Govt. Of Nct Of Delhi & Anr. vs Jai Gopal
2008 Latest Caselaw 971 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                           LPA No.338/2008

       Govt. of NCT of Delhi & Anr.           ..... Appellants
                       Through Ms.Rachna Srivastava, Advocate

                   versus

       Jai Gopal                              ..... Respondent
                       Through none

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE DR. JUSTICE S.MURALIDHAR

     1. Whether reporters of the local papers be allowed to see the
        judgment ?y
     2. To be referred to the Reporter or not ?y
     3. Whether the judgment should be reported in the Digest ?y

                               ORDER

% 8.7.2008

1. The short question that falls for our consideration is

whether the respondent is entitled to allotment of an alternative

land in terms of the Welfare Scheme notified by the Government

of NCT of Delhi to rehabilitate the "agriculturists" whose lands

were acquired by the Government.

2. The facts are few and may be briefly stated.

The respondent purchased land measuring 4 bighas and 12

biswas comprising khasra No.59/25, which was situated in the

[LPA 338/2008] Page1 of 7 revenue estate of Rithala, Delhi under a registered sale deed

dated 28th November, 1981, which was registered in the office of

the Sub Registrar II, Delhi on 30th November, 1981. By a

notification bearing No.F-11(15)/8-L & B issued on 31st December,

1981 under Section 4 of the Land Acquisition Act, 1894, the

respondent's land was notified for compulsory acquisition. The

respondent also approached the concerned revenue authorities

for mutation of the demised land in his favour and orders in that

behalf were passed by the concerned Tehsildar on 15th July, 1982.

The order records that the vendor of the land was represented

before the Tehsildar whose statement was recorded. The

Tehsildar has also taken on record a copy of the sale deed which

was placed before him. The acquisition proceedings culminated

in the passing of an award dated 10th September, 1985 and that

compensation towards acquisition of the subject land was paid to

the respondent on 27th April, 1994.

3. The respondent applied for grant of plot against the land,

which was acquired under the award dated 10th September, 1985,

which was received by the competent authority on 1st August,

1994. The respondent also annexed the documents including the

sale deed in his favour along with the application. As there was

[LPA 338/2008] Page2 of 7 no response and no information was forthcoming, the respondent

was constrained to approach this Court by means of a writ

petition under Article 226 of the Constitution of India. The writ

petition was opposed by the appellants on the sole ground that

both the sale deed of the respondent and mutation of the

property were required to be prior to the notification under

Section 4 of the Land Acquisition Act, 1894. As mutation in the

revenue records was not prior to that date, the respondent was

not eligible for grant of an alternative plot pursuant to the

scheme of the appellant as he did not satisfy the eligibility

conditions.

4. The learned single Judge after hearing both sides held that

while the purchase of the land is required to be prior to Section 4

notification, so far as the mutation is concerned, the only

requirement is that the applicant must be in a position to place

the same before the authorities considering the application for

allotment. Consequently, the learned single Judge directed the

appellants to consider the application of the respondent afresh

and make appropriate directions in accordance with the notified

policy for consideration and allotment of an alternative plot within

four weeks.

[LPA 338/2008] Page3 of 7

5. The relevant eligibility conditions contained in the notified

policy read as follows:

"CASES WHERE LAND PURCHASED THROUGH SALE DEED The following conditions are also to be fulfilled in addition to above:-

1. For awards announced pre 3.4.1986 land should have been purchased prior to issue of notification u/s 4 of Land Acquisition Act and mutation must have carried out in their names.

2. For awards announced post 3.4.1986 land must have been purchased 5 years earlier from the date of notification u/s 4 of Land Acquisition Act and mutation has been carried out in the name of the purchaser.

3. That where the land was purchased by a auction purchaser from the Ministry of Rehabilitation and the applicant had entered into a written agreement with the auction purchaser to buy the same, after the sale certificate was issued by the Ministry of Rehabilitation, his case would be processed for allotment on the basis of agreement and the compensation awarded by the L.A.C."

(emphasis supplied)

6. In our opinion, the view taken by the learned single Judge

is absolutely correct. On a plain reading of clause 1 of the

eligibility conditions it is clear that words "prior to issue of

[LPA 338/2008] Page4 of 7 notification under Section 4 of the Land Acquisition Act" qualify

only the date of purchase of the land and not the mutation of the

name in the records. The transfer of right, title and interest of

any immovable property takes place on the execution of the sale

deed and the purchase while the mutation is for recording the

name of the purchaser in the records of the revenue authorities.

The mutation is carried out by the revenue authorities after

verification of the documents relied upon by the applicant. The

requirement of the rule is that the applicant should have

purchased the land prior to Section 4 notification and as such sale

deed had been mutated in the revenue records on the date of the

application.

7. Learned counsel appearing for the appellants, however,

submitted that the decision of the learned single Judge is contrary

to the judgment of the Full Bench of this Court in Ramanand v.

Union of India and others AIR 1994 Delhi 29 and judgment of

the Supreme Court in Union of India v. Shivkumar Bhargava

and others AIR 1995 SC 812. The submission is stated to be

only to be rejected. In Ramanand's case (supra), the issue

before the Full Bench was relating to the rates of premium

chargeable for allotment of the land. The Bench held that rates

[LPA 338/2008] Page5 of 7 of premium chargeable from different categories of persons,

including an individual whose land had been acquired, shall be

the predetermined rates in force at the time when the offer is

made to the concerned person or allotment of a specific plot of

land in particular area or zone, under Rule 6 of the Nazul Rules.

In that context the Bench further held that an individual whose

land has been acquired for planned development of Delhi, has no

absolute right to allotment, but, he is eligible to be considered for

allotment of an alternative plot for residential purposes; and that

the DDA may allot Nazul land to such an individual, in conformity

with the plans and subject to other provisions of the Nazul Rules.

This judgment has no bearing on the controversy raised in this

writ appeal.

8. In Union of India v. Shivkumar Bhargava and others

(supra), the question was whether the persons who had

purchased land subsequent to the notification would be entitled

to allotment of alternative site. The Court held that a person

purchasing land after date of notification is not an owner for the

purpose of allotment. The following observations made by the

Supreme Court are pertinent and support the case of the

respondent than the appellants:

[LPA 338/2008] Page6 of 7 "4. The policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right, title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification under Section 4(1) was published. This was the view of this Court in another case while considering the Full Bench judgment of the Delhi High Court. Under these circumstances, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification under Section 4(1) published in the Gazette.........."

9. In our considered opinion, the appeal is devoid of any

substance and the same is hereby dismissed.

                                          CHIEF JUSTICE



                                          S.MURALIDHAR
JULY 8, 2008                                 (JUDGE)
"nm"

[LPA 338/2008]                                                      Page7 of 7