Shri J.P. Gupta vs Union Of India And Others
2008 Latest Caselaw 2170 Del

                               Unreportable
                 IN THE HIGH COURT OF DELHI AT NEW DELHI

                           + WP(C) No.432/1989

                                             Date of Hearing: 04.11.2008
                                             Date of Decision: 05.12.2008

#Shri J.P. Gupta                       .....Appellant

!                                      Through: Mr. Jos Chiramel

                      Versus

$Union of India and Others             .....Respondents

                                       Through Mr.Gaurav Sarin for the DDA
                                       Mr. Sanjay Poddar for the LAC

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE MANMOHAN SINGH

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

A.K. SIKRI, J.

:

1. The petitioner herein (since deceased) was the owner of land

admeasuring 4 bigha 10 biswa forming part of Khasra No.68/1

Village Kilokri, Delhi popularly known as Hari Nagar Ashram, New

Delhi. This khasra comprises of much bigger land and there have

been repeated attempts to acquire 12 bigha 2 biswa out of the said

land, including the land of the petitioner which measures 4 bigha

10 biswa, as stated above.

2. First notification under Sections 4, 6 and 17 of the Land Acquisition

Act (hereinafter referred to as the 'Act') seeking to acquire 12

bigha 2 biswa was issued on 4.5.1960. The purpose of acquisition

as stated in the said notification was "for setting up a Fire Station."

Notices were also issued under Sections 9 and 10 of the Act to the

petitioner and other land owners. At that time, writ petition was

filed challenging those notifications on the ground that any

acquisition for the purpose of Corporation could be procured only

if the Corporation was satisfied that a negotiated sale of the land in

question was not possible. The writ petition was, however,

dismissed by the Division Bench on 26.11.1969. It seems that the

Government acquired some other land for setting up the Fire

Station.

3. As the land was no longer required for Fire Station, fresh notices

under Sections 9 and 10 were issued keeping the earlier

notifications under Sections 4 and 6 intact, on 16.11.1971

purporting to continue the acquisition proceedings for a different

public purpose than the one envisaged in the notifications under

Sections 4 and 6. It was stated in these notifications that the land

was required for "construction of staff quarters for Delhi

Administration." Predecessor of the petitioners again approached

the Court by filing Writ Petition No.694/1971. This writ petition

was allowed by the learned Single Judge vide judgment dated

8.10.1976 on the ground that when public purpose envisaged in

Section 6 notification was setting up of a Fire Station and provisions

of Section 17 were also invoked dispensing with the provisions of

Section 5-A of the Act, with the change of public purpose one

would not know if the appropriate Government would have

attached some urgency to such a requirement and therefore, the

purported action deprived the petitioners of their essential

safeguard provided under Section 5-A of the Act. This judgment is

reported as ILR 1977 Delhi 356. The Government challenged the

judgment rendered by the learned Single Judge by filing LPA

No.126/1976, which was ultimately dismissed by the Division

Bench. The judgment of the Division Bench is reported as Union of

India and Others v. Nand Kishore, 22 (1982) DLT 251.

4. It would be relevant to state here that when the LPA was pending

before the Division Bench the respondent filed an application for

early hearing stating that the land in question was required for

"widening of the road at Ashram in connection with Asiad 1982",

which was to be inaugurated in October, 1982. However,

thereafter vide notification dated 3.3.1982, 18 biswa of land owned

by one Dr. Kataria was acquired for widening of the road at

Ashram. Even the petitioner vide his communications dated

12.4.1982 and 22.4.1982, in response to the application for early

hearing, offered the portion of land required for road widening

subject to the condition that remaining land should be de-notified

and cleared from acquisition. However, on 26.4.1982 the

respondents entered into an agreement with Dr. Kataria as per

which 13 biswa of land for road widening was acquired and

remaining 5 biswa of land was de-notified and freed from

acquisition. Ultimately, as pointed out above, LPA was dismissed

on 21.5.1982.

5. The respondents did not challenge the judgment of the Division

Bench on 21.5.1982 passed in the LPA. Instead, it issued two

notifications. By first notification dated 1.7.1982 land admeasuring

1 bigha 7 biswa out of said Khasra No.68, which did not belong to

the petitioner, was acquired for widening of road overbridge at

Ashram. Another notification dated 22.7.1982 was issued under

Section 4 of the Act acquiring remaining 10 bigha 15 biswa of land.

In this notification land of the petitioner was included. The

purpose for which the land was acquired, as stated in the Section 4

notification, was "planned development of Delhi." We are

concerned with the validity of this notification in the present writ

petition as the petitioner has sought quashing of Section 4

notification and further notifications issued thereafter, as

mentioned below.

6. Objections were invited under Section 5-A of the Act. The

petitioner did not file any objections. Thereafter, another

notification dated 25.10.1982 was issued under Section 6 of the

Act. Notices under Sections 9 and 10 followed. The petitioner

even took part in those proceedings after receiving the said notices

on the basis whereof Award dated 19.9.1986 was made by the LAC

fixing market value of the land. Almost 2½ years after passing of

the award the petitioner filed the instant writ petition alleging that

the acquisition was fraudulent and mala fide and not for "public

purpose." It is also his submission that the term 'planned

development of Delhi' was vague and not applicable to a small

piece of land as that of the petitioner. During the pendency of the

writ petition the petitioner died and his son/legal heir has been

brought on record.

7. Show cause notice was issued in the writ petition on 16.3.1990 and

interim order was passed directing that there would not be any

demolition of the property of the petitioner. However, in spite of

service upon the respondents, as no counter affidavit was filed for

quite some time, on 11.1.1991 rule was issued and interim order

made absolute.

8. In July 2007, the son of the petitioner applied under the Right to

Information Act and inspected the records of the LAC and obtained

certified copies of some notings and other documents. He has filed

those notings and documents with his additional affidavit and on

the basis of such documents his contention is that it is now

revealed that the respondents had sought acquisition of the land in

question in an illegal and fraudulent manner by way of colourable

exercise of power. Counter affidavit was filed by the respondents

No.2 and 3 only in July 2007 and by the DDA in January 2008.

9. We may state at the outset that the petitioner in the present case

is required to cross a big hurdle, namely, that of delays and laches

on which ground the respondent sought dismissal of the writ

petition. As per the respondents, though the notification under

Section 4 was issued as far back as on 22.7.1982 followed by

declaration under Section 6 of the Act on 25.10.1982, the

petitioner filed the writ petition only in February 1989 challenging

these notifications and such a petition is highly belated and suffers

from laches and delays. Another facet of this argument as raised

by the respondents is that in the meantime even Award dated

19.9.1986 was passed and therefore, no such writ petition is even

maintainable after the passing of the Award.

10.We may point out at the outset that the Supreme Court as well as

the High Courts have taken consistent view that if the challenge to

Sections 4 and 6 notifications is not laid within reasonable time, the

petition would be dismissed on the ground of delays and laches. It

is more so when these notifications are challenged after making of

the Award. The leading case is the Constitution Bench judgment of

the Supreme Court in Aflatoon v. Governor of Delhi, (1975) 4 SCC

285. Section 6 notification in that case was issued in the year 1966

and the petition to challenge that notification was filed in 1972.

Holding that the petitioner was guilty of laches and petition was

required to be dismissed on this ground, the Supreme Court made

the following observations:-

"Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the notification even after the publication of the declaration under Section 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitions should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is sine qua non for

initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the ground which were available to them at the time when the notification was published would be putting premium to dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners."

11.This and subsequent judgments of the Supreme Court were taken

note of by a Division Bench of this Court in Shri Bhagwan & Anr. v.

Union of India nd Ors., 1991 (2) Delhi Lawyer 59 (DB). The Court

noted that in Aflatoon (supra) the writ petition had been filed soon

after Section 9 notice but before making of the award and the

Court still dismissed the petition on the ground of delays and

laches. Subsequent judgments of the Supreme Court and the

aforesaid principle reiterated therein was discussed by the Division

Bench in the following manner:-

".....Similar was the position in the case of Indrapuri Griha Nirman Sahakari Samiti Ltd. v. The State of Rajasthan and others (1975) 4 SCC

296. In that case petition was filed challenging sections 4 and 6 notifications 9 years after the notifications had been issued. Relief was denied on the ground of delay. In Pt. Girdharan Prasad Missir and another (1980) 2 SCC 83 the delay in filing the writ petition was more than 17 months after the award had been announced. Because of this delay, the High Court had declined to interfere. The decision of the High Court was

upheld by the Supreme Court which observed that the High Court was right in holding that the unexplained delay was good ground for dismissing the writ petitions. Similarly, in Babu Singh and others v. Union of India and others, (1981) 3 SCC 628 there was a delay of more than six years in filing of the writ petition and the same was dismissed, inter alia, on the ground that the delay was inordinate. In Hari Singh and others v. State of U.P. and others, (1984) 2 SCC 624 notifications issued under sections 4, 6 and 17 of the Land Acquisition Act were challenged by a petition which was filed about two and a half years after the promulgation of the same. The Supreme Court came to the conclusion that the petition should be dismissed on the ground of laches alone. In State of Punjab and others v. Hari Om Cooperative House Building Society Ltd., Amritsar, 1987 (supp) Supreme Court cases 687 the High Court had granted relief and had quashed notifications issued under sections 4 and 6 of the Land Acquisition Act. The Supreme Court, however, reversed the decision on the ground that when the writ petition was filed long after the publication of the notification under section 4 and the declaration under section 6, the Court ought not to interfere. Similar was the view of the Supreme Court in the case of Improvement Trust, Faridkot and others v. Jagjit Singh and others, 1987 (supp) SCC 608."

12.Adverting to the position before the Division Bench in the said case,

it held that there was delay and laches on the part of the

petitioners in challenging the notifications under Section 4 and 6. It

would be worthwhile to quote the observations made in para 14:-

"14. The aforesaid principles are applicable to the present case also. Notifications under sections 4 and 6 were issued in 1984. No action was taken by any of the petitioners. Thereafter a survey was conducted and the award was made in September, 1986. When the Government conceives of a project

like the present and issues the notification under section 4, then any person who has a grievance can file objections under Section 5A and thereafter, if he does not get the relief, can challenge the notification under section 4 or the declaration under section 6 by filing a petition under Article 226 of the Constitution. If a declaration under section 6 is issued and no action, within a reasonable time, is taken by the owners of the property which is sought to be acquired then the acquiring authority can legitimately believe that there is no opposition to the said acquisition. Between the issuance of the declaration under section 6 and the making of the award, the survey was conducted and, apart from the cases covered by the Supreme Court's interim orders, some more land was not acquired. The interest of the Government and in fact of the general public which is to get the benefit of the sub-city would be adversely affected if now the Court was to strike down the notification under sections 4 and 6 of the said Act. As we have noted, only three petitions were filed in 1986. Most of the writ petitions before us, 11 in number, were filed in 1989, that is to say, nearly three years after the making of the award. All these petitioners have been sitting on the fence and have sought to challenge the sections 4 and 6 notifications five years after the promulgation and they are challenging the award about three years after it was announced. In our opinion, all the petitioners are guilty of laches and cannot challenge sections 4 and 6 notifications."

13.The aforesaid view has been consistently followed even thereafter,

without any exception. It is not necessary to burden this judgment

by referring to each and every such decision.

14.Confronted with the aforesaid legal position as argued by learned

counsel for the respondents, the endeavour of the learned counsel

for the petitioner was to demonstrate that in the present case

there was reasonable explanation for approaching the Court at

belated stage. According to him, when the notifications under

Sections 4 and 6 were issued, the petitioner bona fide believed that

the respondents required the land for the purpose of widening of

the road and was quite unaware of the mala fides of the

respondents. Therefore, he did not challenge those notifications

but appeared before the LAC and took part in the proceedings.

15.This is clearly an afterthought plea. The mala fides, which the

petitioner now contends, are based on the purported material

which the petitioner collected under the Right to Information Act

only in July 2007. However, when the petition was filed in the year

1989 as per the petitioner's own showing, he was oblivious of the

alleged fraudulent and mala fide purpose of the respondents in

acquiring the land. If that was so, how the petitioner could file the

writ petition in the year 1989? If he could file the petition in the

year 1989 on the basis of the averments made in the petition, he

could very well file the petition in the year 1982 or immediately

thereafter as there was no change in the circumstances between

the issuance of the notifications and the filing of the writ petition.

16.According to the petitioner himself, the purpose stated in Section 4

notification was 'planned development of Delhi' and according to

the petitioner, it was vague and general ground. If that was to be

the ground of challenge, it was very well known to the petitioner

after the issuance of notifications and the petitioner should have

approached the court at that time. It is manifest that the

petitioner initially accepted the notifications on their face value

and participated in the proceedings before the LAC which were

conducted for ascertaining the market value of the land and

culminated in the Award dated 19.9.1986. The explanation given

that he nurtured the belief that land was required for road

widening purpose only, is not understood. Such a plea is clearly an

afterthought and does not inspire confidence. More importantly,

as per the petitioner's own showing, when the land for road

widening was required, notification under Section 4 was issued in

respect of land owned by one Dr. Kataria on 3.3.1982. Not only

this, on 26.4.1982 the respondents have entered into an

agreement with Dr. Kataria whereby the respondents retained only

13 biswa of land and de-notified remaining 5 biswa of land. With

this event occurring in April 1982, there could not have been any

further requirement of land for road widening. He cannot now

contend and say that this fact was not known to him.

17.It is a very material circumstance that the petitioner did not file any

objections under Section 5-A of the Act when notification under

Section 4 was issued. Now, to contend that the purpose stated

there was vague and general, namely, planned development of

Delhi which could not have been for small piece of land cannot be

asserted when objections under Section 5-A were not filed at all.

We are, thus, of the opinion that petition suffers from laches and

delays. Even when 'rule' was issued, this factor would be

important in the context of land acquisition matters. It is because

of the reason that by his conduct he has accepted the validity of

notification as he responded to notices under Section 9 & 10 of the

Act and aided in the Award making exercise. We are, therefore, of

the opinion that it is not permissible for the petitioner to challenge

the acquisition when he failed to file the objections under Section

5-A of the Act, participated in the proceedings culminated in the

Award and approached this Court much after the passing of the

award.

18.The petition not only suffers from laches and delays but it is to be

inferred that the petitioner waived his right to challenge

notifications under Sections 4 and 6 because of the aforesaid

reasons.

19.We may also point out at this stage that though in the petition the

petitioner has alleged that the impugned Award is fraudulent

exercise of power, this challenge was primarily on the ground that

the notifications mentioned the purpose as 'planned development

of Delhi', which is vague as is clear from the joint reading of paras

10 to 12 of the petition. Same are reproduced below:-

"10. That it may not be out of place to mention here that the word 'planned development' is such a vague word and under the guise of this word it is the fundamental rights of the petitioner which are being violated by the respondents.

11. That by the impugned award the respondents are playing fraud and the power of making the award and acquiring the land by the impugned award shows that it is a fraudulent exercise of power.

12. That the fraudulent exercise of power by the respondents as well as the misuse of the public funds and misuse of the power and to exercise the power contrary to law is clear from the fact that even in many cases, like the present one, awards have been made but no possession has been taken of the lands for years together and public has been made to suffer."

20. Thus, the ground of fraud is not predicated on mala fide exercise

of power which is now sought to be introduced by filing additional

affidavit. In Delhi Administration v. Gurdip Singh Uban & Ors.,

(2000) 7 SCC 296, the Supreme Court made the following

observations:-

"53 Now, the objections under Section 5-A, if filed, can relate to the contention that (i) the purpose for which land is being acquired is not a public purpose,

(ii) that even if the purpose is a public purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer, or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and Objection (iii) is personal to the objector.

54. Now, in the (ii) and (iii) types of objections, there is a personal element which has to be pleaded in Section 5-A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had "waived" all objections which were personal and which he could have raised. However, so far as Objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose.

55. Learned Solicitor General Shri Salve rightly argued that in respect of each land owner whose land is acquired, the Section 4 notification if it is sought to be avoided on personal grounds as stated in (ii) and (iii) above, it is necessary that objection be filed to avoid a voidable notification. Otherwise, the notification, which is not avoided on any personal grounds, remains operative and personal objections are deemed to be waived."

21.In Aflatoon & Others v. Lt. Governor of Delhi & Others, (1975) 5 SCC

285, the Supreme Court has observed as under:-

"3. The main arguments addressed before us on behalf of the petitioner were that the public

purpose specified in the notification issued under Section 4, namely, the 'planned development of Delhi' was vague as neither a Master Plan nor a Zonal Plan was in existence on the date of the notification and as the purpose specified in the notification was vague, the petitioner was unable to exercise effectively his right under Section 5-A of the Act and that as the notification under Section 4 was published in 1959, the compensation awarded was wholly inadequate with reference to the market value of the property on the date when the appellants are to be deprived of their possession of the property. In other words the contention was that as there was inordinate delay in finalizing the acquisition proceedings, the appellants were deprived of the benefit of the appreciation in the value of the property between the date of the notification under Section 4 and the date of taking possession of the property. Linked with this contention was the submission that the provisions of Section 23 of the Act which lay down that compensation should be determined with reference to the market value of the land as on the date of the notification under Section 4 was an unreasonable restriction on the fundamental right of the appellants to hold and dispose of property under Article 19(1)(f). It was further contended that as the acquisition of the property was for the purpose of planned development of Delhi, the only authority competent to issue the notification under Section 4 was the Central Government under Section 15 of the Delhi Development Act and since the proceedings were initiated by the Chief Commissioner of Delhi, the proceedings were ab initio invalid. The argument was that, as the acquisition was made for the planned development of Delhi, it could be carried out only in accordance with the provisions of the Delhi Development Act, and that, under Section 15 of that Act, it was only the Central Government which could have issued the notification under

Section 4, after having formed the opinion that the acquisition of the land was necessary for the planned development of Delhi, and since the notification was issued by the Chief Commissioner of Delhi, the notification was void ab initio. The last contention was that the acquisition was not for any public purpose, but for companies, as the major portion of the land acquired was allotted without any development to cooperative housing societies which were companies within the definition of the word 'Company' in the Act and as the provisions of Part VII of the Act were not complied with, the proceedings for acquisition were bad.

xxxxx

9. Assuming for the moment that the public purpose was not sufficiently specified in the notification, did the appellants make a grievance of it at the appropriate time? If the appellants had really been prejudiced by the non- specification of the public purpose for which the plots in which they were interested were needed, they should have taken steps to have the notification quashed on that ground within a reasonable time. They did not move in the matter even after the declaration under Section 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the notices under Section 9 were issued to them. In the concluding portion of the judgment in Munshi Singh and Ors. v. Union of India (supra) it was observed:-

In matter of this nature we would have taken due notice of laches on the part of the appellants while granting the above relief but we are satisfied that so far as the present appellants are concerned they have not been guilty of laches, delay or acquiescence at any stage.

We do not think that the appellants were vigilant."

22. Since the problem of laches and delays coupled with estoppel and

waiver remains insurmountable for the petitioner, the petition warrants

dismissal on this ground itself and it is not even necessary to go into

other issues. We accordingly dismiss the petition leaving the parties to

bear their own costs.

                                               (A.K. SIKRI)
                                                 JUDGE




December 05, 2008                         (MANMOHAN SINGH)
hp.                                            JUDGE