Sandeep Kakkar And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 382 Del

JUDGMENT

A.K. Sikri, J.

1. In this writ petition filed by the petitioners under Article 226 of the Constitution of India, following prayers are made:

"It is, therefore, most respectfully prayed that Your Lordships may be graciously pleased to issue a Writ of Mandamus, Prohibition and Certiorari or any other appropriate Writ, Order or Directions to respondents, in the nature of:

A.I. Declaration that the Notification No.F.15(III)/59-LSG date d 13.11.1959 issued under Section 4 of the Land Acquisition Act and the Map enclosed with the said notification does not cover and does not relate to petitioners' land comprising Khasra Nos. 3984/2500/1934/1, measuring 2 Bighas 15 Biswas, situated in the Revenue Estate of village Basai Darapur, Tehsil Patel Nagar, West District, New Delhi, corresponding to Municipal Property Nos. WZ-90, WZ-92A, WZ-92B and WZ-92C, Raja Garden, facing Ring Road, New Delhi 110 015 owned and possessed by petitioners, and all notifications, declarations and notices including Corrigendum and Award No. 33-B/85-86 of village Basai Darapur allegedly made on 9.10.1985 by Respondent No. 3 on the basis of said instruments are null and void, suffer from unconstitutionality, legal mala fide and abuse and excess of authority and power, apart from being violative of Articles 14 and 300A of the Constitution of India.

II. FURTHER DECLARE that the acquisition proceedings in respect of land of the Petitioners is/arevoidab initio, of no legal effect being a fraud on the Land Acquisition Act and the Constitution.

III. AND FURTHER DECLARE in the alternative, that the Municipal Corporation of Delhi Respondent No. 5 having approved and regularised Raja Garden unauthorised portion on Ring Road by- a Resolution No. 3011/Stg.dated 25.1.1983 in pursuance of Government of India Respondent No. 1 Policy Decision made and announced on 16.2.1977 and thereafter building plans having been sanctioned and approved by MCD and buildings having been constructed the appropriate Government has withdrawn from acquisition proceedings in respect of the said land of the Petitioners.

B.     To issue order, directions or writ in the nature of:
  

(i)    Certiorari to quash and set aside entire acquisition proceedings qua the land of the petitioners particularly set aside notification No.F.15(III)/59-LSG dated 13.11.1959 issued under Section 4 and Declaration issued under Section 6 bearing notification No. F.4(35)/65-L&H dated 28.1.1966 and Corrigendum Notification No. F.4(35)/65-L&H dated 20.3.1967and alleged Award No. 33-B/85-96 of Village Basai Darapur allegedly made on 9.10.1985 by Respondent No. 3 being illegal, mala fide and unconstitutional in respect of the land subject matter of the writ petition.
 

(ii)   Mandamus directing to the respondents not to act contrary to law and to restrain them from disturbing peaceful possession and enjoyment of their immovable properties standing on the subject land.
 

(iii) Call for the entire records of acquisition proceedings from the offices of the concerned Respondents belonging to petitioners as well as other similar cases where denotification have been issued by the Respondents as detailed in the writ petition and after examination of the records to quash the entire acquisition proceedings.

(iv) Any other order, direction, writ, declaration as this Hon'ble Court may in the circumstances of the case consider fit and proper be also granted.

(v) Cost of this Petition is also prayed."

2. As would be clear from the aforesaid prayers, primary contention raised in the writ petition is that Notification Dated 13th November, 1959 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') did not cover the land of the petitioners comprising Khasra Nos. 3984/2500/1934/1, measuring 2 Bighas 15 Biswas, situated in the revenue estate of village Basai Darapur, Tehsil Patel Nagar, West District, New Delhi, corresponding to Municipal Property Nos. WZ-90, WZ-92A, WZ-92B and WZ-92C Raja Garden and thus all subsequent proceedings in relation to this land are null and void and of no effect.

3. The petitioners claim themselves to be the owners of the aforesaid land which they purchased vide registered sale deeds, particulars of which are given in para 6 of the writ petition supported by documentary evidence.

4. The Delhi Administration through the Chief Commissioner of Delhi issued Notification No. F.15(III)/59-LSG dated 13th November, 1959 under Section 4 of the Act. The said Notification covered area of land measuring 34070 acres. It referred to Blocks A to T and X. The area under compulsory acquisition was specified in the map annexed to the said Notification. No Khasra numbers or names of the localities were given. Only boundaries were indicated broadly but the map was specific and formed part of the Notification. The petitioners allege that their land, subject matter of this writ petition, was excluded in the said map of Block F. However, thereafter the respondents issued Declaration under Section 6 of the Act on 28th January, 1966 for an area of 525 bighas 8 biswas of village Basai Darapur which included the aforesaid land of the petitioners. In this Declaration Khasra No. 3984/2500/1934 was mentioned. Corrigendum to this Declaration under Section 6 was issued subsequently on 20th March, 1967 and for the figures '3984/2500/1934' the figures '3984/2500/1934/1' was substituted. The land of the petitioners was specifically covered by Section 6 Declaration. Matter regarding regularisation of these colonies Was considered by the Government and the policy was formulated which finds mention in communication dated 16th February, 1977 issued by the Ministry of Works & Housing, Government of India.

5. After formulation of the aforesaid policy dated 16th February, 1977, the Standing Committee of the Municipal Corporation of Delhi (MCD) prepared a regularisation plan of Raja Garden unauthorised portion on Ring Road including the petitioners' buildings and houses in January, 1983. It may be mentioned that in respect of all these houses, the MCD had been collecting property tax since 1966. Under this plan of 1977 many colonies were regularised. In fact it is the case of the petitioners that between 1978 and 1990, 550 unauthorised colonies in Delhi, which were on land either notified or acquired under the Act, were regularised by the MCD or the Delhi Development Authority (DDA). Presumably, for this reason no further steps were taken after Section 6 Declaration way back in the year 1966, However, almost 20 years after i.e. on 9th October, 1985 Award No. 33-B/85-86 was made in respect of the land covered by Declaration dated 28th January, 1966 readwith 20th March, 1967. Still possession was not taken in view of the aforesaid policy of the Government. On the other hand, inconfirmity with its policy the MCD requested the Land Acquisition Collector (LAC) and the Secretary, Land & Building to denotify the land in question as the Standing Committee of MCD had already approved the same by Resolution in terms of Government of India's policy dated 16th February, 1977. Communications to this effect written by the MCD are 15th November and 19th November, 1985. In the letter dated 15th November, 1985 written to the LAC, it is, inter alia, stated as under:

"....Now according to the layout plan sent by T.P. recently the site No. 4 comprising Khasra No. 1934 have been shown as plots, the site No. 4 is not required for acquisition, the demarcation of this site was also given along with other C.F. sites to L.A.C. staff on 13.8.1985..."

6. Likewise, MCD in its letter dated 19th November, 1985 reiterated its position in the following words:

"....In this connection your attention is invited to this office letter No. HC(M)/ L&E/85/4601 dated 15.11.85 wherein it was requested that site No. 4 be denotified from acquisition because this has already been approved by the Standing Committee of the Municipal Corporation of Delhi vide Resolution No. 3011/Stg. dated 25.1.85...."

Even the petitioners made various requests to the respondents for denotification of the land from time-to-time during the period from 1991-1998.

7. As the MCD was of the opinion that the land was not required and should be denotified from acquisition, it went ahead in even sanctioning the building plans of some of the petitioners for additions and alterations and completion certificates were also issued by the MCD during the period from 1986 to 1995.

8. However, on the one hand no heed was paid to the requests of the MCD as well as the petitioners for denotification of the land and no decision was taken and on the other hand, respondent No. 3 came to the site on 28th August, 1998 along with demolition squad and bulldozer in order to take the possession of the land in question. The efforts were thwarted by the petitioners and immediately thereafter on 31st August 1998 present writ petition was filed with prayers already quoted above.

9. On 7th September, 1998 while issuing show cause notice in the writ petition, in the stay application it was ordered that the petitioners shall not be dispossessed and their property will not be demolished in the meantime. The respondents were duly served which include, apart from Union of India, Land Acquisition Officer, Municipal Corporation of Delhi and Delhi Development Authority as well. Counter affidavit, however, was not filed. On 9th April, 1999 further time was given and matter was adjourned to 6th September, 1999. As the needful was not done, last opportunity of four weeks was provided for this purpose on 6th September, 1999 and the matter was adjourned to 18th January, 2000. Still the respondents failed to file the counter affidavit. Accordingly, on that date 'rule' was issued and in the stay application, following order was passed:

"Interim order shall continue during the pendency of the writ petition. Liberty is, however, granted to the respondents to seek variation of the order when the counter affidavit is filed."

10. Even thereafter the respondents failed to file the return till the date when the matter came up for hearing and nobody appeared for the respondents as well. We, therefore, heard the learned Senior Counsel for the petitioners only without any assistance from the respondents.

11. The factual matrix narrated above would disclose that the acquisition is challenged on two counts:

(a) Section 4 Notification does not cover the land of the petitioners which is sine qua non of the acquisition proceedings. In the absence of Section 4 Notification all further proceedings are null and void and of no effect. Therefore, Section 6 Declaration as well as Award are liable to be set aside, qua the land of the petitioners, on this ground.

(b) Colony where the land of the petitioners is situated was an unauthorised colony. As per the policy of the Government itself, it has been regularised and in respect of such land the policy of the Government is to denotify the land. However, even when the MCD has made this request in addition to the requests of the petitioners in this behalf, no decision is taken by the respondents.

12. As far as first contention is concerned, it was pointed out by Mr. Lekhi that admittedly in the Notification dated 13th November, 1959 issued under Section 4 of the Act, no Khasra Nos. are mentioned and the land is specified by the blocks, boundaries of which are stated in the Notification. However, the land so covered by these Blocks is shown in the map and coloured as well. Mr. Lekhi's submission was that insofar as land of the petitioners is concerned, the same is not coloured in the map which would clearly demonstrate that in the Notification issued under Section 4, the land of the petitioners is not included.

13. There is force in the contention of Mr. Lekhi. It is clear from the reading of Notification dated 13th November, 1959 issued under Section 4 of the Act that vast area of land measuring 34070 acres in Delhi was sought to be acquired. In para 2 of the Notification, it was stated:

"... It is hereby notified that the land, measuring 34070 acres and marked with block Nos. A to T and X in the enclosed map (Annexure I) and the description of which has been given in Annexure II..."

14. Annexure I was the map, wherein the area with Blocks A to T and X was marked and in Annexure II description of the land is given. Reading of Annexure II would clearly demonstrate that no Khasras are given and boundaries of various places which were sought to be acquired are delineated. The place where the land of the petitioners falls is in Block F and following description is given in respect of this Block in Annexure II:

"Block F:

Starting from the junction of the southern and Moti Nagar colony and Najafgarh Road towards south-west along the north-western boundary of Najafgarh Road up to Mile Stone 9 on the Najafgarh Road. Thence towards north along an imaginary line joining the 9th Mile Stone to the southern point of the village Abadi or village Keshopur. Thence towards north and north-east skirting the village Keshopur and along katcha road from Keshopur to Nangloi Saidan up to its junction with Najafgarh drain. Thence towards north-east along the southern bank of Najafgarh drain up to its junction with katcha road from village Khayala to village Jwala Heri. Thence along the eastern boundary of this katcha road from village Khayala to Rohtak Road up to a point 1,000 ft. to the south of the Rohtak Road. Thence towards west parallel to Rohtak Road 1,000 ft. west of it up to Nangloi drain. Thence towards north along the Nangloi drain up to its junction with Rohtak Railway line. Thence towards east along the southern boundary of the Railway land up to the boundary of the defense land (Shakur Basti C.O.D.). Thence towards south along the western boundary of the C.O.D. up to Rohtak Road. Thence towards east along the southern boundary of Rohtak Road up to the western boundary of Punjabi Bagh colony. Thence towards south along the western boundary of Punjabi Bagh colony up to its junction with Najafgarh drain. Thence towards east along the southern bank of Najafgarh drain up to its junction with Moti Nagar (Rehabilitation colony). Thence towards south-east along the southwestern boundary of Moti Nagar up to the point of start. (Except the areas covered by:

(a) Tilak Nagar.

(b) Bali Nagar.

(c) Kailash Park.

(d) Lakshmi Garden)"

15. Thus in the absence of specific Khasra numbers, whether land of the petitioners falling in Block F was covered or not, can be seen from the map, namely, Annexure I. A perusal of Annexure I would show that the land which is covered by the Notification is shown in brown colour. Some additional land numbers for acquisition is also shown in yellow colour. According to the petitioners, their land is situated on the north-east side of Block F which is not coloured and it falls opposite Ramesh Nagar. It may be mentioned that in between Blocks F and F, places like Tilak Nagar, Tihar, Rajouri Garden, Ramesh Nagar, etc. are not covered by the Notification as they are not coloured presumably because of the reason that they were already constructed and colonies developed. Mr. Lekhi submitted that precisely for this reason portion where the petitioners' land falls was also excluded from acquisition as this land was also built up and thickly populated. To this specific averment made in the writ petition, there is no denial.

16. As already pointed out above, neither any counter affidavit is filed by any of the respondents nor the respondents were represented at the time of hearing. We have to therefore accept the version of the petitioners as stated in the writ petition and demonstrated before us by Mr. Lekhi at the time of arguments. The conclusion would be that the land of the petitioners was not subject matter of the Notification dated 13th November, 1959 issued under Section 4 of the Act

17. Consequence would be obvious. As issuance of Notification under Section 4 of the Act is sine qua non of the acquisition proceedings, in the absence of such a Notification all further proceedings would be null and void and of effect. It is so held repeatedly that in the absence of notification under Section 4 of the Act

subsequent acquisition proceedings initiated under Sections 6 and 11 of the Act are illegal and cannot be sustained [see Ram Kishan v. Union of India and Ors., ]. Following passage from the judgment in the case of Smt. Angira Devi Gupta and Ors. v. Land Acquisition Collector, Delhi and Ors., succinctly brings out the legal position;

"The process of acquisition must start with the notification under Section 4 of the Act

and the notification under Section 4 of the Act

is sine qua non. In the absence of Section 4 of the Act

notification no acquisition proceedings can subsist as neither the Collector can enter upon the property for the purposes mentioned in Sub-section (2) of Section 4 of the Act

, nor can the Collector hear the objections under Section 5A, nor can it submit the report to the appropriate Government for consideration and issue of the declaration under Section 6. The essential mandatory requirement of initiation of acquisition proceedings is the issuance of notification under Section 4 of the Act

of the Act covering the land proposed to be acquired. The award of the compensation is on the basis of the market value as on the date of Section 4 of the Act

notification. Where there is no notification under Section 4 of the Act

, the machinery provided by the Act for determination of compensation obviously cannot apply."

18. The Land Acquisition Act, a Central Statute, has conferred power on public authorities to acquire the land by imposing conditions about procedure. It starts with publication of Notification under Section 4 of the Act of the Act, wherein the persons whose land is sought to be acquired are given a notice to this effect. They are given valuable right to file objections under Section 5A of the Act. After consideration of these objections if the public authorities do not find any merit therein, Declaration under Section 6 is issued whereby the Government signifies its intention to acquire the said land. Condition of issuing notice under Section 4 of the Act

of the Act is clearly mandatory and cannot be treated as directory. Non-observance of a mandatory condition would be fatal to the validity of the action. Procedural safeguards, which are so often imposed for the benefit of persons affected by the exercise of administrative powers, are normally regarded as mandatory, so that it is fatal to disregard them. Where there is a statutory duty to consult persons affected, this must genuinely be done and reasonable opportunity for comment must be given. Where a proposal or scheme is required to be public it must be accurately described and any one entitled to object must be allowed adequate time. All such procedural safeguards are treated as mandatory. [see: Grunwick Processing Laboratories Ltd. v. ACAS, (1978) AC 277; Port Louis Corporation, v. Attorney General of Mauritius, (1965) AC 1111].

19. Once we find that there is no Notification issued under Section 4 of the Act of the Act qua the land of the petitioners any further action, namely, Declaration under Section 6 or passing of the Award would be without jurisdiction and thus ultra vires. An act or order which is ultra vires is a nullity, utterly without existence or effect in law. That is the plain meaning of 'void', the term most commonly used.

20. It is well established that if administrative action is in excess of power it is ultra vires and the Court can quash such an order. In Boddington v. British Ttransport Police, [1999] 2 AC 143, Lord Steyn remarked that the simple proposition that a public authority may not act outside its powers (ultra vires) might firstly be called 'the central principle of administrative law'. In the same judgment Lord Browne-Wilkinson observed that the juristic basis of judicial review is the doctrine of ultra vires'. H.W.R. Wade has approached this issue in the following manner:

"Any administrative act or order which is ultra vires or outside jurisdiction is void in law, i.e. deprived of legal effect. This is because in order to be valid it needs statutory authorisation, and if it is not within the powers given by the Act, it has no legal leg to stand on. Once the Court has declared that some administrative act is legally a nullity, the situation is as if nothing had happened."

21. We are conscious of the fact that even in respect of acquisition proceedings on the basis of void orders, it has been held by the Supreme Court that there can be no challenge to the acquisition proceedings after possession of land is taken and the land is vested in the State [Refer. State of Rajasthan and Ors. v. D.K. Laxmi and Ors., and Delhi Development Authority v. Shyam Sunder Khanna and Ors., ].

22. This subject has been explained by us in a recent judgment dated 26th March, 2004 passed in W.P. (C) No. 2361/1987 nd after scanning numerous case law on this aspect, following principle was stated:

"In view of the aforesaid pronouncements, including the recent judgment of the Supreme Court in the case of Delhi Development Authority v. Shyam Sunder Khanna (supra), the principle which can be deduced is that even in the case of void order, the aggrieved party has to approach before such an order is enforced. Till the order is enforced (in the instant case to mean that till possession is taken) the aggrieved party may challenge the order and at that stage the question of delay, laches or waiver would not come in his way. However, after the order is enforced, namely, possession is taken and the writ petition is filed thereafter, considerations like delay, laches or waiver would become relevant even when contention raised is that the impugned order was void."

23. However, in the instant case neither the possession has been taken and therefore the Award is rot enforced nor any objection is raised by the respondents to the maintainability of the writ petition on the ground of delay, laches or waiver as no return is filed. Therefore, those judgments shall not have any application in the present case particularly when the petitioners had approached this Court before the possession could be taken and Award enforced.

24. Since the Declaration under Section 6 and Award made pursuant thereto is found to be void, in the absence of Notification under Section 4 of the Act of the Act, we hereby quash the same.

25. As the petitioners succeed on the first contention, it is not necessary to deal with the other contention in detail. However, we need to observe that averments of the petitioners even on this count have gone unrebutted. It is a matter of record that number of such colonies sprung up in Delhi and the Government had been addressing itself as to how these unauthorised colonies have to be dealt with. Communication dated 16th February, 1977 addressed by the Ministry of Works & Housing, Government of India to the Lt. Governor of Delhi on the subject "Unauthorised colonies in Delhi--approval of" itself mentions that the Government had appointed a Committee on 26th August, 1974 to make a case by case study in respect of unauthorised colonies which had come up in Delhi from time in particular before 15th June, 1972 with a view that the Government could take a decision in regard to the future of such colonies.

26. The said Committee submitted its report on 26th February, 1975 which was examined by the Government and decision was taken to regularise these colonies on the terms and conditions set out therein. We are concerned with condition No. 6 which reads as under:

"Colonies which have been notified for acquisition will also be considered for regularisation and whereas necessary other represential steps will be taken."

27. Although one may not seek quashing of acquisition proceedings on this ground alone, it would be of interest to note that in the impugned Award, which was only in respect of 6 bighas 10 biswas it was mentioned that the exercise was done because of the request on behalf of the Additional Deputy Commissioner, Land & Estate Department, Town Hall, Delhi which is clear from the following portion of the Award:

"....Thoughan amendment vide notification No. F4(35)/66L&H dated March 20, 1967 the total area declared for acquisition is only 472 bighas 6 biswas and not 522 bighas 8 biswas notified on 28 January, 1966. Land measuring 87 bighas (sic.) biswas has been acquired vide Award No. 433/69-70 and 4 bighas 16 biswas acquired through award No. 33-A/69-70.

As desired by the Addl. Dy. Commissioner, Land & Estate Department, Town Hall, Delhi the acquisition proceedings for the present are confined to an area measuring 6 bighas 10 biswas. The remaining area would be acquired when the acquiring department so desire."

28. This, however, is factually incorrect as the MCD had vide letters dated 15th November and 19th November, 1985, reference to which has already been made above, requested the LAC and the Secretary, Land & Building to denotify the land in question. Not only such a request was made in the year 1985, even on 23rd December, 1997 letter was addressed by the MCD (annexed with the writ petition as Annexure P-34) clearly mentioning that the land in question was not required by the MCD. It would be useful to quote this letter addressed to the Deputy Secretary (LA), Government of Delhi, Land & Building Department in toto:

"Please refer to your letter No.F.10(Misc)/96/L&B/LA/12416 dated 20.3.1997 (copy enclosed). I am also enclosing a copy of Award No. 33-B/85-86.

As desired by you, you can let us know time and date of joint survey atleast one week in advance as convenient to you. In brief, the issue is that owner of Pocket No. 4 in Khasra No. 1934 in the Raja Garden area Basai Darapur contends that the aforesaid area is not to the acquired as already intimated to you vide our letter No. HC(M)/L&B/85/4817 dt.19.11.85 (copy enclosed) though it has been erroneously acquired as per the aforesaid award. You shall also have to kindly refund the award money paid to you, if any, for the aforesaid piece of land which is to be denotified. Kindly inform us the amount of money to be repaid back to us as well as date of joint survey, as desired by you."

29. Mr. Lekhi, during arguments, produced copy of another letter dated 9th June, 2000 reiterating the aforesaid stand of the MCD by referring to earlier communication dated 23rd December, 1997 and stating that the land in question be denotified from acquisition as it has already been approved by the Standing Committee of the MCD vide Resolution No. 3011 /Stg. dated 25th January, 1985. Mr. Lekhi also produced policy guidelines issued by the Government for denotification of land which, inter alia, provides that wherever there is a request of requisitioning department itself for denotification of land, it may be recommended for denotification. In the instant case, MCD, namely the requisitioning department has repeatedly made requests for denotification of land. There was, therefore, no reason not to consider this request. This policy also lays down parameters to be taken into consideration while considering the applications for builtup properties prior to issuance of Notification under Section 4 of the Act of the Act as well as properties built up after the issuance of such a Notification. When, therefore, the petitioners also had made requests for denotification of their land on the ground that it was thickly built-up residential colony, the least that was expected was to take a decision on such requests.

30. However, it is not necessary for us to take the matter further and issue any directions on this aspect since we are allowing the writ petition on the ground that land of the petitioners was hot covered by the Notification dated 13th November, 1959 issued under Section 4 of the Act of the Act and, therefore, Declaration and subsequent Award are to be set aside on this ground alone.

31. This writ petition is accordingly allowed. Rule made absolute. Declaration under Section 6 and Award No. 33-B/85-86 are hereby quashed.

32. There shall, however, be no order as to costs.