Amrik Singh And Ors. vs Dda And Ors.
2003 Latest Caselaw 757 Del

JUDGMENT

A.K. Sikri, J.

1. This Letters Patent Appeal is preferred by the appellants against the order dated 5th May, 2003 passed by the learned Single Judge of this Court in C.Ms. 3921 & 4185/2003 in CWP No. 1669/2000. It is a short order and it is necessary to reproduce the same in entirety. The order reads as under:

"The matter has been discussed in Court with the Vice-Chairman, DDA and the Commissioner, MCD.

The Commissioner, MCD states that the MCD is willing to sanction the plans in view of the requirement of the M.R.T.S. subject to the petitioners furnishing an undertaking and indemnity to the effect that the petitioners will comply with the norms of the Central Pollution Control Board required for purposes for which the land is to be utilised as per the terms of the perpetual lease where the petitioners were located earlier. It is further stated that the petitioners should be permitted to use the site only only for the said purpose.

Learned Senior Counsel for the petitioners on instructions states that the petitioners have no objection to the same and that the land use was auto repair centre.

The Commissioner, MCD states that the sanction plan shall be duly issued by 9.5.2003.

The Vice-Chairman, DDA further states that the proposal given by the learned Senior Counsel for the petitioners on 10.4.2003 for compensation is not acceptable to the DDA.

In view of the aforesaid developments, the time period specified as 30.4.2003 in the Order dated 26.3.2003 for the petitioners to vacate the site in question is extended up to 15.6.2003.

Applications stand disposed of."

2. It is amply clear that it is a consent order. Still appeal is preferred by the appellants. The main plank of challenge to the order is that arrangement agreed to among the parties, as reflected in the aforesaid order, goes contrary to the directions given by the Apex Court in the case of B.L. Wadhera v. Union of India . It is because of this nature of challenge to the order that we heard all the parties at length.

3. In order to appreciate the challenge, it would be necessary to take note of facts and circumstances under which order dated 5th May, 2003 came to be passed.

4. Succinctly put, the appellants herein are operating from a place called 'Majnu Ka Tilla'. They claim that plots to develop the Transport Nagar at this place were allotted to them by execution of lease deed by the Delhi Development Authority (DDA) in their favor during 1978-80. The area is commonly known as Idle Truck Parking Site', Chandrawal, Majnu Ka Tilla and the appellants who are carrying on the business of transport normally park their idle trucks on the land in question (hereinafter referred to as 'existing land').

5. This land was required by the Delhi Metro Rail Corporation (DMRC) for developing a Car Shed and maintenance Depot for the underground metro corridor from ISBT to Delhi University. For this purpose, suit land as well as other adjoining lands were purchased by the DMRC from Land & Development Office (L&DO) at a cost of Rs. 21,06,28,305/- vide allotment letter dated 15th November, 1999. The total land purchased was 37.8 hectares (93.4 acres) which included Idle Truck Parking Site. Since the appellants and others occupying Idle Truck Parking Site were to be uprooted there from, question of their rehabilitation was discussed by the authorities. Two alternative sites were suggested, namely, land at Khyber Pass measuring around 4 hectares and land at Narela Freight Complex. The representatives of the Idle Truck Parking Association, representing appellants and others volunteered for the alternate land at Khyber Pass (hereinafter referred to as 'alternate land'). This was accepted by the authorities and it was further decided in the meeting held on 11th April, 2000 wherein representatives of the Association participated, that this alternate land at Khyber Pass be developed by providing necessary basic infrastructure to enable the shifting of idle truck parking site. "The DMRC further agreed to spend necessary amount for developing the alternate land as agreed to, as its project was getting delayed due to non-vacation of the 'existing land' by the appellants and others. It may be mentioned that CWP No. 1669/2000 had been filed by the appellants herein in April, 2000 challenging the threatened action of the respondents from shifting the appellants from Idle Truck Parking Site at Majnu Ka Tilla i.e. existing land. In this writ petition order dated 19th October, 2000 was passed which reads as under:

"Pursuant to order passed by this Court on 25.9.2000, Mr. P.K.Ghosh, Vice-Chairman and Mr. Vijay Risbund, Commissioner (Planning), DDA are present in person.

Mr. P.K. Ghosh, Vice-Chairman, DDA states that DDA has no objection if DMRC develops the land. Mr. Singla says that DMRC is prepared to develop the land in question from today itself.

Mr. Daljeet Singh, Dy. Chief Engineer, DMRC is present in person and says that DMRC will finish the development of land within four months. After development of land in question, the DMRC will hand over the developed land to DDA who in turn within one month of handing over of the developed land will allot the plot of land to the petitioner for rehabilitation.

Renotify on 9.4.2001."

6. Admittedly, the DMRC thereafter developed the 'alternate land' and the plots were offered to the appellants and others in that site measuring 4 hectares. The DMRC claims that it spent approximately Rs. 3.30 crores for the development of 'alternate land'/rehabilitated Idle Truck Parking Site. After noticing formalities to be completed for implementing the process of allotment, direction to DMRC to pay compensation for the structure of the respective appellants, CWP No. 1669/2000 was disposed of by the learned Single Judge vide order dated 20th August, 2002. It was also directed that appellants shall remove themselves from the land in their occupation at Majnu Ka Tilla positively on or before 31st January, 2003. The appellants were also directed to file undertakings to this effect. The appellants have filed these undertakings. The appellants thereafter filed CM No. 11310/02 in the aforesaid writ petition alleging that neither the compensation was paid nor the possession and the controlled drawings of the new site had been handed over to the appellants. Order dated 11th November, 2002 was passed directing that appellants be handed over the controlled drawings within a period of two weeks. Thereafter, this CM was disposed of with the direction that time for vacation is extended up to 15th March, 2003. After some time the appellants filed another CM No. 971 /2003 in which the Court directed the MCD to have the plans cleared, in respect of the controlled drawings, under a single window system within a week of the application being made by the appellants. Time to vacate the existing site was extended till 30th April, 2003 vide order dated 4th February, 2003. The appellants submitted their applications. However, the MCD vide letter dated 27th March, 2003 informed the appellants that 'alternate land' allotted to them was a sanitary landfill site and as per the directions passed by the Apex Court in the case of B.L. Wadhera (supra), the said site cannot be used for any other purpose except for forestry/maintaining green. The case of the appellants is that from this letter, for the first time, they came to know that the 'alternate land' being allotted to them, was a sanitary landfill site which they were not entitled to use for idle truck parking. This prompted the appellants to move CM No. 3921/2003 and thereafter CM No. 4185/2003 and impugned order dated 5th May, 2003 is passed by the learned Single Judge in these CMs.

7. The background in which this order came to be passed may now be noted.

8. On these applications, the Court passed order dated 4th April, 2003 directing personal presence of the Vice-Chairman, DDA, Commissioner, MCD and the Chief Engineer, DMRC for 10th April, 2003. On 10th April, 2003, the Court directed constitution of a Committee to look into the aspect highlighted in the applications because of which sanction of the plans was refused by the MCD. On this date Counsel for the appellants also suggested an alternative solution that they were willing to shift provided they are paid compensation instead of alternate land. On this the learned Single Judge directed the Counsel for the DDA to take instructions. The matter was adjourned to 24th April, 2003. On this date as the DDA was not able to respond to the proposal given by the appellants on the earlier date, the Court directed personal presence of the Vice-Chairman, DDA, Commissioner, MCD and the Chief Engineer, DMRC for 5th May, 2003. The MCD on that date had placed the minutes of the meeting dated 10th April, 2003 before the Court wherein it was decided that the building plans be approved subject to the 15 conditions laid down by the Environmental Committee and the appellants be further directed to give undertakings in the form of an indemnity bond that they would abide by the conditions laid down by the Central Pollution Control Board (CPCB). The Commissioner, MCD appeared before the Court on 5th May, 2003 and submitted that they would sanction the building plans of the appellants at the new site and permit them to carry on the trade of the idle truck parking therein. The appellants also agreed to abide by the conditions laid down by the CPCB. The respondents were directed to sanction the building plans and the appellants were directed to shift to the new site by vacating the present premises on or before 15th June, 2003.

9. This narration of facts as well as reading of order dated 5th May, 2003, amply demonstrate that the learned Single Judge made earnest efforts, with the co- operation of the appellants and all the authorities, to resolve the matter. It is an admitted case of the parties that before the learned Single Judge, it was pointed out that the Division Bench of this Court in CWP No. 841 /98 had passed an order dated 28th April, 1999 which enabled the respondents to allot the alternate site to the appellants herein and based on this understanding of the order by all concerned, the learned Single Judge proceeded to pass the order dated 5th May, 2003.

It may be mentioned that in the case of B.L. Wadhera (supra) [Writ Petition (C) No. 397/92] the Apex Court gave number of directions which are contained in judgment dated 1st March, 1996 . We are concerned with direction No. 11 which reads as under:

"The M.C.D. shall not use the filled up SLFs for any other purpose except forestry. There are 12 such sites including Rajiv Gandhi Smritivan. We direct the M.C.D. to develop forests and gardens on these 12 sites. The work of afforestation shall be undertaken by the M.C.D. with effect from 1.4.1996 and an affidavit shall be filed by the end of April indicating the progress made in this respect."

After this judgment was rendered by the Apex Court the matter had been coming up before the Apex Court from time to time for the purpose so see that directions which had been given by the Court are implemented by the concerned authorities. On 23rd January, 1998 the Supreme Court transferred the matter to this Court for monitoring and implementation of the directions given vide judgment dated 23rd January, 1998. The operative portion of this order reads as under:

"Having regard to the fact that the detailed directions have been given by this Court vide its judgment dated March 1, 1996, we are of the view that it would be more appropriate that further monitoring and the implementation of those directions is dealt with by the Delhi High Court in the light of the subsequent orders that have been passed by this Court in this matter. We, therefore, direct that the papers be transferred to the Delhi High Court so that the necessary directions for monitoring and implementation of the directions given by this Court under judgment dated March 1, 1996 and the subsequent orders can be undertaken. Copy of the orders that have been passed in this matter should also be sent to the Delhi High Court."

10. After transfer of the case to this Court, it is registered as CWP No. 841 /98. It is in this writ petition that the DMRC had filed CM No. 1689 /99 and order dated 28th April, 1999 was passed permitting the DMRC to use the land for the purpose mentioned in the application, namely," Car Shed & Maintenance Depot". It would be apposite to reproduce the operative portion of this order as well:

"On 15.12.1998 in the minutes of the meeting, it is recorded that 20 hectares of land in question can be taken over by Delhi Metro Rail Corporation after completing necessary formalities. As regards direction issued with respect to use of the land, it was thought fit to seek clarification from the Court. It is stated by learned Counsel for applicant that DMRC had approached Central Pollution Control Board and Central Pollution Control Board was of the view that DMRC should obtain environment impact assessment report. In case the said report is made available, Central Pollution Control Board will have no objection in allotting the land to DMRC and in making use of the land by DMRC for the purposes stated in this application.

In view of the above, subject to the applicant obtaining environment impact assessment report and submitting the same with Central Pollution Control Board, it is hereby clarified that it will be permissible for the applicant to make use of the land for the purposes mentioned in this application."

11. On 5th May, 2003, when the instant matter was before the learned Single Judge it was pointed out that in view of the aforesaid directions of the Division Bench, the new site allotted to the appellants herein could be used for the purpose of idle truck parking site. The appellants made a statement to comply with the norms of the Central Pollution Control Board having regard to the order dated 28th April, 1999 passed by Division Bench of this Court. The MCD also agreed to sanction the plan.

12. Although it is stated by the appellants that when they agreed for allotment of the present site as an alternate site in the year 2000, they did not know about the Apex Court's directions that the land in question can be used only for the purpose of forestry/green area and they came to know of such directions of the Apex Court only when the MCD refused to sanction their plan vide communication dated 27th March, 2003, fact remains that when the agreed solution was worked out on 5th May, 2003 all the parties, including the appellants herein, were aware of the Apex Court's order dated 1st March, 1996 as well as order dated 28th April, 1999 of the Division Bench of this Court in CWP No. 841/98. It, therefore, can be inferred that all the parties had understood the implication of these orders. The appellants herein also understood that after the Division Bench order dated 28th April, 1999 land in question could be used by the appellants for idle truck parking site and further that they would be in a position to make necessary construction thereon as the MCD had also agreed to sanction the requisite plans as per the controlled drawings.

13. Faced with aforesaid matrix, Mr. Ravinder Sethi, learned Senior Counsel for the appellants made following twin submissions to challenge the order dated 5th May, 2003 passed by the learned Single Judge:

(i) The land in question is a sanitary landfill site which can only be used for the purpose of forestry as per direction No. 11 of the Apex Court contained in the judgment dated 1st March, 1996 passed in the case in the case of B.L. Wadhera (supra).

It was submitted that user of this site for any other purpose would be in violation of orders of the Supreme Court. It was his submission that even a consent order cannot be passed which violates the directions of the Apex Court.

(ii) The Division Bench of this Court could not pass order dated 28th April, 1999 in CWP No. 841/98 which amounted to modification of the aforesaid direction No. 11 of the Apex Court. It was submitted that the Apex Court had referred the case to the High Court only for the purpose of monitoring and implementation of its directions.

In the alternative, it was submitted that in the application of the DMRC on which order dated 28th April, 1999 was passed by the Division Bench was for utilisation of the land as Car Shed & Maintenance Depot. There was, therefore, no such permission to use the land as idle truck parking site and for this reason also the said order of the Division Bench could not be made basis for allotting the land for this purpose.

The learned Senior Counsel for the appellants, accordingly, concluded his arguments by submitting that either the appellants be allowed alternate land at some other place or they be given proper compensation for the land at Majnu Ka Tilla or the respondents should obtain appropriate permission from the Supreme Court for allowing them to allot the land to the appellants for the purpose of idle truck parking site which is the only competent Court to do so.

14. On behalf of the DMRC, Mr. Virender Sood, learned Counsel contended that it is only after the appellants opted for alternate site at Khyber Pass, where they are now allotted the plots, that the DMRC developed the said site by spending Rs. 3.30 crores and, therefore, they are estopped from contenting otherwise. It was further submitted that the land presently in occupation of the appellants at Majnu Ka Tilla was urgently required by the DMRC for the purpose of Metro Rail, i.e. for developing a Car Shed and Maintenance Depot for the underground metro corridor from ISBT to Delhi University. Most of the occupants had already handed over the possession of the land to the DMRC except the appellants, which was hampering the progress of the project of significant importance and this could have very serious and far-reaching repercussions. It was also submitted that order dated 5th May, 2003 was a consent order and the learned Single Judge had, keeping in view all the pros and cons, worked out a solution to the problem with the consent of all the parties and it was neither proper nor permissible for the appellants to challenge this order in appeal. It was further submitted that the order dated 28th April, 1999 passed by the Division Bench in CWP No. 841 /98 had given clearance to the DMRC to develop the land in question which was a landfill site as Car Shed and Maintenance Depot for the underground metro corridor from ISBT to Delhi University. It could be inferred, therefore, that the DMRC could allot the land to the appellants out of aforesaid 20 hectares. It was also submitted that ownership of the land at Majnu Ka Tilla, which was in occupation of appellants, was with the L&DO and the DMRC had purchased that land for valuable consideration from the L&DO and, therefore, the DMRC had become the owner thereof. The appellants had no right to occupy the said land. It was also submitted that in lease agreement entered into between the DDA and the appellants either on license basis or lease basis, was of no effect as the DDA was not the owner of the land and, therefore, had not right to enter into such agreements. It was argued that since the appellants did not have any ownership rights in the land, the question of evicting them by following the procedure envisaged in the Land Acquisition Act or paying them compensation did not arise. If at all the appellants were entitled to any compensation, that was the liability of the DDA, it was contended. The learned Counsel also highlighted that Metro Rail between ISBT to Delhi University was to be completed as per the deadline by December, 2004 and conduct of the appellants in not vacating the land in their occupation was unnecessarily causing delay. He also pointed out that in the idle truck parking site at Majnu Ka Tilla, there were 81 licensees and 34 lease holders. All 81 licensees have vacated the old plots and delivered the possession to the DMRC. Out of 34 lessees, 8 have vacated their old plots. 17 of these 34 lessees have taken possession of the new allotted sites from the DDA which include 4 appellants as well as, namely, appellant Nos. 1, 2, 16 and 19.

15. We have given our utmost consideration to the respective submissions of the Counsel appearing on either side. As pointed out above, normally such an appeal was not maintainable as order dated 5th May, 2003 is passed with the explicit consent of all the parties, including the appellants. However, we are forced to examine this issue only because of the contention raised by the appellants that the solution worked out by that order goes contrary to the directions of the Apex Court in the case of B.L.Wadhera (supra). From a reading of direction No. 11 contained in the judgment dated 1st March, 1996 of the Apex Court, it is clear that a specific direction is given that the MCD shall not use the filled up land filling site for any other purpose except for forestry. Direction was given to the MCD to develop forests and gardens on these sites. It Was also directed that the work of afforestation shall be undertaken by the MCD with effect from 1st April, 1996.

16. No doubt, 20 hectares of the aforesaid land at Khyber Pass was needed by the DMRC for Metro Rail project. Land in question was to be used for Car Shed and Maintenance Depot for the underground metro corridor from ISBT to Delhi University. CM No. 1689/99 was filed by the DMRC in CWP No. 841/98 seeking clarification from this Court so that allotment of land for locating Car Shed and Maintenance Depot for the underground metro corridor from ISBT to Delhi University does not come in the way to the Court's monitoring the proceedings in the writ petition. We have perused the copy of that application. It is specifically stated in the application that the Ministry of Urban Affairs and Employment, L&DO had vide letter dated 22nd February, 1999 asked the DMRC to seek clarification from this Court so that allotment of land for locating Car Shed and Maintenance Depot for the underground metro corridor for Delhi MRTS project is processed and proceeded with. It is also mentioned that it transpired that land in question actually belonged to the L&DO and there was no record to show that it was ever handed over/transferred to the MCD for any purpose. On these facts, prayer made in the application was couched in the following language:

"In view of the above facts and circumstances and for meeting ends of justice, it is respectfully prayed that this Hon'ble Court may be pleased to allow applicant-Corporation, Delhi Metro Rail Corporation Ltd. to intervene in the matter and for clarification that allotment of land at Khyber Pass does not come in way to Hon'ble Court's monitoring the proceedings in above said writ petition."

17. On this application order dated 28th April, 1999 was passed by the Division Bench clarifying that it would be permissible for the DMRC to make use of the land for the purpose mentioned in the application, namely, for locating Car Shed and Maintenance Depot for the underground metro corridor from ISBT to Delhi University. This order has become final as nobody challenged this order. However, this order does not give permission for use of the land for idle truck parking site. It could not be disputed by learned Counsel for the DMRC that use of the land for idle truck parking site would be contrary to direction No. 11 given by the Apex Court in the case of B.L. Wadhera (supra). His only submission was that necessary permission was given by the Division Bench vide order dated 28th April, 1999. We are unable to accept this submission.

18. May be due to changed circumstances and exigencies, the land in question is required for idle truck parking site for which land has already been developed by spending substantial amount under the bona fide belief that the Division Bench permitted the DMRC to allot this land to the appellants for this purpose. Division Bench passed an order earlier after hearing all the parties, their Advocates. We are not expected to sit in appeal over the order made by Division Bench. Suffice is to say that concerned parties appeared before the Division Bench and did not raise the contention. Thus it would be for them to challenge the order. As permission was granted for a purpose indicated, that part of land can be used for that purpose only.

19. In so far as handing over possession of land at Majnu Ka Tilla, in occupation of the appellants is concerned, which is required by the DMRC, we are of the opinion that having regard to peculiar facts and circumstances of this case, including conduct of the appellants herein, the appellants are not entitled to retain the possession and they should hand over the same to the DMRC. This view we take after considering, amongst other, the following significant aspects of this case:

(a) The DMRC has purchased the land in question from the L&DO for valuable consideration and it has transpired that it is the L&DO which was actual owner of the land.

(b) When the L&DO was the owner of the land, whether the DDA could execute lease granting 99 years of lease in favor of the appellants would be a moot question. We are not entering into this controversy in the present proceedings as we are not called upon to do so. Suffice is to state that if it is found that the DDA had nothing to do with the land in question of which the L&DO was the owner, the very lease agreements executed between the appellants and the DDA would be of no consequence. Remedy, if any, in such a case for the appellants would be against the DDA for damages/compensation etc.

(c) As far as land in question is concerned, prima facie, the appellants have no right therein of which the DMRC has become the owner.

(d) The DMRC needs the land in question on urgent and emergent basis. The importance of Metro Rail Project and the substantial public purpose which is involved therein, is well known which hardly needs any elaboration.

(e) Conduct of the appellants as discussed above, particularly in para 12, also disentitles them to seek any further time. As pointed out above, when the agreed solution was worked out on 5th May, 2003 all the parties, including the appellants herein, were aware, of the Apex Court's order dated 1st March, 1996 as well as order dated 28th April, 1999 of the Division Bench of this Court in CWP No. 841/98. It, therefore, can be inferred that all the parties had understood the implication of these orders. The appellants herein also understood that after the Division Bench order dated 28th April, 1999 land in question could be used by the appellants for idle truck parking site and further that they would be in a position to make necessary construction thereon as the MCD had also agreed to sanction the requisite plans as per the controlled drawings. However they have backtracked and filed this appeal. What is sought to be highlighted is their conduct in the whole process and that they should have examined these aspects at the stage when the matter was pending before the learned Single Judge. It would have saved much time and unnecessary botheration.

(f) As per the appellants' own offer, they would be satisfied if compensation is given instead of alternate site. This may be the obligation of the DDA. It would be, therefore, for the DDA to consider this and pay compensation to the appellants if they are entitled to the same. As far as land in occupation of the appellants at present in Majnu Ka Tilla is concerned, they cannot continue to occupy.

20. We accordingly dispose of the present appeal with the following directions:

(I) This order may not be treated as bar to DMRC from approaching appropriate Court for modification of the order so as to use the part of land for Idle Truck Parking.

(II) On application/representation being made by the appellants within two weeks, the DDA may consider the case of alternative site or compensation within four weeks from receipt of the application.

(III) The appellants shall hand over the possession of the land in their occupation at Majnu Ka Tilla to the DMRC by 8th August, 2003.

21. There shall be no order as to costs.