Prithi Pal Singh & Ors. vs Lieutenant Governor & Ors
2010 Latest Caselaw 5889 Del

        *                 IN THE HIGH COURT OF DELHI AT NEW DELHI


                                              Reserved on : 11.11.2010
        %                                  Date of decision : 24.12.2010


        +                         WP (C) No.3823-25/2006


        PRITHI PAL SINGH & ORS.                 ...       ...       ... PETITIONERS

                     Through :          Mr.Ravinder Sethi, Sr.Adv. with
                                        Rakesh Kumar Garg, Mr.Rajiv Kumar
                                        Ghawana and Mr.Puneet Sharma,
                                        Advocates.

                                        -VERSUS-

        LIEUTENANT GOVERNOR & ORS.... ...                                 RESPONDENTS

                   Through :            Mr.Sanjay Poddar, Advocate for R-1
                                        to R-3.
                                        Mr.Ajay Verma and Mr.Amit Mehra,
                                        Advocates for R-4/DDA.
                                        None for R-5.
                                        Ms.Saroj Bidawat and Mr.Hari Om
                                        Sharma, Advocates for R-6/MCD.


        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON‟BLE MS. JUSTICE VALMIKI J.MEHTA


        Whether the Reporters of local papers
        may be allowed to see the judgment?                             YES

        To be referred to Reporter or not?                              YES

        Whether the judgment should be                                  YES
        reported in the Digest?


        SANJAY KISHAN KAUL, J.

1. The petitioners purchased land measuring 5 bighas

and 2 biswas in khasra no.42/2 situated in the

_____________________________________________________________________________________________

Revenue Estate of Village Humayupur along with some

built up structure vide a sale deed dated 19.10.1951.

2. It is the claim of the petitioners that they constructed

a bunglow and an ice factory on their land and with

the passage of time, an unauthorized colony known as

Krishna Nagar Colony came up on the adjoining land.

The petitioners claim that their land is also a part of

the lay out plan of the said unauthorized colony which

had been regularized by the respondents vide

Resolution No. 62 dated 25.06.1981. A notification

was issued under Section 4 of the Land Acquisition

Act, 1894 („the said Act‟ for short) on 03.09.1957

which included the lands falling in Khasra no.42 of

which the land of the petitioners being khasra no.42/2

was a part.

3. In the meantime, the DDA was constituted under the

Delhi Development Act, 1957 and MPD-1962 came

into force on 01.09.1962. A declaration under Section

6 of the said Act was issued on 20.02.1963 which

included the land measuring 1 bigha and 2 biswas of

the petitioners followed by an award no.1662 dated

15.01.1964 pertaining to the same and possession

was also taken over. The second declaration under

Section 6 of the said Act was, however, issued on

04.01.1969 which included the land measuring 5

bighas and 2 biswas situated in khasra no.42/2. The

_____________________________________________________________________________________________

petitioners claimed silence on the part of the

authorities thereafter till the notices were issued

under Sections 9 and 10 of the said Act on

26.12.1975. The petitioners laid a challenge to the

acquisition proceedings by filing Civil Writ Petition

No.641/1978 but the same was withdrawn on

29.08.1978 as the writ petition was belated. This

resulted in an award bearing no.38/78-79 being

passed on 23.01.1979 in respect of the suit land which

assessed the compensation for the land and structure

thereon.

4. A second endeavour was made by the petitioners by

filing a Civil Suit No.82/1979 before the Sub-Judge

Delhi seeking a declaration that the land acquisition

proceedings culminating in the award dated

23.01.1979 were void, illegal and nullity on account of

unreasonable delay. The petitioners were enjoying

interim relief in the suit stated to be in pursuance to

an order of the Appellate Court.

5. A representation dated 16.07.1998 was, however, filed

to the LG during the pendency of the suit for de-

notification of the land under Section 48 of the said

Act. In pursuance to the representation, the Land and

Building Department of the Govt. of NCT of Delhi

sought some details from the SDM/LAC vide its letter

dated 18.08.1998 including in respect of the

_____________________________________________________________________________________________

possession at site and built up structure on the land in

question. The SDM/LAC vide its letter dated

25.09.1998 confirmed that the possession had not

been handed over to the concerned Department and

that the physical possession of the land in question

was with the petitioner No.1. There was a residential

house and factory like structure with a boundary wall

stated to be constructed on the land in question and

no compensation had been paid. The factum of suit

no.82/1979 pending in the Court of Sub-Judge was also

pointed out. This is also stated to have been

confirmed by the Director (LM) vide letter dated

21.09.1998.

6. In view of the aforesaid facts, the case of the

petitioners was put up before the De-notification

Committee in its meeting held on 27.01.1999 when it

was resolved that the land be inspected by a Sub

Committee and a report be submitted. The Sub

Committee inspected the land on 05.05.1999 and

found that the land within boundary in physical

possession of petitioner No.1 included khasra no.48/4

in addition to khasra no.42/2, possession of which was

reported to be taken over by DDA but continued to be

in unauthorized occupation of petitioner no.1.

However, part portion of khasra no.42/2 fell outside

the boundary wall and formed a part of the service

_____________________________________________________________________________________________

lane. The built up structure within the boundary wall

was found to be 16 biswas. The Sub Committee in its

report dated 13.05.1999 opined that some additional

information be also sought. The relevant portion is

quoted below:

"1. To confirm from the MCD whether the land in question falls within the unauthorized regularized colony of the Krishna Nagar.

2. Whether after regularization of the unauthorized colony, DDA has any role for development of the vacant land falls in the said colony.

3. After regularization of the unauthroize colony whether DDA deletes that portion of land from their Master Plan/Development Area."

7. The report of the Sub Committee is stated to have

been considered by the De-Notification Committee in

its meeting held on 04.06.1999 when it was decided to

elicit views of the Planning Department of the DDA

before recommending any de-notification. The

Director (LM) of the DDA informed Commissioner

(Planning) of the DDA vide letter dated 10.06.1999

that the physical possession of the land measuring 5

bighas and 2 biswas forming subject matter of the

award had not been taken over and at the site there

were structures known as Partap Ice Factory. The De-

notification Committee was seized of the matter and

information was sought whether the land was part of

the approved lay out plan.

_____________________________________________________________________________________________

8. The Secretary (Land) of Govt. of NCT of Delhi sent a

reminder to Commissioner (LM) DDA for requisite

information on 25.06.1999. In the meantime, the

Commissioner (Planning) vide its letter dated

05.07.1999 to Director (LM) of the DDA informed that

the land bearing khasra no.42/2 was not part of

Safderjung Enclave and was on the fringe/periphery of

Krishna Nagar unauthorized regularized colony. It was

further stated the land/area stood transferred to MCD

and as such no current planning was being undertaken

by the Planning Department of the DDA.

9. Secretary (Land) is thereafter stated to have re-

commended the de-notification subject to the

condition that the land of khasra no.42/2 which had

already been utilized by the DDA in construction of

road and by-lanes would be given up, land bearing

khasra no.48/4 belonging to DDA would be parted with

and court proceedings would be withdrawn. However,

when the matter was considered by the LG/competent

authority on 16.07.1999, a query was raised for

ascertaining from MCD whether it required the land for

providing the common facilities. The LG also wanted

to know the exact land use as per the Zonal Plan. This

note records that out of the aspects weighing for de-

notification, the first one of a challenge being laid and

a stay order being obtained from a civil court was not

_____________________________________________________________________________________________

tenable while the aforesaid information was required

for the second aspect i.e. that the DDA had no use of

land because the colony had been handed over to

MCD. This resulted in a communication dated

16.08.1999 by the Secretary (Land) to the MCD to

which a response was sent on 01.12.1999 by the

Commissioner, MCD informing that the site was

earmarked for group housing and the site was not

required for any common facilities as there was no

deficiency in that behalf.

10. In pursuance to the aforesaid developments, the

Land and Building Department of Govt. of NCT of Delhi

addressed a letter dated 24.02.2000 to the petitioners

enquiring as to what project was being proposed by

them on the land in case it is de-notified. This was

responded to on 07.03.2000 stating that the owners

were ready to abide by the requirements of the plan

and accordingly use the land for group housing, the

earmarked purpose. Thereafter, the matter was again

put up to the LG on the earlier de-notification proposal

of the Secretary (Land). The LG in terms of his note

dated 06.04.2000 found that there were some

inconsistencies since the Planning Department of DDA

had opined vide its letter dated 05.07.1999 that the

land was not part of Safderjung Enclave but was in

fringe/periphery of Krishna Nagar unauthorized

_____________________________________________________________________________________________

regularized colony while Commissioner, MCD vide a

DO letter dated 01.12.1999 had opined that the land

in question forms part of the lay out plan of Safderjung

Enclave and that was the basis for stating that the

area was earmarked for group housing. However, no

final picture in this behalf emerged and the original

records produced show that the notings in this behalf

came to an end in December, 2001 with the matter

being never placed before the LG with full information

to take a decision on the issue of de-notification one

way or the other. The civil suit no.82/99 was ultimately

dismissed on 18.08.2005. The petitioners moved a

representation dated 06.09.2005 to the LG once again

raising the issue of the pending representation for de-

notification of land under Section 48 of the said Act.

11. It is the case of the petitioners that the

respondents irked by the second representation

exposing inaction of the administration, instead of

passing an order in respect of the plea of de-

notification, made an endeavour to take over

possession of the land when only paper possession

was taken over on 22.02.2006. The petitioners

approached this Court by filing the present writ

petition under Article 226 of the Constitution of India

when the parties were directed to maintain status quo

_____________________________________________________________________________________________

with regard to the possession in terms of the order

dated 10.03.2006.

12. The pleadings were completed but thereafter

the petitioners amended the writ petition in the year

2010 in view of certain subsequent facts. The

petitioners claim quashing of the notifications along

with the plea to de-notify the land. Thereafter, even

amended pleadings have been filed.

13. The respondents plead that a decision was taken

on the representation of the petitioners under Section

48 of the said Act during the pendency of the petition

which was duly communicated by the Deputy

Secretary (LA) vide letter dated 20.04.2006 which

reads as under:

"I am directed to refer you representation dated 27.09.2005 on the subject cited above and to inform you that case for de-notification of subject land was considered. It has been observed that physical possession of the said land has been taken over by DDA on 22.02.2006. With this acquisition proceedings stands completed. As per provisions of the Land Acquisition Act, 1894, the acquired land cannot be denotified under Section 48 of the LA Act once the acquisition proceedings are completed. Hence, your request for denotification of the said land under section 48 cannot be considered at this stage."

14. It is the submission of the respondents that since

physical possession of the land has been taken over,

_____________________________________________________________________________________________

the acquired land cannot be de-notified under Section

48 of the said Act.

15. When the matter was taken up for hearing on

09.11.2010, learned senior counsel for the petitioners

confined his submissions to a claim that since their

application under Section 48 of the said Act was made

as far back as 1998, comments were called for, and

even De-notification Committee had recommended

release of land, the proceedings for de-notification

ought not to have been made infructuous by seeking

to take possession in the year 2006 without deciding

the application of the petitioners.

16. Learned counsel for the respondents, however,

strenuously contended that the writ petition had no

merit on various grounds as set out in their synopsis.

It is their plea that the petitioners are only name-

lenders as the writ petition has been filed through an

attorney as would be apparent from the affidavit filed

in support of the writ petition. Nothing was disclosed

as to how this attorney got authority, person by the

name of Sh.R.K.Aggarwal who was not related to the

petitioners. The counter affidavit filed on behalf of R-

2 and R-3, in para 10, specifically raised this plea, but

in rejoinder, nothing has been said in this behalf

except to file a copy of the special power of attorney.

The power of attorney does not appear to be

_____________________________________________________________________________________________

registered and is executed on 30.04.2004. The special

power of attorney in favour of Sh.R.K.Aggarwal is very

comprehensive including giving authority to transfer

the property, take all legal steps, appoint arbitrator

and to sign and file applications for de-

notification/release of the land. It also authorizes

engagement of pleaders or advocates and to appoint

or remove further/general special power of attorneys.

In the last para, being para 16, of the power of

attorney it is in fact labeled as a General Power of

Attorney. The stand of the said respondents thus is

that the petitioners have clandestinely sold the land to

the attorney or his nominee for consideration and

have suppressed the other documents executed as

they would show the transfer of land which was

prohibited under the Delhi Lands (Restrictions on

Transfer) Act, 1972. The allegation is of suppression

of the material documents in respect of true nature of

transaction.

17. It is the plea of the respondents that having

failed in the challenge to the acquisition proceedings

in the writ petition, the acquisition proceedings were

challenged in a civil suit where interim orders were

granted of status quo on 29.05.1979 which was

vacated on 22.10.1980. However, in appeal, the

interim orders were restored and were to continue

_____________________________________________________________________________________________

during the pendency of the suit which was finally

dismissed on 18.08.2005. Learned counsel

emphasized that a preliminary issue was framed about

the maintainability of the suit in view of the provisions

of the said Act and despite the pronouncements of the

Supreme Court, in State of Bihar v. Dhirendra Kumar:

AIR 1995 SC 1955, the petitioners continued to

prosecute the suit till its dismissal on 18.08.2005 since

they were enjoying interim orders. It is during the

pendency of the suit that an application was filed on

16.07.1998 seeking de-notification of the land under

Section 48 of the said Act. The possession of the land

is stated to have been taken on 22.02.2006 on the

repeated demands made by the DDA and was

simultaneously handed over to the DDA. Demolition

was also carried out of the unauthorized constructions

raised by the petitioners on 10.03.2006 on which date

the petitioners are alleged to have persuaded this

Court to pass interim order of status quo by

misleading the Court. It is under the garb of this order

that the petitioners are alleged to have tried to regain

possession resulting in police complaint dated

05.05.2006 being filed by DDA. The possession

proceedings have been annexed to the counter

affidavit of the DDA. The absence of any notings in

the file post 2001 is stated to be on account of the fact

_____________________________________________________________________________________________

that as the civil suit was still pending in which interim

orders granted on 29.05.1979 were enuring for the

benefit of the petitioners, the file was not processed

further in respect of the application of the petitioners

under Section 48 of the said Act. It is only on

dismissal of the suit on 18.08.2005 that possession

proceedings were taken out on 22.02.2006. Learned

counsel sought to draw strength from the observations

made by the Division Bench of this Court in Ramjas

Foundation & Anr. versus UOI & Ors.; 110 (2004) DLT

10. In that case, a representation was made in 1995

but was rejected in the year 2002 while in the

meantime, the possession was taken over during the

pendency of the representation. The Division Bench

did not interfere and the SLP (Civil) No.7026/2004

directed against that order was dismissed as

withdrawn on 21.04.2008. It is, however, admitted

that no decision was taken on the application of the

petitioners under Section 48 of the said Act, but the

plea is that the Government had never de-notified the

land and thus the petitioners cannot claim any interest

or equity.

18. Insofar as the notings are concerned, learned

counsel for the respondents sought to rely upon the

observations of the LG on 16.07.1999 when out of the

two proposed grounds for release, the LG disagreed

_____________________________________________________________________________________________

with the first ground i.e. the interim stay and insofar

as the second ground was concerned, asked the

Department to obtain clarifications from MCD and

DDA. Thus, nothing positive in favour of the

petitioners was indicated by the LG in the note. Even

in the subsequent note of the LG dated 23.03.2000,

the file was returned on account of certain

contradictions with the remark "please speak". The

clarifications were sought up to 2001 though they

were not forthcoming and the file again started

moving in the year 2005 on the request of the

petitioners. The meeting was convened by the LG

which was attended by the officials of the DDA and

MCD and finally the LG vide note dated 04.04.2006

approved the view as resolved by the committee on

23.03.2006 and the decision was duly communicated

to the petitioners on 20.04.2006. The subsequent

representation made through an attorney was also

rejected. Learned counsel seeks to emphasize by

reference to the judgment in Shanti Sports Club v. UOI

and Ors; 2009 (15) SCC 705 that even where one

Union Minister had taken a favourable decision which

was revoked by the other, the subsequent decision

was upheld by observing that the only mode of

release of land was by way of notification under

Section 48 of the said Act. No such decision had been

_____________________________________________________________________________________________

taken in the present case. Even on the aspect of

release of other lands being made examples, the

same were rejected by the Supreme Court.

19. In order to appreciate the aforesaid rival

contentions, it is also necessary to record how the file

moved in 2005 after the hiatus period from 2001-

2005. The first note dated 26.04.2005 suggests that

the file appears to have been misplaced and that

immediate steps must be taken to send a reminder to

the Director (LM) of the DDA to send his comments.

Thus, the story of the comments not forthcoming

began once again. In the meantime, the

representation filed on behalf of the petitioners after

dismissal of the suit was also received. A detailed

note on 03.11.2005 records the history and the

factum of report not being sent by Director (LM) till

that date and thus the file has to be placed before the

LG. Once again, reminders were sought to be sent to

the DDA before putting up the file before the LG but

no reply was received and thus it has been recorded

that a meeting ought to be called between the

Commissioner (Lands), DDA and Commissioner, MCD

to clarify its position to be placed before the LG. A

meeting was fixed for 06.03.2006 but did not mature

due to pre-occupation of the Secretary(Land and

Building) and the Additional Commissioner MCD (Land

_____________________________________________________________________________________________

and Building) in some other matter as noted in the

note dated 10.03.2006. It was also noted in the same

note that the LG wants to know about the status of the

case. The meeting was re-scheduled for 16.03.2006

when the only fact noticed is that though no

information was forthcoming from MCD and DDA, the

possession of land having been taken, there was no

force in the representation of the petitioners for de-

notification of the land which was then approved by

the LG.

20. The sum and substance thus is that the

information sought by the LG was not forthcoming

from the MCD and DDA for almost seven years for

different reasons, but at the fag end since possession

was taken over it was stated that the exercise to

obtain information would be a futile one.

21. The question of taking over possession is

seriously disputed by the petitioners. Annexure R-2 is

the only document annexed to the counter affidavit of

DDA on the basis of which it is claimed that possession

was taken over on 22.02.2006. There is nothing else

in the original records produced in the Court. The

possession report shows that at site the respondents

went around the wall containing the structure and the

vacant land and took over the possession. There is

not even a recorded note of opening the gate,

_____________________________________________________________________________________________

entering into the property or physically taking over

possession thereafter. All that is written is that the

possession proceedings are thereafter complete and

the words used are "actual possession". The

possession report mentions the land area as eight

biswas and that there was no resistance to the

possession.

22. In the rejoinder affidavit, the petitioners pleaded

that the respondent-authority seems to have prepared

the report while sitting in their office. There was a

generator room, tube well and one dry well of which

there is no mention in the possession report. The

demarcation report carried out by the officials of the

respondents on 05.05.1999 had referred to the

existing construction to be shown of 16 biswas while

the possession report dated 22.02.2006 mentions it as

eight biswas. The persons deputed by the petitioners

were stated to be residing in the property and there

was an electricity meter of which last reading was

recorded on 07.03.2006. The persons occupying the

property on behalf of the petitioner being Sh.Dalip

Singh and Sh.Ram Bhadur have also filed affidavits

about their being at site on 22.02.2006 when no one

came to the site. It has been pointed out that the

possession report does not bear the signatures of any

Panch or independent witness. There is also no

_____________________________________________________________________________________________

mention of the two gates in the boundary wall for

ingress or egress. It is not the case of the respondents

that they had sought any police protection at the time

of taking over possession while after the alleged date

of taking over possession when they wanted to carry

out demolition, police protection was sought. The

possession report is thus referred to be unbelievable

and a fabrication. Most importantly there was no Halka

Patwari present and it has not even been indicated as

to when the date for taking over possession was fixed

and if the DDA informed to come to the site.

23. It is thus pleaded that these records have only

been created to plead that the LG need not apply his

mind to the application of the petitioners under

Section 48 of the said Act.

24. The last aspect which learned counsel for the

petitioners seeks to emphasize is that there has been

considerable pick and choose on the aspect of release

of land under Section 48 of the said Act and pleaded

there were two glaring examples of the same. The

first one is in the case of Smt.Roshanara Begum in

respect of land measuring 9 bighas and 1 biswas

situated in Village Lado Sarai, which formed subject

matter of dispute in the judgment of the Full Bench of

this Court in Roshanara Begum v.Union of India;

(1996) 61 DLT 204 which was unsuccessfully

_____________________________________________________________________________________________

challenged before the Supreme Court in Murari

v.Union of India; 1997 (1) SCC 15. Despite this, the

land was subsequently released under Section 48 of

the said Act. We have noticed this even in WP(C)

No.2563-66/2005 decided on 04.03.2010.

25. We had called records of Roshanara Begum‟s

case and it transpires that in terms of the order of the

LG dated 18.12.2007 the land was released on a

representation of Sh.Sultan Ahmed and Smt. Saira

Banu, son and daughter of Late Smt. Roshanara

Begum nee Naseem Banu. The area was found to be a

part of the Regional Park and not falling in the ridge.

The de-notification was subject to the land being

maintained as green in consonance with the intent of

the Master Plan, no new permanent structure to be

built, temporary structures to be raised only with the

prior approval of DDA and no claim for compensation

towards damages. The existing structures on the site

are stated to be a kothi, room, boundary wall and hall.

26. The second case referred is the case of Radha

Soami Satsang Beas („RSSB‟) in respect of land

measuring 21 bighas and 8 biswas situated in Dwarka.

The original record of this case shows that the land

was purchased by RSSB in April-May, 1999 prior to the

notification under Section 4 of the said Act dated

13.12.2000. A declaration under Section 6 was issued

_____________________________________________________________________________________________

on 7th December, 2001 when RSSB applied for de-

notification of their land on the ground that it was

required for religious purposes and ought to be

exempted. This request was turned down by the then

LG on 07.11.2002 after receiving recommendation of

the De-notification Committee. The DDA stated

before the De-notification Committee that the land

was required for construction of planned road for

providing connectivity between phases I and II of

Dwarka, for construction of flats to meet pending

public demand and social and physical infrastructure.

The Committee recommended that the RSSB could

approach the DDA for allotment of land in institutional

area. The challenge raised by RSSB of refusal of de-

notification under Section 48 of the said Act in a writ

petition was rejected in May, 2005. Despite this, it

was found that there were certain public policy

dimensions which again need to be re-examined, as

per the note of the LG dated 14.05.2008.

27. Basically, the main ground is stated to be large

functions held by RSSB which required a large area.

The possession of land could not be taken because of

sit in by the followers of RSSB. RSSB offered to give

up possession of this strip of land in lieu of an

equivalent area adjoining their remaining area. It was

found that divesting RSSB of the land was not a

_____________________________________________________________________________________________

workable solution. The objection of DDA that such de-

notification would generate a similar demand from

other parties was also brushed aside as the land was

being used for community purposes in the case. The

earlier order of the then LG dated 07.11.2002 was

hence superseded when the LG passed the order

dated 14.05.2008.

28. On giving our thoughtful consideration to all of

the aforesaid aspects, we consider it appropriate to

deal with the different aspects separately which arise

for adjudication and are germane to the issue.

                THE WRIT PETITION BEING                           FILED       THROUGH
                POWER OF ATTORNEY

29. The writ petition filed by the petitioners is

through a Power of Attorney - person by the name of

Sh.R.K.Aggarwal. The writ petition was not supported

by the copy of Power of Attorney but when the

objection was raised by the respondents in their

counter affidavit, a copy of the power of attorney was

filed with the rejoinder. It is pertinent to note that

para 10 of the counter affidavit filed by R-2 and R-3

only raises the plea that the petitioners had not filed

any documents on record to show their authority. It is

in response thereto that a copy of Power of Attorney

was filed by the petitioners.

_____________________________________________________________________________________________

30. No doubt ideally a copy of the Power of Attorney

ought to have accompanied the petition, but then

once an objection was raised, the same has been

placed on record. The plea of the learned counsel for

the respondents that the petitioners are only name

lenders did not form the basis of the objection, but the

objection was about the absence of the Power of

Attorney which has since been filed.

31. We may also notice that nothing prevents a

competent authority before passing any order under

Section 48 of the said Act to satisfy itself about the

current title of the property and whether it has been

transferred contrary to the provisions of the Delhi

Lands (Restrictions on Transfer) Act, 1972. No doubt

the Power of Attorney gives extensive powers but

from that alone one cannot derive a presumption in

favour of the property having been transferred. On

the petitioners being called upon to explain their stand

in this behalf, a conclusion regarding title can always

be a factor to be considered in an application under

Section 48 of the said Act. Thus, the factum of the

writ petition having been filed through a power of

attorney by itself cannot shut out the petitioners from

making a grievance about the representation made

under Section 48 of the said Act and the manner of its

disposal.

_____________________________________________________________________________________________

32. We make it clear that it is open to the competent

authority to first satisfy itself that the petitioners

continue to be the owner of the property in question

and that it is not a proxy litigation by a power of

attorney holder who had acquired interest in the

property.

                INSTITUTION             OF         A     CIVIL      SUIT       BY      THE
                PETITIONERS

33. It is no doubt true that the challenge laid to the

acquisition proceedings by the petitioners through

filing of a civil writ petition No.641/1978 did not

succeed as the same was withdrawn on 29.08.1978 as

the writ petition was belated. Subsequently, award

bearing no.38/78-79 was passed on 23.01.1979.

However, the petitioners filed Civil Writ Petition

No.82/1979 before the Sub Judge, Delhi and were

successful in getting an interim relief by the appellate

court. It is during the pendency of this suit that a

representation dated 16.07.1998 was filed by the

petitioners making a request to the competent

authority/LG for de-notification of the land under

Section 48 of the said Act.

34. We are unable to accept the contention of

learned counsel for the respondents that the

petitioners themselves should have suo motu

withdrawn the civil suit in view of the judgment of the

Supreme Court in State of Bihar v. Dhirendra Kumar‟s _____________________________________________________________________________________________

case (supra). The respondents were also fully aware of

the judgment and nothing prevented them from

bringing that judgment to the notice of the Court

seeking dismissal of the suit on that account. Both the

parties kept silent about that aspect and the

application filed by the petitioners under Section 48 of

the said Act continued to be processed. The

respondents thus cannot absolve themselves of the

responsibility in this behalf or for the delay in disposal

of the suit which came to be dismissed only on

18.08.2005 when interim orders stood vacated.

THE MANNER OF PROCESSING OF THE APPLICATION UNDER SECTION 48 OF THE SAID ACT

35. We have already noticed above that the

application for release of the land under Section 48 of

the said Act through a representation dated

16.07.1998 was filed before the LG. The application

was processed and comments were called from the

various departments including the site position. The

case of the petitioners was also put up before the De-

notification Committee in its meeting held on

27.01.1999 when it was resolved to inspect the land.

The land was duly inspected by the Sub Committee on

05.05.1999 when it was found that a portion of the

khasra no.42/2 (which was in issue) fell outside the

boundary wall and formed a part of the service lane

_____________________________________________________________________________________________

while the remaining portion was within the four walls

of the petitioners and under possession of the

petitioners. It was also noticed that the boundary wall

included land of khasra no.48/4 of which possession

was reported to be taken over but continued to be in

unauthorized occupation. It is in view thereof that the

recommendation was made for de-notification, but

subject to the petitioners giving up the land in respect

of khasra no.48/4 and not claiming any damages in

respect of the land already utilized out of khasra

no.42/2.

36. However, there appeared to be some confusion

about the location of the land and whether it fell

within the jurisdiction of the DDA or MCD. The DDA

was of the view that the land did not form a part of

Safderjung Enclave and was on the fringe/periphery of

Krishna Nagar unauthorized regularized colony. No

planning was being undertaken by the DDA and

opined that the matter really pertained to MCD. This

is clear from the letter of the DDA dated 05.07.1999

which was issued in concurrence with Commissioner-

Planning, DDA. The MCD also took the stand that it

did not require the land in question for any community

services of Krishna Nagar unauthorized regularized

colony on a query being posed from the office of the

LG. It was only in the conspectus of all these facts

_____________________________________________________________________________________________

that the Secretary (Land) of Govt. of NCT of Delhi

thereafter recommended de-notification of the land

falling in khasra no.42/2 subject to terms and

conditions. When the matter reached for final

approval of the LG/competent authority, a query was

posed on 16.07.1999 about the stand of the MCD,

which was clarified as aforesaid and the MCD informed

that the site was earmarked for Group Housing. The

petitioners were also asked to inform the proposed

user of the land in terms of the letter dated

24.02.2000 and they stated that the land would be

used for the earmarked purpose. It is with all this

material that the matter was once again placed before

the LG who found some inconsistencies between the

stand of the Planning Department of the DDA and of

the MCD. It is in view thereof that note was penned

down by the LG on 06.04.2000 seeking a clarification

as to whether the land in question formed a part of

the lay out plan of Safderjung Enclave or not.

Unfortunately, despite repeated reminders, DDA did

not answer this query and the file was not even

processed after December, 2001. None on the part of

the respondents cared to seek appropriate information

to be placed before the LG as per the directions of the

LG. The explanation of the aforesaid, as given by

learned counsel for the respondents, is that this may

_____________________________________________________________________________________________

have happened because of the pendency of the civil

suit where a stay was operating. This plea is only to

be stated to be rejected for the reason that everyone

was aware of the pendency of the civil suit and the

application of the petitioners being processed. It is the

non-adherence of the DDA to the demand from the

LG‟s Office in respect of explanation regarding the

aforesaid aspect which resulted in non-processing of

the file. Once the suit was dismissed, the petitioners

once again represented about the pendency of the

representation.

37. It is no doubt true that the petitioners did not

approach any judicial forum against non disposal of

their representation under Section 48 of the said Act

during the pendency of the suit. It can, however, be

not lost sight of the fact that the representation of the

petitioners under Section 48 of the said Act was, in

fact, being examined by the respondents and queries

were even posed to the petitioners. The petitioners

can hardly expect in such a situation that any action

would be taken without finally deciding their

representation under Section 48 of the said Act.

38. The records show that queries of the LG

remained unanswered even in the year 2005. All that

happened was that it was put up to the LG that the

possession had been taken over of the site on

_____________________________________________________________________________________________

22.02.2006 and thus there could be no question of

release of the land under Section 48 of the said Act.

That is the sole reason for rejection of the application

of the petitioners under Section 48 of the said Act and

not on the merits of the claim laid by the petitioners.

The post dismissal of suit period also saw once again

queries being raised from the DDA and reminders

being sent, but to no avail. A meeting was also

directed to be held between Commissioner (Lands),

DDA and Commissioner, MCD to clarify the position to

be placed before the LG which did not fructify and on

the anvil of the second date fixed, the possession was

stated not to have been taken over making the

discussion infructuous.

39. We have already recorded in para 15 aforesaid

that the learned senior counsel for the petitioners

confined his submission to the claim of non

consideration of the application of the petitioners

under Section 48 of the said Act made as far back as

in the year 1998 for which a recommendation was

made by the concerned authorities of course subject

to the final approval of the competent authority/LG.

We find force in the contention of the learned counsel

for the parties that there has been gross negligence

on the part of the respondents in dealing with the

application of the petitioners under Section 48 of the

_____________________________________________________________________________________________

said Act by keeping it pending with no movement of

the file for a number of years. The file initially moved,

comments were called from all the concerned

departments, clarifications and re-clarifications sought

and it is in pursuance thereto that the

recommendation was made to the LG for de-

notification of the land subject to certain terms and

conditions. The LG only wanted clarification on a

particular aspect which the DDA failed to respond

despite repeated reminders. Instead of obtaining

clarification, the file was put in a cold storage and on a

dismissal of the suit once again the story of certain

clarifications form DDA started but the same was

sought to be defeated by claiming possession having

been taken over. It is not a case where the land

owner having lost throughout has filed an application

under Section 48 of the said Act just prior to the

possession being taken over to defeat the effect of the

loss in the previous litigation. The petitioners were

enjoying interim stay in the civil suit and yet chose to

make a representation for release of the land under

Section 48 of the said Act which was acted upon. The

respondents could have easily dealt with the file

within a reasonable period of time and the LG would

have arrived at a decision but for the file being put in

a cold storage post 2001. There is thus no final

_____________________________________________________________________________________________

decision of the LG on the merits of the application of

the petitioners.

40. A further question thus which would have to be

examined is as to whether the physical possession

was actually taken over from the petitioners making

the application under Section 48 of the said Act

infructuous and whether such an action is sustainable

in law.

POSSESSION PROCEEDINGS

41. The possession proceedings in the present case

are of vital importance.

42. We may note that the possession proceedings

are only of one page which have been annexed as

Annexure R-2 to the counter affidavit of DDA. We had

called for the records and it is not in dispute that there

are no proceedings other than that annexure. There is

some action of demolition subsequently taken but that

is not simultaneous to the possession being taken

over. The records show that there are no

communications really of the DDA in behalf of the

action to be taken to take over possession of the land

in question at that time. On the other hand, the

communications to the DDA had again started seeking

clarification as sought by the LG which remained

unanswered. If the possession report annexure R-2 is

perused, it would show that the representatives of the

_____________________________________________________________________________________________

respondents went around the wall of the property in

question containing the structure and vacant land and

claimed to have taken over possession hence. As to

how taking a circle around the wall would amount to

taking over possession is a moot point. There is no

recording of any gate being opened to enter the

property or to take over physical possession. All that

is written is that the possession proceedings are

complete.

43. We find merit in the plea of the petitioners that

the possession proceedings give no confidence

whatsoever and it appears that the officers merely

went around the property and came back by making a

paper endorsement of having taken over possession.

No proper description is given as to what existed at

site and affidavits have been filed on behalf of the

representatives of the petitioners who stay at site.

The possession report bears no signatures of any

independent witness or Panch and most importantly

there is not even the presence of Halka Patwari.

There are no records to show as to when the date for

taking over possession was fixed and when DDA was

informed to be present at site. In such possession

proceedings, the Halka Patwari should have been

there at the site. There is also strength in the

submissions of the petitioners that the respondents

_____________________________________________________________________________________________

claimed to have sought police protection when the

respondents subsequently fixed a date to carry out

demolition of structure but never sought police

protection at the time of taking over possession of the

property in question. These aspects have not to be

read in isolation but collectively which would show

that physical possession was actually never taken

over and they were only paper proceedings. Other

than the possession proceedings filed with the counter

affidavit, there is no other record to show the intent of

the respondents to take over possession of the

property in question.

44. We have examined the issue of taking over

possession by examining various pronouncements of

the Supreme Court in WP(C) No.1907/1986 Auto Grit

and Ors. V. UOI & Ors., decided on 03.02.2010 and

subsequently in WP(C) No.2563-66/2005 M/s Budh

Singh Gulab Singh and Ors. V. UOI and Ors. decided on

04.03.2010. The Supreme Court has emphasized that

whether possession has been taken over or not would

depend on the facts of each case. We had observed

as under in Auto Grit and Ors. V. UOI & Ors.‟s case

(supra) as under:

"We are conscious of the fact that there are various judgments relating to the aspect of handing over possession and it has been emphasized by the Supreme Court that whether possession has been taken over or not would depend on the

_____________________________________________________________________________________________

facts of each case. This position emerges from the judgment of the Supreme Court in Balwant Narayan Bhagde v. M.D.Bhagwat and Ors.; (1976) 1 SCC 700, National Thermal Power Corporation Ltd.v. Mahesh Dutta and Ors.; 2009 (9) SCALE 591 and Sita Ram Bhandar Society, New Delhi v. Lt. Governor, Govt. of NCT of Delhi & Ors.; 2009 (12) SCALE 550.

Learned counsel for the respondents have emphasized that the recording of panchnama can itself constitute evidence of the fact of possession having been taken over and land has vested absolutely in the Government as per Sita Ram Bhandar Society, New Delhi v. Lt. Governor, Govt. of NCT of Delhi & Ors‟s case (supra).

Learned senior counsel for the petitioners on the other hand has emphasized that possession merely on paper would not be enough and how such a possession may be taken would depend on the nature of the land in view of observations of the Supreme Court in National Thermal Power Corporation Ltd.v. Mahesh Dutta and Ors.‟s case (supra). It was observed that in the case of land lying fallow and there being no crop on it at material times, the act of the Tehsildar in going to the spot and inspecting the land for the purpose of determining what part was waste and arable and should be taken possession of and determining its extent was sufficient to constitute taking possession.

On the other hand, it was observed that the question whether physical possession has been taken in compliance of provisions of Section 17 of the said Act or not would depend on the facts and circumstances of each case. It was further observed that possession was either correct or incorrect and it cannot be partially correct or partially incorrect.

In Balwant Narayan Bhagde v.

M.D.Bhagwat and Ors‟s case (supra), it was observed that when proceedings under the said Act for acquisition of land are initiated, all interests are wiped out _____________________________________________________________________________________________

and actual possession of land becomes necessary for its use for public purpose for which it had been acquired and thus taking over possession under the said Act cannot be symbolic in the sense as generally understood in civil law. It could not be possession merely on paper and what is required under the Act is taking of actual possession on the spot."

(emphasis supplied)

45. In the facts of the present case, we find that

obviously no physical possession of the land was

taken over, but a formality was completed only on the

file. The representatives of the respondents in the

absence of any Halka Patwari just went around the

wall and completed a noting in the file and this cannot

be categorized as sufficient to constitute taking over

possession in view of what we have referred to

aforesaid.

46. We thus come to the conclusion that no physical

possession was taken over of the site of the

petitioners and it is only when the demolition action

was threatened at the site that the petitioners

approached this Court and status quo order was

passed.

47. In view of the aforesaid findings, we are not

inclined to go into the effect of taking over possession

pending consideration of the application of the

petitioners under Section 48 of the said Act in the

given facts of the case. Thus the application under

_____________________________________________________________________________________________

Section 48 of the said Act can be decided on merits

and ought not to have been rejected only on the

ground of possession having been taken over which

was only a ruse to prevent proper consideration of the

application of the petitioners by the LG as per

information sought from the office of the LG.

PLEA OF DISCRIMINATION

48. Lastly we are concerned with the plea of

discrimination as urged by the learned counsel for the

petitioners.

49. We have noticed two examples given by learned

counsel for the petitioners of such discrimination in

para 24 aforesaid and have also noticed as to how

those cases were dealt with in para 25 to 27 aforesaid.

All we can say is that we are surprised that after

having spent valuable judicial time in seeking

authoritative pronouncements in Roshanara Begum v.

Union of India and Ors; AIR 1996 Delhi 206 which was

sustained by the Supreme Court in Murari and Ors v.

Union of India & Ors.; 1997 (1) SCC 15, the land was

released from acquisition even though it was forming a

part of the Regional Park. The effect was that the

existing structure of a kothi, room, boundary wall and

hall would continue to stand in an area earmarked under

the Master Plan and the Zonal Plan for a Regional Park.

Similarly, in RSSB‟ case, there was a negative

recommendation by the De-notification Committee _____________________________________________________________________________________________

unlike the present case and the LG had even turned

down the request for de-notification on 07.11.2002. The

land was required as per the DDA for construction of

planned road and for providing connectivity between

Dwarka Phase I and II. This matter was re-examined on

the spacious plea that the ground reality required a

different view to be taken as taking over possession was

creating difficulty and large tracts of land were required

by RSSB for holding religious and social functions. If

such a plea was to be accepted then any land owner

who uses force to retain possession of the land would

stand to gain by such illegal conduct as against the land

owner who follows the law of the land. Even the

objection of the DDA that such de-notification would

generate similar demands from other parties was

brushed aside by the LG while passing the order dated

14.05.2008 superseding the earlier order of the then LG

dated 07.11.2002.

50. In the present case, the then LG had found that

the pendency of the civil proceedings and the stay

should not be a factor which would weigh in de-

notification but sought clarification in respect of the

other aspect. On the other hand, in RSSB‟s case, forget

any judicial order which was absent, the sit in or

squatting by members of RSSB persuaded the LG to

exercise jurisdiction to release the land.

_____________________________________________________________________________________________

51. We feel that such pick and choose policy naturally

gives rise to resentment and a feeling in public quarters

that the social standing of the owner/organization may

help in release of the land. The de-notification policy

should be strictly adhered to. We say no more as the

petitioners are succeeding in the writ petition in any

case.

CONCLUSION

52. We are of the categorical view that the

application filed by the petitioners under section 48 of

the said Act as far back as on 16.07.1998 read with

the last reminder dated 06.09.2005 are required to be

examined by the LG on the merits and the impugned

decision communicated to the petitioners vide letter

dated 20.04.2006 in terms whereof the representation

of the petitioners has been rejected on the plea of

possession having been taken over cannot be

sustained and is quashed.

53. We have already observed that it is open to the

respondents to verify at the threshold about the

current title of the petitioners to find out that they

continue to be owners and have not sold the property

on a power of attorney basis. A fresh decision should

be taken preferably within three months of the

communication of the order and till then a status quo

order as directed by this Court would continue to

operate. In case of any adverse decision, the status _____________________________________________________________________________________________

quo order would continue to operate for a period of 15

days from the date of receipt of the decision by the

petitioners, a copy of which should also be served on

the counsel for the petitioners.

54. The writ petition is allowed in the aforesaid

terms leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

        December 24, 2010                                        VALMIKI J.MEHTA, J.
        dm

_____________________________________________________________________________________________