Shri Rajeev Joshi & Ors. vs Union Of India & Ors.
2009 Latest Caselaw 1601 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                              Date of decision: 23.04.2009


+                                WP (C) No.7284 of 2009


SHRI RAJEEV JOSHI & ORS.                                    ...PETITIONERS
                      Through:                Mr. Ramji Srinivasan, Sr. Adv.
                                              with Mr. Kirtiman Singh,
                                              Mr. S. Santhanam Swaminathan,
                                              Mr. Vartika Sahay, Mr. Sapan &
                                              Mr. Rohit, Advocates.

                                         Versus

UNION OF INDIA & ORS.                              ...RESPONDENTS
                                 Through:     Mr. S.P. Sharma & Mr. Jitender
                                              Chaudhari, Advocates for R-1.

                                              Mr. Sanjay Poddar &
                                              Mr. Mukesh Kumar, Advocates
                                              for R-2 & 3.

                                              Mr. Ravinder Sethi, Sr. Adv. with
                                              Mr. Digvijay Rai, Mr. R.K.
                                              Ghawana & Mr. Puneet Sharma,
                                              Advocates for R-4/AAI.

                                              Mr. Jayant Bhushan, Sr. Adv. with
                                              Mr. Atul Sharma, Mr. Sarojanand
                                              Jha and Ms. Milanka Chaudhary,
                                              Advocates for DIAL/R-5.


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

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                   Yes

2.        To be referred to Reporter or not?                    Yes

3.        Whether the judgment should be
          reported in the Digest?                               Yes

SANJAY KISHAN KAUL, J. (Oral)

1. The petitioners seek to challenge the acquisition

proceedings in respect of their land located at Village

Mahipalpur, New Delhi under the provisions of the Land

Acquisition Act, 1894 (hereinafter referred to as the said

Act) and dispensation of the hearing under Section 5-A of

the said Act by invocation of the provisions of Sections 17

(1) and 17 (4) of the said Act.

2. The battle for acquisition of this land has been going on

since 1965. A notification under Section 4 of the said Act

was issued by the Lieutenant Governor of Delhi on

23.1.1965 for acquisition of a large chunk of land

measuring 6241 bighas and 12 biswas in Village

Mahipalpur, New Delhi sought for public purpose of planned

development of Delhi. A declaration under Section 6 of the

said Act was made on 22.12.1966 and another one on

26.12.1968. The land in question was really sought to be

acquired for the benefit of the Airports Authority of India

(for short 'AAI') for the airport. The affected parties

including the petitioners who were running the business of

pottery under the name of Palam Potteries filed

proceedings which went up to Supreme Court. The views of

the Supreme Court are found in Ravi Khullar & Anr. Vs. UOI

& Ors. and other connected matters (2007) 5 SCC 231.

Civil Appeal No.1707/2007 filed by Palam Potteries also

came to be decided by the said judgement.

3. The Supreme Court held that the expression "public

purpose and planned development of Delhi" would include

the expansion and development of the Palam Airport which

was also a public purpose. This was despite the fact that

though the initial development work was to be executed by

the development authority subsequently the work was to

be carried out by the AAI. It was held that it could not be

said that there was a change of public purpose. The

acquisition proceedings were upheld qua the various

persons who laid the challenge but the petitioners

succeeded in their challenge on a limited issue. The

Supreme Court found that insofar as the acquisition of the

land belonging to Palam Potteries is concerned, the

proceedings lapsed for failure of the Collector to make an

award within the prescribed period of limitation under

Section 11-A of the said Act. Thus, it was on this technical

plea that the petitioners succeeded and lived to fight

another day.

4. The respondents instead of immediately taking steps for

issuing a fresh notification under Section 4 of the said Act

[the judgement in Ravi Khullar & Anr. case (supra) having

been delivered on 30.3.2007] proceeded to file review

petition and curative petition. The review petition filed by

AAI was dismissed on 15.5.2007 and the subsequent

curative petition, once again, filed by AAI was dismissed on

20.11.2007. The review petition filed by Government of

National Capital Territory of Delhi (for short 'GNCTD') was,

however, dismissed on 15.10.2008 as it was filed belatedly.

The Supreme Court condoned the delay in filing the review

petition but dismissed the petition.

5. The AAI after dismissal of the curative petition on

20.11.2007 addressed a communication dated 19.12.2007

to the Land Acquisition Collector stating that the land of the

petitioners consisting of 19 bighas and 17 biswas was

essentially required by M/s. Delhi International Airport

Private Limited (for short 'M/s. DIAL') on account of

operational reasons for expansion/development of IGI

Airport as per the Master Plan approved by the Ministry of

Civil Aviation. It was further mentioned in the

communication that the non-availability of this land would

affect the airport development plan being initiated by M/s.

DIAL which needs to be completed in a time bound

schedule before Commonwealth Games 2010. The AAI

requested that the land should be acquired on urgent basis.

We may notice at this stage that M/s. DIAL is a private

party, which is a consortium and there are various

agreements entered into with the AAI for development of

Airport. Even after this request, the matter proceeded at its

own pace and the LAC prepared a draft notification only on

12.6.2008.

6. The records produced before us show that the LAC was

waiting for the fate of the review petition filed by it. The

notings of the file show that the LAC was concerned that

while the owners of the land in respect of which acquisition

proceedings were upheld in Ravi Khullar & Anr. case (supra)

would get the market value of the land as prevalent in 1965

the consequences of a fresh notification to be issued in the

case of the land of the petitioners would require current

market value to be given and thus there would be a loss to

the Public Exchequer. We may note that as per learned

counsel for the LAC while the owners of other lands were

being paid compensation @ Rs.14,340.00 per bigha as per

rate determined by this Court and upheld by the Supreme

Court the tentative compensation rate for the petitioners on

account of the new notification under Section 4 of the said

Act would be in the vicinity of Rs.15.00 lakh per bigha.

Thus, it is only on the dismissal of the review petition of the

GNCTD on 15.10.2008 that the acquisition proceedings in

respect of the land of the petitioners were put at a fast

pace. The proposal was put up to the competent authority

on 10.12.2008, which was scrutinized by the Additional

Secretary, Land & Building and thereafter was laid before

the competent authority.

7. We have had the benefit of perusing the records of the

competent authority and one thing clearly emerges. A

conscious decision was taken to invoke the provisions of

Sections 17 (1) & 17 (4) of the said Act and dispense with

the hearing under Section 5A of the said Act ostensibly on

the ground of urgency in completion of the task of

development of the airport and because the land of the

petitioners "falls within the operational area". This

expression is important for the reason that in the various

maps shown to us it is undisputed that the land of the

petitioners is in the vicinity of the taxiway, hangers, etc.

There is some dispute about the exact location of the land

but that is not material since whether the land is 300

meters away or 500 meters away from the taxiway would

not be a material factor for determining whether it fell

within the operational area. In this behalf we may note that

in the counter affidavit filed by the LAC it has been stated

that the land in question is in the middle of the airport and

all the land around it except the land of the petitioners has

been acquired and is under the possession and control of

the concerned authorities for the use of the airport. It has

been specifically stated that the land in question is required

for the aircraft maintenance hangers, DMRC transport

corridors as per Master Plan of the IGI Airport. It has further

been averred that the land in question falls within the

existing boundary of the airport and was urgently required

by the AAI. Thus, the land falls within the airport area as on

date and does not form part of the land which would be

required subsequently for expansion.

8. We may note at this stage itself that learned senior counsel

for the petitioners has strenuously contended that the

justification of the DMRC transport corridors no more exists

as the same has already been made and the land of the

petitioners is located little further away from where the

respondents allege and that portion of the land is either for

development of commercial buildings or has to be kept

open. However, the proximity to the hangers and the

taxiway cannot be disputed. These facts have been

discussed by us to emphasize that the land does fall "within

operational area", which is the main reason cited in the

records for coming to a decision to invoke the provisions of

Section 17 of the said Act and dispense with the hearing

under Section 5A of the said Act.

9. A notification was finally issued under Sections 4 (1), 17 (1)

& 17 (4) of the said Act only on 12.1.2009 followed by the

declaration published under Section 6 of the said Act on

16.2.2009. It is these notifications to which the challenge

has been laid now by filing the present writ petition.

10. We have had the benefit of hearing learned counsels for the

parties at length on various dates. Learned senior counsel

for the petitioners has taken us through the records as filed

before this Court and has strenuously sought to contend

that this Court must look into the arrangement between AAI

and M/s. DIAL as according to him the acquisition is really

not for AAI but for M/s. DIAL, a private party. Learned

counsel contends that the land forming subject matter of

the acquisition proceedings would actually vest with M/s.

DIAL because it is co-relatable to other activities which are

commercial in nature. Since according to learned senior

counsel for the petitioners M/s. DIAL is a private party the

provisions of Part-VII of the said Act would apply.

11. We are unable to accept the aforesaid contention for the

reason that in the affidavits it has categorically emerged

that it is the AAI which has deposited the compensation

with the LAC. We are not required to see the back-to-back

arrangement between AAI and M/s. DIAL as urged by

learned senior counsel for the petitioners. We are also not

required to scrutinize the agreements and the effect

thereof as entered into between AAI and M/s. DIAL. Suffice

to say that the land in question forms part of the demised

land under the agreements on which the airport is being

made and is located in the vicinity of the hangers and the

taxiways. We may also note at this stage that AAI is a

shareholder in this consortium known as M/s. DIAL.

12. Learned senior counsel for the petitioners seeks to

emphasize that there is an obligation on M/s. DIAL to go

ahead with the development of the airport irrespective of

the fact whether the acquisition proceedings which were

then pending against the petitioners succeeded or not. It

is, thus, submitted that since there is no obligation on AAI

to make available this land, it is M/s. DIAL who should have

approached the petitioners for a private negotiation and the

petitioners would have been able to get a realistic value for

their land which is sought to be denied by the LAC. In a

nutshell the real dispute is that according to the petitioners

they are not getting good value for their land and would

have walked off, if they had been properly compensated as

per the market value which they consider to be prevalent.

13. Once again, we are unable to agree with the submission of

the learned senior counsel for the petitioners for the reason

that the agreements only provide that the project for

development of the airport is not to be delayed on account

of litigations pending including of the petitioners. The

result is that the consortium was put to notice that there

were some disputes and that would not be an impediment

in the timely completion of the airport. This does not mean

that the AAI is either absolved of its responsibility or is not

authorized to seek acquisition of the land for the

development of the airport, more so when AAI itself is a

shareholder in M/s. DIAL. The challenge to the acquisition

proceedings filed in Ravi Khullar & Anr. case (supra), except

in the case of the petitioners who succeeded on a technical

ground failed and AAI legitimately sought fresh acquisition

proceedings, to facilitate early completion of the project.

14. We consider it appropriate to discuss another aspect urged

by learned senior counsel for the petitioners connected with

the development of the airport based on the premise that

there was no such urgency for the land in question so as to

invoke the provisions of Section 17 (4) of the said Act even

if Section 17 (1) of the said Act had been invoked. It is,

thus, pleaded that Section 5A of the said Act being a

valuable right and the right to property being protected

under Article 300A of the Constitution of India, such a

valuable right ought not to have been deprived to the

petitioners.

15. We feel that it is not the specific purpose to which the land

has to be put to or as to when that aspect has to be

completed which would be germane. What is material is

that the airport is already operational. It cannot be

accepted that in such a situation the petitioners continue to

occupy the land and reserve their right on the same which

is in the vicinity of these hangers and taxiways. These

taxiways and hangers have to be completed by 2010 and

the area around the same should be free from access to

other third parties. We cannot lose sight of the fact that

there are grave security concerns which arise around the

airport in this day and age. It cannot be said that the

petitioners continue to occupy their land while on the

adjacent land there is an airport. We are, thus, unable to

accept this plea advanced by learned senior counsel for the

petitioners.

16. Learned senior counsel for the petitioners also sought to lay

emphasis on the fact that when the respondents

themselves took their own sweet time after the judgement

in Ravi Khullar & Anr. case (supra) to file applications,

review petition and curative petition, it would be reasonable

to accept that at least the minimum time frame as provided

in the said Act should be given to the petitioners to put

forth their objections to the acquisition of the land under

Section 5A of the said Act and be heard accordingly. We

had found that there has been an element of delay in

taking action after the judgement in Ravi Khullar & Anr.

case (supra). This is, however, in the form of filing review

petition and curative petition. The GNCTD (LAC) filed a

review petition belatedly but the delay in filing the review

petition was condoned though the review petition was

dismissed. We have already noticed that the records have

shown that the anxiety of the LAC was to preserve revenue

for the State as a much larger compensation would have to

be paid to the petitioners on issuance of a fresh notification.

Thus, the review petition cannot be said to be motivated by

any malafide but a concern for the revenue albeit made

belatedly. It can also not be doubted that the remedy of

review and a curative petition is available in law in

appropriate factual matrix. The fact that the Supreme

Court has not entertained them does not mean that the

exercise of filing them was malafide. The respondents had

nothing to gain from it as the passage of time would have

the possibility of increase in the value, which the petitioners

would be entitled to get for their land. The time has been

taken largely on account of the endeavour of the GNCTD to

focus on the financial consequences of the acquisition

proceedings qua the petitioners being quashed in Ravi

Khullar & Anr. case (supra).

17. The view we have taken aforesaid find support in a number

of cases including First Land Acquisition Collector & Ors. Vs.

Nirodhi Prakash Gangoli & Anr. (2002) 4 SCC 160 where it

was held that so long as the purpose of acquisition and

urgency to acquire continue to exist, exercise of power

under Section 17 of the said Act cannot be held to be

malafide and mere delay on the part of the Government

subsequent to its decision to dispense with enquiry under

Section 5A of the said Act by exercising power under

Section 17 of the said Act would not invalidate the decision

itself. We may note at this stage that it is the competent

authority which is to have subjective satisfaction about the

urgency of acquisition proceedings in a particular case and

Courts would loathe to interfere except in cases of

malafide. We may note that in Union of India & Ors. Vs.

Praveen Gupta & Ors. (1997) 9 SCC 78 it was noticed that

while dealing with the aspect of urgency the appropriate

Government was not required to pass a reasoned order as

the decision is an administrative decision and is a matter of

subjective satisfaction of the appropriate Government on

the basis of the material available on record.

18. The acquisition in question is one for the airport. It can

hardly be said that there is no public purpose in acquiring

the land for the development of an airport. The changed

economic philosophy necessitated by the need of urgent

infrastructural development has resulted in participative

projects between the Government/public sector and private

sector. In Ramniklal N. Bhutta & Anr. Vs. State of

Maharashtra & Ors. (1997) 1 SCC 134, it was observed in

para 10 as under:

"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 -- indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the

acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."

19. We may note that it is not as if the respondents were

sleeping after the judgement in Ravi Khullar & Anr. case

(supra) though the time taken was undoubtedly prolonged.

The AAI after facing the adverse fate in the review petition

and curative petition did forthwith write to the LAC. The

LAC undoubtedly delayed in filing the review petition but

waited for its fate for the reasons stated hereinbefore.

Once that fate was decided steps were taken to urgently

acquire the land in question.

20. We may note that an endeavour was made to invite our

attention to a plethora of judgements but we see no reason

to go into all these judgements. Apart from a docket

explosion we have also case law explosion and on a click of

a button case law on a particular point is available. We

cannot permit indefinite oral hearings to go on and permit

reference to each and every judgement which may arise on

its own facts on a particular question of law. A judgement

to be precedent and germane for the issue should either be

laying down a general proposition of law apposite to the

matter in issue or the facts must be so identical that the

same is cited as a precedent to show a legal opinion formed

by a court on identical facts. We may also note that we

have the benefit of a recent pronouncement of the

Supreme Court in Sooraram Pratap Reddy & Ors. Vs. District

Collector, Ranga Reddy District & Ors. and other connected

matters (2008) 9 SCC 552 where practically all aspects

dealing with the acquisition proceedings under the said Act

and as would be liable to be considered in the present

matter have been discussed. Thus, a reference to this

judgement itself would suffice.

21. It has been specifically observed that while considering the

eminent domain of the Government in respect of the land

to be acquired and the existence of public purpose a

holistic approach has to be adopted especially in cases of

an integrated and indivisible joint venture mechanism for

infrastructural development. The same cannot be split into

different components to consider whether each and every

component will serve public good. In such integrated and

indivisible joint venture mechanism to tap resources of

private sector for infrastructural development for fulfillment

of public purpose the acquisition of land was held to be

legal and lawful and not malafide. The compensation in the

facts of the case was paid by a nodal agency developing

the project which would facilitate socio-economic progress

and even a token contribution from public revenue was held

not to ipso facto be treated as colourable exercise of power.

If these principles are applied in the given facts of the

present case we find that the compensation of the land is

paid by AAI which in turn had entered into a consortium in

the form of M/s. DIAL with private parties to execute the

project. It can, thus, hardly be said that there is absence of

a clear public purpose involved in such a project.

22. The Supreme Court has also emphasized that the role of

the court is narrow and restrictive in such matters of

exercise of eminent domain and the court should not seek

to substitute its judgement for the legislature's judgement

as to what constitutes a public purpose unless the use is

palpably without reasonable foundation. In fact, the

judgement also deals with the aspect of whether it is Part-II

or Part-VII of the said Act which would come into play in

case of such joint ventures and concluded that where the

entire amount of compensation is paid by the State agency,

Part-VII would have no application.

23. We are, thus, unable to conclude that the present case is

one where the acquisition was for a company and thus Part-

VII would have any role to play.

24. The Supreme Court has further emphasized that while

dealing with this power of eminent domain the same

inalienable, eminent domain is an implied collective

necessity preferred against individual's proprietary rights.

It is sufficient that a public purpose derives advantage from

the scheme and once again at the cost of repetition we

emphasize that construction of an airport is certainly

something where the public derives an advantage. It is well

within the domain of the Government to adopt the

methodology of build, operate, transfer or any other

appropriate methodology to ensure proper allocation of

resources by the Government. These are aspects of

economic considerations in which the Government has

unfettered power and absolute play for carrying out

necessary development activity. The Government is not

bound to develop the airport itself as may have been

originally envisaged but the arrangement shows

development of the airport in a phased manner with limited

cost to the Government.

25. We may note at this stage that in Ramniklal N. Bhutta &

Anr. case (supra) it has been emphasized that there are

many ways of affording appropriate reliefs and redressing a

wrong; quashing the acquisition proceedings is not the only

mode of redress.

26. We, thus, find that the challenge laid in this petition to the

acquisition proceedings and the invocation of the provisions

of Section 17 of the said Act is without any basis and the

petition is without any merit on that account.

27. We may note in the end that the anxiety of any land owner

is often to get adequate compensation for the land. A large

number of cases arise to challenge the acquisition

proceedings where such adequate compensation does not

flow to the parties keeping in mind the market realities.

One method which has been adopted by the legislature is

to increase the percentage of solatium. It is really not a

solatium in the sense of providing solace to the person

whose land is sought to be acquired but an endeavour to

compute realistic prices of the land on account of perennial

problem of the registered documents often not reflecting

the correct market value. This is a hard reality which

cannot be ignored. It is not as if the same person who has

sold some adjacent land at a price and then seeks

compensation for his remaining land by seeking to include

the element not reflected in the sale deed. The breach of

law by other parties by not reflecting the full consideration

in the sale transaction is visited upon a person who is

deprived of his land under the said Act. An endeavour to

provide some mitigation has also been in the form of

fixation of circle rate which can be one indicator for the

prevalent market value. The circle rate would normally be,

at least, the minimum market price of the land in most

cases. Learned counsel for the LAC states that this matter

is already receiving attention of the competent authority

especially in view of certain directions passed by us in other

matters.

28. The present case is one where we feel it appropriate to

direct that there should be expeditious determination of

realistic market compensation for the land. Learned senior

counsel for the petitioners states that the claim with

supporting documents will be filed by the petitioners within

two (2) weeks. The AAI would give all necessary assistance

to the LAC to expeditiously conclude the proceedings for

determination of the value of the land and to publish the

award. The LAC will endeavour to complete the

proceedings within a period of four (4) months of the claim

petition being filed by the petitioners.

29. In a matter of this nature where hearings have gone on for

a number of days normally actual cost is awarded to a

succeeding party. However, considering that the

petitioners are being deprived of the land and their

compensation is yet to be determined we desist from doing

so.

30. The writ petition is dismissed with the aforesaid directions.

SANJAY KISHAN KAUL, J.

APRIL 23, 2009                              SUDERSHAN KUMAR MISRA, J.
b'nesh