Dharam Pal & Anr. vs Delhi Administration & Anr.
2009 Latest Caselaw 1381 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   WRIT PETITION (C) NO. 675 OF 1993


                                                   Reserved on : January 7, 2009
                                                  Date of Decision : April 15, 2009


DHARAM PAL & ANR.                                                        ......Petitioners
              Through :               Mr. I.S.Dahiya, Advocate


                                           Versus



DELHI ADMINISTRATION & ANR.                     ......Respondents
              Through : Mr. Sanjay Poddar, Advocate


CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


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 the Digest ? Yes



SUDERSHAN KUMAR MISRA, J.

1. By this petition, the petitioners are seeking the

implementation of a policy of the Delhi Administration to allot

alternative residential plots in lieu of land compulsorily acquired for the

planned development of Delhi. The relevant facts are as follows:-

2. To begin with, four brothers, namely, Harphool, Lakhi

Ram, Ram Nath and Indraj, jointly owned agricultural land measuring

14 bighas 5 biswas situated in revenue estate of village Nangloi, Delhi.

On 4th March, 1963, this land was notified under Section 4 of the Land

Acquisition Act, 1894 and, ultimately, on 4th March, 1967, award

No. 1957, inter alia, pertaining to this land was announced and

compensation awarded by the Land Acquisition Collector was received

by all the four brothers. On 11th August, 1973, one of the brothers,

Harphool died. He bequeathed all benefits arising out of the aforesaid

land in favour of two of his nephews, namely, Dharam Pal and Jai Pal,

both of whom are the sons of his brother Indraj. Consequent upon

this, even the compensation assessed later on by the court towards

the late Harphool‟s share was paid to them.

3. On 8th August, 1986, the second petitioner Jai Pal

relinquished his share in the inheritance received under the aforesaid

Will of his uncle Harphool in favour of the other co-legatee, namely,

Dharam Pal, i.e., the first petitioner before us.

4. On 27th May, 1987, one of the surviving brothers Indraj

applied to the respondent for an alternative plot in lieu of their

aforesaid agricultural land under the extant policy. The other two,

Lakhi Ram and Ram Nath also made similar applications. On 2nd June,

1987, the first petitioner, Dharam Pal, also applied for the same as the

successor of late Harphool, who also happened to be his uncle, as

aforesaid.

5. It appears that on 17th August, 1989, the first respondent

recommended the allotment of a plot of 250 sq. yds. to Mohar Singh

who is the son of one of the aforesaid brothers, Lakhi Ram. Again, on

30th December, 1988, the first respondent recommended that another

plot of 250 sq. yds. be allotted to Zile Singh who was the son of

another brother, namely, Ram Nath. Presumably, both Lakhi Ram

and Ram Nath had expired by that time and, therefore, the allotments

were made to Mohar Singh and Zile Singh as their sons and legal

heirs. This left the entitlement of the two remaining brothers, namely,

Indraj and Harphool.

6. On 27th October, 1988, Jai Pal, the son of one of the

brothers, Indraj, applied to the Assistant Housing Commissioner

(Loans), Delhi Administration, Delhi informing him that his father

Indraj died on 29th July, 1988, the alternative plot in question be

allotted to him instead. Ultimately, on 27th June, 1991, the first

respondent recommended allotment of a single plot of 250 sq. yds. to

both Dharam Pal and Jaipal, both of whom are sons of Indraj in lieu of

the entitlement of Indraj who had since died.

7. However, since the application by Dharam Pal claiming

allotment of the alternative plot in lieu of his late uncle Harphool was

ignored and the respondent had merely directed a joint allotment of a

single plot measuring 250 sq. yds. to Dharam Pal and Jai Pal as the

sons of the other brother Indraj, a legal notice was sent to the

respondents on 10th January, 1992 clarifying the position and pointing

out that both Dharam Pal and Jai Pal were in fact entitled to one plot

each. This was because on the one hand, they were entitled to one

plot in lieu of the entitlement of their late father Indraj, while on the

other hand, they had become entitled to another plot in lieu of the

entitlement of their late uncle Harphool because the same had been

bequeathed by him to them. As regards the alternative plot that they

were entitled to in lieu of entitlement of their late father Indraj, it was

pointed out that both Dharam Pal and Jai Pal had further entered into

a mutual agreement whereby Dharam Pal had relinquished his share in

that plot in favour of his brother Jai Pal. At the same time, with

regard to the alternative plot to which Harphool was entitled, and

which was bequeathed by him to both Dharam Pal and Jai Pal, Jai Pal

is supporting the claim of Dharam Pal alone to the same. On receiving

no response from the respondents in this behalf, the petitioners have

approached this Court praying the aforesaid letter dated 27 th June,

1991 (Annexure P8) whereby a joint allotment in the name of Dharam

Pal and Jai Pal has been recommended in lieu of the entitlement of late

Indraj, be quashed and as against this, the allotment of an alternative

plot in lieu of Indraj‟s entitlement be recommended only in the name

of Jai Pal. It is also prayed that the first respondent be directed to

recommend allotment of a separate residential plot to Dharam Pal in

lieu of the entitlement of late Harphool.

8. Jaipal died on 18th December, 1991. Consequently, his

legal representatives have moved this petition along with Dharam Pal.

As mentioned, both Dharam Pal and Jaipal are the sons of Indraj. In

addition, admittedly, by virtue of a Will made in this behalf by their

aforesaid uncle Harphool, they had become his successors-in-interest.

9. The petitioners are relying on the Scheme of allotment of

alternative plots in lieu of acquired land under Large Scale Acquisition,

Development and Disposal of Land in Delhi dated 2nd May, 1961 which

came into effect from 2nd May, 1961 itself. This is described as a

„welfare Scheme to rehabilitate the agriculturists whose land is

acquired by the Government‟. Under the Scheme, inter alia, persons

who are recorded owners of the land which has been acquired before

the notification under Section 4 of the Land Acquisition Act is issued

are stated to be eligible for the benefits of the Scheme. In paragraph

1 under the sub-heading „Other Cases‟, it is also stated that in case

the Recorded Owner of the land dies after the notification under

Section 4 of the Land Acquisition Act, "all legal heirs are entitled to one

plot of the size to which the deceased would have been entitled".

Here, in this case, admittedly, late Harphool was the Recorded Owner

of land which came to be acquired. That he died after the notification

under Section 4 of the Land Acquisition Act was issued is also not in

dispute. The only question that remains to be seen is how the

entitlement to re-habilitate late Harphool ought to have been dealt

with by the first respondent. It is also not seriously disputed before us

that Harphool had executed a Will whereby he bequeathed his

interests and benefits arising out of the acquired land in favour of

Dharam Pal and Jai Pal. Jai Pal is not pursuing the claim of Dharam

Pal to the legacy of Harphool. To our mind, the claim brought by the

beneficiary under the Will of Harphool has to be examined with respect

to the right and entitlement of Harphool and that of his successor by

Will in the light of the aforesaid Scheme for allotment of alternative

plots. An examination of the Scheme shows that there is no

restriction on any person inheriting any property by a Will from two

separate allottees. Consequently, the question whether Dharam Pal

would also be entitled to a share in any other alternative plot i.e.

allotted through another line of inheritance is immaterial for this

purpose. The relevant requirement is that he should be a legal heir of

the Recorded Owner who has died after the notification under Section

4 of the Land Acquisition Act, 1894.

10. During the course of arguments, learned counsel for the

respondent relied on the decision of this Court in Gulshan vs.

Government of NCT of Delhi, LPA No. 1347/2007 decided on 11th

January, 2008, to contend that the petitioners acquired no right to

Harphool‟s share. On going through this case, we find that the facts

of that case were entirely different. In that case, it was found that the

appellant only had cultivatory possession and could not be regarded as

the Recorded Owner of the land on the date of notification under

Section 4. It further held that since the appellant was not even

recorded as a bhumidhar in the revenue records on the date when

notification under Section 4 of the Land Acquisition Act, 1894 was

issued, nor were any steps taken by the appellant in that case under

the Delhi Land Reforms Act for recording his name as a bhumidhar,

therefore, the petitioner in that matter was not entitled to allotment of

alternative plot. There, the Court concluded as follows:-

"10. Therefore, when it is established that the appellant was not the recorded owner of the land in question on the date of issuance of notification under Section 4 of the Land Acquisition Act, he cannot apply for the allotment of alternative plot of land."

In this case, admittedly, late Harphool was the Recorded Owner of the

land on the date when the notification under Section 4 of the Land

Acquisition Act, 1894 came to be issued. Based on this fact, we have

no doubt that Harphool himself was clearly entitled to consideration

under the Scheme. Consequently, this authority is of no use to the

respondents.

11. The next proposition raised by the respondent‟s counsel is

that the right to allotment of an alternative plot under the Scheme is

not a vested right and that it is only a right in personam that gets

extinguished on his death, therefore, Dharam Pal could not have

inherited anything from his uncle Harphool. For this he relies on the

case of Ramanand vs. Union of India and Ors. AIR 1994 Delhi 29.

There, this Court had held as follows:-

"28. ........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 purpose; 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."

And that,

"40. .......We hold that an individual, whose land is acquired, does not have an absolute right to the allotment of alternative plot of land for residential purposes, and that such a person is only eligible to be considered for allotment of a plot, subject to certain conditions. ........"

We do not find that the aforesaid authority is of much use to the

respondents. There is no discussion about any right in personam that

gets extinguished on the death of the recorded owner. In fact the

paragraphs extracted above clearly bear out the right of the recorded

owner to consideration for allotment of an alternative plot. Here, what

is being claimed by the petitioners is the consideration of the claim of

Dharam Pal for alternative allotment in lieu of the entitlement of his

predecessor-in-interest, Harphool, to such consideration in conformity

with the Scheme. Therefore, Ramanand's case (supra) is also of no

help to the respondents. No other authority has been brought to our

notice nor has any further argument being advanced before us in

support of this contention.

12. The main point which requires to be examined, and which

was not addressed by either party, is whether such a right to

consideration can be inherited under a Will? For this, the scope of the

expression, „legal heir‟ used in sub-para 1 under paragraph „C‟ dealing

with „other cases‟ contemplated under the Scheme of allotment of

alternative plots has to be examined.

13. The expression, "legal heir" is not defined in the aforesaid

Scheme of allotment under which relief is claimed by the petitioners

before us. It has however been defined by Black‟s Law Dictionary, 6th

Edition, to mean, "persons entitled under laws of descent and

distribution. Person to whom law would give decedent‟s property if

decedent died intestate." The word „heir‟ has been defined under

Section 3(f) of the Hindu Succession Act, 1956, which codifies the law

relating to intestate succession among Hindus, to mean, "any person,

male or female, who is entitled to succeed to the property of an

intestate under this Act." In other words, the expressions „heir‟ and

„legal heir‟ carry similar meanings under certain circumstances. At the

same time, however, while defining the expression "heirs", Black‟s Law

Dictionary, 6th Edition, also states, inter alia, as follows:

"Heirs. ........... Moreover, the term is frequently used in a popular sense to designate a successor to property either by will or by law. Word "heirs" is no longer limited to designated character of

estate as at common law. Jay v. Dollarhide, 3 Cal.App.3d 1001, 84 Cal.Rptr. 538, 547."

An examination of the above would show that the expressions, „heir‟

and „legal heir‟ are also used in a popular sense to designate a

successor to property either by a Will or by law. In this context, we

might add that while under the Hindu Succession Act, 1956, the word

"heir" has been defined with a view to securing the objects of the

Statute, which is, inter alia, to provide for intestate succession.

However, the Scheme of allotment with which we are concerned, has

an entirely different object, which is, to provide for alternative plots

under a given set of circumstances. Therefore, in our view, the

meaning ascribed to the expression "heir" under the Hindu Succession

Act, 1956 would not automatically be applicable to the Scheme.

14. Here, in this case, the relevant provisions under the

Scheme state that if the Recorded Owner of the land acquired dies

after the issuance of the Notification under Section 4 of the Land

Acquisition Act, 1894, "all legal heirs are entitled to one plot of the size

to which the deceased would have been entitled". Since the

expression, "legal heirs" has not been statutorily defined anywhere

and has also not been explained or defined in the Scheme of allotment

and in view of the aforesaid meanings accorded to this expression by

Black‟s Law Dictionary, 6th Edition, specially the fact that the

expression, "heirs" is frequently used in a popular sense to designate a

successor to property either by a Will or by law, we consider it

necessary to examine the scope and intent of the aforesaid

re-habilitation Scheme to decide whether the expression, "legal heir"

should be construed in the restricted sense of the English common law

to mean persons who would be entitled to succeed to the property of

an intestate or whether the term has been used in a more popular

sense to also designate a successor to property by Will as defined by

Black‟s Law Dictionary (supra). In the re-habilitation Scheme, a

limited right to be considered for the grant of alternative plot has been

granted to those whose lands have been acquired under, "Large Scale

Development and Disposal of Land in Delhi" provided they satisfy the

various requirements mentioned in the Scheme (see Ramanand vs.

Union of India AIR 1994 Delhi 29). A perusal of the Scheme would

show that it contemplates a large number of cases and situations

under which the allotment of an alternative plot may be

recommended. In particular, paragraph „C‟ titled „Other Cases‟ is

relevant for our purpose. It states as follows:-

"1. When the recorded owner of the land acquired dies before notification u/s 4 of L.A. Act, allotment is to be made separately to all the legal heirs of the deceased, according to their shares recognized by the LAC, but if he dies after the notification u/s 4 of L.A. Act, all legal heirs are entitled to one plot of the size to which the deceased would have been entitled."

This shows that if the Recorded Owner happened to die before the

date of Notification under Section 4 of the Land Acquisition Act, 1894,

allotment is to be made to all the legal heirs of the deceased according

to their shares. However, if the Recorded Owner dies after the

issuance of Notification, then also, all his legal heirs are together

entitled to allotment of one plot of the size to which the deceased

would have been entitled. At the same time, from a reading of the

Scheme, it is clear that once the eligibility conditions are satisfied, the

Recorded Owner of the land which is being acquired is entitled to

consideration for allotment of an alternative plot. It goes without

saying that any alternative plot, that is so allotted to the Recorded

Owner would become his absolute property and he would be within his

rights to dispose of the same in any way including by Will. That being

so, the intention of the framers of the Scheme could only have been to

allot such an alternative plot in lieu of property acquired, as further

recompense, with a view to re-habilitating the person who was

divested of his property by the Government. If that be so, we can see

no logic or reason, and in fact none is given in the Scheme, or

addressed at the bar, to conclude that the Government intended to

limit the disposing power of the person entitled to be considered for

allotment and make this entitlement available only to those heirs of

the Recorded Owner who would succeed by intestate succession whilst

excluding any heir who succeeds under a Will. Such an interpretation,

to our mind, does not conform to the scope and intent of the Scheme.

Admittedly, if the allotment in fact was made during the life time of

the Recorded Owner, that plot of land could have been validly

bequeathed by him through Will, failing which, ownership thereof

would devolve through intestate succession. At the same time, it is

not as if the right to be considered for alternative allotment will vanish

in case the Recorded Owner dies either before or after the Notification

under Section 4 of the Land Acquisition Act, 1894. The Scheme itself

contemplates that in such a case, his legal heirs will be entitled to the

same. Therefore, even if it is assumed for a moment that Harphool

had no children, his entitlement would not vanish into thin air. In

such a case, his entitlement would pass on to the other heirs specified

in class II under the Schedule to the Hindu Succession Act, 1956. In

other words, if the heirs claiming under a Will are to be excluded, the

allotment would still go to the heirs of the deceased under the law

pertaining to intestate succession. This is indubitably contemplated by

the Scheme itself. Under the circumstances, to our mind, it would be

illogical to restrict the scope and meaning of the expression "legal

heir" used in the aforesaid portion of the Scheme, to only those heirs

who would succeed to the estate of the deceased in the case of

intestate succession. There is nothing in the scope or object of the

Scheme that would persuade us to apply such a narrow construction in

this case. It is not as if the Scheme enables the government to save

the plot of land that would have gone to Harphool had he lived. In

case Harphool had died intestate, his class I legal heirs, if any, would

have been entitled to the land. If he had no class I legal heirs, it

would have gone to the next in line in terms of the Schedule as

aforesaid. The possibility of the entire line of succession set down in

the Schedule failing, and the property then reverting to the State, is

really too remote to be considered as a relevant consideration that

may have weighed with the framers of the Scheme to restrict the

devolution to intestate succession only by knowingly using the

expression "legal heirs" in a restricted sense. Under the

circumstances, to hold that the Scheme did not have within its

contemplation testamentary succession, is illogical.

15. With a view to ascertaining the heirs of Harphool, if any, in

the line of intestate succession in terms of Hindu Succession Act,

1956, learned counsel appearing for the petitioners informs us that

whilst Harphool died on 11th August, 1973; his father had already

pre-deceased him because of which, the land was mutated jointly in

the name of Harphool and his brothers. Learned counsel for the

petitioners also stated that Harphool was not married during his life

time. This fact does not seem to be correct because in the English

translation of the Will of Harphool, dated 2nd December, 1971,

annexed by the petitioners themselves, it is stated that he has one

daughter who is married and that at the time of her marriage, he had

given her sufficient dowry and has also since been regularly sending

her customary gifts too. Later on, in the same Will, he also stated that

neither his daughter or any of her issue shall have any claim on the

properties being bequeathed by him to his nephews Jai Pal and

Dharam Pal. Contrary to this, in the list of dates, it is categorically

stated by the petitioners that, "Shri Harphool Singh died issueless

........". This is also reiterated in paragraph 4 of the petition. Again in

the legal notice sent by petitioners to the respondents on 10 th January,

1992, which is annexed as Annexure P-10 to the petition, the fact of

Shri Harphool having died issueless has been reiterated in paragraph 4

thereof. In view of what is so clearly stated in the Will of late

Harphool which has been annexed by the petitioners themselves, we

are not inclined to believe the assertions of the petitioners that

Harphool died issueless. The correct position appears to be that he

had one daughter, who was his only child. Consequently, in terms of

Sections 9 and 11 of the Hindu Succession Act, 1956 read with the

Schedule to the said Act, the property of Harphool, in case he died

intestate, would have been divided between his class I heirs in terms

of the Schedule to that Act. This would have been his aforesaid

daughter and in case she was still alive, his widow.

16. We might mention that this writ petition had been filed in

the year 1993 and after issuing of notice to show cause why rule nisi

be not issued on 9th February, 1993, counsel for the respondent

sought time to file a reply to the show cause on 22nd April, 1993.

However, since no reply was forthcoming, this Court issued Rule on

22nd September, 1993. Even thereafter, no counter affidavit was filed

and ultimately, the matter came to be heard finally on 7 th January,

2009. On that date also, no request was made for filing any counter

affidavit and after hearing arguments of both sides, judgment was

reserved. After conclusion of arguments, counsel for the parties were

permitted to file a short synopsis of the arguments advanced by them

along with supporting case laws within one week. Although synopsis

as permitted were duly filed by the petitioner, however, nothing was

filed by the respondents. Since we found it necessary to seek further

clarifications on facts from the petitioner, the matter was again listed

before the Court on 31st March, 2009 and on 1st April, 2009. On 1st

April, 2009, Mr. Poddar, learned counsel appearing for the

respondents/Delhi Administration stated that he is handing over a

short synopsis on behalf of the first respondent. He was permitted to

do so. Later, on examining the same, we find that in fact Mr. Poddar

has handed over what purports to be "reply on behalf of respondent

GNCT of Delhi" running into two pages along with an Annexure

purporting to be a communication from the Government of India,

Ministry of Home Affairs to the Chief Commissioner, Delhi, dated 2nd

May, 1961 on the subject of the control on land values in the urban

areas of Delhi Acquisition Development and Disposal of Land. This

reply bears no date. As already stated, no permission for filing this

reply was either sought or granted. It is not supported by any

affidavit of the respondents nor has any copy been supplied to the

petitioner. Further, arguments had already been concluded in the

matter. We cannot permit a reply on behalf of the respondents to be

placed on the record at this belated stage in this manner. However, in

order to obviate any controversy later on, we are proceeding to

examine the stand taken in that reply by treating the same as a short

synopsis. The case of Daulat Ram Mehndiratta vs. Lt. Governor of

Delhi and ors. AIR 1982 Delhi 470 referred to by the respondents in

the aforesaid synopsis was not cited at the bar. In any case, we feel

that the same is of no help to the respondents. In that case, the Court

was examining the validity of the transfer of an allotment of a

residential plot by a member of a co-operative Society under the Delhi

Co-operative Societies Act and Rules, 1973 in favour of a son and

whether on that transfer, his son was entitled to the allotment in his

stead. This was declined by the Court on the ground that the father in

that case could only have transferred his entitlement to allotment to

his son provided the father himself was entitled to that allotment in

the first place. In other words, the petitioner had to first establish his

own right to the allotment, and since the petitioner had been found

disentitled to the allotment of the plot, it held that, "it is axiomatic that

he could not logically ask that the plot be instead allotted to his as his

nominee". Under these circumstances, it was held that the Registrar‟s

refusal to allot any plot to the petitioner‟s son as his nominee was

unexceptionable. It was in this context that the Court also examined

the right of the lessor i.e the Delhi Administration to lay down

conditions for allotment of land, and held that the condition prescribed

by the Delhi Administration to the effect that any person who owns a

house in Delhi will not be eligible for being allotted land as the

member of a Society is valid since such a condition, inter alia, serves

the, "pre-eminent purpose of equitable distribution so as to enable the

need of housing to be satisfied for as much a number of persons as

possible." This was also described as a rational manner for allotting

land to those who are without any land. For these reasons, and in

view of the fact that the petitioner in that case already owned a house,

it was held that the petitioner could not demand the allotment of land

to him in his capacity as a Member of the Housing Society.

17. The facts and circumstances of this case are entirely

different. They are governed by separate Statutes as well as

completely different rules. The Scheme of allotment of alternative

plots is one that was brought about with a view to re-habilitating

agriculturists whose land is acquired by the government. It cannot

possibly have any parallel with any rules that may be made by the

Delhi Government under the Delhi Co-operative Societies Act barring

the allotment of any land to any member of a Housing Society in case

he already owns another house. In the one case, an alternative

residential plot is being made available in lieu of agricultural land that

is compulsorily acquired. On the other hand, allotment of a residential

plot as a member of Co-operative Society is being denied in case that

Member already owns another residential property. The two have

nothing in common. The Act and Rules that govern the former case

are different to the Scheme which governs the latter case. The

provisions of the two are not even pari materia. The only commonality

seems to be that in both cases, a plot of land is to be allotted by the

government to someone. However, the terms and conditions as also

the circumstances that have brought about the decision of the

Government to allot the land in each of the two cases is markedly

different. The condition mentioned in Class I of paragraph „C‟ of the

Scheme relating to "Other Cases" which states that, all legal heirs of a

Recorded Owner of the land acquired, who happens to die after the

Notification under Section 4 of the Land Acquisition Act, are entitled to

one plot of the size to which the deceased would have been entitled,

does not find any parallel with the facts and rules considered by the

Court in Mehndiratta's case (supra). This authority is, therefore, of

no help to the respondents.

18. The other contention of the respondent is that as per the

law, "the persons who are in real need of land can be considered for

allotment of alternative plot". We are unable to understand the scope

and intent of this submission. No arguments were actually

addressed in this behalf at the bar. What has to be seen is only the

scope of the policy before us. The eligibility of the petitioner for

allotment would be considered on that basis alone and not on the basis

of any imagined hypothetical standards such as an unsubstantiated

"real need" for the land. The next point mentioned in the synopsis is

as follows:

"That no one can be permitted to accumulate wealth by acquiring the land at a concessional price. Thus, the petitioners can claim one allotment from the share of their father and not from the share of their uncle who even did not apply for the same."

This submission is also without substance. It is not supported by any

authority or cogent, logical, legal reasoning. When alternative plots

are to be allotted to persons or their successors, albeit at a

concessional price, because their land has been appropriated by the

Government in the exercise of its right of eminent domain, it can

hardly be contended by the Government that those who succeed to the

estate of the erstwhile owners by Will are, "accumulating wealth" and

that the Government must not permit this. If the policy permits the

allotment of a plot, and there is no impediment to the same, then the

allotment can certainly be done. As regards the allegation that the

petitioner‟s deceased uncle Harphool did not apply for the alternative

plot is concerned; he was obviously unable to do so since he was dead

on the date on which applications were made by the three surviving

brothers of Harphool claiming allotment under the Scheme against

their share of the land. At around the same time, the first petitioner

Dharam Pal had also applied for allotment of the deceased Harphool‟s

share to him as his uncle‟s successor by Will. Since the first

respondent has entertained the application of the three surviving

brothers as validly made, we see no reason why the same application

ought not to have been entertained in the case of Harphool‟s

successor. In any case, we might mention that the application of the

first petitioner Dharam Pal seeking allotment of alternative plot in lieu

of Harphool‟s entitlement has not been rejected on the ground that the

same was not maintainable because Harphool himself had not applied

for the same. A perusal of the Scheme also does not show any such

requirement to the effect that such an application must be made only

by the Recorded Owners themselves. On the contrary, in view of the

fact that the Scheme itself contemplates the entitlement of legal heirs

to plots in lieu of the Recorded Owners of the land, both in cases

where the Recorded Owner died before the Notification under

Section 4 of the Land Acquisition Act was published as well as in case

the Recorded Owner died after the publication of Notification, shows

unequivocally that such an application can also be moved by an heir

after the death of the Recorded Owner. This is because in case the

Recorded Owner had died before the publication of Notification under

Section 4, then, in that case since the cause of action for claiming

alternative plots under the Scheme would only arise once Notification

under Sections 4 and 6 have been published, therefore, it follows that

in such a case, application for alternative plots could never have been

moved by the Recorded Owner himself, and if the submission of the

respondents is accepted, then it would mean that in case the Recorded

Owner happened to die before the Notification, no alternative plot

could either be claimed or allotted to his heirs despite the aforesaid

provision granting entitlement to the heirs in the Scheme. Similarly,

the submission that the claim for alternative plot is a right, "in

personam" available to a displaced person and not to his heirs is also

clearly without substance.

19. It follows, therefore, that the first petitioner‟s claim to be

considered for allotment of an alternative plot in lieu of the entitlement

of his late uncle Harphool, who was admittedly the Recorded Owner of

the land and had died after the Notification under Section 4 of the

Land Acquisition Act acquiring that land was published, ought to have

been considered by the first respondent. None of the other heirs of

Harphool have put in any claim. His brother Jai Pal who was joint

legatee with the first petitioner is also not pressing any claim in this

behalf. At the same time, since the first petitioner had relinquished

all his claims to an alternative plot in lieu of his own father Indraj‟s

entitlement in favour of his brother Jai Pal, the first respondent was

obliged to examine and recommend the case of Jai Pal alone against

the entitlement of late Indraj. Consequently, the writ petition

deserves to be allowed with the following directions:

(a) That the communication dated 27th June, 1991 (Annexure

P8) issued by the first respondent recommending

allotment of a residential plot of land jointly to Dharam Pal

and Indraj is quashed and the said respondent is directed

to recommend the case of allotment of alternative plot in

lieu of the land of Indraj to Jai Pal alone. Since Jai Pal has

died, it would be open to the first respondent to make the

said recommendation and allotment to his legal

representatives.

(b) Since we have held that Dharam Pal is entitled to such

consideration, respondent No. 1 is further directed to

consider the case of allotment of an alternative plot of land

in lieu of the entitlement of late Harphool to the first

petitioner Dharam Pal in terms of the aforesaid policy.

(c) Looking to the fact that this petition has been pending for

the last 16 years, the respondents are directed to take all

necessary steps within three months from today.

20. The writ petition is allowed in the above terms leaving

parties to bear their own costs.

SUDERSHAN KUMAR MISRA, J.

SANJAY KISHAN KAUL, J.

APRIL 15, 2009 sl