Mr. Manish Sethi & Anr. vs Union Of India & Ors.
2008 Latest Caselaw 1557 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 2526/2007

                                         Reserved on : 7th August, 2008

%                                 Date of Decision : September 5th ,2008

MR. MANISH SETHI & ANR.               ..... Petitioners
                  Through             Mr. Arun Bhardwaj, Sr. Advocate
                                      with Mr. Nitin Ahlawat, Mr. Attin
                                      Shankar Rastogi and Mrs. Pooja
                                      Rastogi, Advocates

                       versus

UNION OF INDIA & ORS.                 ..... Respondents
                   Through            Mr. V.K. Tandon with Mr. Prem
                                      Mishra, Advocates for DOE
                                      Mr. Sanjay Poddar with
                                      Mr. Ramesh Ray, Advocates for
                                      LAC & L&B

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 present writ petition under Article 226 of the Constitution of

India has been filed seeking a writ of Mandamus for quashing the

notification issued under Section 4 of the Land Acquisition Act, 1984

dated 19th February, 2003 No. F.8(12)/2002/L&D/LA/18646,

declaration under Section 6 dated 16th February, 2004 bearing No.

F.8(12)/2002/L&D/LA/25144 & Award No. 2/2004-05/Distt/Northeast

in respect of Khasra No. 2 Min (1-02), 8(1-12), 9(4-16), 12(4-16),

13(1-14), 18/1(1-10) & 19/1(1-04) measuring 18 bigha 14 biswa

situated in the Revenue Estate of Village Jivanpur @ Johripur

(hereinafter referred to as 'Petitioners' land') and a writ of certiorari

seeking a direction from this Court for disposal of the application

under Section 48 of the Land Acquisition Act for denotification of the

abovementioned land pending before the competent authority.

2. The facts of this case are that on 19th February, 2003 a

notification under Section 4 of the Land Acquisition Act, 1894

(hereinafter referred to as the 'said Act') was issued by the

Government of India to acquire land measuring 19 bigha and

4 biswa for a public purpose namely for 'opening of a Senior

Secondary School' at Village Jivanpur @ Johripur. Objections under

Section 5 A of the said Act were also invited from interested persons.

In pursuance thereto, in March 2003 Petitioners filed objections which

were personal to the land. No allegation of malafides were raised in

the objections filed.

3. Mr. K. Mahesh, LAC (NE) gave a personal hearing to the

Petitioners along with their counsel. All the objections raised by the

Petitioners during the oral hearing were noted in the proceedings

sheet. No allegation of malice was ever raised during the personal

hearing.

4. Mr. C.R. Garg, successor LAC, in his report dated 20th

September, 2003 recommended that in view of the Petitioners'

objections, the requisitioning department may reconsider its

acquisition proposal.

5. In pursuance to the recommendations made by the LAC, the

requisitioning department namely the Director of Education was

asked for a clarification. In response, the Director of Education

furnished a digital map of the area indicating the schools available

within a radius of three kilometers from the Petitioners' land as well

as the data of eligible school going children (in the age group of 6 to

17 years) in this area. The Director of Education on the basis of

above data stated that for 44000 eligible school going children, there

were only nine schools in this area. The Director of Education also

pointed out that while according to norms student capacity of a school

should not exceed one thousand, six out of nine existing schools in

the area were working much beyond their capacity and some of them

had thrice the requisite number of students. The Director of Education

further clarified that the available school infrastructure was able to

cater to only half the eligible school going population and there was

an urgent requirement for a senior secondary school in the area for

which the Petitioners' land happened to be an ideal one, being

located on the main road.

6. The Government after being satisfied that the land was required

for a valid purpose, issued a declaration on 16th February, 2004

under Section 6 of the said Act with respect to Petitioners' land

measuring 18 bigha 14 biswa after excluding the area covered by the

temple.

7. On 8th April, 2004, the Petitioners filed an application under

Section 48 of the said Act for release of their land. In this application,

not only the grounds which were raised in the objection petition filed

under Section 5A of the said Act were repeated but additionally it was

vaguely urged that the Petitioners' land was being acquired at the

behest of a local MLA.

8. On 25th August, 2004 Petitioners made another representation

under Section 48 of the said Act for release of their land containing

similar objections to the one raised under Section 5A of the said Act.

However, in this new representation there was no allegation against

the local MLA.

9. On 20th May, 2005 Award bearing No. 2/2004-05/DC/NE was

announced by the LAC. Pursuant to the notice under Section 9 of the

said Act, Petitioners filed their claim and asked LAC to assess their

compensation.

10. On 28th March, 2007, according to the Respondents, the

possession of the said land was taken over and handed to the

Department of Education, after drawing a panchnama at the site. But

the Petitioners contend that possession had not been taken on the

said date and the Petitioners continue to be in physical possession of

their land.

11. On 2nd April, 2007 the present writ petition was filed. Initially no

ground of malafides was raised but the same was subsequently

added by way of an additional affidavit and the then local MLA was

added as Respondent No. 6. On 12th July, 2007 this Court granted a

status quo order with regard to possession of the Petitioners' land

and the said interim order continues to subsist till date.

12. Mr. Arun Bhardwaj, learned Senior Counsel for the Petitioners

contended that on 12th November, 1999 the Director of Panchayat

had already allotted Goan Sabha land of Village Johripur, in the

vicinity of Petitioners' land, for setting up a school. But he contended

that this alternative land, due to malafide intent, was not utilized for

construction of a school.

13. Mr. Bhardwaj further contended that in the vicinity of Petitioners'

land there are sufficient number of schools to cater to the existing

population of the said area.

14. According to Mr. Bhardwaj the present acquisition proceedings

were initiated with malafide intent as the same had been carried out

at the instigation and pressure of the then MLA, Mr. Roop Chand.

The learned Senior Counsel contended that the MLA was interested

in purchasing the Petitioners' land in benami name and as the

Petitioners did not succumb to the pressure of Mr. Roop Chand, he

wrote a letter dated 12th October, 2002 to the Sub-Divisional

Commissioner (Revenue) requesting the authorities to acquire only

the Petitioners' land for setting up a school. Mr. Bhardwaj contended

that it was because of the MLA's letter that the entire acquisition

process was initiated. Considerable emphasis was laid on the fact

that the MLA in his letter had referred only to the land of 'three

farmers' - which three, all belong to the Petitioners' family.

15. According to Mr. Bhardwaj as the Land Acquisition Collector

had given a report favourable to the Petitioners, the State

Government should have given another hearing to the Petitioners

before issuing a declaration under Section 6.

16. Mr. Bhardwaj also submitted that the Petitioners' land according

to Master Plan of Delhi 2021 fell in the green belt zone and, therefore,

it could not be used for construction of a senior secondary school. In

this connection Mr. Bhardwaj referred to the Master Plan of Delhi

2021 in detail.

17. Lastly Mr. Bhardwaj contended that as the Petitioners'

representation under Section 48 of the said Act had not been

disposed of, the State Government should be directed to decide the

same in accordance with law within a strict time schedule.

18. Mr. Sanjay Poddar and Mr. Vivek Tandon, learned Counsel

appearing for Respondents referred to the counter-affidavits, digital

map and data of eligible school going children collected under 'Sarva

Shiksha Abhiyan' to point out that there was an immediate and urgent

necessity of constructing a senior secondary school in Village

Johripur. It was contended that in the absence of an appropriate

school building, one of the Government's schools was functioning

from a barat ghar in Village Johripur. Learned Counsel for

Respondents were emphatic that a new secondary school building

was immediately required to be constructed in Village Johripur for

providing satisfactory and better educational environment to the

students of the said area.

19. Mr. Poddar submitted that the Petitioners' allegation of

malafides was an afterthought. Learned Counsel submitted that no

such plea had been taken in the initial objections filed under Section

5A of the said Act. He contended that the plea of malafides was

baldly taken in one of the representations under Section 48 of the

said Act but not thereafter. According to Mr. Poddar, the plea of

malafides being a ground personal to a person, was required to be

taken at the initial stage under Section 5A of the said Act. Mr. Poddar

further submitted that the Petitioners had, in any event, abandoned

the plea of malafides when they filed a second Section 48 application

and subsequently when they participated in the Award proceedings.

In this connection Mr. Poddar referred to the judgment of the Apex

Court in Delhi Administration Vs. Gurdip Singh Uban & Ors.

reported in (2000) 7 SCC 296 paras 53 to 55.

20. Mr. Poddar also relied upon the judgments of the Apex Court in

Abdul Husein Tayai Ali & Ors. Vs. State of Gujarat & Ors.

reported in AIR 1968 SC 432 para 16 and Kalumiya Karimmiya

Vs. The State of Gujarat & Ors. reported in (1977) 1 SCC 715 para

8 to submit that under the Land Acquisition Act only one hearing has

to be provided at the Section 5A stage and no second hearing was

contemplated under the said Act. In the above referred judgments it

was held that the report of the Land Acquisition Collector was merely

recommendatory and not binding on the Government. Consequently,

according to Mr. Poddar, the Petitioners could not derive any benefit

from the recommendations made by the LAC, Mr. C.R. Garg.

21. Learned Counsel for the Respondent further submitted that, the

acquisition cannot be held to be invalid merely because the land

proposed to be acquired was for a purpose other than one permitted

by the Master Plan or Zonal Plan applicable to that locality. In this

connection Mr. Poddar relied upon the judgment of the Apex Court in

Bhagat Singh Vs. State of U.P. & Ors. reported in (1999) 2 SCC

384 para 22 wherein it has been held:-

"22......Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired.....

......it is clear that acquisition for a public purpose and obtaining permission from the competent authority under the Development Act concerned for change of land use are different from one another and the former is not dependent upon the latter."

22. Mr. Poddar further submitted that the present writ petition was

not maintainable as it had been filed after issuance of a declaration

under Section 6(3) of the said Act, by virtue of which, the Petitioners'

land already stood vested in the Government free from all

encumbrances.

23. Mr. Poddar further submitted that the present petition was

barred by delay and laches as the Petitioners right from the inception

of the acquisition proceedings were aware, but had not challenged

the same when the notifications under Section 4 and 6 were issued.

In this connection, Mr. Poddar referred to and relied upon the

judgments of the Apex Court in State of Rajasthan & Ors. Vs. D.R.

Laxmi & Ors. reported in (1996) 6 SCC 445 paras 9 & 10;

Reliance Petroleum Ltd. Vs. Zaver Chand Popatlal Sumaria &

Ors. reported in (1996) 4 SCC 579 para 4 and Swaika Properties

Pvt. Ltd. & Anr. Vs. State of Rajasthan & Ors. reported in 2008 (2)

SCALE 271.

24. Mr. Poddar further submitted that the Petitioners had waived off

their objections to the acquisition inasmuch as they not only filed any

objection at Section 4 and 6 stage but they had also raised their claim

for compensation after receiving the Section 9 notice.

25. Mr. Poddar also referred to the counter-affidavits filed by the

Respondent No. 5 to contend that the Gaon Sabha land, referred to

by Mr. Bhardwaj as being available for construction for school, in fact

was never made available to the Director of Education. In the said

affidavit it has been stated that in proceedings filed under Section 81

of the Delhi Land Reforms Act by the initial owner of the Gaon Sabha

land, the land vested back in the initial owner and consequently the

same was never available for construction for a senior secondary

school.

26. Mr. Poddar further referred to the counter-affidavits to point out

that in view of the Respondents' categorical stand that the said land

was required for a public purpose, it was not possible to release the

same to the Petitioners under Section 48 of the said Act. Mr. Poddar

further submitted that once the possession of the said land had been

taken over by the Respondents, even though according to Petitioners

it was a symbolic possession, the land vested in the Government free

from all encumbrances and there was no legal vested right with the

Petitioners under Section 48 of the said Act to seek release of the

said land. In this connection Mr. Poddar relied upon the judgment of a

Division Bench of this Court in Nagin Chand Godha Vs. Union of

India & Ors. Reported in (2003) 70 DRJ 721 paras 7 and 10.

27. From the averments in the counter-affidavit of Respondent No.

5 (Department of Education), which are unrebutted in the rejoinder,

we are of the view that the alternative Gaon Sabha land referred to by

Mr. Bhardwaj was never available to the Director of Education for

construction of a senior secondary school.

28. From the noting of the acquisition file, survey and data on

record, it is apparent that for 44000 school going children in the age

of 6 to 17, there are only nine schools, out of which six are working

two to three times over and above their capacity. We are of the

opinion that the land in the present instance has been acquired for a

genuine public purpose namely for construction of a senior secondary

school to cater to the immediate existing need of a large number of

school going children who are facing an acute infrastructural shortage

of a senior secondary school.

29. The Petitioners' allegation of malafide against Mr. Roop Chand,

the then MLA does not inspire confidence as firstly, the said

allegation had not been taken at the initial Section 5A stage and

secondly even after having taken the said objection, it was neither

reiterated in the subsequent representation under Section 48 of the

said Act nor in the original writ petition filed in this Court. As held by

the Apex Court in Gurdip Singh Uban's case, referred to

hereinabove, the objections with regard to malice are personal to the

objector and if they are not raised at the initial Section 5A stage, then

the same are deemed to have been waived off. Though we agree

with Mr. Bhardwaj that fraud and malice in issuing acquisition

notification would unravel all the actions of the State, we are of the

view that in the present case the independent survey and data on

record confirm beyond doubt the need for a senior secondary school

in the area. In fact, a perusal of the noting on the land acquisition file

shows that all views were considered and the decision to acquire land

was not based on the ground that the then local MLA had asked for

its acquisition.

30. We also agree with the submission advanced by Mr. Poddar

that the report of the LAC at Section 5A stage is only

recommendatory and the Government is entitled to take a different

view from the said report. We are also of the view that only one

hearing to the objectors is to be afforded at the Section 5A stage and

no second hearing is contemplated by the statute.

31. As far as the submission that the purpose of acquisition was

contrary to the Master Plan of Delhi 2021 is concerned, we are of the

view that as held by the Apex Court in Bhagat Singh's case referred

to hereinabove, acquisition can be valid even if it is for a public

purpose not permitted by the Master Plan or Zonal Plan in force at

the time the acquisition is made as it is always open for a beneficiary

of an acquisition to move the competent authority and obtain sanction

for suitable modification of the Master Plan.

32. We also agree with the submission of Mr. Poddar that the

present writ petition is not maintainable as it is barred by laches as

the same had admittedly been filed three years after notifications

under Sections 4 and 6 and two years after an Award had been

issued. In Reliance Petroleum vs. Zaver Chand Popatlal Sumaria,

(1996) 4 SCC 579 (paras 8 and 12) it was held that if the writ

petitioners' intention was to challenge the acquisition proceedings,

they should have done so immediately at least after the publication or

declaration under Section 6 or immediately after the receipt of notice

under Section 9 of the Land Acquisition Act. Since the petitioners in

the said case waited till the Award was passed before filing their

petition, the Apex Court held that it only showed that the object of the

said petitioners was just to get maximum price for the land acquired.

33. Therefore, the legal position that emerges is that while High

Courts have the jurisdiction and power to entertain a petition under

Article 226 of the Constitution, it would be sound exercise of that

discretion, if the Court refuses to interfere with land acquisition

proceedings in cases where the land owners have allowed the

authorities to complete the said proceedings and challenge the same

at a belated stage. In our view, it is too late in the day for the

Petitioners to now turn around and to challenge the same after the

Collector has made his Award.

34. Even if we accept Mr. Bhardwaj's contention that the petitioners

are in actual physical possession of the property, we may note that

the Hon'ble Supreme Court in Balmokand Khatri Educational and

Industrial Trust, Amritsar vs. State of Punjab & Ors. (1996) 4

SCC 212 and in the case of Tamil Nadu Housing Board vs. A

Viswam (Dead by Lrs), (1996) 8 SCC 259 has held "it is seen that

the entire gamut of the acquisition proceedings stood completed by

17.4.1976 by which date possession of the land had been taken. No

doubt, Shri Parekh has contended that the appellant still retained

their possession. It is now well settled legal position that it is difficult

to take physical possession of the land under compulsory

acquisition. The normal mode of taking possession is drafting the

panchnama in the presence of the panchas and taking possession

and giving delivery to the beneficiaries is the accepted mode of taking

possession of the land. Subsequent thereto, the retention of

possession would tantamount only to illegal or unlawful possession".

Further, a Coordinate Division Bench of this Court in Nagin Chand

Godha vs. UOI & Ors. reported in 2003(70) DRJ 721 (in para 10)

has held that "suffice it to say that after symbolic possession is

taken, if the petitioner is enjoying the possession, he is enjoying the

possession as a trustee on behalf of the public at large and that by

itself cannot be considered to be ground to contend that possession

is not taken. It is the duty of the person who is occupying the property

to look after the property and to see that the property is not defaced

or devalued by himself or by others. He cannot subsequently come

to the Court to say that actual possession is not taken and therefore

he should be protected and land be denotified."

35. In the present case since the respondents have at least taken

symbolic possession, a curtain has been drawn so far as land

acquisition proceedings are concerned and the land has gone

outside the purview of the Land Acquisition Act. Consequently, as

the acquisition proceedings are complete, the application under

Section 48 has become infructuous and no direction for disposal of

the said application can be passed.

36. In view of what is stated hereinabove, the present petition is

dismissed with no order as to costs.

MANMOHAN, J

MUKUL MUDGAL, J

September 5th, 2008 rn