Sandhya Educational Society ... vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 318 Del

JUDGMENT

B.C. Patel, C.J.

1. 1894 (hereinafter referred to as "the Act ) and to quash the proceedings and to declare that the land of the petitioner society cannot be acquired. Earlier notification and Lapse on the part of officers.

2. With regard to acquisition, it is clear from the record that the land bearing khasra No. 401, was already notified for "Planned Development of Delhi vide notification issued under Section 4 of the Act on 24.10.1961 followed by a declaration under Section 6 of the Act on 2.9.1966. Award bearing No.9/73-74 was also made. Vide this Award very large area was acquired. The Delhi Development Authority utilized the entire land for the Residential Scheme known as "Yamuna Puri Residential Scheme as wells for "District Park, However, latter on, it transpired that land admeasuring 4 bigha, 3 biswas of khasra No.401 was not included in the award and the period to make the award also lapsed in view of the provisions subsequently amended. It is in vie of this, as Delhi Development Authority was in need of this land for the use of it as per master plan, immediate action was taken. Aks Shajra is placed on record at Annexure-R-2/1. The entire area was acquired and only this plot could not be acquired n account of lapse on the part of some negligent officers, who failed to make an Award though there was a declaration under Section 6 of the Act.

3. It is contended on behalf of the acquiring authority that before the declaration was made, the land owners were given an opportunity of being heard. However, due to some reasons, the Award could not be made or announced within the stipulated period and that necessitated the acquisition of the land for the same purpose and it is in these circumstances, the provisions of Section 17 of the Act came to be invoked. It is to be seen in this background.

4. On behalf of the Delhi Development Authority, one Shri Suresh P. Pandey has filed an affidavit dated 6.8.2003, inter alia, pointing out that for the acquisition of the land in question award No.25/89-90 has been drawn. It is further stated that the petitioners have no right, title or interest on the acquired land. A map is placed on record for that area to point out that there is a large area meant for District Park, which is adjacent to Yamuna Puri Residential Scheme as also touching the Police Station. From the map, it is pointed out that very large area is developed as District Park. Land in question is a part of the "District Park and is also required to be developed along with District Park. From the map, it transpires that it is a very mall parcel of land considering the entire District Park. But for this plot, shape of the "District Park is decamped and is not rectangle.

5. Case of the petitioner

6. It is averred in the petition that on 19.12.1987, the petitioner society purchased land admeasuring 4 bight 3 biswas (4150 sq. yards) in khasra No.401 in village Ghonda Gujran Khadar on full payment of Rs.1,50,000/-. For the purpose of establishing possession and ownership, the petitioners, have placed on record copy of the agreement, general power of attorney, affidavits, receipt of payment executed by the vendors and sale deed in favor of the vendors collectively at Annexure-P.3.

7. It is contended by the petitioners that in view of the notification dated 22.12.1987, the provisions of Section 5A of the Act were not applied and therefore the said proceedings are illegal, invalid, malaise and an abuse of the power. As the "Planned Development of Delhi is a long continuing process, there is no urgency for invoking Section 17 of the Act.

8. It is argued that before execution of agreement to sell, on 12.3.1987 the petitioner made an application to the Additional District Magistrate (LA), Delhi to make an enquiry whether the said land was the subject matter of any acquisition proceedings and whether the said land could be purchased by the petitioners. It is submitted that the Tehsildar Notification, acting for Additional District Magistrate (LA), Delhi, vide his letter dated 16.2.1987 addressed to the Sub Registrar, Sub District No. IV, Delhi pointing out to the Sub Registrar that the property of khasra No.401 was the subject matter of acquisition of lands and the notification issued under Section 6 of the Act dated 2.9.1966 has been lapsed. Relying on this letter, it is further contend d that on account of lapse of notification issued under Section 6 of the Act, it is clear that the land was no more required. However, soon after the letter dated 16.2.1987, the respondents issued a notification dated 22.12.1987 for acquisition of land and this is nothing but malafide exercise undertaken by the respondents to deprive the petitioners of their valuable right.

9. It is contended by the petitioners that the respondents have acquired very large area in Yamuna Vihar, which is situated adjacent to the land of the petitioner society. The said land is being sold by the respondents at the rate of Rs.2,000/- per sq. yard in public auction. The sale of land by public auction after acquisition of the land, cannot be styled as "public purpose . Except bare words of the petitioner, there is nothing to support the version, hence such submission cannot be considered.

10. The attention of the Court was drawn to an agreement at page 21 (Annexure-P.3 collectively), which was executed on 19.12.1987 between the owners of the land and the petitioners. The total sale consideration, between the parties, with regard to the said land with structure thereon was fixed at Rs.1,50,000/- and the amount has been received by the owners of the land. On receipt of the said amount, the possession was also handed over to the petitioners with all rights, titles and interest thereon.

11. It was also agreed between the parties in that agreement that in case the land is acquired, the petitioners will be entitled to receive payment of compensation in lieu of acquired land with other benefits including allotment of alternative accommodation, being provided by the Delhi Administration. The owners of the aforesaid land executed a general power of attorney on 19.12.1987 in favor of the petitioner wherein a clause is specifically incorporated at Sr. No.8, authorizing the petitioner t challenge the notification of acquisition, to file any proceedings against acquisition, if required, to file claim of compensation for acquired land, to obtain alternative accommodation and compensation in lieu of acquired land and to do all other acts, deeds and things in respect of the aforesaid property.

12. There is an affidavit of one Anil Sharma stating that he is the owner in possession of the land having 1/3rd share. It is further stated that he had agreed to sell to the petitioners, the said land along with existing structure, and boundary wall thereon by virtue of agreement dated 19.12.1987. The affidavit also states that he shall not claim for compensation, alternative accommodation or other benefits in case the aforesaid land is acquired. The said affidavit is sworn on 19.12.1987. Similarly affidavits were sworn by Chander Kala and Sandeep Singh on the same date. Reading the power of attorney and affidavits, it is clear that the petitioners were authorised by owners to act on their behalf to defend the action as also to claim the amount of compensation. If the petitioners were the owners, there was no need to have power of attorney or affidavit.

13. Copy of the receipt is produced on record, inter alia, indicating that Anil Sharma, Sandeep Singh and Chander Kala, have been paid an amount of Rs.50,000/- each by cheques on 19.12.1987. There are three documents executed on 12.3.1987 separately by (i) Shri Kishnu son of Shri Kallu; (ii) Shri Ram Pal son of Shri Shiv Charan and (iii) Shri Dhan Pal son of Shri Shiv Charan, all residents of village Ghonda Gujran Khadar, Delhi. By these three documents, they have transferred the said parcel of l and in favor of Shri Anil Sharma, Shri Sandeep Singh and Smt. Chander Kala. In all the three sale deeds, there is a specific condition, which reads as under:-

"The land shall not be used for any other purpose than agricultural as required under Delhi Land Reforms Act, 1954.

14. It is alleged in the petition that the land has been purchased for educational purposes and for a particular purpose of opening a Girls Senior Secondary School for which there is great demand in the locality. It is also averred in the petition tha for the said purpose an application was made to the Director of Education on 14.12.1987 and the permission was likely to be accorded in the course of time. A copy of the said application is placed on record at Annexure-P.4.

Case pleaded by respondent

15. On behalf of respondent No.4, Shri Janak Juneja has filed an affidavit, inter alil, pointing out that the land, is acquired for the "Planned Development of Delhi, namely, for being developed as "green as per the approved plan of the area. With reared to the claim made by the petitioners, it is pointed out that there is no purchase in view of the agreement or general power of attorney, as alleged. The said documents, otherwise do not confer any ownership right in favor of the petitioners, even i their execution is presumed to be true. The petitioners, according to the respondents, are not in possession of the land in question.

16. It is contended by the deponent on behalf of the respondents that the petitioners have been intending to encroach upon the said piece of land, which was notified for acquisition under the Act. The purpose of acquisition is to develop the said land not "green as per provisions of plan. It is further averred that even if the petitioners want to open a Girls Senior Secondary School, the same is not permissible as the land use for the entire land as per provisions of plan is "green and not "institutional. It is also pointed out that there are number of senior secondary schools run by the Delhi Administration for girls and boys as well. If the petitioners are desirous of having a senior secondary school, it is open to them to do so over a parcel of the land meant for that purpose, but not on the land, which is meant for "green or "park.

17. On behalf of the Land and Building Department, one Shri H.D. Mahi, Deputy Secretary (LA) has filed an affidavit, inter alia, pointing out that reading the contents of agreement placed on record, it is clear that the petitioners knew about the acquisition proceedings. It is further submitted that when they had knowledge about acquisition proceedings and thereafter entered into an agreement to sell, the others cannot be blamed and should not be blamed. It is further pointed out that the document is not a registered document and, therefore, no reliance can be placed for any purpose whatsoever. With regard to power of attorney, it is also submitted that it is an unregistered document and is not admissible in evidence for want of registration under the provisions of Registration Act.

18. It was submitted by the respondent that reading paragraph 3 of the petition, the purpose was to open a school. In absence of any building, there is no question of "the permission is likely to be accorded in the course of this week .It was submitted on behalf of the respondents that it is well known that for opening a school there must be existence of a building suitable for the purpose of the school and only thereafter such permission can be accorded. In the instant case, it is not the case of the petitioners that there was a building in existence suitable for the purpose of running a school, therefore, such averments are made by the petitioners with a view to gain sympathy.

19. From the respective contentions of the parties noted above, it would be clear that the Notification dated 22.12.1987 issued under Section 4 as well as Section 17(1) and (4) of the Act is challenged primarily on the following grounds:-

"1. There was no occasion to resort to urgency provisions contained in Section 17(1) and (4) of the Act and deprive the petitioners of their valuable right secured under Section 5A of the Act.

2. The exercise done in issuing the impugned notification and seeking to acquire the land of the petitioners is colorable exercise of power. We shall now deal with these aspects.

20. We have already taken note of the circumstances under which impugned notification came to be issued on 22.12.1987. To mention it briefly, the Government had earlier issued notification under Section 4 of the Act on 20.10.1961 covering vast area of land which included land in question as well. Objections were invited and after considering the objections, declaration under Section 6 of the Act was made on 2.9.1966. Award No. 9/73-74 was made covering large area. Somehow subject land was not include in the said Award and the period of Award elapsed. It was in those circumstances, as the land in question was still required for public purpose, present notification came to be issued. Before acquiring the land, on earlier occasion, opportunity of hering was given. In the facts and circumstances of this case, we are of the opinion that in these circumstances it was not necessary for the State to give the said opportunity again as following the procedure under Section 5A of the Act would have been re indent as exercise was once done and the objections were turned down meaning thereby the Competent Authority was of the opinion that land in question is required for public purpose.

21. Considering the development taken place, it was thought fit to acquire this parcel of land as it forms a part of "District Park, on account of inaction on the part of Government officers could not be acquired though there was declaration under Section 6 of the Act. It is in these circumstances, the powers were exercised. With regard to inaction of the bureaucracy, Justice Chinnappa Reddy in the case of Kasireddy Papaiah (died) v. Government of A.P. reported as pointed out "There ore, one can never venture to say that the invocation of the emergency provisions of the land Acquisition Act for providing house site for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy. In the instant case, as the area acquired was used for housing accommodation and "District Park and merely this small part of plot was left out, the powers were exercised. It cannot be said that exercise of powers is bad.

22. In the instant case, in view of the Zonal Plan, the land in question is reserved for a district park and near about areas have been acquired. It is clear from the pleadings that lands were acquired but the part of area of khasra No. 401 could not e acquired earlier as award was not made within stipulated time. It is in view of the planned development of Delhi, lands were acquired and certain parcels of land were used as "District Park .The proceedings were initiated to acquire the plot, which I the subject matter of the petition and as an opportunity of hearing was given under Section 5A of the Act earlier, it was thought fit to exercise the powers under Section 17(4) of the Act, considering development. Inquiry under Section 5A is for a limited purpose. In case of Krishi Utpadan Mandi Samiti, Muzaffarnagar (U.P.) v. Ratan Prakash Mangal and others , a fresh notification under Section 4 by invoking Section 17(4) came to be issued, as in the present case. In para Raph 13, the Court held as under:-

"As regards the submission that Section 17(4) of the Act has been erroneously invoked in the fresh notification under Section 4(1) dated 20th May, 1982 also and that inquiry under Section 5A had again to be made before issuing this notification, sufficed to point out that once an inquiry under the said Section had already been made and the parties had been given full opportunity to substantiate their case in the said inquiry and the State Government was not inclined to agree with the report of the Land Acquisition Officer submitted in pursuance of that inquiry it would have been a futile exercise to repeat the whole performance again. After the issue of the earlier notification dated 26th October, 1978 a period of nearly 3-1/2 years had expired when the fresh notification dated 20th May, 1982 under Section 4(1) was issued and apparently the necessity to acquire plot No. 289 during this period became more acute due to this delay. Further, as stated in the notification dated 20th May, 1982 itself the urgency had become more imminent on account of the direction issued by this Court on 2nd March, 1982 in Writ Petition No. 1318 of 1982 filed by the traders challenging the notification under Section 7(2)(b) of U.P.Act No. 25 of 1964. Consequently, we finite difficult to hold that the opinion of the State Government that it was a fit case to invoke Section 17(4) of the Act was invalid on the ground that there was no basis or material in support of that opinion. We are further of the view that on the fact indicated above it is also not possible to hold that the notification dated 20th May, 1982 had been issued by the State Government in colorable exercise of its powers.

23. Because of the view we have taken above, it is clear that judgment in the case of Smt. Gunwant Kaur and others v. Municipal Committee, Bhatinda and others reported as and the judgment in the case of Nandeshwar Prasad and others v. U.P Government and others etc. reported as have no application in the facts of the present case. No. 2 Whether impugned notification is issued In colorable exercise of power.

24. Once we have underlined the circumstances under which earlier notification elapsed as the Award could not be made within the statutory period and we have noticed that fresh notification has to be issued for acquiring of this parcel of land which waseft out in the earlier proceedings and further that the area was needed for public purpose i.e. it was though fit to acquire this parcel of land as if formed the part of District Park, the argument of the learned counsel for the petitioner that the notification is result of mala fides or colourable exercise of power has necessarily to be rejected.

25. As pointed out earlier, a small portion of land was left out on account of not drawing an award despite the notification u/s 4 was issued and a declaration u/s 6 was made and large area of the land adjacent to the land in question was acquired by he authorities after exercise was undertaken. It is also clear that various parcels of land other than the plot in question stood acquired had also been included in the notification earlier, which was notified along with the present plot in question. Issuance of declaration under Section 6 of the Act indicates that land was required for a public purpose. However, award could not be made only for this parcel of land and that necessitated the present proceedings and, in our view, the powers exercise under Section 17(4) of the Act for acquisition of land, in absence of malice and in the facts and circumstances of the case, cannot be questioned and the notification cannot be said to be contrary to the provisions of law. It is required to be stated ere that Delhi Development Authority as well as Acquiring Authority have pointed out that only on 1/10th of area of the land of Khasra No. 401 could not be acquired for the reasons indicated hereinabove, however, the entire area used for district park As been acquired. Not only that but near about areas have been acquired and land is already developed for residential purposes.

Right of State

26. It is required to be noted at this stage that either "compulsory purchase or "power of eminent domain can be exercised by the State. This exception to the general rule, to compel the owner of the property, to sell it to the State or to an agency r entity, authorised by the State because the same is required for the use of State, or State agency for a public purpose. The State can exercise the power under the Act provided it is required for public purpose. What is public purpose is also define in sub clause (f) of Section 3. The owner is required to be paid the price of the property in accordance with law. When the sale to the State under this Act is justified on the ground that for the good of the grater number the community as a whole is paramount then the right of the individuals must give way before such a paramount object. Even the sovereign authority has an inherent power to acquire the land for public purpose. This purpose is offspring of political necessity and it is expressly recognised in Article 31 of the Constitution of India. To allege malafide and colorable exercise of power of eminent domain, the facts or grounds should be pleaded in support, which would show, at least, some nexus between the party for whose benefit the power is sought to be exercised and the authorities of the State, which could support a reasonable suspicion, that there has been improper exercise of power, or such exercise of power exceeding the ambit of eminent domain, as to constitute a fraud. These are the aspects to be borne in mind. In the instant case, considering earlier declaration, permissive use of land, i.e. District Park, subsequent notification, absence of evidence with regard to malafide or improper exercise of power and the facts and circumstances of the case, there is no question of abuse of power or misuse of power.

27. In view of all these factors, issuance of notifications with urgency clause is valid and in accordance with law.

28. The result of the aforesaid discussion is that there is no merit in any of the contentions raised by the petitioners. As we are inclined to dismiss the writ petition being devoid of merit, it is not necessary to deal with the preliminary submission of the respondents to the effect that present petition filed by the petitioners who had only Agreement to Sell in their favor and no Sale Deed was executed is not maintainable as the petitioners did not become the owner of the land in the absence of Sea Deed. We may, however, note that the petitioners have not produced any document on record even to show that they are recorded owners. Names of the petitioners are nowhere reflected as owners of the land in the Revenue Record. We, however, leave the after at that.

29. In view of what is stated above, challenge to issuance of notification (Annexure-P.5), issued on 28.12.1987 is without merit and petition is dismissed with cost, which we quantify at Rs.10,000/-.