Rediance Fincap (P) Ltd. And Ors. vs Union Of India (Uoi) And Ors. ...
2008 Latest Caselaw 806 Del

JUDGMENT

T.S. Thakur, J.

1. Common questions of law arise for consideration in this batch of cases which were heard together and shall stand disposed of by this Common Order. The controversy in all these petitions relates to the legality of proceedings for acquisition of land under the Land Acquisition Act for the public purpose of development of Vasant Kunj, Phase-IV as a part and parcel of the bigger scheme of planned development of Delhi. The petitioners assail the acquisition proceedings primarily on the ground of non-application of mind by the Government of NCT of Delhi, denial of opportunity of hearing in terms of Section 5A of the Act and absence of a proper plan or scheme for the proposed housing colony at Vasant Kunj. Before we articulate the precise grounds of challenge urged by the petitioners and deal with the same, we may briefly set out the factual backdrop in which the petitioners have approached this Court.

2. A notification under Section 4 read with Section 17 of the Land Acquisition Act was initially issued in June, 1995 for the acquisition of large extent of land measuring nearly 3,284 bighas in village Rangpuri in Delhi. A corrigendum issued by the Lieutenant Governor some time later directed that objections under Section 5A could be filed by the aggrieved owners with the Collector, Land Acquisition. No declaration in terms of Section 6 was, however, issued on the basis of the above preliminary notification within the stipulated period of one year with the result that the proposed acquisition proceedings lapsed with the passage of time.

3. A fresh notification under Sections 4 and 17 was then issued by the competent authority for acquisition of different parcels of land including an area of 369 bighas and 1 biswa situated in village Rangpuri. This notification issued on 27th June, 1996 was followed by a declaration under Section 6 of the Act on 24th June, 1997 for the land sought to be acquired including the land owned by the petitioners. Notices under Section 9 and 10 of the Act were issued nearly 2 years later to the interested persons including the petitioners asking them to file their claims and objections. Upon consideration of these claims and objections, the Collector, Land Acquisition made and published award No. 7/1998-99/SW on 22nd June, 1999. Dissatisfied with the award, the petitioners have filed the present writ petitions challenging the validity of the acquisition proceedings on several grounds to which we shall presently advert.

4. The petitioner's case as set out in the writ petitions is that the DDA who is said to be the beneficiary of the acquisition proceedings did not actually need the land in question and that in the absence of a proper zonal development plan, the respondents could not compulsorily acquire the land for development of the proposed Vasant Kunj, Phase -IV scheme. It is further alleged that the acquisition is bad since the respondents have acquired different parcels of land in different pockets which is incapable of being developed for the proposed Vasant Kunj, Phase - IV or for any other related public purpose. In W.Ps.(C) No. 3605/1998, 3661, 3695, 3679 of 1999 it is additionally alleged that although objections had been filed to the acquisition proceedings by the land owners, no hearing was provided to them in terms of Section 5A of the Act. The petitioners contend that the acquisition proceedings have been initiated and concluded without due and proper application of mind by the concerned authorities including the State Government, no matter the latter was duty bound to apply its mind independent of the report which the Collector had submitted to it under Section 5A.

5. The respondents have appeared to contest the petitions inter alia on the ground that the same are barred by unexplained and inordinate delay and laches. A zonal development plan is, according to them, in the process of preparation. The absence of any such plan cannot at any rate be a ground for challenging the acquisition proceedings. The allegation that the beneficiary of the acquisition did not require the land in question is also denied by the respondents who argue that the opinion expressed by some of its functionaries in the course of the decision making process can not constitute the final opinion of the DDA for whose benefit the land is being acquired. The Delhi Development Authority had, at no stage, stated that the land under acquisition is not needed for developing Vasant Kunj, Phase-IV. Allegations regarding non-application of mind by the authorities dealing with the matters at different stages have also been denied and a prayer for dismissal of the petitions made.

6. We have heard learned Counsel for the parties at considerable length and perused the record. The following four questions arise for determination:

i) Are the petitions liable to be dismissed on the ground of unexplained delay and laches?

ii) Are the acquisition proceedings unsupported by a public purpose?

iii) Was a hearing in terms of Section 5A of the Act denied to the owners?

iv) Are the acquisition proceedings vitiated by non-application of mind on the part of the State Government?

7. We shall deal with the questions ad- seriatim:

Re Question No. 1:

8. The law governing exercise of extraordinary writ jurisdiction by the High Courts especially in cases where proceedings under the Land Acquisition Act are being assailed is settled by a long line of decisions delivered by their lordships of the Supreme Court. In Aflatoon and Ors. v. Lt. Governor of Delhi their lordships were dealing with a case where the declaration under Section 6 of the Act had been issued in the year 1966 but the writ petition challenging the same was filed in the year 1972. The Court did not favor this kind of 'fence sitting' by the owners and dismissed the writ petitions on the ground of laches and delay with the following observations:

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 notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions were liable to be dismissed on the ground of laches and delay on the part of the petitioners.

9. To the same effect is the view taken by the Supreme Court in Griha Nirman Sahakari Samiti Ltd. v. The State of Rajasthan and Ors. where the Court observed:

This Court in the recent unreported decision in Writ Petn. Np. 362 of 1972 decided on 23-8-1974 = (now ) Aflatoon v. Lt. Governor of Delhi held that if persons 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 attacked the notification on grounds which were available to them at the time when the notification was published it would be putting a premium on dilatory tactics.

10. Similarly in Urban Improvement Trust v. Bheru Lal. (2002) 7 SCC 172, a delay of 2 years in the filing of the petition was held by the Court to be fatal to the challenge. The Court observed that in cases where land is needed for a public purpose and that too for implementation of an Urban Development Scheme, the Courts need to take care not to entertain belated challenges to the acquisition proceedings for otherwise, serious prejudice shall be caused to the person for whose benefit the scheme is framed.

11. The decisions of the Supreme Court in Rudradhar R. Trivedi v. State of Maharashtra and Anr. and Municipal Counsel and Anrs. v. Shah Hyder Beig and Ors. reiterate that undue and unexplained delay in the filing of the petition before the High Court was in itself sufficient to deny to the petitioner the discretionary relief under Article 226 of the Constitution. The Court declared that equity favors only the vigilant and not an indolent litigant. Reference may also be gainfully made to the decision of the Supreme Court in Hameed Joharan and Ors. v. Abdul Salam and Ors. , where the Court observed:

It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times : even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favored rather than claiming disfavor. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniant (the law assists those who are vigilant and not those who are indolent).

12. In Reliance Petroleum Ltd. v. Zaver Chand Popatlal Sumaria and Ors. the Court declined to interfere with the acquisition proceedings on the ground of unexplained delay and laches.

13. We may also refer to the division bench decisions of this Court in Santosh Kumar and Ors. (Sh.) v. Union of India and Ors. 2006 VII AD (Delhi) 7 and Rajiv Prem (Sh.) v. UOI and Ors. 2006 VIII AD Delhi 268 in which the writ petition challenging the land acquisition proceedings were held to be barred by unexplained delay and laches.

14. Applying the above principles to the case at hand we see no justification for the inaction of the petitioners for a period of nearly two years after the issue of the impugned declaration under Section 6 of the Act. We may recall that the impugned declaration under Section 6 was issued on 24th June, 1997 whereas the present writ petitions were filed nearly two years later without offering any explanation as to why the petitioners kept quite for such a long period and woke up to challenge the proceedings only when notices under Section 9 and 10 of the Act were issued to them. It is noteworthy that many of the petitions, if not all, were filed by the petitioners after making of the award by the Collector. It was, therefore, evident that the petitioners were sitting on the fence and allowed the acquisition proceedings to go on for a long time without raising any objections or seeking any redress against the same. That is, in our opinion, sufficient to dis-entitle the petitioners to seek relief in the present writ petitions. Question No. 1 is, in that view, answered in the Affirmative.

Re Question No. 2:

15. The petitioners argue that the impugned notifications are liable to be quashed as the same are unsupported by any public purpose inasmuch as the Master Plan and the Zonal Plan do not envisage development of Vasant Kunj Phase-IV. That argument is, in our view, untenable in the light of the decision of the Supreme Court in Aflatoon and Ors. v. Lt. Governor of Delhi . The Supreme Court in that case declared that there was no prohibition against the acquisition of land for planned development of Delhi even before the Master Plan was ready and that even when actual development of the land may be permissible only with the approval or sanction of the local authority the same did not preclude the Central Government from acquiring land for a planned development of the city. The following passage is in this regard instructive:

23. The planned development of Delhi had been decided upon by the Government before 1959 viz. even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (seen the decision in Patna Improvement Trust v. Lakshmi Devi 6)

In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development. For planned development in an area, other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). the Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority.

16. The above view has been reiterated by the Supreme Court in Rajesh Kumar Yadav and. Union of India where the Court observed:

8. No useful purpose can be served by referring to Munshi Singh v. Union of India since this decision has been considered by the Constitution Bench in Aflatoon v. Lt. Governor of Delhi, in which the Apex Court had granted its imprimatur to the phrase 'Planned Development of Delhi'. It appears plain to us that the mention of Rohini Residential Scheme provides added detail, and therefore cannot be faulted. So far as the shape of the rectangular is concerned, since boundaries have already been disclosed, likelihood of confusion is minimal. Secondly, the fact that the rectangle should be vertical and not horizontal is not a factor which would weigh in the minds of the owners/occupiers of the land. This discrepancy would be noted only by an astute advocate, who in any case would harbour no doubt as to the extent of the acquisition on a perusal of the boundaries mentioned in the subject Notification. Topically, the Apex Court was satisfied that the public purpose for acquisition of land measuring 3000 acre 'for the execution of the Interim General Plan for the greater Delhi' satisfied the requirements of the Act in Lila Ram, Birla Cotton Spg. and Wvg. Mills v. The Union of India. In S. Gurdial Singh v. Ludhiana Improvement Trust their Lordships were satisfied that since the map and the scheme was available for inspection, and was also annexed to the Declaration, failure to disclose the public purpose would not invalidate the acquisition

17. It is, therefore, futile for the petitioners to contend that since the zonal plan had not yet been finalized, there was no public purpose to support the acquisition proceedings. That apart, DDA in the affidavit filed on its behalf clearly averred that a draft development plan has already been prepared for the utilization of the land being acquired. The allegation that the DDA does not have any scheme or plan has been denied by the respondent/DDA on affidavit. Even assuming, therefore, that a development plan is an essential precondition for the acquisition of the land although the ratio in Aflatoon's case (supra) holds otherwise, yet the fact that such a plan has been prepared, no matter the same is in the process of finalization, is sufficient to show that the Delhi Development Authority does require the land in question for the implementation of Vasant Kunj Phase - IV scheme.

18. The other facet of the contention urged on behalf of the petitioners was based on certain nothings recorded by the officials of the DDA to the effect that the DDA did not require the land in question for any public purpose. We, however, see no merit in that contention either. We say so because the DDA has not passed any resolution or recorded any decision formally or otherwise to the effect that the land in question is not required by it for any public purpose. There is no order or communication addressed by the DDA either to the petitioners or to any other Statutory Authority for that matter, saying that the acquisition proceedings should be abandoned as the land under acquisition is not required by it. Simply because an officer who may constitute but one rung in the administrative hierarchy, records or expresses a certain opinion cannot be treated to be the decision of the authority. It is but natural that numerous nothings, suggestions and proposals are made by different functionaries in the administrative hierarchy for the consideration of the competent authority. None of these nothings, suggestions or proposals can by itself constitute an order of the authority in whose administrative machinery the officer, who authors the same, is working as one of the functionaries. In order that the DDA may be understood to have given up its requirement for the land in question, there ought to be something more tangible than just a proposal made by one of its officers which does not culminate in the issue of a formal order giving up the acquisition of the land. No such decision having been taken by the DDA nor any such decision having been brought to our notice, we have no hesitation in holding that the land in question continues to be required by the DDA as indeed the DDA continues to insist that the same is required for Vasant Kunj Phase - IV scheme. It is fairly well settled that the petitioners cannot acquire a legally enforceable right on the basis of the nothings on the official file. Reference may be made in this connection to the decisions of the Supreme Court in State of Bihar v. Kripalu Shankar , Bachitar Singh v. State of Punjab , Gulab Rao Patel v. State of Gujarat , Kedar Nath v. State of Punjab .

19. Our answer to the Question No. 2 is, therefore, in the negative.

20. An opportunity of being heard under Section 5A of the Act is necessary only in case the party seeking such a hearing has filed his objections to the acquisitions proceedings. It is common ground that objections to the proposed acquisition proceedings were filed by and on behalf of petitioners in W.P.(C)3762/1999, 3695/1999 and 3732/1999 only. In W.P.(C)3649/1999 objections were filed belatedly on 1st August, 1997 i.e. after the issue of the declaration under Section 6 dated 24th June, 1997. According to the respondents as many as 17 sets of objections including 9 sets filed by petitioners in W.P.(C)3762/1999, 3695/1999 and 3732/1999 have been received in response to the said notification and each one of these were examined by the Collector after giving to the objector a hearing in the matter in which the objectors were represented by Mr. Arun Mohan, Senior Advocate and Mr. N.S. Vashisht, Advocate.

21. It was fairly conceded by learned Counsel for the petitioners in W.Ps.(C) No. 4464/1999, 4992/1999, 4993/1999, 3697/1999 and 3698/1999 that no objections were filed on their behalf to the preliminary notification issued on 27th June, 1996. The petitioners in these writ petitions cannot, therefore, make any grievance against the denial of personal hearing to them as they had never filed any objections in support whereof they may have been entitled to hearing.

22. Mr. Vashisht appearing for the petitioners in W.P.(C)3605/1998, 3661/1999, 3695/1999 and 3679/1999, however, argued that objections having been filed on behalf of the petitioners in those petitions, a proper hearing to them was necessary but was not given. That submission was refuted by Mr. Poddar, learned Counsel appearing for respondents who produced the relevant record to demonstrate that while no objections were received by the department in W.P.(C) 3605/1998 and 3661/1999, yet an opportunity was given to them on 2nd December, 1996 on the basis of representations made by them. It was further pointed out from the record that in W.P.(C)3679/1999, the objections were filed under the earlier notification which was allowed to lapse by the Government. Moreover, petitioner in W.P.(C)3695/1999 had appeared on a number of dates of hearing between 30th October, 1996 to 27th May, 1997. It was pointed out that the said petitioner was represented by Sh. Arun Mohan, Sr. Adv. and Sh. N.S. Vashisht, advocate on their behalf before the Collector who had extensively argued the matter as was evident from a reading of the proceedings of the Collector on 27th May, 1997. The proceedings of the Collector held on 27th May, 1997 are to the following effect.

Whereas, counsel for respondents have appeared before this Court and have put in their oral submissions by way of extensive arguments. Sh. N.S. Vashisht, counsel for respondents No. 1 to 5 has submitted that he had sent objections on behalf of YKM Investments, Akhil Sibal and Marvellous Resorts to this Court through Registered Post. He has submitted that their objections may also be considered on merits before making the final recommendation. Since, all these objections pertain to the same notification Under Section 4 of LA Act, dated 27.6.97 and since, these objections are more or less similar in nature, they are being disposed of collectively Under Section 5-A of LA Act.

Whereas, on having considered the arguments, objections on record and the reply, finally submitted by DDA, this Court has arrived on a considered recommendation which is being forwarded to the Govt. of NCT of Delhi, herewith

23. It is not the case of the petitioners that any request for further arguments had been made by the counsel appearing on their behalf before the Collector nor is it their case that no hearing had taken place on 27th May, 1997 as recorded in the order extracted above. In the absence of any suggestion to the effect that the proceedings have been manipulated or that the same were not faithfully recorded, it is difficult to appreciate how the petitioners can claim that a personal hearing was denied to them or that they had suffered any prejudice on that account. The argument that there was a denial of hearing contrary to Section 5A of the Act must, therefore, be rejected. Question No. 3 is also answered in the Negative.

Re Question No. 4:

24. Application of mind is an essential pre-requisite in any process involving exercise of any statutory, executive or administrative power especially when the order which the authority proposes to pass is likely to result in civil consequences for any one of the parties. There is, therefore, no gainsaying that not only the Collector who makes a report after hearing the aggrieved land owners but even the Government to whom the report is submitted must act after due and proper application of mind. The decision of the Supreme Court in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai And Ors. authoritatively declares application of mind by the Government to whom the report of the Collector is submitted to be an essential legal requirement. The petitioners, however, argue that the Government have not, in the instant case, independently applied its mind which according to them vitiates the entire process. There is, in our opinion, no merit in this contention. We say so because a perusal of the relevant official record which Mr. Poddar has produced in the course of his submissions sufficiently shows that the Lieutenant Governor, Delhi had gone through the report submitted by the Collector under Section 5A and other material on record and recorded his satisfaction that the land in question was required for a valid public purpose. Just because the satisfaction is recorded in a relatively brief order does not render it invalid. This aspect is no longer res-integra in the light of full bench decision of this Court in Smt. Chatro Devi v. UOI , where the Court has made the following pertinent observations:

60. As far as the inquiry in respect of villages Shayoorpur, Maidan Garhi and Rajpur Khurd is concerned, the Division Bench in Balak Ram-III set aside that report on merits and not on the ground that there was any violation of the principles of natural justice which would go to the root of the validity of the inquiry. The reason given by this Court in Balak Ram-III for holding the inquiry to be vitiated is that the report was a non-speaking report which did not deal with all the objections and, therefore, the satisfaction of the Lt. Governor suffered from non-application of mind. This reasoning has been found to be incorrect by the Supreme Court in Uban-I and Uban-II and, therefore, to this extent, Balak Ram-III must be deemed to be overruled. Additionally, I am of the view that while dealing with a report under Section 5A of the Act the appropriate Government is not required to write a judgment, as it were, nor is this Court while exercising its jurisdiction under Article 226 of the Constitution, sitting in appeal over the satisfaction of the appropriate Government. Consequently, the inquiry under Section 5A of the Act in respect of village Shayoorpur, Maidan Garhi and Rajpur Khurd must be held to be valid as also the satisfaction of the Lt. Governor based on the report submitted by the Collector in respect of these villages. The writ petitions in respect of these three villages must be dismissed.

25. In the light of the above we see no merit in the contention that the acquisition proceedings are vitiated by the alleged non-application of mind on the part of the State Government. Question No. 4, therefore, is also answered in the Negative.

26. In the result these writ petitions fail and are hereby dismissed with costs assessed at Rs. 2000/- in each petition.