Gain Chand Sharma vs Union Of India & Anr.
2011 Latest Caselaw 2035 Del

        *             IN THE HIGH COURT OF DELHI AT NEW DELHI


                                              Reserved on : 08.03.2011
        %                                  Date of decision : 08.04.2011

        +                         WP (C) No.3237/2007


        GAIN CHAND SHARMA ...                     ...       ...       ...       ...PETITIONER


                     Through :          Mr.Ramesh Chandra, Sr. Advocate
                                        with Mr.V.K. Singh, Advocate


                                        -VERSUS-


        UNION OF INDIA & ANR.                           ...             RESPONDENTS


               Through :             Mr. Rajan Sabharwal & Ms. Seema
                                     Bhadauriya, Advocates for Respondent
                                     No.1/UOI.

                                     Ms. Deepika, Advocate for Respondent
                                     No.2(a)/L&B Department, Government
                                     of NCT of Delhi.

                                     Mr. Sanjay Poddar and Mr. Ramesh
                                     Ray,    Advocates for  Respondent
                                     No.2(b)/LAC.

                                     Mr.Ajay Verma, Advocate
                                     for Respondent No.3/DDA.


        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON'BLE MS. JUSTICE RAJIV SHAKDHER


        Whether the Reporters of local papers
        may be allowed to see the judgment?                                             No

        To be referred to Reporter or not?                                              No

        Whether the judgment should be                                                  No
        reported in the Digest?



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WPC 3237/2007                                                                    Page 1 of 14
         SANJAY KISHAN KAUL, J.

1. The petitioner claims to be the owner and in

possession of land measuring 1 bigha in Khasra

No.10/24 min situated in the revenue estate of Vilalge

Singhu, Delhi. The land is stated to have been

constructed and built up in the year 1950 and a

veterinary hospital was set up in the year 1954.

However, a notification was issued under Section 4(1)

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

short) on 23.02.2006 giving opportunity to the

affected parties to file their objections under Section

5A of the said Act. The petitioner states that he filed

objections to the said acquisition on 13.03.2006, but

no opportunity of hearing was ever given to the

petitioner. A declaration was, however, made on

22.02.2007 under Section 6 of the said Act.

2. In the aforesaid facts and circumstances of the case,

the petitioner has filed the present writ petition under

Articles 226 and 227 of the Constitution of India

seeking quashing of the notification dated 23.02.2006

and the declaration dated 22.02.2007. The challenge

laid by the petitioner is really on two grounds. The

first ground is that since the land was fully built up

since 1950, as per a policy of the Government, such

built up area is not required. Secondly, the petitioner

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has been denied the opportunity of personal hearing

in respect of the objections filed under Section 5A of

the said Act.

3. The writ petition was amended on account of issuance

of notice under Section 9 of the said Act. The

petitioner averred that despite this fact, he had filed

objections on 09.01.2008 to the said notice and came

to know at that stage that the award had been made

and published on 20.06.2008. These facts were

incorporated by amending the petition and making the

additional prayer to set aside the award dated

20.06.2008.

4. The counter affidavit filed on behalf of the LAC states

that in all 28 objections were received in respect of

the acquisition proceedings of the Singhu Village and

these objectors were given a hearing. A survey of the

area was conducted and it was found that there

existed 33 shops and one godown on the land sought

to be acquired. The comments of the DDA were also

obtained which opined that the land measuring 2

bighas in village Singhu cannot be released/excluded

from the acquisition as the same was required for a

60-metre road for Singhu border, Narela and the Zonal

Plan Zone - Zone M (part) and Zone P (part). The

aspect of built up properties on the structure was also

considered, but in view of the note of the DDA, the

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same was rejected. Insofar as the notice issued under

Sections 9 and 10 of the said Act is concerned, the

counter affidavit states that the petitioner had

preferred its objections/claims and thereafter the

award was pronounced after due consideration of the

same on 20.06.2008. It is specifically denied that the

award suffers from any vagueness about the

description of the property to be acquired. The plea of

there being a policy of the Government for not taking

over the built up area has been denied and the right

to acquire such built up area is stated to have been

upheld from time to time including in the judgments -

Shri Bhagwan and Anr. v. Union of India & Ors.;

1991(2) Delhi Lawyer 59 and Roshanara Begum v.

Union of India & Ors.; AIR 1996 Delhi 206.

5. The land in question was being acquired for the

benefit of the DDA and thus at the oral request of

learned counsel for the petitioner, the DDA was

impleaded as R-3 in terms of the order dated

12.09.2008. On the same date, plea of learned senior

counsel for the petitioner was noticed that according

to the Zonal Development Plan, the right of way on

the road in question had been reduced from 60 metres

to 30 metres and thus the petitioner claimed that

much of the area which was being acquired would not

be required for purposes of widening of the road. The

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DDA filed an affidavit affirmed on 30.05.2009, but the

same failed to answer the question which had been

raised i.e. width of the road and the requirement of

the remaining land specifying the purpose. The fate of

the Zonal Development Plan stated to be sent to the

Ministry of Urban Development on 01.06.2009 for

approval was still being awaited.

6. On 09.03.2010, we were informed by the counsel for

UOI that the Zonal Development Plan had been

approved on 08.03.2010 and thus the counsel for the

DDA wanted some time to scrutinize the approved

Zonal Development Plan. On 06.04.2010, learned

counsel for the DDA produced in the Court the Zonal

Development Plan as also the Exact Alignment Plan to

scale to contend that the land of the petitioner fell

within the curvature road going from 30-metre wide

road to the G.T.Karnal Road. The result was that the

plea that the DDA may not require the land did not

survive. We may further note that the plea raised on

behalf of the petitioner that the constructed area

cannot be acquired would run contrary to the settled

principles of law as laid down in Shri Bhagwan and

Anr. v. Union of India & Ors.'s case (supra) and

Roshanara Begum v. Union of India & Ors.'s case

(supra). However, the second plea survived in respect

of failure of LAC to give personal hearing to the

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petitioner after the petitioner having filed objections

under Section 5A of the said Act as no notice of

hearing was issued to the petitioner, as alleged. On

30.04.2010, the counsel for LAC submitted that on

verification of the record, it had been found the

petitioner was not heard in respect of the objections

filed by him under Section 5A of the said Act, but 28

other persons were heard who were claiming interest

in the entire land comprising of 33 shops and one

godown. It was thus pleaded that the petitioner had

sold his interest in the land in question through

various documents being agreement to sell, GPA, etc.

We thus called upon the petitioner to file an affidavit

setting out as to whether he had executed any such

documents in respect of the suit property and if so the

extent thereof. The tenancy rights, if any, created

were also directed to be disclosed and all supporting

documents were also required to be filed.

7. The petitioner filed an affidavit affirmed on

16.07.2010. The petitioner has stated in the affidavit

that there were 60 shops and 14 godowns and that

the petitioner is doing business under the name and

style Shree Shyam Sweets and Fast Food and of

property dealing under the name and style Parth

Properties. A site plan was annexed where the shops

which had been transferred through Power of Attorney

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documentation were shown in red while the shops in

yellow were stated not to be falling in the part of land

of 1 bigha of the petitioner. The veterinary hospital

was stated to fall in the part of the land of the

petitioner. The petitioner also claims to be doing the

other business of running PCO from the said shops.

The response to the notice under Sections 9 and 10 of

the said Act was stated to have been filed by the

petitioner on the basis of a copy made available to

him by one Sh.Ravinder Nath who was the recorded

owner of 1 bigha of acquired land since the total of 2

bighas of land was being acquired.

8. In response to the aforesaid affidavit, the LAC has filed

an affidavit affirmed on 29.01.2011. The allegation is

that the petitioner is guilty of suppressing material

facts as in the writ petition he claimed to be the owner

and in possession of the land measuring 1 bigha

falling in Khasra No.10/24 min on which he was

running a veterinary hospital. The story of shops and

godowns on the land in question came to light much

later and it is only when the petitioner was asked to

file details of transactions, it came to light that he had

sold certain shops on a Power of Attorney basis. There

has been no disclosure about the persons to whom

these shops have been sold. The total area of 2 bighas

of Khasra no.10/24 min which was notified is stated to

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stand recorded in the name of three persons - 1) Gian

Chand, petitioner herein (10 biswas), 2) Ravinder Nath

(10 biswas) and 3) BDO, District North West, BDO

Office Complex, Alipur, Delhi (one bigha). Thus, one

bigha of land does not stand recorded in the name of

the petitioner, but only 10 biswas. Not only that, as

per Khatoni of the year 2003-2004 of the revenue

estate of village Singhu as per the order of the SDM

dated 07.12.2004, the land in Khasra no.10/24 min (0-

10) biswas stands vested in the Gram Sabha under

Section 81 of the Delhi Land Reforms Act, 1954.

Illegal structures are stated to have been raised by the

petitioner without any sanction from the competent

authority.

9. Learned counsel for the LAC also seeks to rely upon

the judgment of the Supreme Court in Tej Kaur & Ors.

v. State of Punjab and Ors.; (2003) 4 SCC 485 where a

ground was raised that no inquiry as contemplated

under Section 5A of the said Act was completed as the

appellants therein had not been given a personal

hearing regarding the objections filed by them. The

Supreme Court while emphasizing the importance of

the reasonable opportunity of being heard to be

afforded to the objectors under Section 5A of the said

Act and the prejudice caused by the denial thereof,

took into consideration the fact that the objections

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raised were, in fact, examined though no personal

hearing had been granted and thus held in favour of

the authorities.

10. What emerges on reading of affidavits and

pleadings filed by the parties is as follows:

(i) That a notification under Section 4 of the Land

Acquisition Act was issued on 23.02.2006.

(ii) The objections under Section 5A were invited. The

LAC submitted report after hearing the objections

to the competent authority.

(iii) A declaration under Section 6 of the Act was made

on 22.02.2007. In pursuance to the notification

under Section 4 and 6 of the Act, claims have been

filed by interested person including the petitioner.

(iv) The award was passed by the LAC on 20.06.2008.

11. In the affidavit dated 16.07.2009 filed by the

petitioner pursuant to this court's order dated

30.04.2010 whereat it had emerged that the petitioner

had perhaps sold his interest in the land in view of

construction of 33 shops and one godown. The

petitioner claims in paragraph 6 that he had filed his

objections to the award as soon as he came to know

from one Ravinder Nath s/o Lekh Ram, who is the

owner of the other piece of land admeasuring

evidently one bigha out of the two bighas acquired,

that an award had been passed qua the land as well.

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The petitioner submitted in the affidavit of 16.07.2009

that there are 60 shops and 14 godowns on his land

and that he has been carrying on business under the

name and style of Shree Shyam Sweets and fast food

as also the business of dealing in properties under the

name and style of Parth Properties. The petitioner in

effect claims ownership of one bigha of land.

12. On the other hand, LAC records that the revenue

records (khatoni) shows that the petitioner is the

recorded owner of only 10 biswas. It is quite evident

that the petitioner had been less than candid in

disclosing facts pertaining to the state of construction

on the land in issue. As correctly argued and pointed

out by the respondents in their affidavit the petitioner

has sought to portray that on his land, which,

according to him measured one bigha, there stood a

veterinary hospital. The fact pertaining to shops

emerged only on it being pointed out by the LAC in the

hearing on 30.04.2010. The respondents' position is

thus that they heard the persons who are the owners

of the shops. The petitioner appears not to have been

issued a notice of the intended acquisition prior to

publication of notification under Section 6 of the Act.

13. Given the facts which obtains in the present

case, it cannot be said that the petitioner was

unaware of the acquisition proceedings as the other

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28 persons not only were issued notice, but were also

heard prior to issuance of notification under Section 6

of the Act. Even though the petitioner has filed his

claim, he somehow seeks to plead ignorance even of

notices under Section 9 & 10 of the Act. The fact

remains that the petitioner did not approach this court

till 02.05.2007 even though the notification under

Section 6 was issued on 22.02.2007. On the other

hand the LAC, while considering the objections of 28

persons, has dealt with various issues raised by the

objectors and submitted a report in that regard.

Alacrity in these matters is of prime importance. The

main plank to impugn the acquisition in the present

petition seems to have been that the Government

cannot acquire built up properties. Having failed in

respect of that submission the other issue of lack of

personal hearing under Section 5A of the Act was

raised. Given the fact that the petitioner did not come

to the court at the earliest, and also the fact that he

has kept back details as to what was the extent of

construction on the land in issue and what exactly is

the extent of his interest in the land, if any, we are of

the view that in these peculiar circumstances, no

interference is called for on the ground that no

personal hearing was accorded to him under Section

5A of the Act.

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14. On perusal of the record, we find that the LAC

has taken note of the objections in respect of two

bighas of land and summarized them as under:

i) the land contains a full-fledged market from the last around 30 years.

ii) the land is available around the market which may be used rather than uprooting the existing market; and

iii) the shops existing are the only source of income and the objectors will be affected.

15. These objections have been duly taken care of

even before the competent authorities. It was thus

verified that the DDA still needs the land for

development purposes for a 60-metre road. The public

purpose behind construction of such a road can hardly

be doubted.

16. Once in substance the plea of the petitioner on

merits is that the land in question needs to be de-

notified or that there is some policy dis-entitling

acquisition of developed land, all of which are not

sustainable, there is nothing which can be said on

merits even in a personal hearing. The personal

hearing would only expand on the objections already

filed which objections have been duly taken note of.

Thus, though in a normal course there is a valuable

right given under Section 5A of the said Act, in the

present case, taking into consideration the objections _____________________________________________________________________________________________

already filed and the merits of the same having been

examined by the LAC, a personal hearing could not

have added to the same in the peculiar circumstances

noted above.

17. We may also note that even non-service of

notice under Sections 9, 10 and 12 of the said Act

have been held not to vitiate the proceedings in view

of the observations in Roshanara Begum v. Union of

India & Ors.'s case.

18. There is also strength in the submission of

learned counsel for the respondents that the petitioner

did not come to the court with clean hands. The

petitioner did disclose about the existence of some

structure claiming to be in existence from 1950

onwards, but did not disclose that he had already sold

part of the area on a Power of Attorney basis. The area

is not large being 1000 square yards which is stated to

have a number of shops and godowns and the

petitioner through the mode of Power of Attorney has

transferred them to third parties without even making

a disclosure about the same in the original writ

petition. It is only on the objection of LAC that the

petitioner was asked to file an affidavit in this behalf

when this fact came to light and there also the

petitioner failed to disclose as to whom and when such

shops and godowns were transferred. This is another

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substantive ground on which the petitioner under

Articles 226 of the Constitution of India is liable to be

non-suited.

19. We thus find that for the all the aforesaid

reasons, the writ petition is not liable to be

entertained and the same is thus dismissed leaving

the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

        APRIL 08, 2011                                    RAJIV SHAKDHER, J.
        dm

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