Shiv Pratap Seoni And Ors. vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1837 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these proceedings under Article 226 of the Constitution, of India, the relief claimed is a direction to the respondents, particularly, the Government of India to allot an alternative plot measuring 500 sq.yards. in lieu of lands sought to be acquired.

2. The petitioners claim to have purchased lands, being Plot No. 9 out of a larger area of 24.1 acres, which had been granted to one Shri Ram Singh Kabli on perpetual lease basis. The petitioner No. 1 acquired and secured possession of the plot in 1952.

3. In 1975, the entire area including the petitioners' land were acquired, under the Land Acquisition Act, 1894. The petitioners have filed the copy of an Award dated 29.3.1975, in which their names have been disclosed as persons interested to receive compensation.

4. The petitioners claim that in 1984 the Central government formulated a policy, where lands measuring 500 square metres each were to be released to the owners of such acquired lands, as alternative plots. The petitioners claim that several landowners whose land were also acquired in the same area, known as Arakhpur Bagh Mochi, Factory Road, were granted the alternative plots.

5. The petitioners claim that sometime in 1994 the government in pursuance of its policy allotted alternative land to similarly situated persons. It is alleged that the properties were apparently taken over by certain squatters illegally; the petitioners further allege that they were not responsible for permitting encroachments by the squatters. They claim to have filed a suit against the illegal occupants in which the government also supported their stand. In the award issued on 2-12-1978, the Central government had apparently recorded that the physical possession of the/lands was yet to be taken over. The petitioners were also asked to pay ground rent.

6. The policy relied upon by the petitioners has been enclosed. It is dated the 3-10-1984. The relevant portions of the policy may be extracted as follows:

(1) out of the land currently under acquisition proceedings, such land may be exempted from acquisition proceedings as is required for bonafide residential use of the applicants calculated on the norm at 500 square metres be released in favor of the applicant. Similar land may be released in favor of the adult first defendants to the release would be subject to the usual conditions as laid down in the earlier cases namely that of Shri Bal Krishan Dang, S. Gurcharan Singh and Shri Pravir Ukil i.e. That the land is used for residential purposes and provisions of Urban Land Ceiling (Regulation) Act are satisfied, the requirement of which may be looked into by the Land Acquisition Collector before finally exempting the land from acquisition.

iii] The Plan sent in this connection with the L&DO's note may be broadly followed.

iv] Action may be taken in regard to the change of land use as necessitated in accordance with the decision.

v] The Land released from acquisition may be allowed to revert back to the application on the terms and conditions of the lease under which the land was being held at the time of the commencement of the acquisition proceedings, subject to its being used for residential purposes alone.

7. It is alleged that in 1994, the Central Government decided to allot 500 sq. metres of land to similarly situated persons. The petitioners, it is claimed, kept unsuccessfully representing to the authorities. They allege that denial of similar treatment, and denial of allotment amounts to hostile discrimination.

8. Mr. D.N. Goburdhan, learned Counsel submitted that the denial of similar treatment to the petitioner amounted to hostile and invidious discrimination. He relied upon the order of this Court in WP 2017/1990 decided by this Court on 11-8-2004. It was claimed that the petitioner there too was a landowner in Arakhpur Bagh Mochi, and the lands were acquired by the same action; after the petitioner was denied allotment, writ proceedings were initiated, where the court directed allotment of lands.

9. Learned Counsel submitted that the respondent has not denied the facts, but its only defense was that the lease had been cancelled. However, that stand had no basis, since the affidavit of the respondents admits that the lease was restored. It was also urged that there was no question of the lease having been resumed in 1970, since the lands had already been acquired by the Central Government.

10. The main contesting party, i.e the Central Government, was unrepresented during the hearing of the petition. It has however, filed its affidavit. It says that the suit lands, and the entire lands were notified under Section 4 of the Land Acquisition Act by the then Delhi Administration on 15.09.1962. The declaration under Section 6 of the Land Acquisition Act was issued on 05.12.1968. It alleges that the petitioners' property, i.e 9, Factory Road, were inspected on 30.04.70 and breaches of unauthorised construction etc. were reported.

11. The breaches were allegedly notified to the Lessees on 11.06.1970. The lessees were directed to remedy the breaches within 30 days of the issue of notice. They were informed about their liability to pay the charges for the breaches of the terms of lease for the period of their existence, and that if they failed to do so within 30 days and failed to pay the charges for the past breaches within 30 days of date of intimation, action under the terms of Lease would be taken.

12. The Central Government claims that as no satisfactory reply was received, a final Show Cause Notice was given on 07.08.1970. No reply to the final Show Cause Notice dated 07.08.1970 was received, the lease was determined, and the premises were re-entered by the Lesser on 03.11.1970. The entire plot of land and all the building existing there, including all structures, erections and fittings, vested in the President of India with effect from that date. The ex-lessees were informed of this by letter dated 19.11.1970. It further alleges that upon their request, the ex-lessees were also given terms for withdrawal of re-entry on 14.02.1978. But the terms were never complied with by the ex-lessees. It is also averred by the respondent that the land at Factory Road was taken over by the Land Acquisition Collector through Award 20-A/24-75; possession was handed over to the Ministry of Health and Family Welfare, for setting up a Centralised Accident & Trauma Service Centre. With the taking over of the Land by the Land Acquisition Collector on 29.01.1986, the acquisition was complete on that date and no portion can be released.

13. The factual narrative shows that the petitioner had acquired rights in respect of leasehold lands, in the nineteen fiftees. The Central Government notified the lands in 1962; a declaration under Section 6 of the Land Acquisition Act was issued in 1968. In the meanwhile, the Lesser issued notice, and after considering the relevant facts, determined the leasehold rights in favor of the petitioners. The Award in respect of all the properties was drawn up in 1975; significantly, while showing possession of the petitioner, the lands were not assessed to compensation. The award also stated, inter alia:

The land vests in the Central Government and is under the management of Land & Development Officer, Ministry of Works and Housing, New Delhi. The land was originally leased out to Sh. Ram Singh Kabli to hold the land in perpetuity. It changed hands afterwards. Since the property is subject to a lease, theortically speaking the total compensation for the property should be the total of compensation payable in respect of the interest of the Lesser and the lessee.

There are some unauthorised occupants as well as claimants other than recorded owners/ occupants. There is therefore, interse dispute between the different categories of person in erested. As the little to receive the compensation is in dispute, the entire compensation will be sent to the court Under Section 30, 31 L.A. Act for apportionment.

14. The petitioners were apparently offered that the leasehold rights would be restored, in 1978; but, they did not comply with the conditions. The occupants in the vicinity, were given relief, pursuant to a policy decision in 1984; in respect of some persons a portion of land was apparently left out from acquisition, and not taken over; one of the land owners (B.K. Gupta) was allotted alternative plot. The petitioner made fruitless requests for parity in treatment, before approaching the court in 1998.

15. The petitioner, significantly has not denied that the respondent offered to restore the leasehold rights, subject to conditions, and that he did not comply with the terms, in 1978. This, apart from the fact that the other persons given relief, were granted before possession was handed over, as per the scheme in the letter dated 1984, is of some importance. The allotment as per the letter of 1984 was primarily a proposal to release some portion of the land from acquisition, before possession was taken over. The only exception was in the case of Shri B.K. Gupta, who was granted an alternative allotment, in 1994. Even in that case, the landowner was apparently litigating in the court; also, he was assessed to compensation for severance of leasehold rights. Nothing was brought to the notice of the court that in each of the cases, the erstwhile land owners's leasehold rights were similarly determined, as in the case of the petitioner. The petitioner appears to have accepted the re-entry, as the petition and other pleadings are bereft of any challenge to, or previous proceedings in that regard. Further, the petitioner's lands were taken possession without protest. All these, in my opinion, point to the fact that the petitioner was satisfied with the state of affairs that existed as of 1978, when the offer to set aside re-entry went unheeded, or at any rate, in 1986, when possession was handed over without any reservation or condition.

16. In the above state of facts, I am unpersuaded with the submission that the petitioner is identically or similarly situated with the others. The case of the petitioner cannot be equated with the others, some of whom kept asserting their rights from the beginning, by approaching the court; certainly there is nothing on record to show that without restoration of their leasehold rights, they were granted alternative allotment. While similarity of treatment should be undoubtedly premised on broad points of identity, and the authority cannot insist and highlight minutiae, yet, the court cannot be unmindful of important feature which would show conduct of the party claiming equality. Here, the petitioner was satisfied with his lot for these long years, between 1984/1986 and 1998, i.e. for over 12 years. He seems to have woken up to the possibility of alternative allotment for a 500 sq meter plot, after seeing the successes in the case of others. This conduct, in my view, shows waiver of his rights by the petitioners. The Supreme Court has defined waiver in the following terms, in Sikkim Subba Associates v. State of Sikkim :

Waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, the party would have enjoyed.

Nothing in the materials before the court indicates that the petitioner was unaware of the developments leading to allotment of plots/ release of parts of other landowners' rights from acquisition. Indeed, he has relied upon the allotments effected in 1994. He also accepted the re-entry of the lands by the Central Government in 1978; there is no specific denial of the re-entry having been withdrawn. Added to this is the fact that possession was taken over in 1986, and the petitioner has approached the court, after an inexplicable delay of 12 years. In these circumstances, the exercise of discretionary, equitable jurisdiction under Article 226 of the Constitution of India, would be imprudent and unwise.

17. In view of the above reasons, the petition has to fail; it is accordingly dismissed. No costs.