Saksham Promoters India(P) Ltd. & ... vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 3625 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    WP(C) No.5672/2008 & CM 10833/2008

SAKSHAM PROMOTERS
INDIA(P) LTD. & ANR.              ...Petitioner through
                                  Mr. Harish Malhotra, Sr.
                                  Adv. with Mr. Rahul Kumar,
                                  Adv.

                 versus

GOVT. OF NCT OF DELHI & ORS...Respondent through
                              Ms. Jyoti Singh with
                              Ms. Kimmi Brasa &
                              Mr. Amandeep Joshi, Advs.
                              for GNCTD
                              Mr. Sanjay Poddar with
                              Mr. Mukesh Kumar, Advs.
                              for LAC
                              Mr. Sanjay Katyal, Adv.
                              for UOI

%                     Date of Hearing : August 19, 2009

                      Date of Decision : September 08, 2009

     CORAM:
*    HON'BLE MR. JUSTICE VIKRAMAJIT SEN
     HON'BLE MR. JUSTICE V.K. JAIN
     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

VIKRAMAJIT SEN, J.

1. The Petitioner prays for a writ of certiorari or any

appropriate direction quashing Notification dated 14.5.2007

under Section 4 of the Land Acquisition Act, 1894 („LA Act‟ for

short) and the Declaration dated 13.5.2008 under Section 6 of

the LA Act, in terms of which 417.18 square metres. of land out

of the Petitioner‟s property, that is, B-2, Lawrence Road, Delhi is

to be acquired.

2. Briefly stated, the facts are that the

Respondent/Government of National Capital Territory of Delhi

(GNCTD) had taken a decision to construct a flyover on the Ring

Road at the Britannia Chowk/Lawrence Road in May, 2001 in

order to facilitate the smooth movement of traffic. A draft

Notification was drawn up in June, 2001 intending to acquire

894.5 square metres of land from the Petitioner‟s property.

After holding parleys the GNCTD came to a tentative decision in

2004 that 72 square metres would be required for creating a

slip road. The flyover at the site is stated to have become

operational in January, 2005 till which time avowedly only 47.12

square metres of the Petitioner‟s land was acquired only for the

construction of the slip road. On 14.5.2007 a Notification under

Section 4 of the LA Act was issued. This Notification was for

568.64 square metres, of which 417.18 square metres was from

the Petitioner‟s property and 151.46 square metres was to be

taken from the adjoining properties B-4 to B-8, earlier belonging

to Modern Food Industries (India) Ltd. [presently owned by

Hindustan Lever Limited, Modern Food Division]. The

Notification stated that the land is likely to be required for the

construction of a flyover at Britannia Chowk, which

uncontestably and indubitably is a public purpose. The

Petitioner had filed Objections under Section 5A of the LA Act

on 11.6.2007, in pursuance of which it was granted a due

hearing. The Report of the Land Acquisition Collector, inter alia,

recommends that "the objections raised by the objectors needs

fresh consideration and the ground situation that the land part

in B-2 which has been left out of requirement and the land

within B-4 to B-8 has already with the Govt. as leased out to

DDA land. Moreover, this is small part of land proposed land

particularly required for slip road that may be a part of the

flyover project, but it will be proper to specifically mentioned

this particular requirement of slip road as the „public purpose‟

which the present notification lacks". The Petitioner made a

Representation to the Lieutenant Governor on 2.5.2008 taking

support of the Report. On 13.5.2008 the Joint Commissioner of

Police, Traffic, Delhi made a Report to the Principal Secretary to

the Lieutenant Governor Delhi to the effect that the "volume of

traffic is high. The volume of traffic is further likely to increase

manifold after the construction of Rampur underpass. Presently,

the left turn at the intersection from B-2 and B-4 Lawrence Road

Industrial area are not wide enough. As a result of which the

flow of traffic is not smooth. Hence, there is a need for

widening and construction of a regular slip road. As such, the

proposal of PWD for construction of slip road is keeping in tune

with the requirement at the intersection".

3. The Additional Secretary (L&B) has prepared a Note

dated 13.5.2008 which, in essence, had recommended the

immediate issuance of a Declaration under Section 6 of the LA

Act since otherwise the Notification dated 14.5.2007 would

lapse; that the Police Report could be studied subsequently.

Considerable emphasis has been laid on these notings. A

Declaration under Section 6 of the LA Act came to be issued on

that very day.

4. In the Counter Affidavit of the Land Acquisition Collector

it has been asseverated, among other points, that a flyover is a

public purpose. The Counter Affidavit on behalf of the PWD

states that the total area to be acquired from the Petitioner‟s

land measured 464.30 square metres. This was to be taken-over

in two phases, that is, 72 square metres in the first phase and

392.30 square metres in the second phase. It is further

asseverated on behalf of the Public Works Department (PWD)

that the Petitioner surrendered a piece of land measuring 47.12

square metres against the area required to be acquired, that is,

72 square metres on which a slip road was immediately

constructed to ease traffic congestion. It is submitted that the

entire scheme, as approved by the Technical Committee of Delhi

Development Authority, as well as the Delhi Urban Arts

Commission, could not be completed due to non-acquisition of

land for service and slip roads. The PWD had sent several

reminders along with the letter of the Joint Commissioner of

Police, Traffic dated 13.5.2008. The Affidavit on behalf of the

Union of India is to the same effect and it reiterates, among

other points, that the built-up structures can also be acquired

for public purpose.

5. We have heard the matter in great detail and have

carefully perused several photographs placed on record. The

principal contention of Mr. Harish Malhotra, learned Senior

Counsel for the Petitioner, is that a slip road has already been

constructed, which is wider than other slip roads, and,

therefore, more than adequately meets the emergent need of

road construction in order to facilitate the free flow of traffic.

He has emphasised that the slip road is 9 metres in width and

any further widening would make it almost the same width as

the main Lawrence Road. It is also submitted that on the

opposite/other side of the flyover the slip road is only 5.4

metres. However, the submission of learned counsel for the

Respondent that there is more vehicular traffic on the

Petitioner‟s side of the flyover than on the other side cannot be

seriously challenged. The photographs, as well as the pleadings,

make it abundantly clear that a service road, having a width of

7.5 metres, circumfuses and runs alongside all the

adjacent/contiguous plots. The petitioner‟s property is located at

the corner at the intersection of the side slip road and Lawrence

Road. The service road comes to an end just before the

Petitioner‟s plot; traffic has to veer right on to the side road and

negotiate the slip road for turning left onto Lawrence Road. This

is because of the existence of a paved area immediately in front

of the Petitioner‟s property. Because of the convergence to a

narrower point, the green cover/passage, which runs between

the side road and service road also comes to an end at the verge

just before the slip road. There is a pavement next to the green

passage which cannot be safely used by pedestrians because of

the ingress and egress gates of the Petitioner‟s property. The

Respondents submit that the service road, as well as the green

and the pedestrian walk and the slip road, would be able to exist

once the acquisition takes place. It has also been explained by

learned counsel for the Respondents that the Authorities are of

the opinion that the service road should continue

uninterruptedly throughout the area so that traffic can

effectively flow on the service road. This is presently not

possible because flow of traffic is impeded in front of the

Petitioner‟s plot. It is, therefore, mandatory and unavoidable

that the second phase should be completed without further

delay. We have studied the maps filed along with the pleadings,

as well as the photographs, and are satisfied that acquisition is

necessary if the service road along with the pedestrian walk is

to be created around the whole Block of plots alongside the

Petitioner‟s property. The interests of pedestrians cannot be

overlooked.

6. In exercise of our extraordinary powers under Article 226

of the Constitution of India, we find no reason whatsoever to

discount or disbelieve, or in any manner whittle down the

opinion of the Authorities that the local and traffic conditions

compel the acquisition. We are not impressed with the

argument that the slip roads in other areas are narrower than

the slip roads already existing and/or proposed to be widened at

the site. We are also not impressed with the argument that the

main road is 12.4 metres and, therefore, the slip road cannot be

further augmented in width. A perusal of Annexure R-3 shows

that the Petitioner has unauthorisedly appropriated public land

in terms of overhanging air conditioners as well as car parking.

It cannot be controverted that the existence of an uninterrupted

service road will have a salutary effect on the flow of traffic in

that it shall attract its use in order to avoid the heavily

congested main road.

7. We have seen the detailed drawings and are satisfied that

the curvature proposed in front of the Petitioner‟s property is

necessary. In this context, if the slip roads are to be narrower

than what is planned, commuters would have to negotiate a very

sharp or acute left turn, which will invariably create a traffic

hazard. The Writ Court does not sit as an appellate forum over

such decisions.

8. In the background of these circumstances, we are of the

considered view that the facts adumbrated on behalf of the

Petitioner are not such as would justify the exercise of the

extraordinary powers reposed in the Writ Court. On the

contrary, even by our limited expertise the acquisition is

necessary for removing traffic impediments and creating a

pattern of road for smooth flow of traffic.

9. The Writ Petition is dismissed but there shall be no order

as to costs.

                                              ( VIKRAMAJIT SEN )
                                                    JUDGE




September 08, 2009                                 ( V.K. JAIN )
tp                                                 JUDGE