Daya Nand (Shri) And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 100 Del

JUDGMENT

D.K. Jain, J.

1. In both these writ petitions, challenge is to the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') in respect of the land pertaining to the same village, namely, Poothkalan poptilarly known as Mange Ram Park, Harshdev Park Extension of Budh Vihar, Delhi. Notification under Section 4 is No. F.9(16)/80-L & B dated 11 December 1981 and declaration under Section 6 was issued on 16 April 1984.

2. The stand of the petitioners is that the erstwhile owners converted this land into plots and sold the same to various persons, including the petitioners, much before the issuance of the aforesaid Notifications. The petitioners built up their houses, rooms, structures and boundary walls thereupon; they are in actual physical possession of the land and houses standing thereon and are actually living and residing there. It is also pleaded that over the land, subject matter of acquisition proceedings, a colony known as Budh Vihar, Phase-II has already come up. It is argued that, on the one hand the land is sought to be acquired and on the other hand, a decision has been taken by the Government of India, Ministry of Works and Housing to consider regularisation of this colony. Reference in this respect is made to the orders dated 16 February, 1977 and 3 July, 1982. Order dated 16 February, 1977 (Annexure P-1), inter alia, records that the Government had appointed a Committee on 26 August, 1974 to make a case by case study in respect of all unauthorised colonies which have come up in Delhi, particularly before 15 June, 1972 with a view to take a decision in regard to the future of such colonies. The Committee submitted its report on 26 February, "J 975 which was examined by the Government and it was decided that various unauthorised colonies which had come up in Delhi, including those around villages outside the lal dora as also the unauthorised extensions of approved colonies from time to time would be regularised on the terms and conditions see out therein. Para 6 of the terms and conditions stipulates that colonies which have been notified for acquisition, would also be considered for regularisation and wherever necessary, other steps would be taken.

3. The case of the petitioners, therefore, in nutshell, is that since the colony in question is one of the unauthorised colonies in respect of which decision was taken to regularise on terms and conditions contained in the aforesaid circulars, the acquisition proceedings are liable to be quashed.

4. On the other hand, Mr. Poddar, learned Counsel for the respondents has submitted that on the basis of the aforesaid decision, the petitioners cannot challenge the validity of Notification under Sections 4 and 6 of the Act, which were issued in. exercise of statutory powers and are thus, statutory in nature. It is submitted that the Act is a complete Code in itself and once Notifications under Sections 4 and 6 of the Act have been issued, the land, subject matter of acquisition, could be released, before its possession is taken, only by passing an appropriate Order/Notification under Section 48 of the Act. In support, he has referred to a decision of a learned Single Judge of this Court in the case of Moolchand Gaur v. Delhi Development Authority and Ors., reported in 2002 (65) DRJ 313, wherein many other judgments of this Court as well as of the Supreme Court on the issue have been noted and considered.

5. In so far as the legal position is concerned, we are unable to accept the submission of learned Counsel for the petitioners that merely because on the subject land an unauthorised colony has come up and now a decision has been taken to regularise it, the acquisition proceedings are rendered illegal and are, therefore, liable to be quashed.

6. A policy decision simplicitor has no statutory force and cannot negate the decision taken by the Government in exercise of its statutory powers contained in the Act for acquisition of land. Thus, there is no legal basis for challenging Notifications under Sections 4 and 6 of the Act issued respectively on 11 December, 1981 and 16 April, 1984 acquiring the land in question, on the ground that the colony is now proposed to be regularised. The legal position in this respect is succinctly explained by a learned Single Judge of this Court in the case of Moolchand Gaur (supra). Relying on the decision of the Apex Court in the case of Balmokand Khatri Educational and Industrial Trust Amritsar v. State of Punjab and Ors., , the learned Judge has held that the land having been acquired and handed over to the DDA under Section 22(1) of the DDA Act, 1957, it stood vested in the DDA, the petitioner as such was left with no right in the property and his continued possession was illegal and unlawful.

7. This position was earlier re-affirmed, though in a different context, by a Division Bench of this Court in the case of M/s. Prem Chand Rantesh Chand v. Delhi Deoelopment Authority and Anr., reported as of which one of us (D.K. Jain, J.) was a member. It was held that a Notification under Section 4 or declaration under Section 6 of the Act cannot be invalidated merely on the ground that a policy decision had been taken by the Government to regularise the unauthorised colonies and petitioners structures would also be regularised. A similar view has been expressed by a Full Bench of this Court in the case of Roshanara Begum v. Union of India, , which has since been upheld by the Supreme Court in Murari Lal and Ors. v. Union of India and Ors., reported as . Nevertheless despite the above legal position, we cannot be oblivious of the hard reality staring at us that this colony, land in respect of which is sought to be acquired, is in existence for last more than thirty years and was in the list of the colonies which were to be regularised.

8. It is not a case of an individual or a few persons whose land is acquired and the acquisition is challenged on the ground that construction has been raised on the said land. Here is case where on the subject land a full fledged colony has come into existence. True that it was an unauthorised colony but the fact remains that a number of such colonies have sprung up in Delhi and the Government has been addressing itself as to how these unauthorised colonies have to be dealt with. Communication dated 16 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 26 August, 1974 to make a case by case study in respect of unauthorised colonies which had come up in Delhi from time to time, in particular, before 15 June, 1972 with a view that the Government could take a decision in regard to the future of such colonies. The said Committee submitted its report on 26 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 wherever necessary other represential steps will be taken."

9. It is, thus, clear that it was in the contemplation of the Government that some of the colonies, in respect of which decision is taken to regularise them, are the ones which have been notified for acquisition. It was decided to take necessary steps for the purpose of such regularisation. Perhaps for this reason, no steps were taken to take possession of the land, although Notification under Section 4 in this case was issued on 11 December, 1981, with the result that these colonies, which came into existence in earlier 70s, are in existence for last more than 30 years.

10. It is pertinent to note that the land was sought to be acquired for the purpose of 'Planned Development of Delhi'. It appears that it was to be handed over to the DDA for some housing project and on the land in question houses already exist. No return is filed either by the Government or the DDA controverting these averments of the petitioners. Therefore, we have no option but to proceed on the basis that possession is still with the petitioners and there is no Notification under Section 22(1) of the Delhi Development Act, 1957 placing land at the disposal of the DDA.

11. In view of the factual scenario projected above, we are of the opinion that the ends of justice would be met if the writ petitions are disposed of with the following directions:

(I) While sustaining Notifications under Sections 4 and 6 of the Act, it is directed that the petitioners shall make appropriate representation to the Competent Authority under Section 48 of the Act for denotification of the land. On making such application within two weeks from the date of receipt of copy of this order, the respondents shall consider the same within six months from the date of making such representation.

(II) If the decision is taken to denotify the land, the Government shall be free to impose the conditions as are set out in communication dated 16 February, 1977 on which regularisation is to be done, i.e. with regard to lay out plan, provision for road and other community facilities, payment of development charges etc.

(III) Till such a decision is taken, the possession of the petitioners shall not be disturbed.

12. The writ petitions stand disposed of accordingly. No costs.