Dalbir Singh vs Land Acquisition Collector And ...
2007 Latest Caselaw 287 Del

JUDGMENT

J.P. Singh, J.

1. In this writ petition under Article 226 of the Constitution of India the following prayers have been made:

1. Certiorari to quash Award No. 15/87-88 and all notifications under Section 4 & 6 in respect of the land comprised in khasra Nos.576 (3-12), 577 (5-2) and 585/2 (4-9) totally admeasuring 13 bighas and 3 biswas, situated within the revenue estate of Village Chattarpur, Tehsil Mehrauli in the Union Territory of Delhi, in possession of the Petitioner;

2. Mandamus directing respondent not to, in any manner whatsoever, interfere with peaceful enjoyment and possession and user of the land in Khasra Nos. 576 (3-12), 577 (5-2) and 585/2 (4-9) totally admeasuring 13 bighas and 3 biswas, situated within the revenue estate of Village Chattarpur, Tehsil Mehrauli in the Union Territory of Delhi, presently in possession of the Petitioner;

3. And declaration that Award No. 15/87-88 made by respondent No. 1 in respect of petitioner's land in village Chattarpur, is made malafide, and in abuse and excess of authority and power, being violative of the provisions contained in Article 14 and 300A of the Constitution of India;

4. And to further declare the said proceedings in respect of the land of petitioner is void and of no force or effect being a fraud on the Land Acquisition Act and the Constitution of India;

5. Costs of this petition be also awarded in favor of the petitioner.

2. The learned Counsel for the petitioner submitted as follows:

(a) The petitioner has been cultivating the land as an owner since 1949-50. In 1967-68 the ownership of the land was changed in the name of the Government but the possession continued to remain with the petitioner and he also continued to cultivate the land.

(b) It is further submitted that the petitioner constructed a boundary wall and a few structures on the land and also installed a tube well. On 25th November, 1980 a notification No. F.1(16)/80-L&B under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued including the land in question. Section 4 of the Act reads as follows:

Section 4 - Publication of preliminary notification and powers of officers thereupon. (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification].

(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen,

to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil;

to do all other acts necessary to ascertain whether the land is adapted for such purpose;

to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches,

and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence of jungle:

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof)without previously giving such occupier at least seven days' notice in writing of his intention to do so.

(c) Even though land cannot be acquired, therefore notification could not be issued for the said land, the acquisition proceedings continued and on 7th June, 1985 the declaration was issued under Section 6 of the Act. Section 6 of the Act reads as follows:

6. Declaration that land is required for a public purpose. - (1) Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, Sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5A, Sub-section (2):

[Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1), -

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1976 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or

(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:

Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.

(Explanation 1 - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification of the notification issued under Section 4, Sub-section (1), is stayed by an order of a Court shall be excluded.

(Explanation 2 - Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.]

(2) Every declaration shall be published in the Official Gazette, [and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of the such publication and the giving of the public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in a manner hereinafter appearing.

(d) On 30th July, 1987 the notification dated 25th November, 1980 and the declaration dated 7th June, 1985 (supra) were withdrawn from a huge area of the land situated in villages Deoli, Tuglakabad, Neb Sarai, Satbari, Tejpur Khurd, Shayurpur, Maidan Garhi and Chhattarpur because that land was already the Government land.

(e) The petitioner always remained under the impression that the Government land could not be acquired but when on 31st December, 1999, the officers of the DDA i.e. respondent No. 2 came to take possession of the land in pursuance of award No. 15/87-88, he was advised to file the petition to challenge the above mentioned Notification and the Declaration.

3. The learned Counsel for the respondents has submitted as follows:

(a) Lame excuses are being made by the petitioner to cover the delay because Section 4 Notification was issued on 25th November, 1980, Section 6 Declaration was issued on 7th June, 1985 and the Award was passed on 5th June, 1987. The same are being challenged in January, 2000 i.e. after about 15 years without any plausible explanation. The writ petition is highly belated and malafide.

4. Learned Counsel for the petitioner has cited:

CW No. 3614/1991 titled Ajit Singh and Ors. v. UOI and Ors.;

CW No. 1275/1993 titled Sajit Singh and Ors. v. UOI and Ors.;

CW No. 1863/1994 titled Mohender Singh Tyagi v. UOI and Ors. &

CW No. 3865/1991 titled Jug Mohan Kapur v. UOI

The later three judgments are based on the judgment titled Ajit Singh v. UOI. Brief facts in the said case are that the Government had issued Notification under Section 4 of the Act and Declaration under Section 6 of the Act and award No. 23/87-88 was passed and thereafter possession was taken by the Government under Section 16 of the Act. There was no dispute that the possession was with the Government and the petitioner had sought restoration of the land. The petitions were dismissed. Therefore the said judgments are not attracted in the present case.

5. As against these judgments the learned Counsel for the respondents has argued that the Declaration under Section 6 of the Act was issued on 7th June, 1985 containing the details of the land to be acquired. The land in question is also shown in the said Declaration, which clearly shows that the intention of the Government was to proceed with the acquisition and not to exclude the land in question as contended by the learned Counsel for the petitioner on the basis of the exception clause of Section 4 Notification. Thus the petitioner had, if at all, a cause of action to challenge the Notification dated 7th June, 1985, he ought to have challenged the Notification within a reasonable time. The petitioner having allowed the acquisition proceedings to be completed in the form of award and possession, cannot be permitted to challenge the same after about 15 years. In support of the contentions the learned Counsel for the respondents have relied upon the judgment (i) CWP No. 1811/2002 titled Rajiv Prem v. UOI decided on 15th September, 2006, and upheld in SLP (C) No. 18106/2006, by an order dated 19th October, 2006. (ii) SLP (C) No. 12460/1997 titled DDA v. Shyam Sunder Khanna .

6. In Rajiv Prem's case (supra), the petitioner had taken the plea that construction of a farm house was sanctioned by the Municipal Corporation of Delhi on the land in question. It was contended that such land was exempted from acquisition proceedings in terms of Section 4. The High Court of Delhi while examining all aspects of the matter and relying on several judgments of the Supreme Court inter-alia held that the petition must fail because of delay and laches. To similar effect are the judgments titled State of Rajasthan v. D.R. Laxmi and Aflatoon v. UOI reported in AIR 1974 SC 2073.

7. It has been repeatedly held by this Court and the Hon'ble Supreme Court of India that in case of unexplained delays and laches the extra ordinary jurisdiction under Article 226 of the Constitution of India cannot be exercised. We may mention a recent judgment delivered by this Court in Santosh Kumar v. UOI decided on 26th May, 2006 in which after throughly discussing the law and relying upon Supreme Court judgments, the Division Bench of this Court held that the petitioner having allowed the authorities to complete the proceedings, acquiesced in the same and could not belatedly challenge the Notifications and the Award.

8. The learned Counsel for the petitioner has also emphasized that the land in question being Government land cannot be acquired and has cited the judgments titled State of Orissa and Ors. v. Brundaban Sharma and Anr. reported in 1995 Supp (3) SCC 249. In this case the appeal of the Government was accepted and it was held that the land which already stood acquired need not have been acquired again and therefore there was no question of payment of compensation to the illegal and unauthorized occupant of the Government land. The order to pay the compensation was also set aside. This judgment, in our view, goes against the petitioner because he is evidently now an unauthorized occupant because the land as alleged by him in para No. 3 of the petition already stands in the name of the Government, since the year 1967-68.

9. The learned Counsel for the petitioner has also cited the judgments titled State of Jammu & Kashmir v. Sanatullah Mir and Sharda Devi v. State of Bihar in support of the contention that the Government land cannot be acquired.

10. The learned Counsel for respondents has argued that the said judgments are against the petitioner and has submitted that the ownership is a bundle of rights and as per the own showing of the petitioner he had only some right/interest in the land in question. It is settled law that the Government can acquire the residual rights of the land owner, in the land.

11. In the Jammu & Kashmir case (Supra), the main issues before the Hon'ble Supreme Court of India were the references under Section 18 and 30 of the Land Acquisition Act and the conditions and nature of powers under which the two provisions were applicable. In this judgment also it has been held that the land owned by the State on which there are no private rights is beyond the purview of provision of Land Acquisition Act meaning thereby that if on the land owned by the State there are some private rights or encumbrances, as in the present case, then the said private rights can be acquired and all encumbrances removed, may be by payment of compensation depending upon the facts of the case, so that the State becomes the title holder and also the physical possession holder of the land, free from all encumbrances.

12. In Sharda Devi's case (Supra) the Hon'ble Supreme Court followed amongst others the judgments titled Dy. Collector, Calicut Division v. Aiyavu Pillay reported in 9 IC 341 and Collector of Bombay v. Nusserwanji Rattanji Mistri , which judgments were relied upon in the earlier judgment titled "State of Jammu & Kashmir v. Sanahullah Mir" (Supra). In Jammu & Kashmir case, the Hon'ble Supreme Court agreed with the following views as expressed in the case titled Dy. Collector, Calicut Division v. Aiyavu Pillay (Supra):

10. It is, in my opinion, clear that the Act dare not contemplate or provide for the acquisition of any interest which already belongs to government in land which is being acquired under the Act but only for the acquisition of such interests in the land as do not already belong to government.

13. The Hon'ble Supreme Court of India in the case titled Jammu & Kashmir (Supra) also observed as under:

11. ...The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the government, possession was with the other side. In the land acquisition proceeding possession was acquired on payment of compensation. In that event it was held that money paid was not under any mistake of fact or law. It was paid for divesting the defendant of his possession. In the instant case neither title nor possession was with the defendant. The entire bundle of rights in the land had vested in the State long ago and there was nothing left to be acquired. In such a situation the High Court was wrong in following the Bombay decision and in applying its ratio to the facts of this case.

14. The Hon'ble Supreme Court of India in Sharda Devi's case (Supra) observed as under:

28. ...In Collector of Bombay v. Nusserwanji Rattanji Mistri this Court held that when the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself and interest in the land, it has only to acquire the other interests outstanding thereof so that it might be in a position to pass it on absolutely for public user....

15. The above observations leave no doubt that the courts have distinguished the matters where the Government has title as well as possession and the entire bundle of rights in the land and there is nothing to be acquired, and where it has only title and not possession meaning thereby that it can acquire possession also by way of acquisition. Needless to say, that the process of acquisition encompasses in itself the taking over of all interests and rights including title and possession because the land has to vest in the Government free from all encumbrances. If the Land Acquisition Act is to be interpreted in its letter and spirit, then no other meaning can be attributed to the acquisition. If the Government has already got the title, as admitted in this case, it cannot be deprived of other interests including the possession and the said interests can be acquired through the Land Acquisition Act culminating in taking over of physical possession.

16. A perusal of the above judgments leave no doubt that it has been unequivocally held that even after having the title, other interests and rights which are still with a private person can be acquired and compensation paid for the said rights and interests in the land including deprivation of the physical possession. The Hon'ble Supreme Court has held as under in Sharda Devi case (Supra):

...the power to acquire by the State, the land owned by its subjects hails from the right of eminent domain vesting in the State which is essentially an attribute of the Sovereign Power of the State. So long as the public purpose subsists the exercise of the power of the State to acquire the land of its subjects, without regard to the wishes and willingness of the wner or person interested in the land, cannot be questioned.

17. In our view, besides the delay of 15 years in moving the court, all the contentions raised on behalf of the petitioner stand covered by the decided cases referred to above. Considering all the facts and circumstances, we do not find any merit in this petition, the same is wholly without merit and is, therefore, dismissed with Rs. 20,000/- (Rupees Twenty Thousand Only) in favor of respondents. The compensation, if any, payable be released/offered to the claimant within three weeks from today. The concerned respondents are permitted to take physical possession within three weeks from today.