Smt. Krishna Kumari Uppal vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 473 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner is the owner of the plot admeasuring 470 sq.yards bearing No. 32 Sunlight Estates, New Delhi which, after development, was sold to her by Sunlight Insurance Company Limited sometime in the year 1954 by entering into an agreement to sell and the Sale Deed in respect whereof was registered on 1st September, 1986. The area where this plot situates is now known as Bhikaji Cama Place. It is not necessary to go into the details of acquisition of the land in this area and the writ petitions which were earlier filed in respect whereof details are given in the writ petition. Suffice is to state that in respect of the petitioner's land Notification under Section 4 read with Section 17 of the Land Acquisition Act, 1894 (for short `the Act') was issued on 10th December, 2001 for acquiring this plot for the purpose of Bhikaji Cama Place District Centre. The petitioner filed writ petition challenging this Notification which was disposed of by a Division Bench of this court vide order dated 20th November, 2003 when challenge to the acquisition proceedings was not pressed. It was ordered that possession of the plot would be handed over by the petitioner within a period of six weeks and the respondents would decide the application of the petitioner for alternate plot within a period of eight weeks from the date of handing over possession of the plot to the authorities. Although thereafter the petitioner had filed a civil miscellaneous application for recalling this order, but it was dismissed by this court and SLP filed by the petitioner was also dismissed as withdrawn vide order dated 9th January, 2004 and it was recorded that the respondents would not take possession of the premises for a period of two weeks. The net effect of the aforesaid proceedings was that the Notification under Section 4 readwith Section 17 invoking urgency clause was sustained and the respondents could take possession of the premises after the expiry of two weeks from 9th January, 2004.

2. Since the urgency clause contained in Section 17 was invoked, the respondents could take possession of the acquired land even before passing an Award. However, in such an eventuality, they were required to tender payment of 80% of the estimated compensation as stipulated in Section 17(3A) of the Act which reads as under:

''Section 17(3A)

17. Special powers in cases of urgency.--[(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),--

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.''

3.The cause of filing the present writ petition arose as, according to the petitioner, the respondents did not take any steps for payment of compensation to the petitioner even when time of two weeks for taking possession was coming to an end. According fly the present writ petition was filed on 20th January, 2004 with the following prayers:

''(a) Issue an appropriate writ order or direction especially in the nature of mandamus directing the Respondents not to take any steps for taking possession of the property of the Petitioner without following the due procedures of law provided for under Sub-Section 3A of Section 17 of the Land Acquisition Act;

(b) Issue an appropriate writ or directions especially in the nature of mandamus directing the respondents to make 80% of the compensation to the petitioner prior to taking possession of the property as envisaged under the provisions of the Land Acquisition on Act.

(c)Issue appropriate writ or directions especially in the nature of mandamus directing the Respondents to assess the value of the premises with building constructed thereon after taking into consideration the fact that the Property is situated in a commercial area and determine compensation for the premises with building constructed thereon in accordance with the provisions of the Land Acquisition Act, 1894 and not to take possession thereof before tendering 80% of such compensation assessed on the basis of market value on the date of the Section 4 Notification in the locality in question as per the Valuation Report to the petition.''

4. It can be discerned from the nature of the prayer clause, and specifically stated in the writ petition as well, that the apprehension of the petitioner was that the respondents would determine the compensation, in complete disregard and contrary to the parameters laid down by the Statute, mala fidely and would take possession without offering market value of the land. This apprehension was based on the narration in the Notification dated 10th December, 2001 itself wherein the premises of the petition or were described by original khasra Nos. in the revenue estate of the village and not existing municipal numbers which the property bears. The apprehension of the petitioner was that the respondents shall determine the value on the basis as if it was a agricultural land when the land in question was an urbanised land falling in the thick of commercial complex, namely, Bhikaji Cama Place District Centre where the market price of the land was substantially high and as per the valuation report got prepared by the petitioner from an approved valuer/assessor of the Government, the property in question is valued at Rs.4,98,98,000/-. It is submitted in the writ petition that the petitioner was entitled to 80% of this amount prior to any action by the respondents to take possession of the said land.

5. When the matter came up for hearing on 21st January, 2004, on advance notice of the writ petition given to the respondents, their counsel put in appearance and sought time to have instructions in the matter. At her request, matter was adjourned to 2 2nd January, 2004. On 22nd January, 2004 following agreed order was passed:

''It is agreed between learned counsel for the parties that the petitioner shall approach the Land Acquisition Collector (South-West) for completing the formalities required for the purpose of receiving 80% of the compensation determined by him, before possession of the subject property is taken.

Let the petitioner appear before Mr. S.S. Khanawat, LAC (South-West) today itself at 04:00 p.m. and collect the requisite documents, which are required to be completed. All the formalities shall be completed by the petitioner within a week, where after the requisite payment under Section 17(3A) of the Land Acquisition Act 1894 shall be made to the petitioner.

List for directions on 3 February 2004.

dusty.''

6. On 3rd February, 2004, during the course of hearing, it was pointed out by learned senior counsel for the petitioner that for the subject land, the Land Acquisition Collector (LAC) had estimated the compensation of less than Rs.2 lac and 80% thereof was offered to the petitioner. As the compensation determined was too low, the petitioner did not accept the cheque but still possession of the property was taken by the respondents. As the determination appeared to be substantially low, we directed the original record to be produced disclosing the basis on which the compensation was determined. The original record was produced on the next date of hearing and it was found that the LAC had computed the amount on the basis of a Circular issued by the Government of National Capital Territory of Delhi, Department of Land and Building on 16th August, 2001 which reads as under :

''Sub:- Fixation of minimum price of agricultural land/land situated in river bed between forward bunds.

Sir,

In supersession of this office letter No.F.9 (20)/80/LandB/LA/12358 dt. 21.11.2000, the Government has approved the following rates to be the minimum rates in the National Capital Territory of Delhi effective from 1.4.2001 for the purpose of acquisition of land under the Land Acquisition Act, 1894:-

1.Rs.15,70,000/- (Rupees Fifteen lacs seventy thousand only) per acre for all agricultural land (excluding lands situated in river bed between the forward bunds).

2.Rs.5,05,000/- (Rupees Five lacs five thousand only) per acre for the land situated in the river bed between the forward bunds.

In addition to the above minimum price of land, land owners in all cases would be entitled to 30% solarium and other benefits provided under the Land Acquisition Act, 1894.

It is also emphasized that the above rate are the minimum rates for compensation. The actual rates for compensation will be determined by the land acquisition authorities in accordance with the provisions of the Land Acquisition Act and the prevalent care law.''

7. The aforesaid Circular is in respect of fixation of minimum price of agricultural land or land situated in river bed between forward bunds. As the land in question, is neither agricultural land or the land situated in river bed between forward bunds, obviously, the Circular had no application in the present case. However, with a view to provide an opportunity to the respondents to place on record their opinion, notice to show cause was issued as to why rule nisi be not granted. The LAC representin respondents 2 and 4 has filed affidavit in reply and DDA, namely respondent No3, has also filed its counter affidavit. Rejoinder to these affidavits are filed by the petitioner.

8. When the matter was to come up for hearing on 27th April, 2004, the respondents moved an application seeking permission to pass the Award before 9th May, 2004 as according to the respondents, since Declaration under Section 6 was issued on 10th May, 20.02, Award was required to be announced by 9th May, 2004. The matter was accordingly extensively heard on 27th April, 2004 and judgment reserved.

9. It is the case of the petitioner that her apprehensions have come true and by offering paltry and farcical amount which in no way represents ''estimated compensation'' required to be determined under Section 17(3A) of the Act, the petitioner is divested of the possession and such possession taken by the respondents is illegal. On the other hand, it was argued by Ms.Geeta Luthra, learned counsel appearing for Land and Building Department that the LAC under Section 17(3A) was only required to tender 80% of the compensation for such land '' as estimated by him''. Her submission was that it was within his jurisdiction to arrive at such an estimation of the compensation for the land acquired. At this stage, the owner of the land has no role to play. It is only thereafter when the Award is to be made, the LAC is required to give notices to the person interested/owner under Sections 9 and 10 of the Act and make enquiries as per the provisions contained in Section 11 of the Act and publish his Award. In this Award he is required to make final determination after taking into consideration the relevant material, including the material produced by the person interested. Her submission was that such an Award is only an offer to the owner of the land who could skill dispute the correctness of the determination. Her submission was also that the Act is a complete code in itself providing for appropriate remedy. In case person interested is not satisfied with the Award he can seek reference under Section 18 of the Act for enhancement of the compensation and the LAC is under obligation to refer the same to the Court for determination of the compensation. Even after such a determination by the Court, he can file an appeal to the High Court. Therefore, it is not within the scope of this Court to examine as to whether 80% of the estimated compensation offered by the LAC under Section 17(3A) of the Act was reasonable or proper or not, in a writ petition filed under Article 226 of the Constitution of India when it was only an estimation and not final determination by him. Her submission was that if the Court entertains such writ petitions, it would not only be contrary to the scheme of the Act but would open pandora box.

10. Mr. Jayant Bhushan, learned senior counsel appearing for the petitioner countered this argument by submitting that while tendering 80% of the estimated compensation, the LAC could not offer an arbitrary amount which would be shockingly low and thereby defeat the very purpose for which such a provision was enacted. He further submitted that admittedly there was no provision of appeal in the Act against tender of such an amount under Section 17(3A) of the Act as the appeal was provided only after the final Award was passed and, therefore, writ petition was maintainable and the respondents could not take the plea that the petitioner had an alternate remedy available. It was also submitted that judicial review was permissible when the respondents aced in an arbitrary and mala fide manner.

11. We have considered the submissions of both the parties. Before adverting to the question involved, we may point out that during the course of arguments, when we put to Ms.Geeta Luthra, learned counsel appearing for the Land and Building Department as to whether the LAC was going to make aforesaid Circular dated 16th August, 2001 as the basis for his Award, she was candid in pointing out that it was not so and in fact for this purpose the LAC was proposing to rely upon Circular dated 16th April, 1999 issued by the Ministry of Urban Affairs and Employment, Department of Urban Development (Lands Division) stipulating schedule of market rate of certain lands. She submitted that in fact the LAC had written a letter dated 11th February, 2004 to the Lan and Building Department seeking clarification on this very issue, namely, as to whether he had to rely upon Circular dated 16th August, 2001 on the basis of which compensation was tendered under Section 17(3A) of the Act. In reply, he received letter dated 18th March, 2004 which reads as under:

'' I am directed to refer to your letter No. SW/ADM/LAC/04/76/457 dated 11.2.2004 on the subject mentioned above and to inform you that LandB has no role to play as regards payments of compensation to the land owners. It is the LAC who has to fix the compe sation amount as per the provisions of section 34 of LA Act. However, since he has sought our advice, it is pointed out that while determining the compensation amount, the LAC has to keep in mind that compensation amount has to be realistic. You will a preciate that village Mohammadpur Munirka has become urbanised and land under reference is required for Bhikaji Cama Place Distt. Centre and therefore payment of compensation at the rate applicable for agricultural land would be unrealistic.

It is therefore, advised that while determining compensation, these factors including sale deeds pertaining to the said area may be taken into account. However, Secretary (LandB) has desired that rate of land for payments of compensation may be got approved from Divisional Commissioner/Secretary Revenue.''

12. After receipt of the aforesaid letter the LAC had proposed to rely upon the aforesaid Circular dated 16th August, 2001 issued by the Ministry of Urban Affairs and Employment, Department of Urban Development (Lands Division). In this Circular market rates for residential/commercial areas in Delhi are fixed. Although Bhikaji Cama Place is not mentioned, the nearest place which is mentioned is R.K.Puram for which rate fixed is Rs.11,550/-per sq.mtrs. for residential and Rs.24,150/- per sq.mtrs.for commercial. The counsel even confided by mentioning that after taking into consideration the rate of Rs.11,550/-per sq.mtrs.for the area in question, the LAC had prepared draft Award as per which the total compensation worked out, after adding solarium and other statutory benefits, to the tune of Rs.1,10,94,724/-. She submitted that this was only a proposal subject to the evidence which could be produced by the petitioner as the petitioner had not so far produced any material before the LAC even when not chess under Section 9 and 10 were issued to her. Her submission was that material/evidence,if any, placed by the petitioner would definitely be taken into consideration by the LAC while fixing the compensation finally. The LAC would naturally fix compensation for the structure as well existing on this land.

13. Adverting to the issue involved, no doubt the amount which is to be tendered under Section 17(3A) represents 80% of the ''estimated compensation'', still the LAC is required to apply some reasonable yardstick for such estimation. It cannot be on the basis of his whims and fancy. Some semblance of exercise, trying to find the market value of the land is to be necessarily undertaken even at this stage. We cannot resist observing that such '' estimated compensation'' cannot be abnormally low than the market value. No doubt the LAC has to, at this stage, do the exercise of fixing the compensation as per his estimation. However, that does not mean that it has to be totally off the mark or without taking into consideration some relevant yardsticks. The e is the purpose in enacting Section 17(3A) which mandates offering 80% estimated compensation at the time of taking possession, because the land owner is going to be deprived of his possession, in such a case, even before the Award is passed and only because urgency clause contained in Section 17 is invoked. In normal case, when provisions of Section 17 are not invoked, the possession is taken only after the Award is made and the entire amount of compensation as per the Award is paid. In such a care he has the opportunity to adduce evidence to enable the LAC to arrive at just compensation. Even when the compensation determined in the Award is not acceptable, the land owner is in a position to get reasonable amount in order to make alternate arrangement as he is dispossessed of the land of which he is the owner which may even be his residence/house. That was the position in the instant case where the petitioner was staying in the house constructed on land in question. The whole idea underlyin Section 17(3A) of the Act, therefore, is to pay some reasonable amount, even when urgency clause is invoked and possession is taken without pronouncing the Award, so that the person who is going to be dispossessed gets some amount to make immediate alternate arrangement. Although in other context, we had the occasion to comment on this aspect in the case of Pawan Singh and Ors. Vs. Union of India and Ors.(CWP Nos.8440-43/2003) decided on 7th April, 2004 in the following manner:

''We are at pain to point out that we are coming across number of cases where after invoking the urgency clause contained in Section 17 of the Act, possession of land is taken by the authorities without even offering the compensation as required under Section 17(3A) of the LA Act. No doubt, the Apex Court has held that even when possession of the land so acquired is taken without offering the compensation under Section 17(3A) of the LA Act, that would not by itself render taking of the possession illeg

l. However, that does not mean that the authorities may, in all cases and almost as a matter of course, take possession of land after invoking Section 17 of the LA Act without offering the compensation of 80% of the estimated amount as provided under Section 17(3A) of the LA Act. Taking of the possession in this manner without complying with the provisions of Section 17(3A) of the LA Act can only be in exceptional circumstances justifying non-observance of the mandate of Section 17(3A). If such a procedure is resorted to, in contravention of Section 17(3A) almost as a matter of routine and without any valid justification in given cases, such action of the respondents can be dubbed as arbitrary and malicious. The entire scheme under the LA Act aims at payment of compensation at the time of taking possession. When the ordinary process is initiated without resort to the provisions of Section 17 of the LA Act, only after the Award is passed and compensation determined after hearing interested persons that possession is taken and at that time compensation as determined is offered. While providing provisions like Section 17 where immediate possession may be required, the Legislature in its wisdom still thought that estimated compensation be worked out and 80% thereof be paid to the land owner at the time of taking possession. Obviously, the purpose is to mitigate the hardship by paying some amount so that the person who is deprived of his land is able to get immediate relief to some extent. In the instant case itself the petitioners are not only deprived of their land but their habitat as well. The respondents have thus made them shelterless without even paying compensation as per the provisions of Section 17(3A) of the LA Act which could have provide them some succour. No doubt MRTS is an important project and citizens have to make sacrifices for the success of this project. However, that does not mean that in the process the respondents do not even adopt humane approach and deprive them of their helter mercilessly. The manner in which the possession is taken from the petitioners in the present case and demolition exercise carried out leaves much to desire and we have no option but to express our anguish in strong terms. We hope that the authori ies shall keep this aspect in mind and would be careful in future.''

14. We may indicate that when the exercise so done is preposterous and absurd, which may be termed as arbitrary, the Court in a given case may have to intervene and in exercise of its power under Article 226 of the Constitution of India, issue necessary directions to the respondents to remedy the farcical situation. The submission of the respondents that it may open pandora box is an argument in despair; an argument in terrorem. No doubt it is for the LAC to estimate the compensation under this provesion and normally Courts are not to interfere at this stage. Courts are conscious of their self imposed limitation. But that does not mean that he is free to fix any farcical figure in the name of estimated compensation and offer pittance to the land owner thereby making mockery of the provision. Courts shall intervene only in such an eventuality.

15. While discharging such a function, the LAC is supposed to act reasonably like any other administrative authority. Fairness in action is the hallmark of good governance. When it appears to the Court that the exercise of functioning is irrational, improper and lacs fairness attracting Wednesbury's principle, the Court would not be powerless to intervene. Article 226 gives wide power to the High Courts to issue writs in appropriate cases. There may be self-imposed limitations and restraints in exercise of this power. Normally, it would not be for the High Court to entertain the writ petitions against the exercise of power of the LAC in estimating the compensation and tendering 80% thereof to the land owner. However, when it is found that what in offered is a mere pittance and abnormally low and unreasonable that it shocks the conscience of the Court and gives an impression that the land owner is dispossessed of his land without paying any compensation worth the name, such an action would be pen to judicial review. In that case it cannot be solace to the land owner that proper compensation would be fixed at the time of making the Award which may be in distant future, as law gives two years to the LAC to make an Award from the date Declarati in under Section 6 of the Act is made. After all right to property is still a Constitutional right guaranteed under Article 300A of the Constitution which mandates that no person shall be deprived of his property save by authority of law. The Land Acquisition Act is one such law which provides for procedure and the manner in which a person can be deprived of his property. It puts an obligation on the State to give fair market compensation to the person who is deprived of his property. This right to receive compensation is a valuable right given under the Statute. Even at the time of estimating the compensation, the LAC is under obligation to undertake reasonable exercise.

16. In Onkar Lal Bajaj and others Vs. Union of India and another , the Supreme Court (speaking through Hon'ble Mr.Justice Y.K.Sabharwal) had an occasion to observe as under:

''36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law only has to base on transparency bust must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideratio other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.''

17. In the instant case, the LAC, for the reasons best known to him, took shelter of Circular dated 16th August, 2001 estimating the compensation at a paltry sum of Rs.2 lac and offering 80% thereof to the petitioner. Such a compensation for a plot of 4 70.5 Sq.yards would work out to approximately Rs.45 per.sq.yards. Arriving at such an estimation for the land in Bhikaji Cama Place is nothing but a farce. It is not understood as to how the LAC could even imagine such a compensation even when it was only an estimated compensation. Such an exercise on the part of the LAC was illusory, make belief and sham. It would also be apparent from the fact that now even as per his proposed Award, he is proposing Rs.11,550/- per.sqr.mtrs. for this land (this by means to be understood to say that we are expressing any opinion about the justification of this basis as the LAC is yet to draw final Award and to consider as to whether to take into consideration the market rate fixed by Circular dated 16th April, 999 for residential property or commercial property or to take into account any other rates on the basis of evidence furnished by the petitioner). Even the rate proposed now, namely, Rs.11,550/-per sqr.mtrs.as compared to the estimated rate of Rs.45 sq. bards is a clear indication that the earlier exercise done by the LAC was totally arbitrary and without application of mind, mechanically relying upon Circular dated 16th August, 2001, without even caring to notice that it had no application to the subject land.

18. However, although the compensation tendered under Section 17(3A) was abnormally low, it is not necessary to deal with this issue any further in view of what is now sought to be proposed by the LAC himself, as noted above. The compensation now proposed to be offered, in view of the aforesaid scenario, would not be less than Rs.1,10,94,724/- and may be higher if the petitioner is able to produce relevant evidence. If such evidence is acceptable to the LAC, the compensation arrived at in this manner cannot be said to be shockingly or abnormally low. While saying so, we are also taking into consideration that the Award is to be rendered by the LAC in immediate future, i.e. by 9th May, 2004 and thus the petitioner would be getting the amount as per the Award within few days.

19. In these circumstances, this writ petition is disposed of with the following directions:

(A) The LAC shall make and publish his Award by the stipulated date after taking into consideration the evidence produced by the petitioner.

(B) Compensation that would be determined as per his Award would be paid to the petitioner immediately on the passing of the said Award.

(C) The petitioner would be at liberty to receive the said compensation subject to her right to seek reference under Section 18 of the Act.

20. The petitioner shall also be entitled to costs quantified at Rs.25,000/-.