Mohd. Ishaq And Ors. vs Delhi Development Authority
2002 Latest Caselaw 176 Del

JUDGMENT

Anil Dev Singh, J.

1. The only contention of the learned counsel for the appellant is that the land in question which as been acquired by the respondent is a built up area and no acquisition could have taken place.

2. We do not agree with the contention of the learned counsel for the appellant as this Court in Nirmalendu Dev Nath and Ors. v. Union of India and Ors., 75 (1998) Delhi Law Times 765, relying upon the Full Bench decision of this Court in Roshanara Begum v. Union of India and Ors., , and the decision of the Supreme Court in Murari and Ors. v. Union of India and Ors., , took the view that been a built up area can be acquired. In this regard it was held as follows:-

"Mr. Saini contended that the Government in view of its policy decision cannot acquire built up area and, therefore, the acquisition proceedings must be quashed. The contention of the learned counsel is not well founded. The power to acquire land is to be exercised in the manner laid down by the Act. the power is statutory power which is required to be exercised in public interest. If the land is needed for a public purpose the mere fact that there is a policy of the Government not to acquire built up area cannot come in the way of acquisition. If it was otherwise, the public authorities will not be able to acquire built up areas to decongest the localities and the provide civic amenities including sanitation, parks, amusement centres, etc., which are essential for healthy living. In Prem Chand Ramesh Chand v. Delhi Development Authority and Anr. 66 (1977) Delhi Law Times 482 (DB), a Division Bench of this Court relying on Attar Singh v. D.D.A. (C.W.P. No. 3110 of 1991, decided on August 10, 1992); Shri Bhagwan and Anr. v. Union of India and Ors. 1991 (2) Delhi Lawyer 59 (DB), and Roshanara Begum v. Union of India, , held as follows:-

"The contentions that there is any policy to regulate unauthorised colonies or there is a policy decision not to acquire built up area, are concluded against the petitioner by a Division Bench decision of this Court in the case of Attar Singh v. D.D.A. (CW 3110 of 1991) decided on 10th August, 1992. In Attar Singh's case also it was alleged that the petitioner had a godown built up area situated in Village Haiderpur on private land and no action can be taken by the respondents against the petitioner. In that case too, the Bench referred i the judgment to the same Award No. 50/80-81 made on 18th July, 1980. The contention that there was a policy of Government to regularise the unauthorised colonies and also not to acquire built up area was rejected and it was observed that:

"It was further contended that unauthorised colonies on Government land are sought to be regularised. It is possible that a political decision to this effect may be taken with regard to some of the colonies but as far as this land is concerned, there have been valid proceedings for acquisition under the provisions of the Land Acquisition Act. If there was any built up area as on the date when Section 4 notification was issued, the claimants would be entitled to receive compensation in accordance with law. As far as the petitioner is concerned, we do not find that the petitioner is entitled to any compensation and in fact it is one Udai Singh who has already received the compensation. Be that as it may, merely because some of the colonies are going to be regularised cannot be of any assistance to the petitioner specially when, in the writ petition, there is no challenge to the acquisition proceedings. The proposal of excluding the land from the award which was there is 1968 has apparently been given a go-by and this has resulted in, first Notification under Section 6 being issued on 2nd January, 1969, followed by the award in 18-980.

The contention in respect of the policy of leaving out from the acquisition built up area has also been repelled in another Division Bench decision of this Court in Shri Bhagwan and Anr. v. Union of India and Ors., 1991 (2) Delhi Lawyer 59 (DB). This decision has been affirmed by a Full Bench of this Court in Roshanara Begum v. Union of India, . We may also notice that the appeal filed against Full Bench decision has been dismissed by the Supreme Court (See: Murari and Ors. v. Union of India and Ors., ."

3. Learned counsel next contends that the acquisition proceedings are not complete inasmuch as the possession of the land over which structures have been built is still with the appellants. We have considered the submission of learned counsel for the appellants. We do not find any merit in the same. In Tamil Nadu Housing Board v. A. Viswam (dead) by Lrs., it has been held by the Supreme Court that where it is not possible to take over actual physical possession of the land, the Land Acquisition Officer can take possession of the land on paper by recording a memorandum to that effect in the presence of the witnesses. Similar view was expressed by the Supreme Court in Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and Ors. .

4. Keeping in view these decisions, we are unable to accept the aforesaid submission of the learned counsel for the appellant. It is not disputed that in the instant case the possession of the land has been taken over on paper on 17th September, 1996. We may also point out that the appellant had filed a civil suit in which a prayer for injunction was sought for restraining the Delhi Development Authority from taking possession of the land. However injunction was not granted and the civil suit was dismissed in default.

5. Mr. Pandey, learned counsel for the appellant canvasses that unless the land is placed at the disposal of the Delhi Development Authority for the purpose of development by means of a notification issued under Section 22 of the Delhi Development Act, 1957, the same cannot be taken over. It appears to us that Section 22 of the Delhi Development Act has no application where the land is acquired at the instance of the Delhi Development Authority under the provisions of the Land Acquisition Act as the latter Act is a self-contained code and is not dependent upon the instance of notification under Section 22 of the former Act.

6. Accordingly the submission fails and is hereby rejected.

7. For the foregoing reasons we do not find any merit in the appeal. Accordingly the same is dismissed