Inder Singh Solanki And Ors. vs Lt. Governor Of Delhi And Ors.
2004 Latest Caselaw 562 Del

JUDGMENT

A.K. Sikri, J.

1. Vide Notification No.F10(9)/2003/L&B/LA 23873 dated 20th January, 2004 issued under Sections 4, 17(1) and 17(4) of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') notified the compulsory acquisition of land described as Khasra Nos.64/5/1(0-10), 65/1/1/1 (0-05), 1/2/1(0-1), 2/1/1(0-3), 2/2/1(0-2), 3/1/1 (less than one biswa), 3/2/1 (0-1), 10/1/1(0-3), 10/2/1(0-7), 12/1(0-10), 13/1(0-3), 68/11/11 (0-6), 11/2/1(0-3), 18/1(0-9), 19/1/1(0-7), 19/3/1 (0-3), 23/1(0-1), 24/1(0-10), 25/1(0-5), 25/2(0-3), 69/8/1/1(0-5), 8/2/1(0-3), 8/3/1(0-1), 7/1(0-8), 15/1(0-9), 166/1(0-2) measuring 6 bighas, in the revenue estate of village Palan, New Delhi whereby built up properties of the petitioners are sought to be compulsorily acquired at public expense for construction of approach road (probably fly over) connected Dwarka with NH-8 through Delhi Cantonment Area, under Land Development of Delhi.

2. It may be stated at the outset that the petitioners are not challenging the aforesaid acquisition proceedings. Rather, showing apogeal fairness, their candid statement in para 3 of the writ petition reads that they have no ground to successfully challenge the said compulsory acquisition of their land for the stated public purpose as the means of communication have to be developed. However, the cause of action for filing the writ petitions is that there are certain grievances of the petitioners which are enumerated as under:

(i)They have no idea for want of any map or survey plan how much of their built up properties would be compulsorily acquired;

(ii)How much of their built up properties would be left with them; and

(iii)Where would be uprooted petitioners be relocated for business.

3.It is the case of the petitioners that they are small shop keepers/traders in the market of Raj Nagar and Shad Nagar, Palam Colony, New Delhi. They had, about 50 years ago, purchased small plots of land from the previous land owners on which they raised constructions and since then they are in peaceful possession, use and enjoyment of the built up commercial-cum-residential properties. In course of time the area called Raj Nagar and Shad Nagar in Palam Colony have to be a market place. They all belong to lower middle class. Therefore, they have no objection if the land specified in Notification dated 20th January, 2004 is acquired. However, what these petitioners want is that before taking possession of the subject land, the same should be properly demarcated so that the petitioners are in a position to know as to which particular part of the land and property, under their possession, is sought to be taken away by the respondents. It is also stated that while taking possession of the acquired land, there would be a situation where part of the properties belonging to the petitioners will have to be demolished. Which part would be demolished and which part they would be able to retain with them in respect of which there is no acquisition, should be known to the petitioners before hand and it is for this reason they are demanding demarcation of the land before possession is taken.

4.Mr.P.N.Lekhi, learned senior counsel appearing for the petitioners further submitted that once the petitioners are given the necessary demarcation along with demarcation report the petitioners are willing to carry out the demolition of the acquired portions themselves so as to ensure that only required portion is demolished without affecting other structure, which would be retained by them after the acquisition proceedings are complete.

5.Without any qualms or reluctance, this reasonable suggestion was acceptable to Mr.Sanjay Poddar, learned counsel for the respondents who even informed that necessary demarcation exercise had been done and report is to be prepared and finalised which may take few days.

6.In view of there being substantial agreement between the parties on this aspect, it is directed that the respondents shall hand over the demarcation report to Mr.Madan Lal Sharma, learned counsel for the petitioners within a period of two weeks from today. Supply of the copy of this demarcation report to Mr.Sharma, Advocate would be treated as service on the petitioners herein. Learned counsel for the petitioners undertakes that as per the said demarcation report, the petitioners shall carry out necessary demolition exercise themselves within a period of two months from supply of the demarcation report. The petitioners shall be permitted to do so and they would also be entitled to furnish the Land Acquisition Collector cost of such demolition. After the demolition of acquired portions, it would be necessary to make repairs in the existing then portion with the petitioners to make that inhabitable condition. Mr.Lekhi submitted that the petitioners shall submit the cost of such repairs also to the Land Acquisition Collector. Let it be done and the Land Acquisition Collector, while drawing the Award under Section 11 of the Act shall consider the admissibility of such claims in accordance with law.

7.This brings us to the other prayer of the petitioners which is more substantial. They want allotment of alternate commercial sites for them so that they are properly rehabilitated. In this behalf, it was the submission of Mr.Lekhi that when the petitioners are self-employed and earning their livelihood exerting themselves physically and mentally, it was their right to earn their livelihood at any stage. Such a right was now part of `Right to Life' enshrined in Article 21 of the Constitution of India as held by the Supreme Court in number of cases. In support of this submission, he relied upon the judgment of the Supreme Court in the case of B.P.Sharma Vs. Union of India . He submitted that Parts III and IV of the Constitution of India contain a large number of rights which guarantee human rights, some of which are akin to the rights enumerated in International Treaties and Charters. Article 11 of of International Covenant on Economic, Social and Cultural Rights, 1966 reads thus:

"1. The State parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate foot, clothing and housing, and to the continuous improvement of living conditions. The State parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international cooperation based on free consent.

2. The State parties to the present Covenant, recognising the fundamental right of everyone to be free from hunger, shall taken, individually and through international cooperation, the measures including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by development or reforming agrarian systems in such a way as to achieve the most efficient development and utilisation of natural resources."

8.The Supreme Court in the case of Chameli Singh and others Vs. State of U.P.and another referring to Article 11 of the International Covenant on Economic, Social and Cultural Rights, 1966 held that the State parties recognise "the right of everyone to an adequate standard of living for himself and for his family including food, clothing, housing and to the continuous improvement of living conditions". Indisputably, the State parties were to take appropriate steps to ensure realisation of this thought. [See Kapila Hingorani Vs. State of Bihar ). The term "life" used in Article 21 of the Constitution of India has a wide and far-reaching concept. It includes livelihood and so many other facets thereof. "Life" , as observed by Field, J. in Munn v.Illinois [24 L Ed 77 (1877] means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. [See Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and others, and Olga Tellis & Others Vs. Bombay Municipal Corporation & Ors. ). Article 37 provides that the Directive Principles of State Policy though not enforceable by any court, yet the principles laid down therein are fundamental in the governance of the country and the State is obliged to apply these principles in making laws. Article 38 inspires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, prevails and citizens, men and women are treated equally and so share the material resources of the community as to result in equitable, judicious and balanced distribution of means of livelihood-food, cloth and shelter-the bare essentials for living as a human being. Inequalities in status, facilities, opportunities and income are to be eliminated and minimised. The systems in a democratic society ought not to operate to the detriment of individuals or groups of people. [See Welfare Association, A.R.P.Maharasthra and another Vs. Ranjit P.Gohil and others, ]. On this basis, Mr.Lekhi propounded the case for allotment of alternate sites to enable the petitioners to continue to earn their livelihood.

9.Mr.Lekhi also submitted that similar directions were given by this Court in CWP Nos.3967, 4029, 4150 and 4520/1999 when the marble dealers of Rajouri Garden were uprooted in similar circumstances after acquiring their land for the purpose of constructing fly-over.

10. We have considered these submissions of the petitioners' counsel. In so far as the aforesaid writ petitions are concerned, from the record summoned we note that they were disposed of by a learned Single Judge of this Court vide common judgment dated 21st May, 2003. A perusal of the said judgment would show that that was a case of those petitioners who were carrying on the business of sale of various qualities of marble from their respective premises in Rajouri Garden, New Delhi. A fly-over was proposed to be constructed in the area in question as a result of which the petitioners' land had to be acquired. In order to rehabilitate the petitioners, a decision was taken to allot alternative plots to the petitioners at Mangolpuri Industrial Area and letters sent in May, 1994 to the petitioners informing them about the said proposed allotment. The allotment of the plot was not made. Draw of lots was held in May, 1999 for allotment of specific plots and intimation was sent to the petitioners in the said writ petition in June, 1999. They filed the writ petitions being apprehensive on account of alleged threat by the respondents to get the premises vacated and demolished. Prayer was made in the writ petition restraining the respondents from disturbing the possession, use and enjoyment in respect of their respective premises and for direction to the respondents to give possession of the fully developed alternative plots to them in lieu of their premises before any action for dispossession is taken by the respondents. Since the decision was taken by the respondents themselves to allot alternative plots, the dispute regarding price to be charged and interested to be paid thereon also came up for consideration and in fact in the judgment it is these issues which were decided by the learned Single Judge. The challenge to the fixation of price to be paid for the plots and demand of interest of 18 per cent per annum up to the date of payment is concerned, the said challenge was rejected. As far as question of giving alternative plots is concerned, which is relevant for our purposes, it was observed as under:

"This aspect has to be appreciated keeping in mind catena of judgments of this Court that in case of acquisition of land, there is no right to get an alternative plot. Under the said Rules, a particular category of persons can be considered for allotment, but there is no obligation on the respondent No.5 DDA to make such allotment. Not only this, it has been clearly held that the allotment has to be made at pre-determined rates at the time of allotment. This is to take care of the issue of the cost of the plots. The judgment of the Full Bench of this Court in Ramanand's case (supra) is absolutely clear in this behalf and has repeatedly been followed. The same is the position in the case of the Division Bench in Bhagwana's case (supra). Thus, there would be no vested rights in the petitioners to get the allotment of the alternative plot, but for issuance of this allotment letter.

There is also some force in the contention of the respondent No.5 DDA that the petitioners' rights is in respect of residential plots and plans were sanctioned for residential plots which have been converted into commercial user and it is in lieu thereof, alternative plots are being given. In such a situation, no special equities arise in favor of the petitioners. However, it was for the respondents to have considered whether they should or should not have made allotment of alternative plots taking into consideration the misuse of the residential plots for commercial use. The respondents in their wisdom decided to make the alternative allotments and, thus, it is only, the price in respect of these alternative plots, which has to be considered in the present proceedings.

The project in question was an important one of easing the traffic problems and the flyover was sought to be considered. Apart from the fact that there may be some time spent on the development of the plots, there is also some delay in the project as a result whereof even the acquisition proceedings got shifted in time period and were taken only in 1999. Thus, the occasion to make allotment of the alternative plots did not arise earlier as the alternative allotment was rehabilitation measure in addition to acquisition of the land of the petitioners. It is the acquisition itself, which had got delayed.

In view of the aforesaid, I find no merit in the plea advanced on behalf of the petitioners that the petitioners are not liable to pay interest for the period from 1994 to 1999.

The writ petition are dismissed leaving the parties to bear their own costs.

Interim orders stand vacated".

11.It is clear from the aforesaid observations that there is no right to get an alternative plots since persons whose land is acquired gets compensation for the said land. However, it is seen that normally whenever such land is acquired where land owners have been doing business for number of years, the respondents have been taking decisions to allot alternative plots to rehabilitate such persons. Therefore, in the peculiar facts of the case, we direct the respondents to consider the matter in the light of submissions made by Mr.Lekhi and take appropriate decision in this behalf also keeping in mind the decision that was taken while dislodging marble dealers operating in Rajouri Garden.

12.In these circumstances, the writ petitions are disposed of with the following directions.

(I).The respondents shall supply to the petitioners, as stated in para (6) above, demarcation report with proceedings within two weeks from today.

(II)The petitioners themselves shall carry out the demolition, as undertaken by them, of the structure over the land which is acquired vide Notification dated 20th January, 2004 and submit the cost thereof to the Land Acquisition Collector. This exercise, they shall carry out within a period of two months from the date when demarcation report is supplied to their counsel and hand over vacant and peaceful possession of such land to the respondents. In case the exercise is not carried out or completed by the petitioners themselves within the stipulated period, it would be open to the respondents to carry out the necessary demolition and take possession of the acquired land.

(III)The petitioners shall also be at liberty to carry out the repairs necessitated as a result of the demolition exercise of the portion of premises that would still remain with them.

(IV) They shall be at liberty to submit the cost of demolition as well as cost of repairs to the Land Acquisition Collector and it would be for the Land Acquisition Collector to consider the admissibility of such claims at the time of drawing the Award.

(V)At the time of taking possession of the land, the respondents shall pay 80 per cent of the estimated compensation to the petitioners in terms of Section 17(3A) of the Act. Thereafter, the Land Acquisition Collector shall try to make the Award as expeditiously as possible and in any case within six months from taking possession of the land.

(VI)The respondents shall treat the present writ petitions as representations of the petitioners for allotment of alternative plots and a decision in this respect shall be taken by the appropriate authority, namely, the Delhi Development Authority within a period of six months from today.

13.The writ petitions stand disposed of in the aforesaid terms.