Paras Ram vs The Vice Chairman, Dda & Ors.
2009 Latest Caselaw 3373 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Writ Petition (Civil) No.2414/2008

%                          Date of Decision: 26.08.2009

Paras Ram                                                     .... Petitioner
                          Through Mr.L.C.Goyal, Advocate

                                    Versus

The Vice Chairman, DDA & Ors.                     .... Respondents
                    Through Mr.Ashwani, Advocate for the
                              respondent No.1.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   NO
3.     Whether the judgment should be reported in               NO
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 7th September,

2005 rejecting the request of the petitioner for allotment of alternative

plot under the scheme of Large Scale Acquisition, Development and

Disposal of Land in Delhi, 1961 on the ground that the property of the

petitioner which was purchased by him was not mutated prior to the

notification under Section 4 of the Land Acquisition Act. The petitioner

in the circumstances has prayed for issuance of an appropriate writ for

allotment of the alternative plot of 40 sq.yards as per scheme of 1961.

2 The petitioner had purchased the land measuring 1 bigha out of

Khasra No.217 situated at revenue estate at Village Shahbad

Daulatpur, Delhi on 17th August, 1988 and a registered sale deed was

executed in his favour which was duly registered on 17th August, 1988

with registration Number 14601, book No.1, Volume No.5808 at pages

No.20-22.

3. The land of the petitioner had been acquired by the Government

by notification No.F11(17)/91/L&B/LA dated 28th April, 1995 under

Section 4 of the Land Acquisition Act. Pursuant to this notice under

Section 4 of the Land Acquisition Act, the land was finally acquired by

award No.1/98-99 dated 24th April, 1998 and the petitioner was paid

compensation amounting to Rs.2,71,297/- on 18th May, 1999 after the

possession of the acquired land had been taken by the respondents.

4. The petitioner has asserted that under the policy of the

respondents that is Scheme of 1961 which was to rehabilitate the

agriculturists whose land has been acquired by the Government, the

petitioner applied on 17th May, 2000 for allotment of an alternative plot

of 40 sq.yards as the petitioner had become the real owner of the land

which was purchased by him on 17th August, 1988.

5. The scheme for allotment of alternate plot categorically stipulated

the conditions stipulated there had to be fulfilled for allotment of land.

Since the petitioner had purchased the land through sale deed and in

his case award for the acquired land was given after 1985, Clause 5 (B)

became applicable to the petitioner which is as under:-

"B. Cases where land purchased through sale deed

The following conditions are also to be fulfilled in addition to above:-

4. For awards announced before 3.4.86, land should have been purchased prior to issue of notification u/s.4 of the land Acquisition Act and mutation must have carried out in their names.

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

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

6. For the petitioner to become eligible for recommendation of

alternative plot of 40 Sq. Yds, the land should have been purchased by

the petitioner five years before the date of notification under Section 4 of

the Land Acquisition Act and the mutation ought to have been carried

out in the name of the purchaser. The petitioner had purchased the

land on 17th August, 1988 whereas Section 4 notification was issued on

28th April, 1995, almost after seven years. Therefore, the petitioner

fulfilled the eligibility condition for allotment of an alternative plot.

Since the land of the petitioner was more than 150 sq.yards upto 1

bigha, the petitioner became eligible for recommendation for allotment

of an alternative plot of 40 sq.yards.

7. The land which was purchased by the petitioner on 17th August,

1988 was, however, mutated in his name on 19th May, 1995, that is

about 21 days after the issuance of notification under Section 4 of the

Land Acquisition Act.

8. The respondent considered the application of the petitioner for

allotment of alternative residential plot, however, rejected the same by

communication dated 7th September, 2005 on the ground that the

petitioner was required to be recorded owner of the land prior to the

date of notification under Section 4 of the Land Acquisition Act. Since

the notification was issued on 28th April, 1995 and the land was

mutated in favour of petitioner on 19th May, 1995, therefore, the

petitioner is not entitled for allotment of an alternative plot. Aggrieved

by the order dated 7th September, 2005 the petitioner has filed the

present petition.

9. The petition is contested by the respondent/DDA contending

inter-alia that the land admeasuring 1 bigha in Khasra No.217 had

been validly acquired as per provisions of the Land Acquisition Act,

1894 and the award No.1/98-99 dated 24th April, 1998 had been duly

published. It is further contended that there is no right vested in favour

of petitioner for allotment of alternative plot in lieu of the land acquired

for the planned development of Delhi. It is further contended that there

is no current policy of alternate allotment granting any right to the land

owners to claim alternate allotment as a matter of right. Regarding

petitioner, it is contended that he was not a recorded owner on the date

of notification under Section 4 of the Land Acquisition Act, therefore,

petitioner was not a recorded owner prior to the date of notification and

therefore, he is not entitled for recommendation for an alternate plot. In

any case it is contended that no recommendation has been received by

respondent No.1 from the respondent No.2 for allotment of alternate

plot to the petitioner. According to the respondent No.1 its statutory

function commences only subsequent to recommendation made by

Land and Building Department, Government of NCT of Delhi.

10. The petition is contested by respondent Nos.2 & 3, Government of

NCT of Delhi and Deputy Director, Land and Building Department

contending inter-alia that as per the policy of allotment of alternative

plot the land owner whose land is acquired for planned development of

Delhi and the land is placed at the disposal of the respondent No.1, can

be considered for allotment of alternative plot subject to applicant

satisfying conditions namely that the application must have been filed

within a period of one year from the date of receipt of compensation;

that the applicant should be the recorded owner of the acquired land on

the date of Section 4 of the notification; he must have received the

compensation for the said land; neither he nor his spouse or any of his

dependent children own any residential property in Delhi and the

acquired land is more than one bigha of land.

11. The respondent Nos.2 & 3 admitted that the petitioner had

applied for allotment of alternate plot on 17th May, 2000 and the case of

the petitioner was considered by the Allotment Committee of the

department and was rejected on the ground that he was not the

recorded owner of the land on the date of notification under Section 4 of

the Land Acquisition Act on 28th April, 1995 as the land was mutated in

the name of petitioner on 21st May, 1995. Reliance has also been placed

by the respondents on the Full Bench Judgment, AIR 1994 Delhi 29,

Ramanand v. Union of India in the counter affidavit filed by the

respondents.

12. No one is present on behalf of respondent Nos.2 & 3 despite

passing over the matter once. The learned counsel for the DDA has

contended that the land should have been mutated prior to the date of

notification under Section 4 of the Land Acquisition Act entitling

petitioner for recommendation for allotment of a plot under the scheme.

Though the respondent Nos.2 & 3 have detailed the conditions entitling

the petitioner to become eligible for allotment of 40 sq.yards plot,

however, the recommendation of respondent Nos.2 & 3 to the

respondent No.1 is denied only on the ground that the petitioner

became the recorded as the owner of the property after the notification

was issued under Section 4 of the Land Acquisition Act though he had

purchased the property about seven years prior to issuance of Section 4

notification. In the circumstances, the other eligibility condition

stipulated in the affidavit filed on behalf of respondent Nos.2 & 3 must

have been complied with by the petitioner. In any case, the facts

disclosed by the petitioner reveal that he had complied with other terms

and conditions as he had received the compensation on 18th May, 1999

and petitioner had applied on 17th May, 2000 within one year, the

petitioner has already received the compensation of the lands and the

land acquired is 1 bigha as per the policy for allotment of an alternative

land which also stipulates the entitlement of a person commensurating

with the extent of land acquired, it cannot be denied that the petitioner

would be entitled for 40 sq.yards plot as that is the size of plot under

the policy for those applicants whose acquired land is above 150

sq.yards to 1 Bigha.

13. The point for consideration in the circumstances is whether the

petitioner can be denied recommendation by respondent Nos.2 & 3 to

respondent No.1 on the ground that the land which was purchased by

the petitioner on 17th August, 1988 about seven years before the

Section 4 notification was issued on 28th April, 1995, on the ground

that the land was recorded/mutated in the name of the petitioner on

19th May, 1995 and not `prior' date of notification under section 4 of the

Land Acquisition Act. This is not disputed that the petitioner had

acquired the land by execution of a sale deed in his favour.

14. The learned counsel for the respondents have contended that

Clause B(5) of the policy should be read so as to mean that the land

should have been mutated in the name of the petitioner prior to the

date of issuance of notification under Section 4 of the Land Acquisition

Act. This cannot be disputed that the plain grammatically meaning

should be given to the relevant clause. The word should be read

correctly and exactly and not loosely and inexactly. It is not allowable to

read words which are not there. A word 'prior' which is not in the clause

B(5) is not to be read in the facts and circumstances which is sought to

be incorporated by the respondents. Wherever the requirement of `prior'

mutation contemplated, the word `prior' has been issued. Under the

eligibility conditions in the policy, in respect of ancestral land it is

categorically stipulated that the persons who are recorded owner 'prior'

to issuance of notification under Section 4 of the Land Acquisition Act

shall be eligible for allotment of an alternate plot. The word 'prior' has

been conspicuously missing from the clause B(5) in the policy which

pertains to the lands purchased through sale deed and where the

awards were announced post 3rd April, 1986. In the circumstances, the

clause B(5) cannot be read in a manner that the property which has

been acquired ought to have been or must have been mutated in the

name of the owner `prior' to the notification under Section 4 of the Land

Acquisition Act. The requirement is only that the land should have been

purchased five years before the notification under Section 4 of the Land

Acquisition Act and that the property should be mutated in the name of

the owner. The eligibility condition, therefore, is that the application

seeking alternative plot should have been made within one year from

the date of receipt of compensation. Therefore, on the date of filing the

application, the land should have been mutated in the name of the

owner. The strict grammatical meaning of the word is the only safe

guide in the facts and circumstances and the word `prior' cannot be

read in the appropriate clause.

15. Consequently, on the ground that the notification was issued on

28th April, 1995 and the property was mutated in the name of the

petitioner on 19th May, 1995, the recommendation of an alternate plot

of 40 sq.yards by the respondents no. 2 & 3 to the respondent no.1

cannot be denied to the petitioner. The petitioner, however, shall be

entitled for such a plot only pursuant to the recommendation made by

respondent Nos.2 & 3 to respondent No.1 and according to his seniority

for allotment of an alternative plot.

16. Consequently, the order dated 7th September, 2005 rejecting the

prayer of the petitioner for alternate plot of 40 sq.yards on the ground

that the land was mutated 21 days after the issuance of notification

under Section 4 of the Land Acquisition Act on 28th April, 1995 is

quashed. The petitioner shall be entitled for recommendation of

respondent Nos.2 & 3 to the respondent No.1 for allotment of a

residential plot of 40 sq.yards to the petitioner. The respondent no.1,

however, shall allot the plot of said size to the petitioner according to

the seniority of the petitioner.

17. For the foregoing reasons the letter dated 7th September, 2005

rejecting the claim of the petitioner for recommendation of the

respondents no. 2 & 3 to the respondent no.1 for alternative plot under

the scheme of Large Scale Acquisition Development and Disposal of

Land in Delhi, 1969 on the ground that the mutation of the land of the

petitioner was not done prior to notification under Section 4 dated 28th

April, 1995 is set aside. The respondents No.2 & 3 are directed to issue

an appropriate letter recommending the allotment of alternative plot to

respondent No.1 which respondent no.1 shall do according to the

seniority of the case of the petitioner.

18. With these directions, the writ petition is disposed of. Parties are,

however, left to bear their own cost.

August 26, 2009                                     ANIL KUMAR, J.
'K'