Smt. Gian Kaur Suri vs Union Of India (Uoi) And Ors. ...
2005 Latest Caselaw 982 Del

JUDGMENT

Manmohan Sarin, J.

1. By this common judgment, I would be deciding this batch of 8 review petitions, against the judgment dated 1st August, 2003, by which 9 writ petitions were dismissed.

2. At the outset, it may be noticed that out of the nine writ petitions which were decided vide judgment dated 1st August, 2003, review applications have been filed in eight petitions. Petitioner Ved Prakash Masta in WP(C) 2429/1986 does not appear to have preferred any review petition. While petitioner Inder Raj has now preferred review petition bearing no.9121/2003 after having withdrawn LPA 560/2003.

3. For facility of reference, the grounds sought to be raised in each of the review petition are summarized. Common grounds in all the review petitions shall be taken up together for consideration, while grounds specific or individual to each review petition, would also be dealt with separately.

(I). RA.No.10441/03 in WP(C).2026/86 (Smt Gain Kaur Suri Vs. UOI & Ors.)

Petitioner claims to be in possession of plot no. E-1/16, Krishna Nagar, pursuant to the stay granted by the court. Petitioner claims that there was no mis-representation in getting the plot regularized. Reliance is placed on resolution no.1193 dated 17th March, 1977, in terms of which plot was regularized as residential in the lay out plan for Krishna Nagar. No subsequent resolution withdrawing the regularization was passed. Petitioner claims that after sanctioning of the building plan on 17th December, 1983, the construction of building was started and was completed up to plinth level with three rooms and boundaries. Thereafter on account of stay, no further construction could be carried out and when inspection was done, building plans were not revalidated.

Petitioner claims that there was no requirement to challenge the acquisition notifications since at the relevant time, status of the plot was shown as a'school' and after the regularization plan, the status was shown as 'residential plot with boundary walls and small built up structure' It is claimed that on account of regularization, there was no occasion to challenge the acquisition. Petitioner claims that averments made in the writ petition were neither rebutted/denied by MCD in the counter-affidavit nor there was a prayer for dismissing the writ petition. MCD was claiming the property for community facility as per status report of 1977, whereas the plot was required for a school in 1962. Building plans had been sanctioned, development charges paid and the Town Planner vide his letter dated 6.2.1990 confirmed that plot had been adjusted for residential purpose in the regularization plan. Petitioner in these circumstances sought status quo and stay of dispossession. Petitioner has almost reiterated the submissions and arguments made in writ petition. Petitioner assails the finding of misrepresentation in obtaining sanction, which could be challenged in appeal and not in review petition.

(II) RA.No.11049/03 in WP(C).2195/86 ( G.C.Mishra Vs. UOI and Ors)

Petitioner in the review application claims that possession of property bearing no. F-22/2, Krishna Nagar was never taken and there was no vesting of land in MCD. Petitioner assails the acquisition notification on the ground that it mentioned only certain field numbers or boundaries of Village Ghondli and did not mention the plot numbers of the petitioner and others. The notifications of acquisition are claimed to be non est and void abinitio. It was only in the award that certain plot numbers were given. Petitioner accordingly challenged the notifications after the award and hence there was no delay. There is no allegation against the petitioner of any misrepresentation in getting regularization. Petitioner questions the public purpose for acquisition of the plot. It is claimed that original purpose of community centre has ceased to exist. Petitioner claims that once the Municipal Corporation at whose behest the acquisition was being done had passed the resolution no.1193 dated 17th March, 1977, mentioning that action had been taken for acquiring certain plots for community facility and same be not acquired and the community facility be provided in the land adjacent to the colony, no acquisition of petitioner's plot ought to take place especially, when the said decision had not been withdrawn.

(III)RA.No.11620/03 in WP(C).2427/86 (Deep Chand Jain Vs. UOI & Ors)

Petitioner claims to be in possession of plot no.E-1/15, Krishna Nagar in view of the stay granted by this court. Petitioner claims that there is no allegation of any misrepresentation by the petitioner in obtaining regularization. It is claimed that after the resolution no.1193 dated 17th March, 1977, petitioner plot stood adjusted as part of the regularized colony. There was no subsequent decision withdrawing the said regularization. Petitioner contends that notification had been issued in respect of certain field numbers of Village Ghondli and not acquiring the residential plots of the petitioner and others. The notifications did not mention the plot numbers and as such were non est and void abinitio. The plot in question is not used for any community facility by the Corporation and the original purpose of acquisition had ceased to exist. Building plans had been sanctioned and development charges charged in respect of adjoining plot bearing no. E-1/16 and there can be no public purpose in acquisition of petitioner's plot.

(IV) RA.No.10314/03 in WP(C).2430/86 (H.D.Kapila & Ors Vs UOI & Ors)

Petitioner contends that possession of property no.F-22/3, Krishna Nagar has not been taken as it is apparent from the status report noted in para 15 of the judgment. There was no vesting of the property with MCD. Petitioner claims the acquisition notifications to be non est and void abinitio inasmuch as only field numbers were mentioned and plot numbers were not given, despite the plot numbers being known to the MCD and acquisition being at its instance. Even the notification did not mention the khasra numbers with details. In these circumstances, the cause of action arose only when the plot numbers were given in the award. Challenge to acquisition, it is contended could not be said to be belated. The acquisition was in complete disregard of the Resolution no.1193 dated 17th March, 1977 of the Municipal Corporation at whose behest the acquisition was being done. Petitioner claims that property was a built up property prior to the year 1972 and reliance was placed on Inder Raj's case i.e WP(C) 751/1987 to seek stay of dispossession.

(V).RA.No.11467/03 in WP(C).597/87 (Smt.Manmohan Kaur Vs. UOI & Ors)

Petitioner seeks review on the basis that the possession and use of plot bearing No.C-1/11, Krishna Nagar had not been taken and continues to be with the petitioner. It is claimed that even in the regularization plan of MCD in 1962, the status of the plot was shown as residential and half of it as built up. Petitioner claims that since as per MCD's own admission, half of the plot was shown as built up, his case comes within the resolution of 17th March, 1977, which requires substantial construction to have been carried out prior to 15.6.1972. There were no allegations of any misrepresentation against this petitioner in obtaining any sanction or for seeking regularization. Accordingly, petitioner contends the resolution no.1193 dated 17th March, 1977 applied to the petitioner's case and the plot stood adjusted in the residential lay out and was subject to acquisition. Petitioner claims that after the plots had been regularized, there was no question of challenging notification for acquisition and the cause of action for filing the objection arose only after the award was made. Besides it claims that no purpose existed for acquisition of the plot as the plot was not meant for any community facility. Respondents have claimed that the original area of the plot was 426 sq yds which appears to have been sub-divided. Petitioner was claiming the net area to be 290.31 sq.yds out of total area of 383.23 sq.yds. Petitioner claims that no proceedings have been taken for taking over possession by the Land Acquisition Collector. Hence status quo and stay of dispossession pending hearing of the review petition is sought.

(VI) RA.10315/03 & CM 2759/2004 (Application for restraint on MCD from raising any further construction) in WP(C).623/87 (Om Prakash Vs.UOI & Ors.)

The basic thrust in the review petition is that the petitioner has continued to be in possession of plot No.E-1/14, Krishna Nagar. Vide a Resolution No.1193 dated 17th March, 1977, the above plot had been adjusted as part of the regularised colony of Krishna Nagar. There had been no subsequent resolution to reverse or change this decision. Petitioner contends that there is no allegation of petitioner having made any misrepresentation to get the plot regularized as part of Krishna Nagar Colony. Mr.S.C.Dhamija, learned counsel for the review applicant submitted that purpose of acquisition in 1962, was for a School. The status report of 1977, did not mention the requirement of any community facility. The original purpose had ceased to exist. It was next submitted that the plan for construction had been duly sanctioned, development charges paid. The Town Planner in his letter dated 6th February, 1980 in respect of adjoining plot No.E-1/15 Krishna Nagar, had stated that in the renewed plan the plot is earmarked for residential purpose, hence, there was no question of plot being acquired. The same rationale would apply to the present adjoining plot. On the question of delay in challenging to the acquisition, it is stated that the notification issued mentioned certain field numbers of Village Ghondli and not any plot or land of Krishna Nagar Colony. The notification did not mention any plot number but only Khasra numbers were mentioned. It was only in the award which was published on 19th September, 1986 bearing No.102/86-87, that the plot numbers were mentioned. Petitioner immediately thereafter on 2nd March, 1987, had filed the writ petition. The proceedings for acquisition of the land in the regularised colony were said to be non est and the entire proceedings void abinitio. The plot had been described as one with boundary wall and small built up structure. An application bearing no.CM 2759/2004 was moved in the review petition seeking a restraint on the MCD from raising any further construction. It was alleged that MCD was bringing material on site.

The respondent in the petition had filed affidavit claiming that plot in question was lying vacant and the land stood acquired in terms of Section 198 and 199 of the Delhi Municipal Corporation Act. Award No.102/86-87 in respect of Village Ghondli dated 19th September, 1986 had been passed. Corporation alleged that plot in question was not one having substantial construction and hence was not covered under the policy and resolutions of Corporation by which only plots which had substantial construction, could be regularized and adjusted.

(VII) RA.No.10312/03 and CM 2786/2004 (for stay) in WP(C).700/87 (S.Gurucharan Singh and Anr. Vs. UOI & Ors.)

Petitioner seeks review of the order on the ground that possession of property bearing No.E-1/13, Krishna Nagar was not taken from the petitioner who continues to be in actual physical possession of the same. Petitioner claims that after the resolution bearing no. 1193 of 17th March, 1977 to adjust the plot as part of regularized colony, there was no decision taken to reverse the same and petitioner had not made any misrepresentation. Petitioners next claimed that acquisition notifications were not issued in respect of petitioners' plot but were in respect of certain field numbers of Village Ghondli and were non est and void abinitio. It was only in the award that plot numbers were mentioned. It was only after the regularization of plan of 1977, that plots were regularized and shown in the plan as residential plots, with boundary walls and small built up structure. Petitioner claims that cause of action for challenging the award arose after the award was made on 19.9.1986, wherein plot numbers were mentioned. Thus, there were no lapse in filing the writ petition. The original purpose for acquisition was shown to be for a school which had ceased to exist. The building plan had been duly sanctioned, development charges charged much after the regularization and hence the question of acquisition did not arise. Petitioner therefore sought stay of dispossession and status quo vide application bearing no.2786/2004.

The respondent in this case had taken the objection that petitioner was not the recorded owner and there were no structures on the land at the time of publication of the award. Respondents have claimed that petitioner's case was not eligible for adjustment under the resolution of 1977 as it had failed to demonstrate that plot had been substantially constructed prior to 15.6.1972. The rest of the submissions on which review is sought are the same as the grounds urged in Om Prakash and Manmohan Kaur's case.

(VIII) RA.No.9121/03 in WP(C).751/87 (Inder Raj Vs. UOI & Ors)

Petitioner had filed LPA 560/2003 against the judgment dated 1st August, 2003. The said LPA was withdrawn with permission and liberty to file a review application. The contention of the appellant/petitioner is that his plot bearing no.D-5/16 was sandwiched between two other built up plots bearing no.D-5/15 and D-5/17. It was claimed that resolution no.389 dated 6th September, 1973 had been passed regularizing the plots as the same were not required by MCD. Petitioner claims that while this contention was noted at page 24 of the judgment, it was not dealt with. The petitioner's main contention in the review application is that while the impugned judgment is based on the decision of the Standing Committee dated 17th March, 1977, setting out the terms for adjustment of the plots and eligibility there under, the court failed to notice that in the instant case, the petitioner's plot stood regularized and adjusted by virtue of resolution no.389 dated 6th September, 1973 and as such, the terms of the resolution dated 17th March, 1977 in fact were not relevant for the purposes of the petitioner as its plot stood regularized. Additionally, it was contended that there were no useful or public purpose purpose for acquisition since the plot in question was sandwiched between two built up plots D-5/15 and D-5/17.

It may be noted that while the petitioner's plot was purported to be regularized vide the resolution no.389 dated 6th September, 1973, the plot remained one on which no construction was carried out and it failed to meet the policy requirement set out in the resolution of 1977 vide which plots that were to be adjusted as 'residential' and released from acquisition were only those in which substantial construction was carried out by 15.6.1972. Petitioner himself refers and relies on decision of the Corporation dated 17th March, 1977. It is not in dispute that the plot of the petitioner was covered within the ambit of notification for acquisition dated 17th August, 1972 and 17th March, 1973. The sanction of building plan or resolution for regularization no.389 dated 6th September, 1973 would not have the effect of nullifying the notices of acquisition. Respondent contend that petitioner had failed to challenge the notices of acquisition which became final. It was not open for any individual like the petitioner to assail the public purpose for which acquisition was made of the land covered under the notification, on the basis that his individual piece of land is not capable of being used for the specific purpose for which it was originally intended. It was open for the petitioner to have challenged the acquisition on the ground that his plot stood regularized vide resolution of 6th September, 1973 and as such, he was not bound by the policy of 17th March, 1977. Petitioner failed to do so.

4. Let us at the outset consider the first submission which is common to all the review applications/petitions. Petitioners seek to challenge the notifications issued under Sections 4 and 6 of the Land Acquisition Act on the ground that same were vague and could not be acted upon. It is contended by Mr.S.C.Dhamija and Mr.R.L.Kolhi, learned counsel appearing on behalf of the petitioners that Krishna Nagar was developed as a colony by DLF in early 1950's. It had plot numbers and various houses were built thereon. There were no field numbers or khasra numbers. Plot numbers and house numbers were in use. Counsel urged that the notification issued under Sections 4 & 6 of the Act referred only to field numbers. It was only when the award was published in 1986, that plot numbers were mentioned and as such the petitioners could only challenge the acquisition once their plot numbers were mentioned. Hence, there was no delay or laches. It is further urged by counsel that the petitions should have been entertained and not dismissed as belated ones. It was also urged that any proceedings emanating from and pursuant to the said vague notifications were non est and void abinitio. Reliance has been placed by the petitioner on the case of Jagdish Ram Sharma and Ors. v. State of Punjab and Haryana & anr AIR 1971 Punjab and Haryana 136.

5. This is a new plea sought to be introduced in the review applications. The averments in the writ petitions, as originally filed, negate this plea. Petitioners have clearly averred in the writ petitions that "part of the aforesaid colony was earmarked for notification for planned development of Delhi." It was averred that large numbers of houses were constructed on the plots prior to the date(s) of notifications. Their grievance has been that despite the land being part and parcel of a developed colony and same having been regularized and substantially built up areas, award has been pronounced. It was no where pleaded that petitioners were unaware that the acquisition was in respect of their plots and the cause of action arose only when the award was made with plot numbers. Rather the grievance was that once the MCD had decided not to acquire the land and regularized the plots and sanctioned building plans, the acquisition proceedings initiated were liable to be quashed. It would follow from the foregoing that it was not the case of the petitioners that they were not aware that notifications for acquisition would cover their plots. A perusal of the notification dated 7th August, 1972 under Section 4 shows that 40 Bighas and 15 Biswas of Village or Locality Ghondli with field numbers or boundaries of the land as mentioned were intended for acquisition. Similar particulars were given in the notification under Section 6 of the Act. Notification further mentioned that plan of the land could be inspected at the office of the Collector. In these circumstances, it could not be said that notifications were either vague or lacking in material particulars. The case relied on i.e Jagdish Ram Sharma and Ors. v. State of Punjab and Haryana & anr is totally distinguishable on facts. In the said case the notification for acquisition, merely mentioned that the entire land situated within the municipal limits of "Anandpur Sahib" was needed. No khasra numbers or field numbers were given of the land intended to be acquired. The court held that"The area of 210 acres mentioned in the notification could include thousands of houses built on small plots in the historical town of Anandpur Sahib and it was not possible for the thousands of owners of small plots and houses to know from this notification as to which of them were likely to be affected so that they may file objections under Section 5-A. There was no reference to a plan and even if there had been such a vague reference to any plan, it was not expected of thousands of owners of small plots and houses to rush to the Collector's office to ascertain whether or not they were to move under Section 5-A."

6. In view of the foregoing discussion, the challenge sought to be made to the acquisition on the ground that notifications were vague and incomplete has no merit and deserves to be rejected. Besides, considering that the averments made in the writ petitions themselves indicate that the petitioners were aware of the acquisition proceedings. Therefore, it is not open for them to raise the plea of alleged ignorance of acquisition notifications covering their plots to explain the inordinate day in filing of writ petitions.

7. The next submission sought to be raised in the review applications by Mr.Sandeep Sethi, Mr.S.C.Dhamija and Mr.R.L.Kohli, learned counsel for the review applicants is that in view of the alleged regularization of their plots as residential, plots, there was no occasion for them to challenge the acquisition notifications. The submission being that their plots being regularized as residentials in the lay out plans, the public purpose for which acquisition was intended had ceased to exist in respect of the plots. In the impugned judgment dated 1st August, 2003, from para 13 onwards to paras 22, it has been held after a detailed analysis and discussion that the petitioners had failed to meet the twin conditions for regularization for availing the benefit of resolution/policy of 15th March, 1977. Firstly the plots should have been substantially built up and secondly the construction should have been substantially completed prior to 15th June, 1972. Petitioners have failed to set up a plausible case and produce any evidence on record to prima facie show that substantial construction was completed prior to 15th June, 1972. The petitioners were not eligible for adjustment of their plots or sites under the regularization plan. It has also been held that the public purpose had not ceased to exist. The challenge to the acquisition notifications which were of 1972 in 1987 has been held to be belated and not maintainable. It has been held that petitioners were not eligible for regularization of the plots in terms of resolutions of 1977 and subsequent resolution of 1986 only permitted the building activities on plots that had been regularized.

8. Petitioner in Gian Kaur Suri's case seek to assail the findings of sanction of building plans and regularization having been obtained by misrepresentation. Such a ground can only be taken in appeal and not in the review petition.

In the written submissions filed along with review petition, petitioner has contended that court overlooked that the petitioner had raised construction on the plot prior to 1971. In fact, it was claimed that plot was assessed by respondent-MCD for purposes of house tax and reliance was placed on the notice issued under Section 126 of the Delhi Municipal Corporation Act for the year 1972 in support thereof. The said submission is misconceived. In fact the house tax receipt on which reliance is placed and which pertain to the year 1971 was only in respect of vacant land i.e plot with an assessable value of Rs.1080/- without there being any construction. As a matter of fact the assessment appears to be for the house tax on the plot of land. This finding further finds support from the notice under Section 333 where the petitioner for further processing the case was required to submit receipt for vacant land tax payment. Accordingly, there is nothing on record to show that plot was substantially built on 15.6.1972. The plea that petitioner having demolished the construction on the plot with a view to construct a new building as is sought to be raised in the written submission and is not even a plea taken in the review application and as such can be given no credence.

10. The various pleas raised by the review petitioners in the review petitions have been dealt with in the impugned judgment and it is not necessary to deal with the same again in this order except observing that mere contention of eligibility for regularization would not suffice and unless the petitioners sought and obtain regularization in terms of the policy by fulfillling the requisite conditions. Such a plea would not be available and in any case, it cannot negate the factum of acquisition through the notifications which the petitioners were obliged to challenge. Construction raised subsequent to the acquisition notifications or after the date 15.6.1972 cannot be availed as ground to urge that the property was substantially built up and thus cannot be acquired. Once the public purpose of acquisition was established, it was not for the court to determine the utility or utilization of individual plots.

11. At this stage, a plea that has been specifically raised in the RA.No.9121/03 in WP(C).751/87 ( Inder Raj's case) deserves to be noted and dealt with. Mr.Sandeep Sethi, learned senior counsel for the petitioner contended that petitioner's plot bearing no.D-5/16 was sandwiched between two other built up plots bearing nos. D-5/15 and D-5/17 and his plot could not be put to any effective use. Mr.Sethi submitted that court had not dealt with specifically his contention that the plot stood regularized as a residential one in the lay out plan of Krishna Nagar, vide resolution no.389 of 6th September, 1973. It was, therefore, not necessary for the petitioner to have complied with or meet the eligibility condition of the policy for regularization of 17th March, 1977. The submission being that since petitioner's plot already stood regularized by virtue of resolution no.389 dated 6th September, 1973, he was not required to meet the eligibility conditions of substantial construction as on 15.6.1972. It is urged that, as noted earlier, since the plot being a sandwiched one, no useful purpose or public purpose can be served by its acquisition. The plot in question is a vacant one and admittedly, there is no construction carried out. The mere regularization of the plot as a residential one by virtue of resolution no.389 dated 6th September, 1973 does not ipso facto negate factum of acquisition by the notifications. The said regularization as a residential plot would at best provided the petitioner with a ground to seek denotification or release from acquisition by relying on the said resolution. The petitioner admittedly failed to challenge the acquisition notifications. Not only this, in the instant case possession of the plot was also taken on 5th February, 1987, as per proceedings and the status report filed. The writ petition was filed subsequently in March, 1987 and the interim order of status quo granted to him in August, 1987. In these circumstances, the award having pronounced in 1986 and possession having been taken, the acquisition proceedings acquired finality under Section 16 of the Land Acquisition Act and the Government also did not have the power to denotify the land and/or annul the notifications under which land had been acquired. The Government became the absolute owner and the lands fall outside the purview of the Land Acquisition Act and title can only be transferred by way of sale or grant etc. Reference may be invited to Ajit Singh and Ors. Vs. Union of India 189 (2000) DLT 495.

12. Mr. S.N. Chaudhary, learned counsel for the respondent-MCD apart from opposing the review petitions on the ground that they were appeals in disguise, submitted that petitioners were actually seeking re-hearing of the cases in review which was not permissible. He relied on 79 (1999) DLT 554 (DB) wherein the court has observed that "in case law has correctly been interpreted, its wrong application to the facts and circumstances of the case cannot be cannot be a ground for review for which appropriate remedy would be to challenge the order passed by us, in accordance with law and not by seeking review." Reliance was further placed in AIR 1998 SC 2655 wherein it was observed that 'review is not a full fledged power of reconsideration of the entire case as if it was a second innings on facts and law. Counsel also places reliance on Ramniklal N.Bhutta and Anr. v. State of Maharashtra JT 1996 (10) SC 452 on the approach to be adopted by the court while considering the public interest in matters of acquisition as also moulding the relief eve if the acquisition was found to be vitiated. Reliance was also reliance on Prem Chand Ramesh Chand v. DDA and Anr. 66 (1997) DLT 110 and Shri Bhagwan Das and Anr. v. Union of India and Ors 91(2) Delhi Lawyer 59 (DB) to urge that built up property could not be acquired. I find merit in the aforesaid submission of the respondent.

In view of the foregoing discussion and the legal position as noted above, the review petitions (applications) are without merit and even otherwise are not maintainable and are dismissed.