Hari Kishan Sharma vs Govt. Of Nct Of Delhi
2010 Latest Caselaw 5617 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 9th December, 2010.

+                           W.P.(C) No.4516/2000
%

HARI KISHAN SHARMA                                         ..... PETITIONER
                Through:                  Mr. B.P. Gupta, Adv.

                                      Versus

GOVT. OF NCT OF DELHI                                    ..... RESPONDENT
                  Through:                Mr. Sanjay Poddar, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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           YES
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order of the respondent rejecting the

application of the petitioner for allotment of alternative plot in lieu of

acquired land and seeks a direction for consideration of the said application.

The application of the petitioner was rejected by the respondent as time

barred. Notice of the writ petition was issued on the contention of the

counsel for the petitioner that the application for alternative plot was

required to be made within one year of the date of compensation; that part of

the compensation due to him had been released to him even after the date of

the application and on the basis of R.K. Jain Vs. Delhi Administration 2000

VI A.D. (Delhi) 229. Rule was issued on 31st October, 2001. Pleadings

were completed and the counsels have been heard.

2. The notification under Section 4 of the Land Acquisition Act, 1894

with respect to the land of the petitioner was made on 22 nd June, 1989;

declaration under Section 6 was issued and an award announced on 19 th

June, 1992; the possession of the land was taken on 27 th December, 1990.

The compensation having not been paid after making of the award, another

land owner in or about the year 1992 filed a writ petition seeking direction

to the Land Acquisition Collector for payment of interest. In the said writ

petition direction was made for payment of compensation amount along

with interest at 18% per annum. Compensation was still not paid to the

petitioner and it is only on 26th July, 1994 that compensation was released to

the petitioner but without interest. The petitioner then filed W.P.(C)

No.818/1997 in this regard and which was allowed and in pursuance to

orders wherein, a further payment of `80,932/- was released to the petitioner

on 25th July, 1997.

3. The petitioner on 17th October, 1996 applied for alternative plot in

lieu of acquired land under the then policy. The petitioner was however

directed to give reasons for late submission of the application. The

petitioner vide his letter dated 13th December, 1996 stated that the prescribed

form for the application was not available in the Land Acquisition

Collector's (LAC) office inspite of his contacting several times; that in the

meanwhile the LAC had retired and there was nobody to sign the form and

that there was general confusion on account of LAC office shifting to

Mehrauli, Badarpur Road.

4. The respondent vide letter dated 7th January, 1997, not finding the

reasons given by the petitioner satisfactory rejected the application of the

petitioner as time barred. The petitioner on 28th January, 1997 represented

to the respondent that no cut-off date for submission of the application had

been prescribed and thus his application could not have been rejected as

time barred. Another representation was made on 5th April, 1997. After

receipt of `80,932/- as aforesaid, another representation was made on 1 st

September, 1997 mentioning that since the interest amount of compensation

had been paid after the date of the application for alternative plot, the

application for alternative plot should be considered. The petitioner was

however vide letter dated 14th August, 1998 informed that the Committee

constituted for recommendation of alternative plot in its meeting held on

18th December, 1997 had kept in abeyance all time barred cases till orders

from Hon'ble the Lt. Governor, Delhi in such cases are received and which

was then under consideration. The petitioner was finally vide

communication dated 5th March, 1999 informed that as per public notice

dated 30th November, 1993 published in newspapers, he was required to

submit his application by 31st January, 1994 or within one year from the

completion of acquisition proceedings whichever was later; that

compensation had been received by the petitioner on 26th July, 1994, 27th

July, 1994 and 9th September, 1994 and hence the application for allotment

of alternative plot should have been submitted latest by 8 th September, 1995,

while it was submitted on 13th November, 1996 and hence the same was

rejected as time barred. No mention was made in the said letter of the

decision if any taken by the Lt. Governor as earlier stated to be pending.

Rather, it appears that the letter dated 5th March, 1999 was issued owing to

the petitioner having filed a complaint with the Prime Minister's Office.

5. The petitioner in or about August, 2000 preferred the present writ

petition.

6. The stand of the respondent in its affidavit is two fold: firstly, that the

application though required to be filed on 8th September, 1995 was filed on

17th October/1st November, 1996 and was thus correctly rejected as time

barred and secondly, that the rejection having been communicated to the

petitioner first on 7th January, 1997, the present writ petition preferred after

three years in August, 2000 also was highly belated and suffers from laches,

waiver and acquiescence.

7. The counsel for the petitioner bases his case on Simla Devi Vs.

Secretary 2007 (140) DLT 474. It is contended that the application for

allotment of alternative plot in that case also was filed beyond one year of

the date of receipt of compensation and the writ petition was filed after five

years of the rejection of the said application; nevertheless the writ petition

was allowed and the respondent directed to consider the application. The

counsel for the petitioner clarifies that he is merely seeking consideration of

his application and not seeking a direction for allotment of alternative plot.

It is also contended that under Section 23(1A) of the Land Acquisition Act,

interest is part of compensation. Reliance in this regard is also placed on

Sunder Vs. Union of India AIR 2001 SC 3516. It is thus contended that

once interest which was on compensation was paid to the petitioner on 25th

July, 1997, the application for alternative plot made prior thereto could not

be rejected as time barred.

8. The counsel for the respondent bases his case on judgment dated 22 nd

December, 2005 of the Division Bench of this Court in Writ Appeal

No.154/2004 titled GNCTD Vs. Smt. Vidyawati and has also referred to:-

(i) Judgment dated 4th September, 2002 of this Court in W.P.(C)

No.4160/2000 titled Shri Charat Singh Vs. Govt. of NCT of Delhi.

(ii) Order dated 5th December, 2003 of this Court in LPA

No.866/2003 titled Chander Bose Vs. Union of India.

(iii) Judgment dated 19th December, 2008 of this Court in W.P.(C)

No.16/1991 in Sunder Singh Vs. Union of India 2009 (2) AD (Delhi)

809.

(iv) Order dated 4th February, 2009 of this Court in W.P.(C)

No.708/2009 titled Ved Prakash Vs. Lt. Governor NCT of Delhi.

(v) Judgment dated 20th October, 2010 of this Court in W.P.(C)

No.16722/2006 titled Lt. Col. Nafe Singh Bhardwaj Vs. Lt.

Governor of Delhi.

9. The argument of the counsel for the respondent is that repeated

representations would not extend the period of limitation for filing the writ

petition. Charat Singh (supra) has been cited on the proposition of making

of repeated representations not giving fresh cause of action.

10. Undoubtedly, the Division Bench of this Court in Vidyawati (supra)

held the application for alternate plot in that case to be barred by time but

the delay in filing the application in that case was found to be of more than

seven years. The delay in the present case according to the respondent also

is of a little over a year. Another Division Bench of this Court in Sunder

Singh (supra) also held that where the petitioner is so unconcerned or

unwary of his case, he was not entitled to alternative plot of land as the

scheme was introduced by the government for benefit of those people who

are in need of the land and had there been actual need of the petitioner in

that case, he would not have waited for such a long time to make an

application for allotment; delay in the said case was of 18 years in

comparison to the delay of about a little over one year in the present case.

Similarly, in Lt. Col. Nafe Singh Bhardwaj (supra) also, finding the delay

of 12 years, the writ petition was dismissed. In Chander Bose (supra) also

the delay was of 30 years in making the application and 11 years in filing

the writ petition.

11. It would thus be seen that the judgments cited turned on their own

facts and the facts thereof are not comparable to the facts of the present case.

12. Though the counsel for the petitioner from the judgment in Simla

Devi (supra) has contended that the public notice stated to have been

published in the year 1993 pleaded in that case as also in this case was not

proved but in my view, the same is really irrelevant once the respondent

itself is counting the time from the date of payment of compensation and not

from the date of the public notice. I am however adding that no proof of

publication in the newspaper of the said public notice has been placed in the

present case also. This Court in Simla Devi also held that the time limit of

one year stipulated by the respondent itself was not sacrosanct and in

deserving cases where injustice was caused, was relaxable.

13. The respondent in law was liable to compensate the petitioner with

interest for delay in payment of compensation. The respondent was

reminded so vide order in the writ petition filed by another land owner.

Notwithstanding the same, the respondent while paying the compensation to

the petitioner still did not pay interest to the petitioner compelling the

petitioner to prefer his own writ petition and pursuant to order wherein

finally interest was paid. There is no doubt that interest is part of

compensation. The Supreme Court in Ram Chand Vs. UOI (1994) 1 SCC

44 held that the delay in invoking the writ jurisdiction has to be considered

along with the inaction on the part of the authorities who had to perform

their statutory duties. It was held that a statutory authority cannot take a

plea that although it has not performed its duties within a reasonable time

but it is of no consequence because the person who has been wronged or

deprived of his right has also not invoked the jurisdiction of the Court for a

direction to grant the relief. It was also held that the authorities are enjoined

by the statute concerned to perform their duties within a reasonable time.

Once the said interest was paid after the date of the application for

alternative allotment of plot, the respondent could not contend that the

application was beyond one year from the payment of the compensation.

14. The same would also validate the representations by the petitioner

after the initial rejection. As aforesaid, the payment of interest was after the

date of initial rejection. The petitioner in view of the said subsequent event

was fully justified in representing to the respondent rather than rushing to

the Court. Moreover, according to the respondent itself, the matter was

pending before the Lt. Governor. There is no explanation whatsoever as to

what decision was taken by the Lt. Governor but finally communication

dated 5th March, 1999, was in view of the complaints of the petitioner to the

Prime Minister's Office and the petitioner approached this Court within one

and a half years thereof.

15. The counsel for the respondent urges that this Court in Vidyawati has

held that part payment of compensation is irrelevant. He was however

unable to show any such finding in the judgment. Though in the factual

narrative it is definitely recorded that compensation for part of the land was

applied for at one stage and compensation for remaining part of the land was

applied for subsequently and the application for alternative plot in that case

was made before the grant of compensation subsequently applied for,

however there is no finding of the Division Bench on the said facts. It is not

known as to whether the application for alternative plot in that case was in

lieu of part land of which compensation was earlier received or for entire

land. Even otherwise, once the respondent itself has provided for time of

one year from the date of payment of compensation, the same would mean

the entire compensation and not payments in part. If the respondent

intended so, they ought to have provided that the application had to be made

within one year of the payment of first installment of compensation. If the

respondent is permitted to indulge in such practice, it can defeat the rights

created under the Policy. Here it is not as if the additional compensation

was on account of any enhancement. As aforesaid, it was interest on the

amount which was due to the petitioner along with compensation and which

the respondent had failed to pay.

16. The writ petition therefore succeeds; the Rule is made absolute.

Respondent is directed to consider the application of the petitioner for

alternative plot in lieu of acquired land. Since considerable time has

elapsed, the respondent is now directed to take a decision on the said

application on or before 31st March, 2011.

The writ petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 9th December, 2010 bs (Corrected and released on 20th December, 2010)