M/S.Dlf Universal Ltd. vs Uoi & Ors.
2011 Latest Caselaw 1598 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 21st March, 2011

+                       W.P.(C) 2715/1990

        M/S. DLF UNIVERSAL LTD.               ..... Petitioner
                  Through: Mr.Soli Sorabji, Sr.Advocate with
                            Mr.H.L.Tikku, Sr.Advocate with
                            Mr.Yashmeet      Singh,      Mr.Anand
                            Mishra, Mr.Sehonak, Ms.Mandeep
                            Kaur and Mr.Bikash Mohanty,
                            Advocates

                              Versus

        UOI & ORS.                            .....Respondents
                  Through:    Mr.Sachin Datta, Standing Counsel
                              with Mr.M.P.Singh and Mr.Sanjay
                              Pathak, Advocates

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.

1. Petitioner DLF Universal Ltd. acquired a large chunk of land comprised in the revenue estate of village Bahpur and obtained approval from the Competent Authority to develop thereon a residential colony named Greater Kailash Part II, New Delhi as far back as 1.7.1959. As per the sanctioned lay out plan, apart from residential plots comprised in 4 blocks i.e. block East, block West, block South and block Middle, 25 sites

were earmarked for public utilities, apart from sites earmarked for schools and colony parks. It be highlighted that in para 5 of the writ petition, the petitioner has pleaded as under:-

"That from the above paragraph it is clear that the petitioner company had left 25 sites for use as public building sites in the colony known as Greater Kailash Part II."

2. In the counter affidavit filed by the Union of India, the administrator of the Union Territory of Delhi and the Land Acquisition Collector, which we note is a Joint Counter Affidavit, pleadings in paras 2 to 9 of the writ petition have been replied to jointly as under:-

"Paras 2 to 9. This paras needs no comments from the answering respondents."

3. At the outset we may state that in view of the law pertaining to invoking the emergent power under Section 17 of the Land Acquisition Act and dispensing with an enquiry contemplated by Section 5A of the Land Acquisition Act 1894, as would be hereinafter highlighted, it certainly was important for the administrator of the Union Territory of Delhi who is the Appropriate Authority under the Act in so far as acquisition of land pertains to the Union Territory of Delhi, to have dealt with the averments made in para 5 of the writ petition inasmuch as, as held by the Supreme Court in the decision reported as 1997 (9) SCC 78 UOI & Ors. Vs. Praveen Gupta & Ors., the very object of enquiry under Section 5A is whether the land proposed to be acquired is needed or is likely to be needed for the public purpose mentioned in the notification and whether any other suitable land other than the acquired land is available

for the said public purpose, and indeed the purport of pleading facts in para 5 of the writ petition was to highlight the fact that in the colony Greater Kailash II, the colonizer i.e. the petitioner had left 25 sites for use as public building sites, one of which could possibly be used for a post office.

4. It be highlighted that in the counter affidavit filed, the other respondents have also not denied the averments made by the petitioner in para 5 of the writ petition.

5. Challenge in the writ petition is to a notification dated 5.10.1989 issued by the administrator of the Union Territory of Delhi, proposing to acquire 1 bigha and 1 biswa of land comprised in Khasra No.1451/1097 (min) and 1452/1097 (min) in the revenue estate of village Bahpur i.e. the land belonging to the petitioner, in respect whereof the petitioner admittedly has an approved sanction from the Municipal Corporation of Delhi to erect group housing flats. It be clarified that the parcel of land on which the Municipal Corporation of Delhi has sanctioned an approval for construction of a group housing complex is a large parcel of land and includes the 1 bigha and 1 biswa of land sought to be acquired.

6. As pleaded by the respondents the backdrop facts leading up to the issuance of the notification dated 5.10.1989 are that on 21.7.1988 the Screening Committee of DDA gave approval to various development projects conceived of by DDA, including requests from various authorities for allotment of land; as per item No.4 of the resolution, DDA approved request of the Post and Telegraph Department to be allotted land for construction of a post office building in Greater Kailash

Part II. It be highlighted that by said date the colony Greater Kailash Part II had been near fully colonized and DDA, while accepting the request of the postal authorities, did not earmark any specific site to be allotted in Greater Kailash Part II.

7. Processing the matter and nothing being shown to us that DDA kept in mind that there were 25 sites available for public utilities, some of which had been utilized and some were lying vacant, a proposal came to be sent to acquire the subject land and in respect whereof on 5.10.1989 a notification was issued under Section 4 of the Land Acquisition Act 1894 read with Section 17 thereof; thereby dispensing with an enquiry under Section 5A of the Land Acquisition Act 1894 it be highlighted that the notification in question was issued after 1 year and 2 months of the decision taken by DDA on 21.7.1988 to allot land to the postal authorities for construction of a post office in Greater Kailash Part II. In the notification it was stated that the land in question was likely to be required for a public purpose viz. construction of a post office in Greater Kailash Part II.

8. Before highlighting the issue, another relevant point be noted. On being impleaded as respondent No.7, for the reason the purpose of the acquisition was to hand over the land to the Post and Telegraph Department, said respondent filed an affidavit admitting therein that a post office exists in Greater Kailash Part II, another exists in Masjid Moth and the third in Chittaranjan Park. It is pleaded as under:-

"The answering respondent states and submits distances mentioned by the petitioner in the writ

petition are not correct. The disputed site is located at a distance of 1 km from Greater Kailash Part II Post Office, 1 km from Chittaranjan Park Post Office and 1.05 km from Masjid Moth Post Office. The post office at CR Park is not about 100 meters away from the land in dispute as stated by the petitioner."

9. The factual scenario which emerges is that a post office exists in Greater Kailash Part II and another exists at a distance of 1 km from the site in question in Chittaranjan Park and at a distance of 1.05 km another post office exists at Masjid Moth. Further, there were 25 sites earmarked for public utility buildings in Greater Kailash Part II.

10. These facts are not in dispute and the question would now arise, whether case is made out to invoke Section 17 of the Land Acquisition Act 1894.

11. We have already extracted hereinabove the law relatable to the object of Section 5A of the Land Acquisition Act 1894 as succinctly stated by the Supreme Court in the decision reported as 1997 (9) SCC 78 UOI & Ors. Vs. Praveen Gupta & Ors.

12. Now, we find it strange that the Appropriate Authority i.e. the Administrator of the Union Territory of Delhi would respond to the averments made in para 5 of the writ petition that they do not need any comments. Surely, it was relevant, while invoking Section 17 of the Land Acquisition Act to be aware that in Greater Kailash Part II, 25 sites had been earmarked for public utilities and whether or not anyone of them could be used/utilized for construction of a post office building.

13. With reference to the information provided by the Post and Telegraph Department of there being one existing post office in Greater Kailash Part II and two more nearby in the adjoining colonies, whether or not there was such grave urgency so as to even take away the right of the person affected whose land was sought to be taken away it is apparent that the Appropriate Authority is guilty of not even applying its mind to the relevant facts required to be taken note of before arriving at the subjective satisfaction on the matter.

14. We need not pen down a catalogue of authorities on the subject which highlight that as long as objective facts are shown to the Court attracting the applicability of Section 17 of the Land Acquisition Act 1894, the subjective satisfaction arrived at by the Appropriate Authority would not be adjudicated upon by a Writ Court as if it was exercising an Appellate Jurisdiction.

15. Thus, it was incumbent upon the respondents to at least show some objective facts attracting Section 17 of the Land Acquisition Act 1894.

16. Turning to the decisions cited by the respondents, each one of them turns on its own facts. The unreported decision dated 3.2.2010 dismissing W.P.(C) No.4611/1996 M/s. A.B.Tools Ltd. & Anr. Vs. UOI & Ors. deals with an emergent situation of the Indian Oil Corporation requiring land for expansion of its LPG Bottling Plant. Lands were acquired and handed over to IOC except a chunk of two lands ad-measuring 1.77 acres belonging to the petitioner and when this was

realized, lest an ongoing expansion projection be not adversely impacted, it was correctly held that emergent power could be exercised. The second unreported decision dated 14.1.2011 dismissing W.P.(C) No.13376/2009 Darshan Lal Nagpal & Ors. Vs. Govt. Of NCT of Delhi & Ors. is also distinguishable inasmuch as the urgent public purpose brought out was requirement of land to set up a 220 KV grid station for the ensuing commonwealth games to be held in Delhi. The third decision cited being Praveen Gupta's case (supra), also brought out the emergent situation requiring timber business carried on in the walled city of old Delhi creating traffic congestion requiring to be shifted out immediately and hence a pressing emergent public purpose to dispense with an inquiry under Section 5A. But, we have highlighted the principle of law laid down in the said decision in the preceding paragraphs. The third unreported decision cited being the judgment dated 5.10.2010 in W.P.(C) No.1307/2010 Bijwasan Gram Vikas Samiti Vs. The L.G. Delhi & Ors. also brings out the emergent public purpose, being land needed for construction of a road over bridge on an ongoing project of construction of the Yamuna Expressway.

17. In the instant case, facts noted by us hereinabove, being firstly the existence of one post office in Greater Kailash Part II and two more post offices at a distance of 1 km each from the proposed site intended to be acquired; the availability of sites earmarked for public utilities in Greater Kailash Part II not even being taken note of and lastly DDA's resolution to accept the request of the Post and Telegraph Department for

additional land on 21.7.1988 resulting in the notification under challenge being issued after 1 year and 2 months, negates the use of the emergency power under Section 17 of the Land Acquisition Act.

18. The writ petition is allowed. Impugned notification dated 5.10.1989 is quashed.

19. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE MARCH 21, 2011 mm