Fountainhead Motels Pvt.Ltd vs Union Of India & Ors.
2010 Latest Caselaw 5144 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                  Date of decision: 12.11.2010


+                               WP (C) No.266/2010


FOUNTAINHEAD MOTELS PVT.LTD                                     ...PETITIONER

                                Through:        Mr.Gautam Awasthi, Advocate

                                          Versus


UNION OF INDIA & ORS.                                           ...RESPONDENTS

                                Through:        Mr.Sanjay Poddar, Advocate for
                                                R-2 and R-3.

                                                Mr.A.S.Rao, Advocate for R-4.


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

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

2.      To be referred to Reporter or not?                              YES

3.      Whether the judgment should be                                  YES
        reported in the Digest?


SANJAY KISHAN KAUL, J. (Oral)

1. The petitioner-Company owned land measuring 12 bighas

and 9 biswas situated in the Village Aya Nagar, Tehsil

Mehrauli, New Delhi.

2. It is the case of the petitioner that building plans for the

construction of a motel building were sanctioned by the

MCD on 25.04.2003 and the Ministry of Tourism, Govt. of

India granted approval to the petitioner for setting up of a 4 _____________________________________________________________________________________________

star category hotel on 15.02.2006. NOC by the Delhi Fire

Service was also granted on 22.05.2006.

3. The land in question however was notified under Section 4

of the Land Acquisition Act, 1894 ('the said Act' for short)

vide notification dated 25.07.2007 for the public purpose of

construction of Arjangarh Metro Station on the Qutub Minar-

Gurgaon Corridor of Delhi MRTS Project, Phase-II. The

petitioner challenged these acquisition proceedings and

filed WP(C) No.6275/2007 before this Court. During the

pendency of the petition a declaration was issued under

Section 6 of the said Act on 08.10.2007 and

simultaneously a notification of even date under Section

17(1) of the said Act was also issued. The writ petition was

dismissed as withdrawn on 10.10.2007 as the DMRC agreed

to make some changes in the modified lay out plan for the

station. The possession of the land was taken over on

19.01.2008 and notices were issued under Section 9 and 10

of the said Act.

4. The petitioner filed a claim petition for compensation and

the petitioner states that an award was made by the LAC

(South) fixing the value of the land of the petitioner at

Rs.41,000/- per square metre treating the same as a

commercial land by relying upon a notification of Govt. of

NCT of Delhi dated 18.07.2007 in respect of valuation of

land and properties. The statement of compensation was

prepared by the office of the LAC under the signatures of

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the Tehsildar along with Naksh Mutziman. Despite this fact,

it is pleaded that the LAC made a second award which was

published on 06.10.2009 fixing the compensation of the

entire acquired land at Rs.17,59,824.38/- treating the land

of the petitioner as agricultural. The petitioner states that

he received a certified copy of both the awards on

30.11.2009.

5. The petitioner has filed the present writ petition under

Articles 226 and 227 of the Constitution of India seeking

quashing of what is claimed to be the second award being

04/2009-2010 dated 06.10.2009 passed by the LAC in

respect of the land of the petitioner being khasra no.558/1

measuring 830 square metres and khasra no.576 measuring

1105 square metres situated in village Aya Nagar, Tehsil

Mehrauli, New Delhi with a direction that the compensation

be awarded to the petitioner in terms of the earlier award.

6. Notice was issued on the writ petition on 18.01.2010 on the

submission of the learned counsel for the petitioner that

though the LAC had signed the award and sent to the

Secretary (Revenue), who being a superior officer

proceeded to issue certain direction to treat the nature of

the land in a different manner. This was stated to be not

permissible in view of the judgment of the Supreme Court in

Vijayadevi Navalkishore Bhartia and Anr. V. Land Acquisition

Collector and Anr.; 2003 (5) SCC 83. Learned counsel for

the petitioner submitted that the petitioner was satisfied

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with the compensation as originally determined by the LAC

and had not filed any reference and the challenge was only

to the subsequent award being in respect of the same land

as per directions of the Secretary (Revenue).

7. Another aspect recorded in the order dated 18.01.2010

while issuing notice was that in para 11 of the judgment in

Vijayadevi Navalkishore Bhartia and Anr. V. Land Acquisition

Collector and Anr.'s case (supra) a reference had been

made to other judgments of the Supreme Court which had

taken a slightly different view and the matter was directed

to be placed before the Hon'ble Chief Justice of India for

necessary orders. We were thus of the view that once the

matter had been placed before the larger Bench of the

Supreme Court, despite earlier pronouncements, it would be

appropriate to examine the matter and consider the opinion

of the Supreme Court to be rendered on such a reference.

8. The counter affidavit has been filed only by LAC(South). It is

stated in the affidavit that as per the Master Plan of Delhi,

the approved use of the land in question is rural and not

meant for commercial purpose. The Zonal Plan of Zone 'J'

was not approved by the Government of India at the time of

initiation of the acquisition proceedings till the drawing of

the award and thus the land in question was required to be

valued as per the agricultural use since commercial use of

the land was prohibited under Section 24 of the Delhi Land

Reforms Act, 1954 ('DLR Act' for short).

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9. The aforesaid fact was not taken note of while drawing up

the draft award which was submitted to the competent

authority for approval. The competent authority while

examining the award and giving approval for the same,

considered this fact and thus called upon the LAC to correct

the mistake in the award. The LAC is stated to have no

jurisdiction to make an award while considering the user

which was prohibited under a particular law in view of

Section 24 of the DLR Act. Motels are stated to be

permitted in rural area and by construction of motel the

user of the land does not change in any manner. It is in

view thereof, the award was properly drawn by the LAC

which was pronounced on 06.10.2009. Prior to that, no

award had been made or published and thus it was not a

second award being drawn. It is stated that since an award

is binding on the Government while not on the private party,

the competent authority is well within its right to make all

necessary corrections of mistakes prior to the publication.

10. It has been specifically averred that the matter in

issue is covered against the petitioner in view of the earlier

pronouncements in State of Bihar v. Prem Kumar Singh;

1998(2) SCC 573 and State of Bihar v. D.N.Singh; 1998 (2)

SCC 572. It is submitted that this fact is even noticed in the

Vijayadevi Navalkishore Bhartia and Anr. V. Land Acquisition

Collector and Anr.'s case (supra) and in view thereof matter

was directed to be placed before a larger Bench, the

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existing law continued to be as enunciated in State of Bihar

v. Prem Kumar Singh's case (supra) and State of Bihar v.

D.N.Singh's case (supra).

11. Another important aspect which has been brought to

our notice by learned counsel for R-3 is the fact that in

pursuance to the directions passed by the two Hon'ble

Judges of the Supreme Court in Vijayadevi Navalkishore

Bhartia and Anr. V. Land Acquisition Collector and Anr.'s

case (supra), a larger Bench of three judges was constituted

and an order was passed on 12.2.2004 in the following

terms:

"A large tract of land situate in Akola city was sought to be acquired and for that purpose a Notification was issued on 3rd June, 1999, under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as `the Act') which was followed by another Notification under Section 6 of the Act on 25th November, 1999. Subsequently, a notice was sent to the appellants herein by the Land Acquisition Officer for filing their claim for determining the compensation. The Land Acquisition Officer prepared a draft Award and sent it to the Commissioner of the Division for his prior approval. The Commissioner did not agree with the proposed compensation awarded to the appellants by the Land Acquisition Officer as he was of the view that the land has not got the potentiality of non- agricultural land and remitted the said Award to the Land Acquisition Officer for being delivered. Subsequently, the Land Acquisition Officer delivered the Award.

The appellants herein challenged the order of the Commissioner, remitting the Award to the Land Acquisition Officer before the Bombay High Court. The High Court dismissed the writ petition. It is

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against the said order and judgment, the appellants are in appeal before us.

When the matter was taken up for hearing, it was brought to our notice that the appellants have already challenged the Award by seeking reference to the Civil Court and the matter was pending adjudication. Since all the questions which are raised in this appeal are available to the appellants to be raised before the Reference Court, we, therefore, are not inclined to interfere in the matter.

The appeal is, accordingly, dismissed without going into its merits. There shall be no order as to costs."

12. It is submitted that thus the petitioner had mis-

represented before this Court that the issue was pending

before a larger Bench of the Supreme Court while in fact

that issue stood decided six years ago.

13. We may note that insofar as the order dated

12.02.2004 by the larger Bench of the Supreme Court is

concerned, all that is noticed is that the award was

challenged by seeking reference to the Civil Court and since

all questions which were raised in the appeal were available

to the appellants to be raised before the Reference Court,

the Court was not inclined to interfere in the matter. Thus,

there is no contrary pronouncement of the Supreme Court

to the views expressed by the earlier Benches of the

Supreme Court of two Hon'ble Judges.

14. It is thus submitted that the petitioner not having

availed of the option of seeking a reference for a larger

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compensation under Section 18 of the said Act within time

stipulated, cannot now through the process of filing of

present writ petition evade the rigours of limitation which

would arise on account of the petitioner not availing of his

remedy under the said Act.

15. We have examined the aforesaid submissions of

learned counsel for the parties.

16. We find substance in the plea of learned counsel for R-

3 that the petitioner was duty-bound to bring to our notice

the order passed by the larger Bench of the Supreme Court

on 12.02.2004 in pursuance to the judgment in Vijayadevi

Navalkishore Bhartia and Anr. V. Land Acquisition Collector

and Anr.'s case (supra).

17. The issue was crystallized in para 8 of the judgment as

under:

"8. The issue in this appeal centres around the question of the authority of the Commissioner exercising a power under the proviso to Section 11(1) of the Act to reconsider the material on record and to disagree with the finding of the Collector and further, to issue directions to the Collector to fix the market value/compensation in a manner he thinks appropriate. While the appellants contend that no such power vests with the Commissioner, the respondents contend that the Commissioner is vested with such power."

18. The court thereafter proceeded in para 9 to discuss

the said issue to come to the conclusion that the power of

enquiry under Section 11 of the said Act vested with the

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Collector and did not find that the Commissioner while

considering the grant of approval would exercise the power

under the said provision. The Bench of two Hon'ble Judges

was, however, conscious of the somewhat different view

propounded earlier and noticed the same in para 11 which

reads as under:

"11. However, we notice that a somewhat different view has been taken by this Court in the case of State of Bihar v. Prem Kumar Singh, a judgment rendered in the civil appeal arising out of SLP (C) No. 7837 of 1993, decided on 30-11-1993 [reported only in (1998) 2 SCC 573]. In that case, this Court held that the officers authorised by the State Government by notification under proviso to sub-section (1) of Section 11 for approval of the award could reduce the compensation fixed by the Collector. This Court followed the judgment in the case of Prem Kumar Singh (supra) in a later case in the case of State of Bihar v. D.N. Singh (Dead) by LRs. [(1998) 2 SCC 572] in Civil Appeal No. 7695 of 1997 decided on 13-11-1997. In both the abovecited judgments of this Court, we find the Court has not considered the nature of power exercised by the Commissioner under proviso to Section 11(1) of the Act nor has the Court considered the effect of introducing Section 15-A of the Act. However, since the view taken by this Court in those two judgments is somewhat in conflict with the view we have expressed in this case, to settle the law in question, we think it appropriate that this matter should be referred to a larger Bench. Therefore, the papers in this appeal shall be placed before the Hon'ble the Chief Justice of India for necessary orders."

19. As noticed in the aforesaid paragraph, in order to

avoid conflict with the earlier views of two Hon'ble Judges in

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two different judgments, it was deemed proper to refer the

matter to a larger Bench.

20. The larger Bench in its wisdom chose to dispose of the

appeal in terms of the order dated 12.02.2004. In that

order, the views expressed earlier by the two Benches of

two Hon'ble Judges each in State of Bihar v. Prem Kumar

Singh's case (supra) and State of Bihar v. D.N.Singh's case

(supra) were not over-ruled and the appeals were dismissed

without going into merits.

21. The result of this is that the views expounded in State

of Bihar v. Prem Kumar Singh's case (supra) and State of

Bihar v. D.N.Singh's case (supra) hold the field where it has

been held that officers authorized by the State Government

by a notification under Section 11(1) of the said Act for

approval of the award could reduce the compensation fixed

by the Collector. This is exactly what has happened in the

present case where the competent authority called upon the

LAC to reduce the compensation as the prescribed user of

the land was agricultural and the LAC followed suit.

22. The result of the aforesaid is that the very substratum

of the case of the petitioner of there being two awards is

without any basis as there is only one award dated

06.10.2009 and prior to that all that had happened was that

the award which was to be published had been drawn and

sent for approval by the competent authority. In case the

petitioner was aggrieved with the determination of the

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compensation, it was open to the petitioner to seek a

reference under the provisions of the said Act for

enhancement of compensation.

23. We are also constrained to note the conduct of the

petitioner in not pointing out to us that after the judgment

in Vijayadevi Navalkishore Bhartia and Anr. Vs. Land

Acquisition Collector and Anr.'s case (supra) by two Hon'ble

Judges on 05.03.2003 whereby the papers were directed to

be placed before the Hon'ble Chief Justice of India to

constitute a larger Bench, such a Bench was constituted and

the appeal had been dismissed without going into the

merits in terms of the order dated 12.02.2004. Thus, a

completely erroneous submission was made on 18.01.2010

as if this issue was still pending consideration before the

Hon'ble Supreme Court. In our considered view, it is not

open to the petitioner to claim lack of knowledge in this day

and age of technology and availability of all the orders on

the internet. It was the bounden duty on the part of the

counsel for the petitioner to have verified the fate of the

reference made to the larger Bench as far back as on

05.03.2003. The order of the larger Bench dated

12.02.2004 was kept away from us and we were persuaded

to issue notice even though there were authoritative

pronouncements of the Supreme Court in State of Bihar v.

Prem Kumar Singh's case (supra) and State of Bihar v.

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D.N.Singh's case (supra) contrary to the plea advanced by

the petitioner.

24. We may note that even after this order of the larger

Bench of the Supreme Court dated 12.02.2004 was pointed

out, learned counsel for the petitioner persisted in his

submissions by seeking to rely upon the order of

reference dated 05.03.2003. Such a plea is completely

misplaced.

25. We find substance in the plea of R-3 that the

petitioner has misled this Hon'ble Court to issue notice while

not pointing out the order post reference of the larger

Bench in the same appeal dated 12.02.2004.

26. We are also of the view that the present writ petition

deserves to be dismissed with exemplary costs. It has been

observed in Sita Ram Bhandar Society v. Govt. (NCT of

Delhi; (2009) 10 SCC 501, in para 41, that every citizen has

a right to utilize all legal means open to him to vindicate

and protect his rights, but if the court comes to the

conclusion that the pleas raised are frivolous and meant to

frustrate and delay proceedings, deterrent action can be

taken by imposition of exemplary costs.

27. The writ petition is accordingly dismissed with

exemplary costs of Rs.1 lakh.

SANJAY KISHAN KAUL, J.

NOVEMBER 12, 2010                                       VALMIKI J. MEHTA, J.
dm

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