Delhi High Court
Pawan Sagar Jain vs Union Of India & Ors. on 26 March, 2010
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 26.02.2010
% Date of decision :26.03.2010
+ WP (C) No.1692/2006
PAWAN SAGAR JAIN... ... ... ... ... ... ...PETITIONER
Through : Mr. Sumit Bansal and Mr.Manish
Paliwal, Advocates.
-VERSUS-
UNION OF INDIA & ORS.
... ... ... ... ... ... ... ... RESPONDENTS
Through : Mr.Ajay Verma, Ms.Renuka Arora and
Ms.Sangeeta Chandra, Advocates for
the DDA.
Mr. Sanjay Kumar Pathak, Advocate
for Land & Building Department,
Govt. of NCT of Delhi and LG of Delhi.
Mr.Sanjay Poddar, Advocate for LAC.
Ms.Rachna Shrivastava, Advocate for
Govt. of NCT of Delhi.
Mr.B.V.Niren, Mr.Atul Nanda,
Ms.Rameeza Hakeem, Mr.Gaurav
Gupta, Mr.Sumeer Sodhi, Ms.Malika
Gahlot, Ms.Sugandha and Mr.Sanjay
Bhardwaj, Advocates for UOI.
And 27 connected matters being
+ WP (C) No.1667-68/2006
+ WP (C) No.1693-94/2006
+ WP (C) No.1696-97/2006
+ WP (C) No.1710/2006
+ WP (C) No.2087/2006
+ WP (C) No.2160/2006
+ WP (C) No.2161/2006
+ WP (C) No.2300/2006
+ WP (C) No.2301/2006
+ WP (C) No.2306/2006
+ WP (C) No.2582/2006
+ WP (C) No.2604-2607/2006
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WPC 1692/2006 and other connected matters Page 1 of 27
+ WP (C) No.12094-95/2006
+ WP (C) No.12105-06/2006
+ WP (C) No.2140/2007
+ WP (C) No.2143/2007
+ WP (C) No.2449/2007
+ WP (C) No.2450/2007
+ WP (C) No.2457/2007
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MS. JUSTICE VEENA BIRBAL
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
SANJAY KISHAN KAUL, J.
1. The petitioners are recorded owners and bhumidars in
possession of land comprised in different khasra numbers
situated in Village Bamnauli, Tehsil Mehrauli, New Delhi.
2. The petitioners purchased a land through separate sale
deeds and necessary mutations were effected in the land
revenue records.
3. It is the case of the petitioners that farm houses have been
built on the land after due sanction and even completion
certificates have been issued in a number of cases,
However, it is the stand of the petitioners in three of these
cases that the farm houses were constructed as early as in
1967 when no such sanction was required.
4. A notification dated 04.01.2004 was issued under Section 4
of the Land Acquisition Act, 1894 („the said Act‟ for short)
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for acquisition of land for public purpose namely Dwarka
Phase-II under planned development of Delhi. The land of
the petitioners was notified under the said notification.
The land owners filed objections under Section 5A of the
said Act. The primary grounds taken were:
a) That there were sanctioned farm houses and the land
was being used as per the Master Plan.
b) The public purpose was stated to be imaginary and non-
existent.
c) The farm owners also claimed that the land had been de-
notified under Section 12 of the Delhi Development Act,
1957.
d) A professed policy of the respondents not to acquire
built up construction and sanctioned farm houses was
pleaded on the basis of a decision taken by the LG on
30.05.1996 in respect of the some other cases that
unless a major policy decision was taken, the sanctioned
farm houses and their land should not be acquired.
e) In terms of the National Housing Policy declared by the
Central Government, there was need for privatization of
housing activity in Delhi and
f) The green area is required to be maintained in the
vicinity of the airport.
5. On the objections being considered and in pursuance to
the decision of the LG a declaration was issued under Section
6 of the said Act at which stage these farm owners approached
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this court seeking quashing of the notification under Section 4
and the declaration under Section 6 of the said Act.
6. Learned counsel for the petitioners sought to canvass the
following propositions:
i) Lack of proper consideration of objections and
effective hearing under Section 5A of the said Act.
ii) Lack of application of mind prior to the issuance of
declaration under Section 6 of the said Act.
iii) The stated requirement not being in conformity with
the MPD-2021.
iv) Discrimination qua the petitioners as land in respect
of other farm houses, though not forming subject
matter of the same notification, was not even notified
under Section 4 of the said Act on account of policy of
the Government not to acquire built up farm houses.
7. The petitioners submitted that right to property continues
to be a constitutional right under Article 300-A of the
Constitution of India though it may not be a fundamental
right. It is a valuable right akin to a fundamental right and
thus the consideration of the objections filed by the owners
of the land as also the acceptance of recommendations
must be proceeded by a proper application of mind on the
part of the Government. The said Act being exproprietary
legislation, the provisions of the said Act ought to be strictly
construed as they seek to deprive a person of his land
without his consent. It was canvassed before us on the
basis of the records produced by the respondents and also
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on the basis of the report of the LAC that a note sheet was
prepared which also did not reflect the factual position and
the LG only appended his signatures. It was thus pleaded
to be a case of lack of formation of any proper opinion by
the LG and non application of mind. Mere signatures were
stated to be not sufficient to show application of mind.
8. It was submitted that the respondents at no stage
examined the aspect of a proper sanction being available in
the case of farm houses of the present cases in the context
of the policy decision of the LG dated 30.05.1996. The LG
while dealing with farm houses in other areas under
different notifications opined that such farm houses and
their land should not be acquired because they were duly
sanctioned. This is apart from the fact that the green areas
are lungs of the city. It was pleaded that in terms of MPD-
2021, one peripheral village is to be maintained as green
and Bamnauli is a peripheral village.
9. In support of their plea, learned counsel for the petitioners
referred to the judgment in Hindustan Petroleum
Corporation Ltd. v. Darius Shapur Chennai & Ors.; (2005) 7
SCC 627 to canvass the proposition that there has to be
application of mind both at the stage of consideration of
objections filed by the owners of the land by the LAC as
also at a second stage of the acceptance of
recommendations made by the LAC by the competent
authority. The action required to be taken by the State is
distinct and different from the action required to be taken
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by the Collector and when the ultimate order is in question,
it is for the State to satisfy the Court about the validity
thereof and mere satisfaction of the Collector cannot be
held to be sufficient compliance with the requirement of
law. It is in that context, it was observed as under:
"19. Furthermore, the State is required to
apply its mind not only on the objections
filed by the owner of the land but also on
the Report which is submitted by the
Collector upon making other and further
enquiries therefore as also the
recommendations made by him in that
behalf. The State Government may further
inquire into the matter, if any case is made
out therefore, for arriving at its own
satisfaction that it is necessary to deprive a
citizen of his right to property. It is in that
situation production of records by the State
is necessary."
10. A reference was also made to the Division Bench judgment
of this Court in Vasant Kunj Enclave Housing Welfre Society
through its President and Ors. v. Union of India and Ors.;
2006 (89) DRJ 406 where it was held that the validity of an
order for acquisition of land must be decided on the
touchstone of the grounds stated in the order and by
reference to the material available on the date when the
order was passed. It was observed in para 26 as under:
"26. I find it difficult to read in this note
anything concerning the question whether or
not an enquiry under Section 5-A of the Act
qua the land belonging to the petitioners
should be conducted. The note does not even
address itself to that question leave alone
propose to the Lt. Governor any particular
course of action in regard thereto. All that the
note proposes is the issue of a notification
under Section 6 and 17(4) for Zone I and II,
taking over of possession of area not covered
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by court order in Zone I and II, issue of a
corrigendum in respect of Zone III and
affording the owners an opportunity for filing
objections under Section 5-A of the Act. The
note also seeks approval of instructions to the
DDA to ensure that no further construction
comes up in Zone III during the time the
objections are heard. Significantly, Lt.
Governor has approved the note which inter
alias implies that those owning farm houses
in Zone III may be given an opportunity of
filing objections under Section 5-A. The order
passed by the Lt. Governor however does not
demonstrate application of mind leave alone
record any reasons for dispensing with such
an enquiry under Section 17(4) of the Act in
regard to other area notified for acquisition.
Just because the Lt. Governor agreed to
afford an opportunity to the farm house
owners for filing objections under Section 5-A,
it cannot be said that a proper consideration
of the question had taken place nor can it
demonstrate application of mind by the
competent authority. Any inference from
these notes which are sketchy and which do
not directly address the issue in the manner it
ought to be, would be far-fetched and
unsustainable. If the law requires, as it does
in the instant case, that the authority passing
the order should apply its mind properly, such
application of mind cannot be readily
inferred. That is especially so when the order
passed by the authority affects valuable civil
rights of the citizens. As a matter of fact, the
greater the potential of mischief, the more
careful and objective should the authority
passing the order be. There is also no
gainsaying that while acquisitions made for
public purpose are at times inevitable,
hardship is more often than not implicit for
expropriated owners in any compulsory
acquisition. Adherence to the requirements of
law and the procedure established for the
purpose must, therefore, be scrupulously
ensured lest the procedural safeguards that
the law provides to the owners against
arbitrary acquisitions are reduced to bare
rituals. I, thereforee, agree with the view
expressed by brother Madan Lokur, J that
there was no due and proper application of
mind on the part of the Lt. Governor to the
question of dispensing with the enquiry either
before the issue of the notification under
Section 17(4) or at any time thereafter."
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(emphasis supplied)
11. On the other hand, learned counsel for LAC submitted that
62 objectors filed their objections who were all given
personal hearing and the objections pressed by them were
all examined. One of the pleas raised by the objectors was
in respect of there being sanctioned farm houses and in
that behalf, the LAC observed that the Government may
take a decision. Simultaneously, the LAC also recorded that
there was no legal impediment to acquire the land as per
the said Act. The report of the LAC along with its
annexures, original objections filed, hearing proceedings,
summary of LAC report and joint survey report were placed
before the LG for consideration and necessary
orders/approval regarding issuance of declaration under
Section 6 of the said Act. A draft notification was also sent
under Section 6 of the said Act. In that summary, prepared
for the LG insofar as the aspect of farm houses is
concerned, it has been stated that the LAC has reported
that there is no impediment to acquire such land by citing a
number of court cases on which acquisition has been
upheld by the Hon‟ble Court. The note also stated that the
LAC has not recommended release of any land in this
category. We may observe at this stage that the note
prepared, however, does not specifically refer to the fact of
the LAC observing that the aspect of release of farm houses
be decided by the Government. The LG after perusing and
considering the material placed before him, gave an
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approval for issuance of a declaration under Section 6 of
the said Act by affixing his signatures. It is submitted that
this is sufficient to establish a subjective satisfaction of the
LG and implies that the decision on the farm houses to be
left out, if any, was negated by the LG as no farm house
was left out from the acquisition.
12. Learned counsel submitted that in any case any policy
decision to leave out sanctioned farm houses or built up
structures could not override the statutory law in view of
what has been observed by the Division Bench of this Court
in Rajesh Kumar Yadav v. Union of India & Ors.; 141 (2007)
DLT 493.
13. Learned counsel submitted that the declaration under
Section 6 of the said Act was issued on 31.10.2005 by the
competent authority after following the due process of law
for the entire land measuring 2100 bighas and 6 biswas and
such a declaration is conclusive proof of the existence of a
public purpose under Section 6(3) of the said Act. Notices
were also issued under Sections 9 & 10 of the said Act to
the interested persons and the award no.1/2007-2008 was
announced on 06.08.2007 with prior approval of the
competent authority for acquisition of the entire land.
Learned counsel thus pleaded that this award had been
challenged in a batch of writ petitions including writ
petitions filed by some of the petitioners herein, but those
writ petitions had been dismissed. Thereafter, reference
petitions had been filed seeking enhancement of
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compensation before the learned Addl.District Judge.
Possession of approximately 1087 bighas is stated to have
been already taken over.
14. Learned counsel also emphasized that two of the writ
petitions bearing no.1715/2006 and 17582/2006 relating to
the same acquisition proceedings after some arguments
were dismissed as withdrawn with liberty to the petitioner
to seek de-notification of the land under Section 48 of the
said Act and same was the fate of some of the other
objectors.
15. Learned counsel for the LAC pleaded that the satisfaction of
the LG has been properly accorded and once the complete
material before the LAC along with recommendation of the
LAC and the summary report prepared in the office is
before the LG, the appending of signatures by LG would
suffice. In this behalf, learned counsel relied upon the
judgment in P.S.Gill and Ors. v. Union of India & Ors; ILR
(1979) I Delhi 601 where the plea of the LG laconically
disposing of the petitions was rejected since all the material
was before the LG and it was observed that a speaking
order is not necessary in recording satisfaction under
Section 6 of the said Act. What is required is to be seen
whether there was substantial compliance with the
requirement in the Act and the LG should satisfy himself
with the acquisition of the land was necessary. It was
observed as under:
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"(66) The argument of Sri Dhamija is that the file
has been put up to the Lieutenant Governor for
two purposes. The first was for the rejection. of
the objection that had been put forward under
Section 5A. The second purpose was for orders
regarding the issue of the declaration under
Section 6. Sri Dhamija contends that the record
shows that the L.G. approved of the first
suggestion, namely, that the objections should be
rejected but he did not apply his mind at all to
the second suggestion that a declaration under
Section 6 should issue. He submits thereforee
that the satisfaction that the lands were required
for a public purpose was not arrived at by the Lt.
Governor and that he has not directed the issue
of declaration under Section 6.
(67) The argument is attractive but we do not
think it can be accepted. The proceedings of the
L.G., it seems to us, cannot be dissected in the
manner suggested by Sri Dhamija. A notification
under Section 4 had been issued in 1959. A good
portion of the land had already been acquired. It
was found that the chunk of land now proposed
to be acquired was being misused and that it was
necessary to acquire it as early as possible. The
objections were considered to be not
maintainable in view of the report of the Collector
and in view of the analysis made of the various
objections by the office note. In the light of these
facts, a draft declaration was put up and the file
was submitted to the L.G. with a proposal that
the objections be rejected and draft proposed be
approved. In other words, so far as this particular
matter was concerned, The rejection of the
objections by the L.G. also automatically meant
that he was satisfied that the land was required
for a public purpose. It is perhaps conceivable
that cases may arise where, as pointed by Sri
Dhamija, the rejection of objections might not
necessarily lead to the issue of a declaration
under Sec. 6 e.g. it may be that the objections
raised are flimsy, irrelevant and so liable to be
rejected ; but, at the same time there may be
some facts or reasons set out in the report of the
Collector which render the issue of declaration
unnecessary or not possible. To give an
illustration, it may be that an extent of land is
sought to be acquired for purposes of a public
school. The land owners may object on the
ground that each of them is holding a small piece
of land and that deprivation thereof would cause
him enormous hardship. This may be found to be
no ground for not acquiring the lands. But it is
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quite possible that the Collector may report that,
after the date of the notification under section 4,
another big school had come into existence in the
locality, and that, thereforee, the acquisition of
these lands was no longer necessary. In such
cases the rejection of the objections may not be
followed by the L.G. with a direction to acquire
the land. But such academic illustrations are not
helpful in construing the section. What is required
is to see whether there is a substantial
compliance with the requirement in the Act that
L.G. should satisfy himself that the acquisition of
the land was necessary. In the present case,
having regard to the whole tenor of the note put
up to him and having regard to the fact that the
L.G. has specifically rejected the objections, it
must necessarily follow that he was satisfied that
the lands were needed for a public purpose. If
inspire of having rejected the objections, the L.G.
had not been thus satisfied, he would have
specifically directed that, though the objections
were rejected, the declaration should not issue."
16. Learned counsel for LAC emphasized that the plea of the
petitioners that the land in question being built-up farm
houses should not be acquired is misplaced as there was
absence of any such policy notified by the Government not
to acquire any built-up property or to exclude built-up farm
houses from acquisition of land under the said Act. There
could be no impediment for acquiring built-up properties
under the said Act and the acquisition proceedings were
carried out following due process of law. To support this
plea, learned counsel referred to the Division Bench
judgment of this Court in Sh.Bhagwan and Anr. v. Union of
India & Ors.; 1991 (2) Delhi Lawyer 59 and Roshanara
Begum v. Union of India and Ors.; AIR 1996 Delhi 206 (FB).
Sh.Bhagwan and Anr. v. Union of India & Ors‟s case (supra)
supports the plea that no policy decision can curb the
jurisdiction of LG under Section 11 of the said Act and thus
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statutory powers cannot be curtailed by administrative
instructions except where principles of promissory
estoppels come into play. The petitioners in that case
relied upon a policy decision dated 18.08.1996 of the Delhi
Administration to the effect that the land will not be
acquired which had been built-up and only that vacant land
will be acquired if it is 1 hectare or more. This plea was
negated on the ground that the decision was an
administrative decision and even assuming for the sake of
argument that the said decision was with the concurrence
of the LG, the administrative decision could also be altered,
modified or abrogated by the competent authority. The
impugned award had been announced after approval had
been obtained from the LG and thus even if there was a
policy decision of the LG, which was incorporated in the
letter dated 18.08.1996, the same stood varied by the LG
himself when soon after the policy decision he gave assent
to the promulgation of the awards. The administrative
policy decision was thus held not to vary or curb the
jurisdiction of the LG under Section 11 of the said Act. This
view is also fortified by the Full Bench of this Court in
Roshanara Begum v. Union of India and Ors‟s case (supra).
17. Learned counsel for LAC thus submitted that in the present
case there is not even a so-called policy decision unlike in
Sh.Bhagwan and Anr. v. Union of India & Ors‟s case (supra).
There was no circular issued and no promise held out to
anyone. The note sheet of the LG is an internal document
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in the file which could not create any promissory estoppels.
The note only proposed that a policy decision be taken in
this behalf, but ultimately no such policy was formulated.
The approval of the award and of the declaration under
Section 6 of the LG thus in any case impliedly superseded
any thought process towards the formulation of such a
policy. It was pleaded that there was sufficient material on
record to support the decision of the LG to approve the
acquisition proceedings and the declaration under Section 6
of the said Act was a conclusive proof of its public purpose.
18. Learned counsel emphasized that the land is being
acquired for the development of a residential scheme to
provide housing to general public and such larger public
purpose must weigh as against the personal rights of the
petitioners. Learned counsel emphasized that in case of
acquisition of large area of land as in the present case,
specifications of the purpose can only be with reference to
the acquisition of the whole area, which is planned
development of Delhi as observed in Aflatoon and Ors. v. Lt.
Governor of Delhi and Ors. (1975) 4 SCC 285.
19. Learned counsel sought to emphasize that judicial notice
can be taken of acute housing shortage in Delhi and
keeping this mind Dwarka Phase II has been planned by the
DDA with the object of providing flats/houses to the
common man. The land sought to be acquired vide
impugned notification is part of the scheme of extension of
the urban limits of Delhi and the land was being utilized in
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accordance with the Master Plan. Learned counsel
emphasized that possession of large number of land as
stated aforesaid has already been taken and it is in such
context it was observed in Om Prakash and Anr. V.State of
UP and Ors.; (1998) 6 SCC 1 that in such a situation setting
aside of a notification would not be appropriate. We may,
however, note that in the facts of that case, almost 9/10th of
land already stood validly acquired and the dispute
centered around only 1/10th of the land while in the present
case possession of 1087 bighas of land has been taken out
of the total land sought to be acquired of 2100 bighas and 6
biswas.
20. In this behalf, learned counsel also submitted that
acquisition contrary to the stated purpose of land use in the
Master Plan, could not be struck down on that account in
view of the observations in Bhagat Singh v. State of UP;
1999 (2) SCC 384. This is so as the beneficiary of the
acquisition can obtain a sanction for change of user from
the competent authority.
21. Learned counsel for the DDA also sought to support the
stand of the LAC in the capacity of a beneficiary of the
acquired land. It was pleaded that the DDA formulated the
plan for development of Dwarka as an integrated sub-city
including residential, commercial, public and semi-public
(institutional), recreational etc. land uses for which
necessary amendments in the MPD-2021 were undertaken.
The land in the present case is for Dwarka Phase-II. The
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land is bounded by oil pipeline in the North East, Rewari
Line in the South East, Najafgarh-Bijwasan Road in the
South and Najafgarh Drain in the West. The land use stood
changed vide notification dated 16.10.2000 from rural use
to the aforesaid purposes and the area was declared a
development area no.172 under Section 12 of the Delhi
Development Act, 1957 vide notification dated 20.07.1988.
It was specifically pleaded that there was no policy of the
DDA to exempt farm houses in this area from acquisition.
22. The land of the petitioners is stated to be primarily falling in
what are proposed sectors 27, 28 and 29 of Dwarka Sub-
city Phase-II Scheme, which land constitutes an integral
part of the Dwarka Phase-II. The Second Diplomatic
Enclave was proposed in the available land of about 222
hectares, but due to non availability of the said land
including on account of challenge to the acquisition
proceedings, an alternative area for diplomatic missions
had to be planned in Sector 24 in a paltry area of only
about 34 hectares. The land in question in these writ
petitions is also stated to be acquired for essential services
of the Scheme like road, water, sewer and electricity works,
which would be adversely affected due to non-availability of
the land. The implementation of peripheral road network
around sectors 27, 28 and 29 is stated to be important to
ensure connectivity of Dwarka sub-city with urban
extension road network. The Draft Zonal Plan K-II is as
under:
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23. We have examined the elaborate submissions made by
learned counsel for the parties. We have also perused the
records of the LAC pertaining to the hearing granted on the
petitions filed under Section 5A of the said Act as also the
record relating to the satisfaction of the LG before issuance
of declaration under Section 6 of the said Act and
publication of the award.
24. It clearly emerges that the land in question along with other
lands formed subject matter of the same notification under
Section 4 of the said Act with the avowed object of public
purpose of planned development of Delhi. Dwarka Phase-II
was envisaged on the lands in question. The housing
shortage in Delhi is epidemic. It can thus hardly be said
that the object of having Dwarka Phase-II lacks public
purpose. The records of the LAC show that the parties
made their submissions by reference to the various points
which were duly noted by the LAC. The parties/counsels
even signed proceedings before the LAC. The plea of lack
of proper consideration and effective hearing under Section
5A of the said Act can thus hardly be sustained.
25. The parties have had full opportunity to make their
submissions on which the LAC has submitted his report.
We have to note that while filing objections often large
number of pleas are taken but when the matter is
addressed, the relevant pleas are sought to be advanced.
This is what has happened in the present case and the
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pleas advanced have been taken note of and the LAC has
made itself comments on the same.
26. In our considered view, the LAC rightly came to the
conclusion that these petitions really have no merit keeping
in mind the large public purpose.
27. The only aspect which the LAC has taken note of and not
given a proposal is in respect of the plea of there being
sanctioned farm houses and in view of earlier notings of the
LG dated 30.05.1996 in some other cases whereby such
sanctioned farm houses were excluded and it was observed
that a major policy decision in this behalf is required to be
taken. This aspect was left by the LAC to be considered by
the competent authority. We have thus no hesitation in
coming to the conclusion that the petitioners have had full
opportunity of effective hearing and considerations in the
proceedings before the LAC.
28. The petitioners have also pleaded that the stated
requirement was not in conformity with the MPD-2021. We
fail to appreciate this plea. This plea is predicated on the
requirement of open areas and the peripheral areas to be
treated as a buffer of green areas. All that is required to
be said in this context is that the planners are best
equipped to decide this aspect and the petitioners cannot
choose how development of Delhi shall take place. Even
otherwise, this plea is not sustainable in view of the
observations of the Supreme Court in Bhagat Singh v. State
of UP‟s case (supra).
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29. The petitioners have pleaded the hostile discrimination on
account of release of other farm houses though not forming
subject matter of the same notification. It has been
pleaded that a notification has not even been issued under
Section 4 of the said Act on account of this policy.
30. If this plea is examined closely, we find there has been
absence of any policy in this behalf. Undoubtedly, while
dealing with particular acquisition, LG in terms of its order
dated 30.05.1996 had left out some sanctioned farm
houses while granting no such exemption to non sanctioned
farm houses. The LG wanted a major policy decision to be
taken. However, no such major policy decision has been
taken in this behalf and this has been repeatedly
emphasized by the respondents before us. Thus, even if
the then LG in his opinion sought to leave out the
sanctioned farm houses in respect of another acquisition
proceedings, it cannot be said that despite the requirement
of land for Dwarka Phase-II, all sanctioned farm houses
should be left out.
31. We may also notice the authoritative legal pronouncements
referred to aforesaid which show that a policy decision
cannot in any way restrict or alter the power of the LG
under the said Act. In this behalf, the observations in
Rajesh Kumar Yadav v. Union of India & Ors.‟s (supra),
Sh.Bhagwan and Anr. v. Union of India & Ors‟s case (supra)
and of the Roshanara Begum v. Union of India and Ors‟s
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case (supra) which has received the approval of the
Supreme Court are apposite.
32. The observations made in Sh.Bhagwan and Anr. v. Union of
India & Ors‟s case (supra) in respect of a policy decision are
thus very germane as the plea in that case also predicated
on a policy decision. In the present case, there is only a
proposal for a policy decision with exclusions of certain
areas from acquisition. It is, however, true that even after
acquisition proceedings have been completed, the land has
been released under Section 48 of the said Act from
acquisition in different cases including in the case of
Roshanara Begum v. Union of India and Ors‟s case (supra).
It is in this context that while some petitioners sought to
confine the relief to release of the land under Section 48 of
the said Act and thus withdrew the petitions with liberty,
some of the other petitioners sought to canvass their plea
before this Court while simultaneously not wanting to give
up their right to move under Section 48 of the said Act.
Such selective release does give rise to hope in the mind of
the owners that they may also become beneficiaries of
release of their land. The petitioners who did not have
sanction for their farm house thus withdrew their petitions
as their case would not have been covered by the so-called
policy decision of 30.05.1996.
33. The rare controversy which arises for consideration in the
present case and as canvassed by learned counsel for the
parties is arising from the observations made by the LAC for
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the issue of non acquisition of land of sanctioned farm
houses being examined by the Government while observing
at the same time that there was no impediment under the
said Act. The LAC thus rightly left this aspect to be
examined by the competent authority.
34. In the summary report prepared arising from the
recommendations of the LAC which was put up to the LG,
there is absence of any specific observations in this behalf
of the LAC leaving this aspect to be considered by the
Government. The second part of the observations of the
LAC that there is no impediment in the said Act has been
mentioned by reference to the judgments. It is thus the
case of the petitioners that the competent authority being
the LG could hardly be expected to have applied his mind
properly to the facts of the case since this aspect was never
brought to the notice of the LG and was deliberately kept
away in the summary report. On the other hand, learned
counsel for the respondents have pleaded that since the
complete material was placed before the LG including the
objections filed, their consideration, the comments of the
LAC along with the summary report, the LG had the
opportunity to consider the material along with draft
notification under Section 6 of the said Act. Thus, approval
by the LG in the form of appending his signatures (which is
all that as per law was required to be done) shows that the
LG was fully aware of this plea and thus the approval of the
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notification under Section 6 of the said Act amounts to
negation of this plea.
35. The moot point which thus arises for consideration is
whether in these facts, could it be said that the LG has had
an opportunity to consider the plea of the petitioners?
36. We have no doubt that the summary report prepared for
the perusal of LG ought to have incorporated the aspect of
LAC noticing that though under the said Act there was no
impediment to acquisition of the land, the question of not
requiring land of sanctioned farm houses be examined by
the Government. However, the consequence of the
absence of this detail in the summary report would have to
be examined.
37. It cannot be lost sight of that the original note of the LG
dated 30.05.1996 strongly relied upon by the petitioners
themselves stated that a major policy decision ought to be
taken. It is not in issue that no such policy decision has
been taken. Thus, though the then LG expressed his views,
while exempting the sanctioned farm houses from that
notification, that it would be advisable to have a major
policy decision, the concerned authorities in their wisdom
have not made a policy in that behalf. In the absence of
such a policy decision, a general exemption could not have
been claimed in respect of the sanctioned farm houses.
Thus, though there is force in the contention of learned
counsel for petitioners relying upon the judgment in
Hindustan Petroleum Corporation Ltd. v. Darius Shapur
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Chennai & Ors.‟s case (supra) that the State is required not
only to apply its mind to the objections filed by the owners
of the land but also to the report of the LAC prior to the
declaration under Section 6 of the said Act, but in facts of
the present case in the absence of any policy decision there
could not have been any general exemption in respect of
the sanctioned farm houses. The judgment in Vasant Kunj
Enclave Housing Welfre Society through its President and
Ors. v. Union of India and Ors.‟s case (supra) does not give
much assistance to the petitioners as the summary report
in the present case could not have suggested a course of
action to the LG as there was no professed policy of the
Government which had been brought into place in respect
of such sanctioned farm houses. It is of course trite to say
that there is no impediment in law for acquisition of even
constructed land.
38. Learned counsel for LAC has rightly pointed out that insofar
as the impediment in law is concerned, there was absence
of such impediment and even if a policy existed it could not
override a statutory law in view of the observations in
Rajesh Kumar Yadav v. Union of India & Ors.‟s (supra). Not
only that the complete material was placed before the LG
including the report of the LAC with the summary report
though we again emphasize that such summary report
ought to have incorporated the aspect referred to
aforesaid. The LG is not required to record detailed reasons
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for its approval in view of the observations in P.S.Gill and
Ors. v. Union of India & Ors.‟s case (supra).
39. We cannot lose sight of the fact that the land is being
acquired for development of a residential scheme to
provide housing to general public and the larger public
interest must weigh against personal rights. This aspect is
of course to be balanced with the right to property being a
constitutional right under Article 300A of the Constitution of
India and thus there has to be strict enforcement of the
provisions of the said Act which in this case are not in
doubt. The beneficiaries can even utilize the land for the
purposes other than originally envisaged after obtaining
sanction for change of user from the competent authority.
40. The plan of the area which we have incorporated in the
present judgment shows that the land of the petitioners is
primarily falling in what are proposed as Sectors 27, 28 and
29 of Dwarka Sub-city Phase-II Scheme. It has been
explained that the requirement of land for the Second
Diplomatic Enclave has not been satisfied.
41. We are thus of the considered view that the absence in the
summary report preventing the examination of the question
whether the competent authority wants to not acquire
sanctioned farm houses in the absence of any policy, there
being no impediment under the said Act, cannot be said to
be fatal to the acquisition proceedings. We, however, find,
as observed aforesaid, that ideally this aspect of exempting
sanctioned farm houses ought to have been mentioned in
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the summary report. We are of the view that though this
aspect cannot defeat the provisions of the said Act, yet the
respondents have selectively released farm houses from
acquisition under earlier acquisitions even after acquisition
proceedings are complete. In fact, a number of cases have
come to light where the power has been exercised under
Section 48 of the said Act to release the land after
acquisitions have been upheld right till the Supreme Court
and the classic example of the same is Roshanara Begum v.
Union of India and Ors.‟s case (supra).
42. We are thus of the view that acquisition proceedings are
not required to be quashed on account of the plea of the
petitioners and as to whether the sanctioned farm houses
are liable to be released from acquisition proceedings is an
aspect which needs to be examined by the competent
authority under Section 48 of the said Act.
43. We thus permit the petitioners to file a representation to
the competent authority under Section 48 of the said Act
raising all pleas as are germane within thirty days of
pronouncement of this judgment and the said applications,
if so filed, would be decided in accordance with law by the
competent authority. Till such time as the applications are
decided, no coercive steps will be taken against the
petitioners and the parties will maintain status quo as to
nature, title and possession of the land in question. In case
of an adverse decision, this benefit would continue for a
period of fifteen days after the date of the receipt of the
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decision by the petitioners in order to enable the petitioners
to take recourse to the legal remedy, if any. We, however,
make it clear that if no such application is filed within a
period of thirty days of pronouncement of this judgment,
the respondents would be free to proceed against the land
in question.
44. The writ petitions are accordingly dismissed with the
aforesaid directions.
SANJAY KISHAN KAUL, J.
MARCH 26, 2010 VEENA BIRBAL, J.
dm
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