notification in the official gazette, to perform the functions of the Competent Authority under this Act for such areas as may be specified in the notification."

7. A copy of the relevant notification in this behalf has been placed on record according to which the Additional District Magistrate (Revenue), Delhi Administration is the competent authority to perform the functions of the Competent Authority under the 1972 Act. The notification is reproduced as under:-

"DELHI ADMINISTRATION, DELHI

(LAND & BUILDING DEPARTMENT)

VIKAS BHAVAN, NEW DELHI.

No.F.I(1)/72 L&B, Dated the 11th August, 1972

NOTIFICATION

In supersession of this Administration Notification of even number dated the 10th August, 1972 the Administrator of Union Territory of Delhi in exercise of the powers conferred under section 2(b) of the Delhi Lands (Restriction on Transfer) Act, 1972, is pleased to authorise the Additional District Magistrate (Revenue), Delhi Administration, Delhi to perform the function of the competent authority under the aforesaid Act for the whole of the Union Territory of Delhi.

(R.N.Puri)           

Deputy Secretary (L&B)

Delhi Administration, Delhi"

8. Rules have been framed in pursuance of the 1972 Act. They are known as the Delhi Lands (Restrictions on Transfer) Rules, 1972. Rule 3 prescribes a proforma for an application for permission of the Competent Authority under section 5 of the 1972 Act. Rule 3 is reproduced as under:-

"3. Application under section 5

(1) Every person seeking permission of the competent authority under Section 5 make an application, in duplicate, in Form -I, one copy of which shall be duly attested by a Magistrate of the 1st Class, Oath Commissioner or a Notary Public. The competent authority shall issue in token of having received the application.

(2) On receipt of application under sub-rule (1), the competent authority shall make or cause to be made such enquiries as may be deemed necessary, before passing final orders.

(3) An incomplete application shall be liable to returned without any action.

(4) The application attested by a Magistrate of the 1st Class, Oath Commissioner, or a Notary Public shall be retained by the competent authority and the other copy thereof shall be returned to the applicant Along with such final orders, as may be passed by the competent authority."

9. Thus according to the relevant statutory provisions, an application for permission under section 5 of the Act is required to be made to the Competent Authority in writing, in duplicate and as per form No.1 contained in the Schedule to the Rules framed under the 1972 Act. The Competent Authority is required to pass an order in writing after making such inquiries as it may deem fit, either granting permission or refusing to grant permission. In case permission is refused, the Competent Authority is required to record reasons in writing for doing so and a copy of the same is to be communicated to the applicant as per sub-section (4). This shows that the act of granting or refusing permission is a quasi-judicial function to be discharged by the Additional District Magistrate (Revenue) appointed by the Government. The order of the Competent Authority is appealable as per section 6 of the 1972 Act.

10. In the present case the petitioners are relying on a mere alleged 'NOC' said to have been obtained by the vendor from the Tehsildar of the area No separate document or piece of paper containing the alleged 'NOC' has been filed. Except an NOC number there is nothing in the endorsement signifying the permission to transfer the land.

11. The learned counsel for the respondents argued that this is not permission under section 5 of the 1972 Act and, therefore, the endorsement cannot be relied upon for any purpose. We fully agree with the submission made by the learned counsel for the respondents. Firstly the endorsement is not a permission because it says nothing more than using the words of the alphabet i.e. NOC. Secondly, the NOC cannot be treated as permission envisaged under the Act. The Act does not refer to or recognise NOC. Thirdly, a permission under section 5 of the Act is a quasi judicial function. The order is to be in writing to be passed by the Additional District Magistrate (Revenue), Delhi Administration. The permission has to be applied for as per the prescribed proforma in writing in duplicate. It has to be considered by the Competent Authority who has to pass an order refusing or granting permission in writing. In case of refusal of permission reasons of refusal are to be given which are to be communicated to the applicant. The applicant has a right of appeal against the same. An alleged endorsement of Tehsildar cannot take place of the permission. In fact only a purported NOC is relied upon by the petitioners in the present case.

12. The pleadings in the petition on this aspect are also lacking and in our view have been kept deliberately vague. The relevant para of the writ petition is reproduced as under:-

"6. That the transferors namely Shri Puran Chand and Karam Chand, Shera S/o Jai Lal S/o Nathu, Bhan Singh S/o Nathu, Shri Chand S/o Gopal, Hari Singh S/o Neki and Smt. Harbheji D/o Gangadaan etc. were duly granted permission bearing Nos.2310, 2311, 2314, 2315 and 2316 dated 7.5.80 in case of five sale deeds registered in the name of Smt.Meera Sanhi (Petitioner No.1) and permission no.2309 and 2312 dated 7.5.80 in case of two sale deeds in favor of Smt. Padma Mahant (Petitioner No.2) to sell the said lands by the office of Addl. District Magistrate (L&W), under Section 5 of the 1972 Act, to the effect that the land in question was not needed for the proposed development of Delhi and an endorsement was made by the Sub Registrar in this behalf, on the said sale deeds while registering the same.

7. The said endorsement on each of the said Sale deed mentioned in para 3 reads as follows:

NOC No.2314

dated 7.5.1980 from

Teh. (N) Delhi

Sd/-

5.6.1980.

The Petitioners, pursuant to the execution and registration of the said Sale deed, took possession of the said lands from the said transferors."

13. It is not stated as to when the application for permission was made nor a copy of the application for permission has been placed on record. How the permission was granted is not disclosed nor the order in writing granting permission has been produced. In reply to the above pleadings it has been stated on behalf of the respondents as under:-

. ".... It is denied that any application was made by the erstwhile seller of the land in question under the provisions of the said Act as alleged by the petitioners. No copy of the application allegedly made to the competent authority has been placed on record by the petitioners for the reasons best known to them. It is also denied that the competent authority granted permission under section 5 of the said Act as alleged by the petitioners."

14. There is no rejoinder to these averments made on behalf of the respondents. Without laying the foundation for its case based on section 5, the petitioners cannot expect the respondents to prove the negative. The case of the respondents is that neither any permission under section 5 was applied for nor any permission was granted by the Competent Authority.

15. Our attention has been drawn to the contents of the sale deed said to have been executed in this behalf. It is stated on page 4 that the land has not been notified under sections 4 or 6 of the Land Acquisition Act, 1894, either for the planned development of Delhi or for any other purpose and is situated in the green belt outside the urbanised limits of 1981. This sale deed bears the date 5th June 1980. On the said date the notifications under sections 4 and 6 of the Land Acquisition Act were very much subsisting and above recitals were clearly false and appear to have been made in order to get the NOC. Thus the alleged NOC is a product of false averments.

16. We are of the view that NOC is of no legal consequence. We also hold that no permission under section 5 of the 1972 Act was ever sought regarding transfer of the land in question nor any permission was granted. The alleged transfer, therefore, is clearly in violation of the provisions of the 1972 Act. It has no legal validity. The Act does not envisage any NOC. Section 5 only recognises a permission in writing for transfer of lands under sections 4 and 6 notifications and the permission is to be granted by the Competent Authority under the Act alone. In fact the learned counsel for the petitioner did not dispute that permission was a sine qua non. His entire case, however, was that the alleged NOC amounted to permission under section 5 of the Act. We are unable to accept this. The onus was clearly on the petitioners to show that they had applied for permission under section 5 and they had obtained the same in accordance with the provisions of section 5 of the 1972 Act. The petitioners have miserably failed to discharge this onus. The very object of the 1972 Act was to curb such illegal transactions of sale and purchase of lands and to protect unwary customers in this behalf. The object of the Act is given in the preamble which runs as under:

"An act to impose certain restrictions on transfer of lands which have been acquired by the Central Government or in respect of which acquisition proceedings have been initiated by that Government, with a view to preventing large scale transactions of purported transfers, or, as the case may be, transfers of such lands to unwary public."

17. The transactions of the type involved in the present petition were really intended to be curbed by the Act. Unfortunately the desired result could not be achieved because ways were found to circumvent the provisions of the Act.

18. In view of our finding regarding permission under section 5 of the Act being not there, the arguments based on permission are not open to the petitioners. Nothing else was urged on behalf of the petitioners. This petition is accordingly dismissed. Since we find that the present is a totally false and frivolous case, we award costs in favor of the respondents. Counsel fee Rs.5,000/- to each counsel, i.e counsel for the Land Acquisition Collector and the counsel for the Delhi Development Authority.