Lohia Developers (India) P. Ltd. vs Union Of India & Ors.
2008 Latest Caselaw 1276 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 5569/2007

                                           Reserved on : July 30th, 2008

%                                     Date of Decision : August 8th,2008


LOHIA DEVELOPERS (INDIA)
P. LTD.                               ..... Petitioner
                 Through              Mr. V.P. Singh, Sr. Advocate
                                      with Ms. Ritu Singh Maan, Adv.

                       versus

UNION OF INDIA & ORS.                 ..... Respondents
                   Through            Ms. Monia Garg, Adv. for R-1
                                      Mr. Arun Birbal, Adv. for R-2,4 & 5
                                      Mr. Guarav Sarin with Ms. Supriya
                                      Juneja, Adv. for R-3.


CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1. Whether Reporters of local papers may be
   allowed to see the judgment?                        Yes.
2. To be referred to the Reporter or not?              Yes.
3. Whether the judgment should be reported in          Yes.
   the digest?


                       JUDGMENT

MANMOHAN, J :

1. The Petitioner has filed present writ petition under Article 226

and 227 of the Constitution of India for quashing of acquisition

Notification dated 22nd November, 2006 as well as the Declaration

dated 12th June, 2007 issued under Sections 4 and 6 respectively of

the Land Acquisition Act, 1894. The Petitioner has further sought to

restrain the Respondents from taking any action against the land

situated in Khasra No. 80/2 admeasuring 3 bighas (3024 sq. yrds.)

situated in Village Khichripur, Tehsil and District, Delhi, hereinafter

referred to as the Petitioner‟s land.

2. Briefly stated the material facts of this case are that on 28th

September, 1987 a prior notification had been issued under Section 4

of Land Acquisition Act acquiring the Petitioner‟s land. In the said

Notification issued by the Lt. Governor of Delhi, sub-sections (1) and

(4) of Section 17 were also invoked and it was further directed that

Section 5A of the Land Acquisition Act would not apply. However, a

Division Bench of this Court by its judgment and order dated 10th

March, 1989 in a Civil Writ No. 3356/1987 quashed the said Section

4 Notification on the ground that it did not give any reason for

invoking Section 17 and the Petitioner‟s right to file objections under

Section 5A could 'not be interfered with in such a casual and caviler

manner.'

3. Subsequently as a group housing society was illegally trying to

encroach upon the Petitioner‟s land, the predecessor-in-interest of

the Petitioner filed a suit before Civil Judge being Suit No.

M-15/1990. The Civil Judge by its judgment and order dated

7th November, 1994 decreed the suit and restrained Mansingh

Co-operative Housing Society from raising any construction on the

Petitioner‟s land.

4. On 3rd December, 1996 the initial owner of the said land sold it

to M/s. Electomack (India), a proprietorship firm owned by Dr. Vidya

Sagar. In a suit filed on 16th September, 2005 by Dr. Vidya Sagar,

the trial court granted a permanent injunction restraining DDA and

Surangini Cooperative Group Housing Society from obstructing

Petitioner‟s passage/rasta as it was the only approach for reaching

the Petitioner‟s land. In the said suit it was admitted that the

Petitioner‟s land was surrounded by land acquired by DDA and said

passage/rasta belonged to DDA.

5. On 8th November, 2005 the present Petitioner purchased the

said land vide a registered sale deed from M/s. Electomack (India) for

a total consideration of Rs. 2,11,68,000/- (Rupees Two Crores Eleven

Lakhs Sixty Eight Thousand only).

6. On 22nd November, 2006 the Government once again issued a

notification under Section 4 of the Land Acquisition Act for acquiring

the said land. The purpose for acquisition as mentioned in the

Section 4 Notification was, 'for the Planned Development of Delhi'.

Thereafter on 18th December, 2006 the Petitioner filed detailed

objections to acquisition under Section 5A of the Land Acquisition

Act.

7. However, on 12th June, 2007 a Declaration under Section 6 of

the Land Acquisition Act was issued. Immediately on receiving

notices of Section 9 and 10 of the Land Acquisition Act, the Petitioner

filed the present writ petition. On 1st August, 2007, this Court was

pleased to grant a status quo order in respect of the nature, title and

possession of the Petitioner‟s Land.

8. Mr. V.P. Singh, learned Senior Advocate for the Petitioner

contended that a citizen is entitled to know precisely why he is being

deprived of his property. According to him, for this reason

particularisation of public purpose is a must for a small acquisition.

He further contends that the purpose for acquisition mentioned in the

impugned Section 4 Notification was extremely vague as it conveyed

nothing to the expropriated owner and consequently the Petitioner

could not file any meaningful objections. He submitted that the

compendious expression 'Planned Development of Delhi' is

meaningless when used with reference to a single owner, owning a

small piece of land. According to Mr. Singh such a public purpose

can only be used with reference to acquisition of large track of land,

as in such a case, it would be practically difficult to specify the

particulars of public purpose for each and every small portion of land

that was being sought to be acquired. Consequently, Mr. Singh

contended that unspecified public purpose in the impugned Section 4

Notification prevented the Petitioner from filing meaningful objections

to the acquisition notification as the Petitioner was not able to show to

the statutory authority that the said land was not suitable for the

purpose it was being sought to be acquired for. In this connection

Mr. V.P. Singh, learned Senior Counsel for Petitioner sought to

primarily rely upon Aflatoon & Ors. Vs. Lt. Governor of Delhi &

Ors. reported in (1975) 4 SCC 285. Relevant portion of the said

judgment is reproduced hereinbelow:

"In the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed."

9. Mr. Singh also relied upon the following judgments :-

a) Munshi Singh & Others Etc. Etc. Vs. Union of India Etc. Etc. reported in (1973) 1 SCR 973 at 981

b) Madhya Pradesh Housing Board Vs. Mohd. Shafi & Ors. reported in (1992) 2 SCC 168, paras 8 & 14;

c) Ajay Krishan Shinghal etc. Vs. Union of India & Ors.

reported in JT 1996 (7) SC 301, para 6; and

d) Golcha Theatres Vs. Lt. Governor of Delhi reported in 1983 Rajdhani Law Reporter 179, paras 15 & 18.

10. Mr. Gaurav Sarin appearing for DDA submitted that there was

no vagueness in the acquisition notification as the purpose of

acquisition is apparent from the Master Plan of Delhi and Zonal

Development Plan, inasmuch as the usage of Petitioner‟s land in the

said plans have been specified for residential group housing scheme.

He also placed on record a Zonal Development Plan of the relevant

area to show that the Petitioner‟s land is a part of plot No. 26

designated for residential group housing scheme. Mr. Sarin referred

to the judgment of the Apex Court in State of Tamilnadu & Ors. Vs.

L. Krishnan & Ors. reported in (1996) 1 SCC 250 paras 35 to 39

to submit that vagueness in acquisition notification is a question of

fact to be decided in each case on its own merits and not to be

treated as a question of law. In the said judgment, the apex court has

observed , "In Aflatoon, it was stated that whether the public purpose

stated in a particular notification is vague or not is a question of fact to

be decided in each case and cannot be treated as a question of law. It

was also emphasised that where large extents are sought to be

acquired for development or similar purposes, it would not be possible

to specify how each owner's bit would be utilised and for what purpose.

We are of the respectful opinion that the decision in Munshi Singh

should be read subject to the explanation and the holding in Aflatoon

which is a decision of a Constitution Bench."

11. Mr. Sarin further submitted that not only was the usage and

purpose of acquisition apparent from the Master Plan and Zonal Plan

but the same was also within the knowledge of the Petitioner as

would be apparent from the two civil suits filed by the predecessor-in-

interest of the Petitioner.

12. Mr. Sarin also contended that though the impugned acquisition

notifications relate to a small portion of land, but they were actually

sixth in a series of acquisition notifications issued with regard to

Village Khichripur. He stated that in all earlier acquisition notifications

the purpose of acquisition was planned development of Delhi. He

also pointed out that one of the earlier acquisition notifications

pertained to even a smaller portion of land than what is owned by the

Petitioner.

13. Mr. Sarin handed over a copy of the site plan to show that the

Petitioner‟s land sought to be acquired by the impugned notifications

is surrounded on all sides by land acquired by DDA for development

of a residential group housing scheme. He contended that if a small

parcel of land inside the residential group housing scheme is today

left out from the development, it would lead to arbitrariness in the

development process and would be contrary to the stated public

purpose.

14. Lastly Mr. Sarin submitted that the Petitioner was a mere

speculator who had purchased the said land with the knowledge that

it was likely to be acquired in accordance with the Master Plan and

Zonal Development Plan. He further stated that the sale

consideration mentioned in the Petitioner‟s sale deed was a highly

inflated amount, just to get a higher compensation subsequently.

15. Mr. Arun Birbal, appearing for Government of NCT of Delhi,

submitted that the Petitioner‟s primary argument that particularisation

of public purpose was a must for small acquisition, does not apply to

acquisitions post-preparation of Master Plan and Zonal Plan.

Mr. Birbal referred at length to the judgments of the Apex Court in

Munshi Singh and Aflatoon (referred to hereinabove) to contend

that the Apex Court in these two cases was at pains to repeatedly

point out that it was dealing with a situation where neither a Master

Plan nor a Zonal Plan was in existence on the date of issuance of the

acquisition notifications. In fact, in Munshi Singh's case the

Supreme Court itself stated that if on the date of acquisition a Master

Plan had been available for inspection by the persons interested in

filing the objections, then the position would have been entirely

different. The relevant portion of Munshi Singh‟s case is reproduced

hereinbelow for ready reference:-

"......If the Master Plan which came to be sanctioned on September 4, 1962 had been available for inspection by the persons interested in filing objections or even if the knowledge of its existence on the part of the appellants had been satisfactorily proved the position may have been different. In that situation the appellants could not claim that they were unable to file objections owing to the lack of any indication in the notification under S. 4 of the nature of development for which the area was being requisitioned......"

16. Mr. Birbal also referred to the judgments of the Apex Court in

Babu Barkya Thakur Vs. The State of Bombay and Others

reported in (1961) 1 SCR 128 at 140, S. Gurdial Singh & Ors. Vs.

Ludhiana Improvement Trust reported in (1997) 5 SCC 138 para 3

and Ajay Krishan Shinghal etc. Vs. Union of India & Ors. (referred

to hereinabove) to contend that acquisition notification issued under

Section 4 of the Land Acquisition Act cannot be quashed on the

ground of vagueness.

17. In the alternative, Mr. Birbal submitted that the acquisition

notifications, in any event, can be struck down only if a two-fold test is

fulfilled namely that firstly the public purpose in Sections 4 and 6

notifications should be vague and secondly said vagueness should

also cause prejudice and injustice to the Petitioners specially in filing

their objections under Section 5A of the Land Acquisition Act. In this

context, Mr. Birbal laid great emphasis on the judgment of the Apex

Court in Pratibha Nema & Ors. Vs. State of M.P. & Ors. reported

in (2003) 10 SCC 626 paras 37 & 38 and P. Narayanappa & Anr.

Vs. State of Karnataka &Ors. AIR 2006 SC 3001 paras 11 and 12.

18. Mr. Birbal also dealt at length with the judgment of a learned

Single Judge of this Court in Golcha Theatre (Supra). He firstly

submitted that one of the primary factors that influenced the learned

Single Judge to quash the acquisition notification was that the

purpose of notification as disclosed to the Court in the said case, was

contrary to the Zonal Development Plan that was approved

subsequent to the acquisition notification. He referred to the

observations of learned Single Judge in para 15 to contend that the

acquisition notification had been declared invalid as it failed on the

touchstone of the Zonal Development Plan. He, however, also

submitted that observations of the learned Single Judge that a public

purpose has to be particularised for a small acquisition is contrary to

the dicta of the Supreme Court.

19. Mr. Arun Birbal reemphasised the argument raised by Mr. Sarin

that the impugned acquisition notification was merely a follow up of

the earlier five acquisition notifications under which large track of land

had been acquired. He submitted that the present acquisition

proceedings have to be viewed from the prospective that the

impugned notifications were a part of an overall decision of the

government to acquire large track of land in Village Khichripur to

develop a residential group housing scheme. In this regard, he

referred to and relied upon observations of the Apex Court in Mandir

Shree Sita Ramji Vs. Land Acquisition Collector & Ors. reported

in (2005) 6 SCC 745. Mr. Birbal also referred at length to the

objections filed by the Petitioner under Section 5A to contend that the

Petitioner was throughout aware of the fact that the Master Plan of

Delhi and Zonal Development Plan provided for residential group

housing scheme on the Petitioner‟s land.

20. In rejoinder, Mr. V.P. Singh submitted that observations in

Munshi Singh's case would not apply to the present case inasmuch

as the Apex Court in Munshi Singh's case was dealing with the

acquisition of a large track of land. Mr. Singh also tried to distinguish

the judgment of the Apex Court in Babu Barkya Thakur by pointing

out that acquisition in the said case was for a company. He

reemphasised the observations of the Apex Court in the case of

Aflatoon referred to hereinabove. Lastly, Mr. Singh submitted that

no group housing scheme can come up on the Petitioner‟s land as it

does not fulfill the minimum criteria required for developing a group

housing scheme.

21. On a perusal of the aforesaid arguments, case law cited and

the Land Acquisition Act, we are of the view that the State can

acquire land only if the same is needed either for a public purpose or

for a company. If the acquisition is for public purpose and the

urgency power under Section 17 has not been invoked, then any

person interested in the notified land can file objections to the

proposed acquisition under Section 5A. The Apex Court in catena of

cases has held that Section 5A confers a valuable as well as

important right. In fact in Hindustan Petroleum Corporation Ltd.

Vs. Darius Shapur Chenai & Ors. reported in (2005) 7 SCC 627 at

635, the Supreme Court has held that having regard to the provisions

contained in Article 300A of the Constitution, Section 5A is akin to a

fundamental right. Consequently, a citizen is entitled to know why he

is being deprived of his property. But in our view, an objector derives

knowledge of the purpose of acquisition not only from the impugned

notifications but also from the Master Plan and Zonal Development

Plan, as in any event the validity of the acquisition notifications have

to be tested on the touchstone of the Master Plan and Zonal

Development Plan. This is more so, when the acquisition

notifications refers to the public purpose as, "Planned Development of

Delhi" and it is the Master Plan and Zonal Development Plan which

lay out in detail the planned development of Delhi. It is pertinent to

mention that the Master Plan and Zonal Development Plan are in

public domain and easily accessible to the public at large.

22. Undoubtedly, as held in Aflatoon public purpose cannot be

specified and particularised in the case of acquisition of a large area

of land. In the case of small acquisition, a citizen is certainly entitled

to know why he is being deprived of his property so as to enable him

to file objections under Section 5A. But while deciding whether

acquisition notification is vague or not, the totality of facts and

circumstances have to be seen and in this context not only the

acquisition notifications have to be considered but also other

documents like the Master Plan and Zonal Development Plan will

have to be taken into account. In our view, Golcha Theatre cannot

be taken to mean that public purpose must be specified and

particularised in the acquisition notification itself. This is because, as

stated hereinabove, the validity of the acquisition notification has to

be decided on the touchstone of the master plan and zonal

development plan.

23. We reiterate that acquisition notifications issued under Section

4 of the Land Acquisition Act can be quashed on the ground of

vagueness. We are fortified in this view by a three Judges Bench‟s

judgment of the Supreme Court in State of Tamil Nadu & Ors. Vs. L.

Krishna reported in (1996) 1 SCC 250. The said judgement has

been passed after considering the judgement of Aflatoon, Munshi

Singh and Babu Barkya Thakur referred to hereinabove.

24. However, we are in agreement with Mr. Birbal‟s submission that

acquisition notifications can be quashed on the ground of vagueness

only if they fulfill a two-fold test i.e. firstly the public purpose

mentioned under Sections 4 & 6 notification should be vague and

secondly the said vagueness should prohibit the Petitioners from

filing meaningful objections under Section 5A of Land Acquisition Act.

Consequently, in our view acquisition notifications can only be

quashed on the ground of vagueness if they cause real as well as

substantive prejudice and injustice to the Petitioner.

25. We are also of the view that the issue whether the public

purpose stated in a particular notification is vague or not is a question

of fact to be decided on the merits of each case and cannot be

treated as a question of law. In the present case, we find that the

particularisation of public purpose is apparent from the reading of the

impugned notifications along with Master Plan of Delhi and Zonal

Development Plan, inasmuch as the usage of the Petitioner‟s land in

the said plans have been specified for residential group housing

scheme. A reading of the entire objections filed by the Petitioner

under Section 5A of the Land Acquisition Act leaves no doubt that it

was also within the Petitioner‟s knowledge that the usage of the land

specified in the Zonal Development Plan was for residential purpose.

Consequently, in the present case the Petitioner cannot urge that the

compendious expression „Planned Development of Delhi‟, prevented

the Petitioner from filing any meaningful objections to the proposed

acquisition.

26. But in our view, Mr. Birbal‟s submission that particularisation of

public purpose does not apply to acquisition post-preparation of

Master Plan and Zonal Development Plan is not correct. There can

be cases where master plan and zonal development plan may not

specify in any detail usage of a portion of land for any particular

purpose.

27. As far as Mr. Singh‟s submission that acquired land cannot be

used for residential group housing scheme is concerned, we are of

the view that the said averment is missing both in writ petition as well

as in the rejoinder. This is despite the fact that the Respondents in

their counter-affidavit had specifically taken the plea that the

Petitioner‟s land is required for residential group housing scheme.

Therefore, we are unable to reach the conclusion that the acquired

land cannot be used for residential group housing scheme.

28. Consequently, the present petition being devoid of merits is

dismissed but with no order as to costs and the interim order passed

by this Court is vacated.

MANMOHAN, J

MUKUL MUDGAL, J th August 8 , 2008 rn