U.P. Samaj Cooperative House vs Delhi Development Authority And ...
2006 Latest Caselaw 1351 Del

JUDGMENT

Pradeep Nandrajog, J.

Page 2948

1. Between the years 1959 and 1961, petitioner, a cooperative house building society registered under the Delhi Cooperative Societies Act has purchased by way of sale deeds or and entered into agreement for sale, 425 bigha and 16 biswa land in village Tekhand and Tuglakabad. The dispute between the parties concerns 76 bigha and 1 biswa of land comprised in Khasra No's 2567/245- 248,2568/245-24-255-257.2572/256-268,2845/2571/256-269 and 4049/271 in village Tughlakabad.

2. Writ lands were purchased by the petitioner by means of sale deeds executed in its favor in the year, 1961.

3. On 13.11.1959 a notification was issued under Section 4 of the Land Acquisition Act, 1894 notifying that the appropriate government intends to acquire the lands detailed in the schedule to the notification. Evacuee lands were excluded from the purview of said notification. Declaration under Section 6 of the Land Acquisition Act, 1894 was issued on 15.09.1962. The said declaration notified the writ land as required for public purpose. Award followed somewhere in the year, 1963,

4. Entire land purchased by the petitioner was included in the award. Petitioner challenged the acquisition by and under C.W. No. 846/1968. Vide judgment and order dated 15.04.1969, the writ petition was disposed of. Petitioner had mixed luck. It succeeded qua 76 bigha and 1 biswa of land(subject matter of the instant petition). Qua the rest challenge failed.

5. Acquisition and the award was set aside in so far it related to the writ land. Since the appropriate government did not challenge the judgment and order dated 15.04.1969, the same attained finality. Thus, the writ land stood freed from the clutches of acquisition.

6. To overcome the legal infirmity on which acquisition of the writ land was quashed, another notification dated 14.05.1969 (published on 16.07.1969) was issued by the appropriate government under Section 4 of the Land Acquisition Act, 1894 relation to the writ land. It was followed by a declaration under Section 6 on 14.08.1969.

7. But that was the end. Award did not follow. Till date none has been published.

8. Section 11A was incorporated in the Land Acquisition Act, 1894 w.e.f 24.09.1984 vide Act No. 68 of 1984. It mandated that in respect of lands qua which declarations have been published (under Section 6) if no award is made within 2 years of 24.09.1984, the entire proceedings for the acquisition of the land shall lapse.

9. DDA came in possession of the writ land in 1974 when Central Government issued a notification under Section 22(1) of the Delhi Development Act, 1957 handing over possession to DDA. Commencing development, a colony called Alaknanda stands developed on the writ land. Flats constructed thereon stand allotted to third parties. Interest in the land comprised under the flats stands assigned.

Page 2949

10. Sh. Rajiv Bansal, Learned Counsel for DDA did not dispute that as per Section 16 of the Land Acquisition Act 1894, land vests in the government free from all encumbrances only when an award is made under Section 11 and possession taken over. Counsel further conceded that private land in Delhi if not acquired by the Union of India cannot be placed at disposal of DDA for the reason, he who has no title to a land cannot transfer the title to a third party.

11. But then, what is the fight about?

12. Petitioner claims illegal dispossession and wants its lands restored. But Sh. P.N.Lekhi, Learned Senior Counsel, very fairly conceded that since third party interest has been created, the next best relief by way of restitution and recompense be granted i.e. monetary compensation as per law or similarly situate equivalent land.

13. On the other hand, DDA has pleaded that the petitioner was given land by DDA for development and allotment of plots to its members and when said land was allotted, petitioner undertook not to question DDA's title to the writ land.

14. Since DDA's defense has been set out in a most inchoate manner and no documents have been annexed as annexures to the counter affidavit, it would be appropriate for me to note the defense in the language of DDA as per counter affidavit filed by Sh. Jagdish Chandra, Director (RL) DDA. Inter alia, following is pleaded:

3.2 That the instant writ petition is misconceived and bereft on any merit. The petitioners are trying to claim rights with respect to the land for which they have already tendered an undertaking not to raise any objections as in lieu of the same allotment stand already made in their favor. The petitioner thus wants to have the proverbial cake and eat it too....

x x x x x x x

4.1 That the petitioner society namely, U.P. Samaj Cooperative House Building Society Ltd. was registered on 31.01.1957. At the relevant point of time there was certain policy in respect of allotment on the basis of which cooperative house building societies were allotted land under the scheme of Large-scale Acquisition Development and Disposal of Land in Delhi. The said scheme had divided the various societies into four categories. They are as below:

Category-I: These were those house building societies in whose favor notifications either under Section 4 or under Section 4 and 6 both of Land Acquisition Act had been issued before 30th November, 1959. This date of 30th November, 1959 is the date of issue of Delhi Administration Central Notification in respect of 34,000 acres of land.

Category-II: These categories included house building cooperative societies which had themselves purchased land before 30th November, 1959 through private transactions.

Category-III: These were those house building cooperative societies which had been dispossessed of their lands because of acquisition Page 2950 of 1100/3000 acres of land for scheme of general housing of Ministry of Works, Housing and Urban Development and execution of interim general plan respectively.

Category-IV: This included those house building societies which had merely sent requisition for acquisition and subsequent allotment thereof in their favor. The societies in this category had been further divided into sub-categories.

A) Those societies which were registered before 30th November, 1959 and

B) Societies which were registered after 30th November, 1959.

4.2 That the societies falling under Category I, II and II were allotted land in the same area where they had purchased the land or as the case may be where the land had been notified in their favor before the date of general notification that is 30th November, 1959. The petitioner society did not own a substantial piece of land so as to fall in Category-I group. The category of the petitioner society after consideration and deliberation at the appropriate level so found to be fall in Category-IV and the land to such societies was processed. The society was always considered to be part of Category-IV in the categorization done in dealing with the allotments to the house building societies....

x x x x x x x x x x

That be that as it may after the acquisition having been quashed the society's case for the allotment under Category-IV was reconsidered. Petitioner's case for allotment of 65 acres of land in the Pritampura area was on anvil before this development. An order to that effect had already been made vide letter dated 12.02.1964. On review the Land Allotment Advisory Committee felt that no land should be allotted to those societies which had challenged the acquisition of land by filing the writ petition and thus questioned the very basis of the scheme of Large-scale Acquisition, Development and Disposal of the Land at Delhi. After the Hon'ble High Court order quashing the acquisition with respect to 76 bigas and 1 biswas of land the said land was renotified for acquisition by issuance of notification under Section 4 and 6 in the year 1969. The petitioner society was informed that the allotment of 65 acres of land cannot be further processed because of the fact that they had challenged the acquisition and thus the very scheme of Large-scale Acquisition for Development and Disposal of Land in Delhi. The petitioner society thus not be allowed to appropriate or reappropriate at the same time. The petitioner society could not claim allotment of land under the scheme which had been challenged in some other proceedings by litigation.

4.5 On the said decision having been brought to the knowledge of the office bearers of the society; the society gave an undertaking to be considered for the land in Group IV category of society subject to they being allotted land partly in Pritampura area and partly in Shadara area. A further assurance was also handed over by them that is such land was to be allotted in Shahdara and Pritampura area, they would give up their claim with respect to the land situation in Tughlakabad and undertook not to challenge the said acquisition. On the basis of Page 2951 such assurance by the society the Land Allotment Advisory Committee decided that 25 acres of land may be allotted in the first instant to U.P. Samaj Cooperative House Building Society Ltd., in Pritampura area provided that the society does not challenge the acquisition of 76 bigas and one biswas of land at village Tughlakabad which had been renotified for acquisition after the filling of the writ petition riled in the Hon'ble High Court. Thereafter in September, 1971 an additional land of 20 acres was also allotted to the Society in Shahdara area as per the recommendation of Lt. Governor of Delhi. But the said allotment on representation made by the petitioner society was changed to Pritampura area. Thus the land measuring about 45 acres was allotted to the society up to the year 1972. The said allotment had been made on an undertaking by the society that they be considered for such allotment as Category IV society and also the fact that they would not in future agitate for the land situated in Tughlakabad once this allotment as per recommendations of the Land Allotment Advisory Committee was allotted....

x x x x x x x x x

As far as the land in Tughlakabad is concerned where the writ petition has been dismissed and renotification issued, the said land was placed at the disposal of Delhi Development Authority Act on 20th March, 1974 for carrying out of various schemes for the said locality as envisaged in the Plans. The society in the meantime had been handed over the possession of the land in Pritampura area by the year 1974. The part of the said land as has already been used for the implementation of housing schemes.

15. Apart from the defense aforenoted, plea of delay and laches has also been raised by DDA to non suit the petitioner.

16. In rejoinder, petitioner has pleaded:

i) No undertaking or assurance was ever given or tendered by the Petitioner Society to give up its claim or rights in the land in dispute i.e. 76 Bighas 1 Biswas. Had there been any such undertaking or assurance the same would have found a mention in the Lease Deeds or agreement....

ii) Originally the case of Petitioner Society was processed for allotment of 65 acres of land on membership strength. However, the Society was allotted only 45 acres of land in two phases in Pitam Pura. 25 acres was allotted in Phase I during 1970 on payment of Rs. 9,80,239/- and 20 acres in Phase II in the year 1972 on payment of Rs. 9,43,592/-. This 45 acres of land was not allotted to the Society in lieu of its land measuring 76 bighas 1 biswas....

Moreover, Society's land measuring 76 bighas 1 biswas was already notified afresh after the judgment of the Hon'ble High Court in 1969. The said land stood released from acquisition only in 1986 when the time for making award expired by virtue of Section 11A of the Land Acquisition Act.

Therefore, there was no question of any undertaking or assurance by the Petitioner Society as pleaded by Respondent DDA in its Counter Page 2952 Affidavit. The averments made are ex-facie wrong and seem to have been made only with a view to create confusion.

17. In Delhi, acquisition of land is dealt with by the Land and Building Department, Govt. of NCT Delhi and earlier on by said department under Delhi Administration. Stand of said department as per affidavit filed by Sh. U.P. Singh (OSD Litigation) is accepting that land was not acquired and that:

The respondent No. 2 has already requested respondent No. 1 i.e. DDA to take appropriate action to vacate the land or to provide alternative land if they prove beyond doubt their necessity. That in this case, releasing of land/alternative land is concerned with respondent No. 1 and hence no reply from the answering respondents is called for in the petition.

18. It is trite that acknowledgment of a live claim extends limitation from date of acknowledgment and acknowledgment of a dead claim with promise to pay resurrects the claim and extends limitation from date of acknowledgment coupled with a promise to pay.

19. Petitioner has been making continuous representations for restoration of the land including correction of revenue record to record its ownership qua the writ land. To ascertain the position at ground as to who was in possession, demarcation was carried out on 14.02.1996 in presence of representatives of DDA and the petitioner. Deputy Commissioner (South) gave a status report in the year, 1996 as under:

STATUS REPORT

The land bearing Kh. Nos. 4049/271, 2843/2570/256-255-270-269, 2574/256-269, 2845/2571/256-269, 2844/2071/256-269, 2572/269-256 min, 2572/269-256 min, 2572/256-269 min, 2568/269-265-253-255-270, 2567/248-247, 2565/270 total measuring 76 bighas 1 biswa of Revenue Estate of Tuglakabad was notified under Section 4 on 13.11.59 and under Section 6 on 15.09.62. An Award No. 1533 for this land was announced on 30.01.63. The possession was handed over to Land Housing Department on 24.04.63. The amount of compensation is lying undisbursed.

In the year 1969, the High Court of Delhi in Civil Writ No. 846/68, quashed the acquisition proceedings for this land measuring (76-1) only vide judgment dated 15.04.69.

No SLP was filed against this judgment as per records.

However, in 1969 the land was renotified Under Section 4 vide No. F.15(61)/69-Land H and was also notified Under Section 6 of L.A. Act. As per the records maintained in this office there is no further Award announced for this land.

Sd/

Dy. Commissioner (South)

20. Petitioner has annexed minutes of joint meetings held in the Office of the Chief Minister, Delhi on 20.06.1996, 21.06.1996,23.08.1996,24.12.1996 and 24.01.1997. These minutes have been annexed as Annexure P-21 collectively. Respondents have not denied the same.

Page 2953

21. In the minutes recorded of the meeting held on 26.06.1996, inter alia, pertaining to stand of Land and Building Department and DDA, following is noted.

The Secretary (Land B) pointed out that the decision of the Hon'ble High Court might have challenged in the Hon'ble Supreme Court of India in S.L.P. She needed sometime to carry out checking of the relevant records. The Joint Director, DDA said that since the society had to be given land in terms of the judgment/decree as such alternate land could be given in Papankalan area 'Dwarka Phase I'. The society resisted for land in South Delhi or near the land adjoining the land belonging to DDA or surrounding thereto.

22. Minutes of what transpired on 21.06.1996 note as under:

The officers from the Land and Building Department had pointed out after tracing the records that the land in question was notified under Section 6 of the land Acquisition Act in August, 1969 after the judgment/decree dated 15.04.69 of the Hon'ble High Court of Delhi. It was pointed out that notification under Section 4 could not be traced out. It was explained that no award at that time was drawn up on the strength of this notification. Smt. Suman Swarup, Secretary (LandB) said that the acquisition of land again made in August, 1969 might have been under the same award No. 1533.

The bearers of the society immediately pointed out that award No. 1533 had since been quashed so far as land measuring 76 bighas and 1 biswa was concerned as such that award lost its sanctity and became in-operative with respect to the above land.

The provisions of the amended Act were read over to the Secretary and it was explained to her that in pursuance of the amended Section 11 of the Land Acquisition Act, the fresh award of on the basis of the freshly issued notifications could have been possible to be drawn up within a period of two years after the issue of the notification under Section 6 of the Act. In the present case admittedly notification under Section 6 of the Act was issued in August, 1969 as such reckoning the period of limitation from August, 1969, the award should have been drawn up by 1986. This being the position both the notifications being issued in 1969 became redundant.

Smt. Suman Swarup, Secretary (LandB) again desired 15 days' more time for thorough scrutiny of the records. She however assured the society that there would be no injustice to the society if no fresh award within limitation had been drawn up. She assured that the society would be given land in lieu of the land made use by the DDA.

23. Minutes dated 23.08.1996 inter alia, record as under:

Shri K.S. Meena, LAC presented the status report with regard to land measuring 76 bighas and 1 biswa at village Tughlakabad with details of khasra numbers involved before the Hon'ble Chief Minister. The report stated that the land in question stood acquired vide award No. 1533 on the basis of the notification under Section 4 and 6 of the Land Acquisition Act, 1894 and compensation thereof was sent to the Addl. District and Page 2954 Sessions Judge but was received back due to the acquisition proceedings with respect to the above land stands quashed by the Hon'ble High Court. The compensation is lying in the revenue deposit. It is further stated in this report that through the above said land was re-notified under Section 4 and 6 of the Land Acquisition Act on 12.05.69 abd 14.08.69 for acquisition but no fresh award was drawn up.

24. The minutes of the meeting wherein officers of DDA were present shows that till as late as June 1996 to August, 1996, claim of petitioner was not refuted. It was recorded that if it was found that land was not validly acquired, petitioner would be recompensed. In fact minutes dated 20.06.1996 record that if petitioner had to be given land, DDA was prepared to consider giving land in Papankalan or Dwarka, but petitioner wanted land in South Delhi as writ land was situate in South Delhi.

25. The writ petition has been filed on 09.04.1997. Where is the delay and laches I wonder.

26. After writ petition was filed in August 1997, Land and Building Department, Govt. of NCT Delhi wrote to Commissioner Land (DDA) that it should take remedial action since land was not acquired after first acquisition was quashed. It was followed by a letter dated 6/7.11.1997 written by Secretary, Land and Building, Govt. of NCT Delhi to Vice Chairman, DDA requesting to give alternative land to the petitioner. These 2 letters have been annexed as Annexure A and B respectively to the counter affidavit filed by Govt. of NCT Delhi.

27. Letter dated August 1997 reads as under:

GOVERNMENT OF NATIONAL CAPITAL TERRItorY OF DELHI OFFICE OF THE SECRETARY LAND and BUILDING, VIKAS BHAWAN, NEW DELHI.

NO.F/9/7/96/LandB/LA/11694-95 Dated:01.09.97

To

The Commissioner (LM),

Delhi Development Authority,

Vikas Sadan, New Delhi.

Sub: Restoration of land to the U.P.Samaj Co-operative House Building Society Ltd., Deepali, Pitampura, Delhi-34. In village Tughlakabad measuring 76 bighas and 1 biswas in satisfaction of the judgment/decree dated 15.04.1969 of the

Division Bench of the Hon'ble High Court of Delhi.

Sir,

I am directed to state that on the basis of the Notifications under Section 4 and 6 of the Land Acquisition Act, 1894, the land belonging to the U.P.Samaj Coop. House Building Society Ltd. measuring 420 Bighas and 7 biswas situated within the revenue estate of village Tughlakabad was acquired vide award No. 1533 by the Land Acquisition Collector, Delhi and possession thereof was taken over on 24.04.1963. Being aggrieved by the acquisition proceedings the society took up the matter before the Hon'ble High Court of Delhi in writ petition No. 846/1968. Page 2955 The Division Bench of the Hon'ble High court vide judgment dated 15.04.1969 quashed the acquisition proceedings in so far as they relate to the society's land measuring 76 bighas and 1 biswa comprised in the following khasra numbers.

 Kh. No.                   Area
2568/245-249,255-257  4 Big 10 Bis
2572/265-269            min 3 14
2565/270                 13-12
2567/247-48               3-03
2568/245-249255-257     min 4-10
2843/2570/255            10-18
2844/2571                3-05
2845/2571                3-03
2574/256                 2-01
2572/256-269           min 3-13
4049/271                 1-15
2568/245-249-
255-257                min 18-03
2572/256-269           min 3-14
                     __________
                         76-01
                     __________
 

2. The society has been representing for restoration of the possession of the land and various meetings in the Chamber of the Hon'ble Chief Minister and in the Chamber of the Secretary (Land and Building) were held. In one of the meetings the representative of the Delhi Authority had offered to provide alternative land to the society which is yet to be done. The Society has now filed civil writ claiming restoration of the land measuring 76 bighas and 1 biswa. The civil writ is fixed for hearing on 28.08.1997.

3. The operative part of the judgment of the Division Bench of the Hon'ble

High Court runs as under:

As a result of the above we quash the acquisition proceedings in so far as they relate to the petitioner's land measuring 76 bighas and 1 biswa detailed in annexure R-1 to the reply filed by the respondents. The notifications and awards in respect of that land too are quashed. As regards the remaining land in dispute the petition of the petitioner society is dismissed. In the circumstances, we leave the parties to bear their own costs.

Sd/-

H.L. Khanna, Judge

Sd/-

Apr.15, 1969 T.V.R. Tatachari, J.

The operative part of the decree dated 15.04.1969 runs as under:

And this Court do lastly order that this order by punctually observed, obeyed and carried into execution by all concered

Witness the Hon'ble Mr. I.D. Dua, Chief Justice of the Delhi High Court, New Delhi this the 15th day of April, 1969.

Page 2956

In view of the position explained in the proceeding paragraphs, you are requested to take remedial action at the earliest on the representations of the society so that the Government may not face any embarrassing situation on the court decision as referred to above.

Yours faithfully

Sd/-

(M.N. Malhan)

Deputy Secretary, L.A.

Govt. of NCT of Delhi.

28. Letter dated 6/7.11.1997 reads as under:

Commissioner and Secretary (L and B and PWD), Govt. of NCT of Delhi B Block, Vikas Bhawan, New Delhi - 110002.

Sub: Restoration of land to U.P.Samaj Cooperative House Building Society Ltd. in village Tughlakabad, measuring 76 bighas, 1 biswa in satisfaction of the judgment decree dated 15.04.1969 passed by the Hon'ble High Court of Delhi.

I am enclosing a copy of the letter received from UP Samaj Cooperative House Building Society Ltd. Deepali on the subject mentioned above. The Society has filed a writ petition which coming up for hearing very shortly. The land involved is in South Delhi near Tughlakabad. Copy of the judgment has already been sent to you. Another copy is enclosed. In view of the orders of the judgment you are requested to take appropriate action and provide alternate land as no appeal has been filed by your Department in this case.

Yours sincerely

Enl: As above. Sd/-

(SANAT KAUL)

Shri P.K.Ghosh,

Vice Chairman,

DDA, INA,

New Delhi.

29. Referring to representations of the petitioner made to DDA, Land Acquisition Collector, Revenue Authorities, Land and Building Department of Delhi Administration later on to said department under Govt. of NCT Delhi, being letters/representations dated 15.05.1969, 12.01.1980, 05.09.1980, 09.01.1987, 13.08.1987, 28.03.1988, 02.11.1988, 05.06.1989, 14.05.1990, 12.09.1996, 29.01.1991, 05.06.1991, 21.10.1995, 24.11.1995, 04.06.1996, 20.06.1996, 21.06.1996, 23.08.1996, 24.12.1996 and 24.01.1997, it was urged that mere representations do not extend limitation. It was urged that dispossession took place in the year 1963 and DDA came in possession in 1974. Following decisions were relied upon:

a) 2002 (64) DRJ 338 Tekchand v. U.O.I and Ors.

Page 2957

b) Unreported decision dated 26.08.2004 in WP(C) No. 6328/03 Krishan Gopal Sharma v. DDA and Ors.

c) State of TN and Ors v. L.Krishan and Ors.

d) Reliance Petroleum Ltd. v. Zaver Chand Popat Lal Sumaria and Ors.

e) Larsen and Turbor Ltd. v. State of Gujarat and Ors.

f) Urban Improvement Trust, Jdaipur v. Behru Lal and Ors.

g) 2003 (71) DRJ 335 Northern India Glass Industries v. Jaswant Singh and Ors.

h) 2002 (64) DRJ 338 (DB) Tek Chand v. UOI and Ors.

i) 2003 (71) DRJ 639 Arora Construction Company Pvt. Ltd. and Ors. v. Director General (Works) and Ors.

j) 2004 (74) DRJ 316 (DB) Shiv Charan v. UOI.

k) Delhi Administration and Ors v. Madan Lal Nangiar and Ors.

l) (2002)2 SCC 48 Municipal Council, Admednagar and Ors v. Shah Hyder Beig and Anr.

30. Delay and laches is a question of fact. Each case has to be decided on its own facts. It is true that non statutory representations do not extend limitation. In each case cited by learned Counsel for DDA, petitioners therein were relying on non statutory representations questioning the acquisition or their dispossession. In no case was it established that the department wrote back informing the petitioners therein that the grievance was being looked into. There was either stoic silence or repudiation of the claim. But in the instant case the respondents agreed to look into the claim and held out an assurance that if found meritorious, grievance would be redressed. Prior to filing of the writ petition, till as late as 24.01.1997 (evidenced by minutes dated 24.01.1997 in which besides representatives of the petitioner officers of DDA, Land and Building Department and from the Land Acquisition Department were present) assurance was held out that grievance of the petitioner would be Page 2958 redressed. Even after writ petition was filed, matter was actively considered and claim was accepted. Letters dated August 1997 and 6/7.11.1997, noted in paras 27 and 28 above, were written by the Secretary, Land and Building, Govt. of NCT Delhi acknowledging that claim of the petitioner was genuine and needed redressal. DDA was directed to provide alternative land.

31. Cause of action accrues when there is an unequivocal repudiation of a claim. Facts on records show that at no point of time either respondent repudiated the claim. On the contrary, claim was accepted just prior to the filing of the petition and even thereafter by Land and Building Department of Govt. of NCT Delhi.

32. Counsel for the respondents did not dispute that nodal department in Delhi dealing with land acquisition in Land and Building Department of Govt. of NCT Delhi. If Union of India i.e. Land and Building Department, Govt. of NCT Delhi accepts the claim, DDA as successor in interest is bound by acts of its predecessor-in-interest.

33. I accordingly hold that petition is not barred by delay and laches.

34. Admitted position between the parties is that with the decision dated 15.04.1969 in C.W. No. 846/1968 attaining finality, award pursuant to notification dated 13.11.1959 and declaration dated 15.09.1962 issued under Section 4 and 6 respectively of the Land Acquisition Act, 1894 stood quashed pertaining to the writ land and the same became free from the rigors of acquisition and since no award was made pursuant to second notification dated 14.05.1969 (published on 16.07.1969) and declaration dated 14.08.1969 under Section 4 and 6 respectively of the Land Acquisition Act, 1894, entire acquisition proceedings have lapsed. Only question therefore arises whether petitioner accepted 45 acres of land at Pitampura in lieu of the acquired land or alternatively abandoned claim in respect of the writ land.

35. Pleadings of DDA pertaining to its defense have been noted in para 14 above.

36. As held in the report published as Bharat Singh and Ors. v. State of Haryana and Ors. pleadings in a writ petition are pleadings of facts, evidence and law; unlike pleadings in a suit. In writ proceedings, a party has to make good its case pleaded on facts with reference to documents in relation whereto facts are pleaded. No document has been annexed by DDA to make good its pleadings. On this, short ground alone DDA has to be non-suited.

37. That the petitioner accepted land at Pitampura in lieu of the writ land and hence abandoned its claim has to be established in relation to the alleged undertaking/assurance of the petitioner reference whereof has been made in Para 4.4 and 4.5 of DDA's counter affidavit. No such document has been filed.

38. Abandonment or waiver has to be strictly established by the party pleading abandonment or waiver upon proof that the opposite party, conscious of its rights, abandoned or waived the same.

Page 2959

39. To establish waiver or abandonment, at the hearing held on 5.8.2006 learned Counsel for DDA produced 2 letters dated 26.10.1973 and 11.12.1973 addressed to petitioner by Land and Building Department, Delhi Administration and a response dated 17.10.1974 by the petitioner thereof.

40. The 3 letters reads as under:

DELHI ADMINISTRATION : DELHI (Land and Building Department)

Vikas Bhawan, New Delhi.

No. F.12 (5)/70-Land B Dated: the 26th Oct, 1973.

To

The Hony. Secretary,

U.P. Samaj Coop. House Bldg. Society Ltd.,

45/14, East Patel Nagar,

New Delhi.

Sub: Allotment of land.

Sir,

With reference to your representation regarding allotment of land to your society, I am directed to state that it would not be possible for us to offer you any land in the Pritampura area beyond 20 acres of land already offered to you there. In case you are interested in having additional land in Loni area you may kindly let us know immediately, so that necessary steps may be taken to carve out a re-development plan of that area, making necessary provisions for your society.

This may be treated as most urgent and reply may be sent within 10 days.

Yours faithfully,

sd/-

(B.R.K. BHATNAGAR)

Officer-on-Special Duty (Lit)

Delhi Administration, Delhi.

____________________________________________________________________________________

DELHI ADMINISTRATION:DELHI

(Land and Building Department)

Vikas Bhawan, New Delhi.

No. F.12 (5)/70-Land B Dated: the 11th Dec, 1973.

To

The Hony. Secretary,

U.P. Samaj Coop. House Bldg. Society Ltd.,

45/14, East Patel Nagar,

New Delhi.

Sub: Allotment of land to the society of Loni Road.

Sir,

I am directed to refer to this office letter No. F.12.(5)/70-LandB dated 07/11/1973 on the subject noted above and to request to you to Page 2960 immediately give the option of the society with regard to the proposed allotment so that further action could be taken accordingly.

Yours faithfully,

sd/-

(B.R.K. BHATNAGAR)

Officer-on-Special Duty (Lit)

Delhi Administration, Delhi.

____________________________________________________________________________________

Uttar Pradesh Samaj Co-op. House Building Society Ltd.

45/14 , East Patel Nagar, New Delhi-110008

By hand

No. 2764/74 October 17, 1974

Shri S.C. Sareen,

Asstt. Commissioner Housing (S),

Delhi Administration,

Land and Building Department

Vikas Bhawan,

New Delhi.

Sub: Allotment of additional 20 acres land in

Loni Road Area.

Dear Sir,

I am directed to invite your kind attention to your letters No. F.12(5)/70-LandB dated 26.10.73 and No. F.12(5)/ 70-LandB/Coop. Dated 11.12.73 on the above subject and to say that 45 acres of land already in possession of the Society in Pritampura is quite adequate to meet the requirements of our memebrs on roll for residential plots. We are, therefore, not interested in having any additional land which may kindly be noted.

Please acknowledge receipt of this letter.

Yours faithfully

sd/-

for U.P. Samaj Co-op. House Building

Society Ltd.,

(D.S. Gupta)

Secretary

41. Since DDA did not refer to said letters in the pleadings, we do not have a specific response from the petitioner. But since said letters were shown and submission were made thereto, I would be failing to note the petitioner's response.

42. Sh. P.N.Lekhi, learned senior counsel for the petitioner submitted that in 1970 and 1972, the petitioner was given land at Pitampura for development and carving of plots for allotment to its members for which it had paid money to DDA. Society was allotted 45 acres land in two phases. In the year 1970 in phase I, 25 acres of land was allotted for which petitioner paid Rs. 9,80,239/-. In 1972, in phase II, 20 acres land was allotted for which society paid Rs. 9,43,592/-. Since case was being processed for allotment of 65 acres of land and only 45 acres was allotted in 2 phases, correspondence was Page 2961 exchanged for allotment of another 20 acres of land. The 3 letters related to said matter discussed between the parties.

43. Submission made by Sh. P.N.Lekhi, learned senior counsel for the petitioner is not in the air as indeed this is the case of the petitioner pleaded in the rejoinder, contents whereof have been noted in para 16 above.

44. Record of DDA shows that society and DDA were exchanging letters whether petitioner should get 65 acres of land and if yes where. The 3 letter in issue relate to said series of correspondence.

45. Parties were not discussing petitioners claim for recompense relating to the writ land.

46. Indeed, they could not. Why?

47. It was only on 20.03.1974 that DDA got possession and title to the writ land when Central Government issued notification under Section 22(1) of the Delhi Development Act, 1957. In the year, 1970 and 1972 there was no occasion for the petitioner to correspond with DDA qua the writ land.

48. In any case, I find no abandonment, waiver or relinquishment of claim by the petitioner qua writ land in the letter dated 17.10.1974. The abandonment relates to claim for 20 acres land which was earlier on being claimed. Said land if allotted had to be paid for.

49. Regarding the other plea that under the scheme of Large Scale Acquisition for Development and Disposal of Land in Delhi, petitioner accepted land at Pitampura upon condition that it would not question the acquisition of the writ land, I may note that no such policy was filed with the counter affidavit. However, I directed DDA to place on record the said policy.

50. The scheme has not been filed, but extracts from the compilation, Guidelines On Land Management, Chapter 12? have been filed by DDA on 16.11.2005.

51. Sh. Rajiv Bansal, learned Counsel for DDA stated at the bar on 05.08.2006 (when arguments were heard) that the same mirrors the scheme.

52. Paras 12.5 and 12.6 of Chapter 12, dealing with allotment of land to cooperative housing societies are relevant. They read as under:

Administrative Grouping of House Building Societies

12.5 The plot holders societies were divided administratively into following four groups as follows:

Group I

Plot holders societies in respect of whose land notifications under Section 4 or under Sections 4 and 6 of the Land Acquisition Act, 1894, had been issued before 13th November, 1959.

Group II

Plot holders societies which themselves had purchased land before 13th November, 1959, through private negotiations and whose land was acquired.

Group III

Plot holders societies which had been dispossessed of their land:

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i) In the course of acquisition of 1100 acres of land for the scheme of the Ministry of Works and Housing,

ii) For the scheme of the Delhi Development Authority and the Municipal Corporation of Delhi out of the land notified on 3rd September, 1957, for the execution of the interim General Plan.

Group IV

Plot holders societies which had merely asked for acquisition or allotment of land.

Allotment of land to Cooperative House Building Societies

12.6 Soon after the 1961 scheme was formulated, a committee called the Land Allotment Advisory Committee was formed with the following composition:

1. Chairman, Industrial Advisory Board Delhi - Chairman.

2. Commr. Municipal Corporation of Delhi Member.

3. Vice-Chairman, Delhi Development Authority Member.

4. Housing Commissioner, Delhi. Admn. Member.

In course of time, the Chief Councillor become the Chairman of the committee. The Committee decided that the Societies in Group I, II and III be allotted land on the basis of the actual compensation payable to them on acquisition of their land on condition that they gave an undertaking that they would not go in appeal for enhancement of the compensation awarded to them in respect of their land. They were, in addition, required to pay departmental charges at the concessional rate of half of the normal charges as envisaged by Sub-paragraph (ii) of Paragraph 2 of the 1961 scheme. Societies in Group I and II were allotted land in the same zone in which they owned land before acquisition thereof, while Group III societies were elsewhere allotted land which could be equated in terms of value and potentiality to the zone or area from which they were dispossessed.

The societies falling in Group IV had no land of their own in any form but had asked for acquisition or allotment of land. These societies had been considered for allotment of land in Pitampura (Zone H-4) and (Part H-5). Rohtak Road (Zone C-17) and Shahdara (Zone E-8 to E-11) areas undeveloped land at predate mined rates, namely the cost or acquisition and development and certain additional charges as per 1961 scheme.

53. DDA admits placing petitioner in Group IV.

54. Perusal of para 12.5 and 12.6 of the land management guidelines shows that Group I, II and III societies had to be allotted land on the basis of actual compensation payable to them on the condition that they would not seek enhancement of compensation. These societies had to pay departmental charges at the concessional rate of half of the normal rates. Group IV societies were to be allotted undeveloped land at pre determined rates.

55. If petitioner was placed in Category I, II or III, matter would have been different, but admittedly, petitioner has been placed in Category IV. Admittedly, for 45 acres land allotted to the petitioner at Pitampura, it has paid to DDA at the pre determined rates charged by DDA. Question of the petitioner accepting Page 2963 land at Pitampura in lieu of writ land or in lieu of abandoning or waiving right qua writ land does not arise.

56. Clutching on to a straw, learned Counsel for DDA submitted that the society had passed a resolution on 3.5.1964, copy whereof was furnished to DDA by way of an undertaking on a non judicial stamp paper in denomination of Rs. 2/-. The resolution reads as under:

Copy of the resolution passed unanimously in the special Meeting of the General Body of the Uttar Pradesh Samaj Co-operative House Building Society Ltd., 6-D, Karol Bagh, New Delhi held on the 3rd May 1964 in the Constitution Club, Curzon Road, New Delhi under the Chairmanship of Sh. D.N. Goyal, Under Secretary, Ministry of Food and Agriculture, Govt. of India, New Delhi....

This Special Meeting of the General body of the Uttar Pradesh Samaj Co- operative House Building Society Ltd., resolves to request the Delhi Administration to release to the society the undermentioned lands purchased by the Society through its own efforts:

in village Jogabai 11 bighas 6.4 biswas purchased before 13.11.59

in village Bahapur 23 bighas

in village Tughlakabad and Tekhand 425 bighas 16 biswas purchased after obtaining a Certificate from the Delhi Administration vide their letter No. F 15

(105)/59-L and H, dated 14.06.60.

The case of the Society in respect of release of lands is analogous to those of Maharani Bagh, New Friends and Govt. Servants Co-operative House Building Societies to whom lands which they had purchased before issue of notification under Section 4 of the Land Acquisition Act were released, in that in village Jogabai the society purchased 11 bighas 6.4 biswas of land before 13.11.59, the date of the General Freeze order and in respect of 213 bighas 14 biswas of land in villages Tughlakabad and Tekhand, notifications under Section 4 in respect of which were issued vide Nos. F. (4)/60/62-LandH, dated 11.09.62 and F. (4)/60/62-LandH, dated 07.03.63 published in the Delhi Gazettes dated 02.02.62 and 21.03.63 respectively i.e. after the purchase of our lands and no notification in respect of 47 bighas 3 biswas of land has to date been issued. This Special meeting further resolves that in case the above claim of the society is accepted by the Delhi Administration, the society is prepared to furnish the undertakings specified in para 1 of the Delhi Administration letter No. F15 (105)59-LandH, dated 12.02.64 and would agree to provide its own services and develop the land within a period of three years of the date of handing over of possession.

2. This Special meeting of the General body further resolves that in case the Delhi Administration does not see its way to release the lands purchased by the Society, to which it has a legal and valid claim, the Society may be released lands in the following priorities:

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a) Land on the Najafgarh Road north of Shakur village.

b) Land on the Najafgarh Road about 9.1/2 mile stone and near Hashtsal village.

c) Land on the Rohtak Road near 7 mile stone from Delhi and about 1000 ft. away from the Road.

And that the Society is specifically asking for allotment of land in the above areas in which Municipal Services are not likely to be provided in the next five to ten years and that the Society would not demand or agitate either itself or otherwise for provision of Municipal Services in the area in which land is allotted to it by Delhi Administration. The Society, however, considers that it should be allotted at least an equal area to that which it has purchased and at the prices which it has paid. In this connection our memorandum dated 31.01.64 to the Chief Commissioner and its reminder dated 27.04.64 and our various interviews with him and letter dated 28.03.64 and 27.04.64 to Sh. K.L. Rathi, Housing Commissioner, Delhi also refer.

This meeting authorizes the Secretary to sign the declaration on a stamp paper as required by the Delhi Administration.

Sd/- J.P. Goel.

Secretary.

57. I find no abandonment or waiver in the resolution. Its contents are self speaking. The first part contains resolution that if land at Tughlakabad and Tekhand (which includes the writ land) are given to the society, it would carry out development at its own cost. Alternatively it was resolved, if some other land was to be allotted, it would accept the same if it had area equal to the acquired land and price charged was the same. Plain and simply read, first alternative was nothing but release of the acquired land and second alternative was land in lieu of land. Nothing of the kind happened. The 2 situations contemplated by the resolution did not materialize. And that is the end of the matter.

58. But who wants to drown. Another floating straw was attempted to be clutched at by DDA. A letter dated 16.08.1972 addressed by petitioner to DDA was relied upon to establish that petitioner had accepted compensation for the writ land notwithstanding that acquisition was challenged and challenge had succeeded.

59. It is impermissible for a party to urge pleas based on facts which are not pleaded in its pleadings, for the reason it deprives the opposite party a fair chance of rebuttal. The letter dated 16.08.1972 had not been referred to by DDA in its pleading. It has not been pleaded that petitioner has received the compensation for the writ land. I therefore, do not permit DDA to argue a case not pleaded.

60. Since DDA had referred to in its pleadings to the Large Scale Acquisition scheme and had not filed the same and since defense was predicated under the scheme, I had directed DDA to file the same. As noted above, DDA filed land management guidelines and stated at the bar that the same mirrors the scheme. Along therewith letter dated 16.08.1972 has been filed. No prior leave or permission was sought. None has been granted.

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61. Assuming my view in paras 59 and 60 above is wrong, I deal with the letter on merits.

62. The letter refers to DDAs letter dated 18.07.1972 wherein DDA demanded beautification charges for 25 acres land allotted to the petitioner at Pitampura (phase I allotment) petitioner has raised a grievance why it was being signed out. Incidentally it wrote that it had not received compensation for the acquired land. While referring to the acquired lands, writ land was referred to.

63. Learned Counsel for DDA urged that letter dated 16.08.1972 written by the society acknowledges if not receipt of compensation for the writ land, a right/entitlement to receive compensation. Therefore, Counsel urged that petitioner can lay no claim to the writ land.

64. The innocent reference to the writ land in letter dated 16.08.1972 is neither here no there for the reason there is unimpeachable evidence on record that petitioner did not receive any compensation for the writ land. The first is the status report given in the year 1996 (noted in para 19 above) wherein Dy. Commissioner (South) has clearly recorded that the compensation is lying undisbursed. The second is the information provided by Sh. K.C.Meena (LAC) and as recorded in the minutes of the meeting dated 23.08.1996 (contents noted in para 23 above) that the compensation is lying in the revenue deposit.

65. Status of DDA is of an unauthorized occupant. Title as per revenue record continues to be that of petitioner. The land is unacquired. But equities in favor of third parties have set in.

66. On the relief, learned Counsel for DDA had urged that if the court was not to agree with the defense of DDA, relief to be granted has to be akin to the relief granted by a division bench of this Court in the decision reported as 2004 (74) DRJ 316 Shiv Charan v. UOI which was followed by me in WP(C) No. 6328/03 Krishan Gopal Sharma v. DDA, decided on 26.08.2004

67. Both decision do not apply in as much as in both cases the writ petitions were held barred by delay and laches but since petitioners were illiterate persons, holding that it would be against equity for the state to enrich itself, directions were issued to pay compensation as per rate determined in the award for other lands together with interest. In my opinion relief which has to be granted has to be in terms of the decision reported as JT (2004) 3 SC 272 R.L. Jain v. DDA.

68. I issue a mandamus to respondents 2, 3 and 4 to forthwith issue a notification under Section 4 of the Land Acquisition Act, 1894 pertaining to the writ land. Since land stands already utilized for a public purpose, inquiry under Section 5A is dispensed with. Simultaneously or within a week of issuance of notification under Section 4, declaration be issued under Section 6 and thereafter within 4 weeks notice be served upon the petitioner under Page 2966 Section 9 and award be made within 6 months from date of the present judgment. I further direct that for the period prior to date of Section 4 notification which would be issue pursuant to the present judgment, from the date petitioner was disposed, land acquisition collector would determine the rent or damages payable to the petitioner as per law laid down in paras 18 and 19 of the decision in R.L.Jain's case (supra).

69. Petitioner would be entilted to cost against the respondents in sum of Rs. 25,000/-. Respondents are made jointly and severally liable to pay the cost.