Tek Chand vs Union Of India And Ors.
2002 Latest Caselaw 16 Del

JUDGMENT

Manmohan Sarin, J.

1. The petitioner has filed the present writ petition seeking quashing of notification bearing NO. F(II) (17)/91-L&B/6518 dated 18.4.1995, under Section 4 read with Section 17(4) of the Land Acquisition Act as well as the declaration under Section 6 dated 26.4.1996 and Award No. 1998-99 dated 24.4.1998, in respect of the petitioner's lands situated in Khasra Nos. 42/3 min (1-02), 42/8 min (3-10), Khasra No. 42/13 min (3-10) admeasuring 8 Bighas & 14 Biswas, situate at village Sahibabad, Dalautpur, Delhi.

2. The petitioner was the owner/Bhoomidar of the lands in question. Petitioner also seeks a writ of mandamus and prohibition, directing the respondents not to interfere with his possession and occupation of the property.

3. Petitioner's case in the writ petition is that the acquisition of other lands in Sahibabad Daulatpur by the aforesaid notifications, have been challenged in CWP No. 3938 of 1996, Prahalad Vihar Residents Association v. Union of India and Ors., CWP No. 3534/1998 Tricolor Hostels Ltd. v. Union of India and Ors. In the aforesaid writ petitions, maintenance of status quo has been directed.

4. The petitioner assails the acquisition on the ground that the petitioner's property is built up, having godowns which were let out as far back as in 1992, to M/s. Pepsi Food Ltd. and Presently to M/s. LML Ltd. There are water, electric and telephone connections. The lease-deeds have been produced on record. The petitioner assails the invocation of Section 17 of Land Acquisition Act as an abuse of the legal process and colorable exercise of power. The petitioner submits that out of 1851 Bighas, covered by the notifications, physical possession of 1081 Bighas was not been taken, as it was heavily built up. The award has been made only on the last day of the expiry of the statutory period. The petitioner urges that there was no urgency and no steps had been taken within the first 1 1/2 years of the notification. The award had been announced without taking possession. It is claimed that Section 17 was invoked without any real purpose or urgency. The petitioner also claims that out of its total land admeasuring 8 Bighas 14 Biswas, the petitioner had already surrendered 12 Biswas of land, which was required for widening of the road.

5. It would be noticed that despite the notifications having been issued on 28.4.1995, the petitioner has filed the present petition only in November, 2000. The petition has been filed belatedly, challenging the notification for acquisition. Learned counsel for the petitioner submits that the petitioner had not challenged the notifications earlier under the bona fide belief that his representations would be accepted. He was continuously assured that the said representations were being favorably considered. The petitioner relies on the recommendations of a Committee which jointly surveyed the lands being acquired and submitted its report making inter alia a recommendation for release of the petitioner's land. The Committee's report in so far as the petitioner's lands are concerned is as under:

"Based upon the documents submitted, Viz. House tax Assessment order, water bill, electrical bill, telephone registration and rent agreement, and the Inspection Committee was of the view that except for the land required for widening of the Auchandi Marg and with the condition that no further construction in the open area will be undertaken without approval of DDA, the balance area may be considered for de-notification on the pattern of St. Xavier School."

6. Counsel for the petitioner, submitted that the petitioner would suffer irreparable injury, if the basic structure on the land was demolished, while the petitioner's representation for de-notification was still under consideration. It was also urged that since the neighbouring lands in the area had already been de-notified, there would be no rationale for denying de-notification of the petitioner's land.

In these circumstances, despite the decision of the respondents on the maintainability of the writ petition being belatedly filed, it was considered appropriate to ascertain the status with regard to the decision on petitioner's representation and if any decision had been taken with regard to the recommendations of the Committee. Counsel for DDA was directed to apprise the Court whether the recommendations of the Committee were approved by the competent authority and further processed or not. Records were also directed to be produced. There was considerable time taken in making the records available, which had been produced in other matters before the Division Bench.

7. Finally the records were made available by the DDA as well as the Land & Building Department. Counsel for the parties were heard and records perused. Counsel for the petitioner states that during the pendency of the writ petition, the respondents have demolished the premises of the petitioner for which the petitioner has preferred a contempt petition.

8. Learned counsel for petitioner, Mr. Ravinder Sethi, Senior Advocate submitted that a joint team of officials of DDA, Land Acquisition Collector and Land and Building Department had after inspection on 12.6.1996, filed a survey report recommending de-notification of the built up lands, including that of the petitioner. The petitioner relies on the survey report filed as Annexure I (page 132 of the paper book) wherein with regard to the details of the built up area against petitioner's land, it was mentioned boundary wall, tin shed and vacant land, Dharamkanta and Godavari. The Joint Committee comprised Director (Land Management) DDA, Joint Director (LM) DDA, L.A.C. (Narela), Under Secretary (LA), Land Acquisition Collector and revenue officers. The petitioner also relies on his representation dated 8.6.1995, appearing at page 145 of the paper book, wherein the petitioner had claimed that the property was situated in the centre of the extended abadi and had been put to his own use as built up structures and the land was developed. A representation to the Chief Minister had also been made.

Counsel submits that the petitioner's property was developed and built up, house tax was being paid. The Land Acquisition Collector had assured that the built up portions, even i notified for acquisition, shall be de-notified.

9. Counsel for the petitioner also submitted that there was no justification for acquisition of the built up property of the petitioner and the same deserves to be de-notified on the same basis and the land for St.Xavier School was de-notified. It was urged that the land in question was not required for any future scheme or purpose, as the land for road widening had already been made available by the petitioner.

10. Learned counsel for the respondents, Mr. Sanjay Poddar, opposing the writ petition, submitted that based on the requisition of DDA, the land in question had been acquired and the actual physical possession had been taken on 17.11.2000. Earlier a possession report regarding taking over of the legal possession on 13.1.1997, has been filed on record. It appears at page 116 of the paper book. Respondents officials had gone around the land and put the markings. He disputes the petitioner's claim that at the time of issuance of notification, land in question was fully built up. It is submitted that only a tin shed and boundary wall was there as per the survey report.

Learned counsel Mr. Poddar further submitted that the report of the Joint Committee made by Director (Land Management) DDA had not been accepted by the Competent Authority. He reiterated that the petitions, which were belatedly filed, were liable to be dismissed on the short ground of delay and laches, without going into the question on merits.

11. The case records as filed by the DDA and Land & Building Department have been perused. The Commissioner (Land Management), observed that he was not in favor of de-notification of such areas, which had been notified only 8 months back. While it is true that the Committee comprising the Director (LM) had on 20.2.1997, recommended the balance area of the petitioner except the area required for widening of the road for de-notification, the said recommendation was not accepted and further examination and comments were called for by the Commissioner. The records does not show acceptance of the said recommendation. Before a final decision could be taken, the consideration of representation of the residents of Prehlad Vihar Residents Association for de-notification of the land covered by their colony commenced. The Commissioner (LM) took the view that the colony in question had come up unauthorisedly and which was also not a colony slated for regularisation. The request for de-notification of this land was also not accepted. The Commissioner (LM) took the view that since 10 to 15 per cent area was only built up, the DDA could not afford to leave the land because of the large number of Rohini Residents awaiting allotment. The Vice Chairman of DDA took the view that unauthorized colonization of the land where DDA had commenced the development, should not be permitted. It is thus seen from the record that the recommendation of the Joint Committee comprising Mr. Singhal and others, on which petitioner relies, was not accepted by the Competent Authority. The record of the Land & Building Department also shows that the recommendations of the Committee that had been put up before Lt. Governor, clarifications were sought and the cases which were approved for de-notification did not include the petitioner's case.

12. Learned counsel for DDA, Ms. Mittal had submitted that the views of Mr. V.K. Singhal, the then Director (LM) were not agreed upon by the Competent Authority and the Commissioner, DDA vide his observations had further referred the matter for examination. Learned counsel submitted that the land in question was required partly for widening of the Bawana Auchandi Marg and partly for the proposed Senior Secondary School and 28 meters wide Link Road. It was urged that DDA, therefore, had all along been writing to the Land and Building Department for handling over of possession of the land in question vide letters dated 7.12.1998, 17.3.1999, 11.11.1999 and 31.10.2000. The request for possession f the land notified in question would show that the recommendation for petitioner's land being de-notified, was not accepted rather possession of the notified land was being sought.

13. Learned counsel Ms. Gita Mittal submitted that the land notified, including the land owned by the petitioner, is required for overall development of the residential scheme. The land in question continues to be reflected as part of the scheme of DDA for the acquired land. The actual physical possession had been taken on 17.12.2000 after demolition.

14. I have given my careful consideration to the respective submissions and perused the records, as produced before me. The perusal of the record, as noted and discussed above, does not support the petitioner's case that the petitioner's land was under active consideration for de-notification 'based on the recommendation made by the joint survey team. The record rather bears out that the recommendation of the joint survey team in so far as the petitioner's land was concerned, was not accepted at an stage by the Principal Commissioner (Lands), the Competent Authority or the Lt. Governor. Rather the Competent Authority had only approved some of the cases, which had been recommended for de-notification, leaving out petitioner's land. There is no merit in the petitioner's contention that in view of the recommendation of the Joint Committee, petitioner's land was likely to de-notified. Hence, status quo should be ordered and writ petition be entertained and considered on merits despite delayed institution.

15. As regards the contention of the petitioner that the entire area was built up and the petitioner continuous to be in possession, as noted earlier, respondents claim to have taken possession on 13.1.1997 by going around the lands and carrying out the demarcation. Respondents have filed a Panchnama report, showing taking over of possession of the acquired lands including that of the petitioner. The Supreme Court in the under noted decisions has accepted execution of a Panchnama with witnesses as a mode of taking over of possession. Reference is invited to Tamil Nadu Housing Board v. A. Viswam (dead) by Lrs (1996) 8 Supreme Court Cases 259. Again in Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and Ors. reported at (1996) 4 Supreme Court Cases 212, while accepting Panchnama as the normal mode of taking possession, the Court also recognised the difficulties in taking physical possession under compulsory acquisition. It held that subsequent retention of possession would tantamount illegal or unlawful possession.

16. In the instant case, it is, however, not necessary to go into this controversy. Admittedly, actual physical possession has also been taken on 17.11.2000. This being the situation, the acquisition proceedings have acquired a finality under Section 16 of the land Acquisition Act and the curtain has come down, as held by the Division Bench in Ajit Singh and Ors. v. Union of India and Ors. 89 (2001) Delhi Law Times 495. Rather as per the aforesaid cited case, the Government even does not have the power to denotify the land or quash the notifications under which it had been acquired. The effect of taking possession under Section 16 is that the curtain is drawn as far as the land acquisition proceedings are concerned. The Government become absolute owner of the land. The land goes outside the purview of the land in question and if the Government has to pass on the title of the land to anyone else, including its erstwhile owners, it can do so only by conveying the title by way of a sale deed or grant etc.

It may also be noted that petitioner cannot draw any advantage or benefit even if any third party succeeds in its challenge to the impugned acquisition notifications. Based on the decisions of the Supreme Court in Gurdip Singh Uban v. Union of India reported at 2000 (5) Scale 651, the benefit of quashing of the notifications under Sections 4 and 6 of the Act is to be confined to the petitioner, who had challenged the same.

17. Coming to the question of maintainability of the writ petition on account of delay and laches in institution, the notification under Section 4 read with Section 17(4) of the Land Acquisition Act was dated 18.4.1995. The declaration under Section 6 was issued on 26.4.1996 and the award No. 1998 of 1999 was made and published on 24.4.1998. There is thus inordinate delay in institution of the writ petition. The petition has been filed 5 years after the Notification under Section 4 and nearly more than 2-1/2 years after making up of the award. Reference is invited to the decision of the Division Bench of' this Court in Sri Bhagwan and Anr. v. Union of India and Ors. reported at 1991 (2) Delhi Lawyer 59, where the Division Bench noticed the under mentioned decisions on the maintainability of the writ petition on account of delay and laches:

Aflatoon v. Governor of Delhi ; Indrapuri Griha Nirman Sahakari Samiti Ltd. v. The State of Rajasthan and Ors. ; Pt. Girdharan Prasad Missir and Anr. (1980) 2 SCC 83; Hari Singh and Ors. v. State of U.P. and Ors. ; State of Punjab and Ors. v. Hari Om Cooperative House Building Society Ltd., Amritsar 1987 (supp) Supreme Court Cases 687.

Noticing the above decisions, the Supreme Court held that delay in challenging acquires, who seek to challenge notification after lapse of time, should not be entertained. The observations by the Division Bench in para 14 of Sri Bhagwan and Anr. v. Union of India (Supra) may be usefully reproduced:

"The aforesaid principles are applicable to the present case also. Notifications under Sections 4 and 6 were issued in 1984. No action was taken by any of the petitioners. Thereafter a survey was conducted and the award was made in September, 1986. When the Government conceives of a project like the present and issues the notification under Section 4, then any person who has a grievance can file objections under Section 5A and thereafter, if he does not get the relief, can challenge the notification under Section 4 or the declaration under Section 6 by filing a petition under Article 226 of the Constitution. If a declaration under Section 6 is issued and no action, with in a reasonable time, is taken by the owners of the property which is sought to be acquired then the acquiring authority can legitimately believe that there is no opposition to the said acquisition. Between the issuance of the declaration under Section 6 and the making of the award, the survey was conducted and, apart from the cases covered by the Supreme Court's interim orders, some more land was not acquired. The interest of the Government and in fact of the general public which is to get the benefit of the sub-city would be adversely affected if now the court was to strike down the notifications under Sections 4 and 6 of the said Act. As we have noted, only three petitions were filed in 1986. Most of the writ petitions before us, 11 in number, were filed in 1989, that is to say, nearly three years after the making of the award. All these petitioners have been sitting on the fence and have sought to challenge the Sections 4 and 6 notifications five years after the promulgation and they are challenging the award about three years after it was announced. In our opinion, all the petitioners are guilty of laches and cannot challenge Sections 4 and 6 notifications."

18. In view of the foregoing discussion, it is held that the present petition is not maintainable and is liable to be dismissed on the ground of delays and laches. Moreover, possession having been taken after demolition, Section 16 of the Land Acquisition Act also comes into operation. The writ petition is, therefore, liable to be dismissed and is dismissed.