Delhi High Court

Kathuria Public School vs Union Of India on 9 November, 2011

Author: V. K. Jain

         THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 16.09.2011
                       Judgment Pronounced on: 09.11.2011

+ W.P.(C) No. 233/1997

Kathuria Public School                     ..... Petitioner
                   Through: Mr. N.K.Kaul, Sr. Advocate
                   with Mr. Gaurav Sarin, Advocate
                   With Ms. Charul Sarin & Mr. Ajay
                   Bouri, Advocates

                               versus

Union of India                                 ..... Respondent

Through: Mr. Sanjay Poddar, Sr. Advocate with Mr. Sanjay Kr. Pathak & Mrs. Mahitrao Jadhav, Advocate for UOI & LAC Mr. Summet Batra, Advocate for D.Ed.

Mr. Sanjeev Sachdeva, Sr. Advocate with Ms. Roohi Kohli, Mr. P.P.Singh & Ms. Priyanjan Mehta, Advocates Mr. Ajay Verma with Mr. Amit Mehra, Advocate for DDA

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not? Yes

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

V.K. JAIN, J

1. Land measuring 80 bighas 7 biswas comprised in

Khasra Nos. 1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-

14), 1747 (4-16), 1748 (4-16), 1749 (4-16), 1750 (4-16),

1751 (4-16), 1752 (4-16), 1753 (3-5), 1754 (6-2), 1755 (4-

16), 1756/2 (3-4), 1757/2 (3-4), 1875 (4-16), 1876 (4-16)

and 1877 (4-3) in village Rangpuri alias Malikpur Kohi

(Vasant Kunj) Tehsil Mehrauli was notified under Sections 4

& 6 of the Land Acquisition Act vide notifications dated

23.1.1965 and 26.12.1965 respectively followed by an

award passed in the year 1981. The case of the petitioner is

that possession of the aforesaid land was not taken by the

Government whereas the case of the respondents is that

possession of the entire land except 9 biswas was taken on

31.3.1981 and was handed over to DDA vide notification

dated 19.5.1981 issued under Section 22(1) of Delhi

Development Act. The aforesaid land was purchased by

petitioner No.3 Shri Ram Saroop Kathuria as karta of a HUF

consisting of himself and his sons, vide sale deed dated 18 th

April, 1967 executed by Smt. Saroopi Devi, Smt. Sarjo and

Smt. Bartho in his favour.

2. The acquisition of land was challenged by the

petitioners by filing Civil Writ Petition No. 586/1981. An

interim order was passed by this Court on 24.3.1981,

directing status quo with respect to possession of the land

subject matter of the Writ Petition. The interim order, which

is alleged to have been served on Land & Building

Department of Government of NCT of Delhi on 31.03.1981,

was confirmed on 10.4.1981.

3. Vide representation dated 17.8.1995 the

petitioners sought release of the aforesaid land under

Section 48 of Land Acquisition Act. The Writ Petition came

to be dismissed in terms of Full Bench decision of this Court

in Roshnara Begum‟s case dated 24.12.1995. The petitioner

filed a Special Leave Petition in Supreme Court against the

order of the Full Bench. The Special Leave Petition came to

be dismissed by Supreme Court on 1.11.1996. During the

course of hearing before the Supreme Court Mr.

N.N.Goswami, Counsel for the respondent made a statement

that the Government will consider each of the structures

and take decision in that respect.

The petitioners, who claim to be running a school

under the name and style of Kathuria Public School on the

land in question since 1988 and allege to have constructed

a school building along with staff quarters and boundary

wall on it, vide another representation dated 01.01.1996,

again sought release of the land from acquisition seeking

parity with the case of Hamdard Public School land of which

was de-notified by the Government. The petitioners

submitted yet another representation dated 11.11.1986

seeking release of their land on the parity of the case of St.

Xavier Society land of which was released from acquisition

on 06.9.1996 as well as the case of Hamdard Public School.

Since there was no response to the representations made by

the petitioners, this writ petition came to be filed alleging

selectivity by the respondents in de-notification of acquired

land. The petitioners sought writs directing the respondents

to decide their representations dated 17.8.1995, 01.1.1996

and 11.11.1986. They also sought directions to the

respondent not to demolish any part of the building which

they have constructed on land in question and not to take

its physical possession from them.

4. In their counter-affidavit, respondent No. 2

Lieutenant Governor of Delhi and respondent No. 3(i)

Government of National Capital Territory of Delhi, through

Secretary, Land and Building Department, have alleged that

petitioners have concealed facts from the Court since they

did not disclose that land in question was purchased by

petitioner No. 3 vide sale deed dated 18th April, 1967 after

land in question had been notified for acquisition. It is also

alleged that while taking possession, except in respect of 9

biswas of land comprised in Khasra No. 1877 where some

built up structure was found, the respondents had allowed

petitioner No. 3 to harvest the cultivation on Khasra Nos.

1726, 1727, 1728, 1729, 1747-1755, 1756/2, 1757/2 and

the land stands vested in the Government free from all

encumbrances. It is further alleged that petitioner No.3

purchased the land after notification under Section 4 of

Land Acquisition Act and raised illegal construction during

pendency of the earlier writ petition, without any sanction

from the Competent Authority. It is stated that the

representation of the petitioners was placed before the De-

notification Committee, which, after deliberations,

recommended its rejection. Explaining circumstances in

which certain acquired land came to be de-notified under

Section 48 of Land Acquisition Act, the respondents have

contended that the petitioners cannot claim any legal right

to seek de-notification of their land, particularly when they

purchased it after issuance of notification under Section 4

of Land Acquisition Act. According to the respondents, the

facts of the present case are altogether different from the

facts of the cases in which the land was de-notified. It is

also submitted that since possession of the land has been

taken, it cannot be withdrawn from acquisition.

5. In his counter-affidavit, filed on behalf of

respondent No. 4-DDA, Mr Shamim Ahmed, Director (Land

Management), has stated that the Land Acquisition

Collector took over the possession of the entire land except

an area, measuring 9 biswas on 31.3.1981. The possession

of 9 biswas of land comprised in Khasra No. 1877 could not

be taken since a temporary structure existed on this piece of

land. The land measuring 79 bighas and 18 biswas,

according to DDA, was handed over to it by Land and

Building Department on 31.3.1981 when the possession

was taken by it. This was followed by notification dated

19.5.1981, issued under Section 22 of Delhi Development

Act placing the aforesaid land at the disposal of DDA for its

management and development in accordance with Master

Plan. It is also alleged that the petitioners having

encroached upon public land, their possession is that of

trespassers and that the case of the petitioners is not

similar to the case of Hamdard Public School and St. Xavier

School.

6. The writ petition was amended so as to rely on the

policy guidelines framed by the Government in November,

1998 for de-notification of acquired land and to claim that

the petitioners were covered under the aforesaid policy. It

was also alleged that the respondents had de-notified the

land of Scindia Potteries, situated on Ring Road, vide

notification dated 05.2.1999. The petitioners also sought to

rely upon a noting dated 05.05.1999 by Mr U.P. Singh, OSD

(Litigation), Land & Building Department in the file relating

to land of the petitioners as well as the letter dated

26.5.1999, written by Mr Shamim Ahmed, Director (Land

Management), DDA to the Deputy Secretary, Land &

Building Department. The petitioners also referred to the

de-notification of the land of Ramjas Foundation Society on

04.4.2002. They further contended that since the De-

notification Committee, as constituted by Competent

Authority, had not met on 27.1.1999, the recommendation

made in the meeting held on that day was of no legal

consequence. In the amended writ petition, the petitioners

sought Writ of Mandamus, directing the respondents to

release and de-notify their land under Section 48 of Land

Acquisition Act, correct the alleged possession proceedings

dated 31.03.1981 and Notification dated 19.05.1981 issued

under Section 22 (1) of Delhi Development Act. They also

sought direction to the defendants not to demolish any of

their buildings.

In their additional affidavit, respondents No. 2 and

3(a) submitted that the internal notings made by a

particular officer in the official file unless and until accepted

by Competent Authority are not binding on the Government

and do not confer any legal right on the petitioners to seek

relief on the basis of such notings. It is also stated in the

additional affidavit that the Competent Authority, after

considering the representation made by the petitioners, had

declined to release their land under Section 48 of Land

Acquisition Act. It was also maintained that the cases of de-

notification, referred in the writ petition, were different and

there was no discrimination with the petitioners who are not

similarly situated.

In the additional affidavit of its Director (Land

Management), Mr Suresh P. Padhy, respondent-DDA

maintained that possession of 79 bighas and 18 biswas of

land was taken over way back on 31.3.1981 and the

acquisition having become complete and absolute, the

Government has no power to issue notification under

Section 48 of Land Acquisition Act, to release the aforesaid

land from acquisition.

Indian Spinal Injury Centre, to which land in

question has since been allotted by DDA, has also been

impleaded as a party to the petition.

7. The petitioners have vide CM No. 1931/2011 on

10.02.2011 sought permission to place an additional

affidavit on record. In the additional affidavit, they have

alleged that during pendency of this petition, the petitioners

were, on 28.02.2000, handed over the rejection dated

27.01.1999, whereby their representations were rejected by

the Lieutenant Governor of Delhi.

It would thus be seen that the representations

made by the petitioners from time to time seeking de-

notification of the acquired land have since been rejected.

However, during the course of arguments before us, the

prayer of the learned counsel for the petitioners was to

direct the respondents to re-consider their representations

on the premise that possession of the acquired land was not

taken from them on 31.03.1981.

8. In support of his contention that actual physical

possession of land measuring 79 bighas and 18 biswas was

taken by the Government, from the land owners, the learned

Senior Counsel for Govt. of NCT has relied upon the

Possession Report dated 31.3.1981 which shows that on

that day when the revenue officials went to the site, Kharag

Bahadur, employee of Mr R.S. Kathuria was amongst the

persons present on the spot at that time. It would be

pertinent to note here that the petitioners themselves have

filed a copy of this report and there is no averment by them

that Mr Kharag Bahadur was not an employee of Mr R.S.

Kathuria or that he was not present at the site on

31.03.1981. The report reads as under:

"As per order of L.A.C. I along with Sarup Singh Kanogo, L.A.; Shri Harpal Singh Patwari, L.A. & Shri Rajinder Singh Peon L.A. reached the spot in Village Rangpuri. Shri Raj Bahadur Naib Tehsildar, DDA, Shri Niranjan Singh Patwari, DDa; Sasrdar Bhagat Singh, Naib Tehsildar, Horticulture, DDA, Shri B.S. Aggarwal, Naib Tehsildar, Land & Building Department were also present with Shri Gopal Sharma & Prem Singh Servants of Ram Prasad and Kharag Bahadur, servant of Ram Sarup Kathuria and Ashok Kumar owner were present at the spot. The proceedings relating to possession were started.

1279 (6-0), 1280 (3-12), 1281/1(3-8), 1281/2 (1-8), 1282 (4-16), 1295 (0-5), 1296 (4-11), 1297 (4-16), 1298/1 (0-160 1298/2 (2-00), 1299 (7-4), 1300 (5-8), 1301 (3-14), 1302/1 (1-16), 1302/2 (3-

00), 1303/1 (1-9), 1303/2 (0-17), 1303/3 (2-10), 1304/1 (4-8), 1304/2 (0-8), 1305 (4-16), 1307 (4-16). 1308/1 (2-9), 1308/2 (2-7), 1309 (4-16), 1310/1 (2-8), 1310/2 (2-8), 1311 (2-10), 1312 (6-10), 1313/1 (3-00), 1313/2 (1-16), 1314 (4-16), 1315 (6-18), 1316 (4-6). 1317 (4-16), 1318 (5-

16), 1319 (3-8), 1320 (4-16) , 1321 (5-9), 1322 (3-5), 1323 (4-6), 1324 (6-18), 1325 (6-2), 1327/1 (2-19), 1327/2 (1-19). 1331 (3-8), 1332 (5-11), 1333 (1-16), 1334 (2-

1), 1335 (1-1), 1336 (2-6), 1337 (5-13), 1338 (5-4), 1339 (4-16), 1340 (3-5). 1341 (6-7), 1342 (5-19), 1343 (4-8). 1344 (3-

12). 1345 (2-12), 1346 (6-8), 1347 (4-16), 1348 (4-16), 1349 (4-16), 1350 (4-16), 1351 (4-16), 1352 (4-16), 1353 (4-16), 1354 (4-16), 1355 (4-16), 1356 (4-16), 1357 (3-16), 1358 (2-16), 1359 (4-16), 1360 (4-16), 1361 (4-16), 1362 (4-16), 1363 (4-16), 1364 (4-16), 1365 (4-12), 1366 (2-8), 1367 (2-9), 1368 (4-16), 1369 (8-3), 1370 (4-16), 1371 (3-14), 1372/1 (5-15), 1372/2 (1-4), 1373 (4-16), 1374 (6-8), 1375 (3-12), 1376/1 (2-19), 1376/2 (0-17_, 1376/3 (1-5), 1377 (5-12), 1378 (0-10), 1379 (3-18), 1380 (4-16), 1381 (2-

16), 1382 (6-00), 1381/12 (2-0), 1383(4-

16), 1384 (3-4), 1385 (4-16), 1386 (4-16), 1512 (4-16), 1517 (2-16). 1518 (4-16), 1519 (3-10), 1520/1 (4-16), 1520/2 (1-

11), 1521 (4-16), 1522 (4-16), 1523 (3-

14) 1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-14), 1731 (2-5), 1732/1 (2-4), 1732/2 (2-12), 1733 (4-16), 1734 (4-2), 1735 (1-7), 1736 (4-13), 1737/1 (0-18), 1737/2 (0-12), 1738 (1-4), 1739 (0-1), 1741 (0-4), 1742/1 (2-7), 1744 (4-9),

1745 (4-16), 1746 (4-16), 1747 (4-16), 1748 (4-16) 1749 (4-16), 1750 (4-16), 1751 (4-16), 1752 (4-16), 1753 (3-5), 1754 (6-2), 1755 (4-16), 1756/1 (1-12), 1756/2 (3-4), 1757/1 (1-12), 1757/2 (3-

4), 1758 (4-16), 1759 (4-16), 1760 (4-16), 1761 (4-16), 1762 (4-16), 1763 (4-16), 1767 (4-16), 1768/2 (2-9), 1769/1 (2-9), 1769/2 (2-7), 1875 (4-16), 1876 (4-16), 1877 (3-14), 1878 (7-00) measuring 633- 17 its physical possession is taken and given to Shri B.S. Aggarwal, Naib Tehsildar, L&B Deptt on all four Sides on the spot, pillar have been installed. Possession of Khasra Nos. 1310/1 less than one biswa 1337 (1-0), 1338 (1-0), 1341 less than one biswa, 1342 less than one biswa, 1348 less than one biswa, 1358 (2-0), 1365 less than one biswa, 1379 (0-2), 1523 less than one biswa, 1736 less than one biswa, 1877 (0-9) Total Area 5-12 has not been taken being built up. Possession of Khasra No. 1742/2 (2-5), 1743 (4-15) total 7-0 bigha has not been taken due to stay from High Court.

There is crop in Khasra Nos. 1296, 1293 1294, 1304/1, 1303/1, 1372/2, 1380, 1379, 1522, 1521, 1726, 1727, 1728, 1729, 1747, 1748, 1749, 1750, 1751, 1752, 1753, 1754, 1755, 1756/2, 1757/2. The owners have been allowed to harvest the crop. L.A.C. is present at the spot. Notices under his signature have been issued to Ram Sarup Kathuria and Ram Prasad etc that they should vacate the built up area & service is affected in his presence. Munadi to this effect has also been done loudly by Ram Chand Patwari, LA & by beat of canister. No retaliation took place at the time of taking possession. The proceedings regarding

possession are complete. Patwari halqua is not present at the spot so a copy of possession report will be sent to him through the Tehsildar Mehrauli, so that necessary entries are made in the revenue record.

31-3-81 Sd/- Sarup Singh Girdawar Sd/- Gopal Sharma servant of Ram Prashad Sd/- Naib Tehsildar Thumb impression of Prem Sharma Servant of Ram Prashad Sd/- Kharak Bahadur Sd/- Daya Nand Lambardar Sd/- Raj Bahadur Naib tehsildar DDA Sd/-Rajinder Singh Sd/- Naib Tehsildar, L&B Sd/- Hari Chand Patwari, DDA" (emphasis supplied)

The contention of Mr Poddar was that actually

physical possession of land in question, except a small piece

where some built up structures were found, was taken over

by the revenue officials in the presence of the representative

of petitioner No. 3 R.S. Kathuria on 31.3.1981 and

thereafter petitioner No. 3 was allowed to harvest the crop

found cultivated on Khasra Nos. 1726, 1727, 1728, 1729,

1747-1755, 1756/2, 1757/2 so that there is no loss of crop

to him. The contention of Mr Poddar was that had

possession of the cultivated land not been taken, there

would have been no occasion for the revenue officials to

permit petitioner No. 3 to harvest the crop, since in that

case possession remaining with him, no such permission

would have been necessary. It was also submitted that the

crop standing on the aforesaid land would in normal course

have been harvested within a month or so of the

Government taking possession of the cultivated land. This

was also the contention of Mr. Poddar that land measuring

79 bighas and 18 biswas being unbuilt and unoccupied

land, the revenue officials were not required to do anything

more than what they actually did on 31.3.1981.

9. As against this, the learned Counsel for the

petitioners contended that actual physical possession of

land in question was not taken by the revenue officials on

31.1.1981 and it is the petitioners who continued to retain

physical possession, as would be evident from the survey

reports which the officials of the respondents prepared on

inspection of the site and which confirmed that the

buildings of the petitioners existed on the land in question.

It was also contended that since this Court vide interim

order dated 24.3.1981 passed in C.W.P. 586/1981 had

directed status quo with respect to possession of land in

question, the possession even if it is assumed to have been

taken by the respondents on 31.3.1981 would be void ab

initio and non est in law, which the Court is required to

ignore from consideration. It was also submitted that when

the Court passes such an order it not only directs but also

presumes that the position which existed at the time of

passing the order continues to exist and any other

construction of law on the subject would be contrary to

public interest and subvert the cause of justice. This

however, was countered by Mr. Poddar, who submitted that

the interim order dated 24.3.1981 was not served upon the

revenue officials before they took possession on 31.3.1981.

This, according to Mr Poddar, has been the consistent stand

of the respondents and was accepted by this Court in

FAO(OS) No. 313/2007 and 27/08. It was also submitted by

Mr Poddar that in any case since the interim order passed

by the Court in Civil Writ Petition No. 586/1981 which was

confirmed on 10.4.1981, came to an end on dismissal of the

Writ Petition, there being no impediment in the way of the

respondents taking possession of the land in question,

nothing more was required to be done by them to take

physical possession of land in question, they having already

possessed it on 31.03.1981. It was also submitted by Mr.

Poddar that physical possession taken by the petitioners

after 31.03.1981 would amount to trespass and being

trespassers the petitioners have no right in law to maintain

this petition. Mr. Poddar in support of his contention that

the respondents had taken actual physical possession of the

land measuring 79 bighas 18 biswas on 31.3.1981 heavily

relied upon the decision of this Court in DDA v.

R.S.Kathuria 2009(7) AD (Delhi) 265 which was a litigation

inter se between the parties to this petition and the order

passed by this Court in Review Petition No. 41/2009 in FAO

(OS) No. 313/2007 and Review Petition No. 47/2009 in FAO

(OS) No. 27/2008 which the petitioners had filed against

that decision. Mr. Poddar drew our attention to the

following view taken by the Division Bench of this Court in

that case:

In the present case, the Award was passed on 30th March, 1981 and the possession was taken on 31st March, 1981 before the interim orders were communicated to the appellant. The continued possession of the respondent No.1 pursuant to the said orders of the Court cannot be treated as possession for the purpose of section 16 of the LA Act and on the dismissal of challenge of respondent No.1 to the acquisition proceedings; the said respondent no.1 has no longer any claim in respect of the same.

x x x x

In view of the facts of the present case, we feel that the learned Single Judge was not right in observing that the respondent No.1 is in possession as the said possession is pursuant to the interim orders of this Court. It is a matter of fact that the said interim order stands vacated on the dismissal of the SLP by the Supreme Court. The learned Single Judge wrongly observed that the appellants have not taken the actual physical possession or symbolic possession and therefore the suit is maintainable for determination of the same. The said finding of the learned Single Judge was contrary to the facts of the present case as the Award having been passed on 30 th March, 1981, the question of the appellants not taking the symbolic and physical possession does not arise as the authorities are free to take the actual possession on the vacation of the interim orders passed in the writ petition filed by respondent No.1.

Mr Poddar pointed out that while arguing the

Review Petitions, the petitioners had contended that there

was an error apparent on the face of the record in the Court

observing in para 44 that "Award having been passed on

30.3.1981 the question of the appellants not taking the

symbolic and physical possession does not arise as the

authorities are free to take the actual possession on the

vacation of the interim order passed in the writ petition filed

by the respondent No.1". Mr Poddar also pointed out that

the contention of the petitioners in the Review Petition was

that the action of taking possession of land on 31.3.1981

cannot negate the legal sanctity of status quo order passed

on 24.3.1981 and that the observations contained in the

order dated 28.11.2008 to the effect that the possession of

land which was taken on 31.3.1981 may come in the way of

the applicants in seeking other remedies. The learned

Counsel then drew our attention to the following

observations made in the order:

x x x Considering in the backdrop that the writ petition filed by the respondent No.1 challenging the acquisition had been ultimately dismissed by this Court, which had the effect of vacating the interim order as well and further considering the judgment of this Court was upheld by the Supreme Court in the case of Murari & Ors. v. Union of India (UOI) & Ors. [(1997) 1 SCC 15]. View taken in the said judgment by the Apex Court, we are of the considered view that there is no error apparent on the face of record could be pointed out as to how this view is incorrect. Insofar as the judgment relied upon by the learned Counsel for the review petitioner is concerned, it is clear from the reading of the said judgment that it was given on its own facts in the context of the maintainability of petition under Section 48 of the Land Acquisition Act, there is no bearing insofar as the facts of the present case is concerned.

When we read the grounds of appeal preferred by the appellants, we are of the

opinion that the appellants had taken categorical stand that the possession of the land was taken on 31.03.1981 before the service of the status quo order was passed on 24.03.1981. In fact, in para 5 of the memo of party, it is categorically averred that the LAC had passed the award on 30.03.1981 and possession of the land had been taken over before the order of status quo was implemented, the writ petition was dismissed by this Court on 14.12.1995. The respondent No.1 (now deceased) challenged the judgment and order before the Supreme Court and the SLP was also dismissed with the bath of petitions. The pleadings are to be read in totality and respondent No.1 cannot pick certain portions from there to suit its advantage. Going by all these considerations, the issue in question was decided in favour of the appellants and suit of the respondent is dismissed as not maintainable. Insofar as this finding is concerned, we are of the opinion that there is no error much less errors apparent on the fact of record.

The learned Counsel for the petitioners however

submitted that the question as to whether possession of

land in question was actually taken by the respondents on

31.3.1981 or not was not the matter in issue before the

Division Bench and therefore the view taken therein is not

binding on the petitioners. The learned Counsel for the

petitioners also contended that the respondents were

required to take physical possession on the site in terms of

Order 21 Rules 35, 36, 95 & 96 CPC and mere symbolic

possession by preparing a panchnama on the spot does not

meet the requirement of Section 16 of Land Acquisition Act.

10. In support of his contention, the learned Counsel

for the petitioners has relied upon National Thermal Power

Corporation Ltd. v. Mahesh Dutta & Ors. (2009) 8 SCC

339, Banda Development Authority v. Moti Lal Agarwal

& Ors. (2011) 5 SCC 394, Balwant Narayan Bhagde v.

M.D.Bhagwat & Ors. (1976) 1 SCC 700, order of this Court

in WP(C) No. 1907/1986 passed on 3.2.2010, order dated

25.2.2009 passed in WP(C) No. 1398/1994 and decision of

this Court dated 4.3.2010 in WP(C) No. 2563-66/2005. He

pointed out that in Banda Development Authority (supra),

Supreme Court, after considering its earlier decision on the

subject had culled out the following principles as regards

the mode of taking possession of land acquired under the

provisions of Land Acquisition Act:

i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will

ordinarily be treated as sufficient to constitute taking of possession.

iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.

He also drew our attention to the following view

taken in National Thermal Power Corporation Ltd.

(supra):

".........The question as to whether actual physical possession had been taken in compliance of the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case.

27. When possession is to be taken over in respect of the fallow or patit land, a mere intention to do so may not be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr. Raju Ramachandran, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, it had not been stated that there were standing crops on the land on the date on which possession was taken. We may notice that delivery of possession in respect of immovable property should be taken in the manner laid down in Order XXI Rule 35 of the Code of civil Procedure."

Mr Poddar, however, submitted that though Land

Acquisition Act is a self-contained Act, even the requirement

laid down in Order XXI Rule 35 of CPC stood complied in

this case since there was proper demarcation on the spot by

installing pillars on all four sites and there was no

resistance to the revenue officials taking possession on the

site, as would be evident from the Possession Report dated

31.03.1981.

11. Mr. Poddar, while maintaining that actual

possession of land measuring 79 bighas 18 biswas was

taken on the site on 31.3.1981, and that too before service

of status quo order dated 24.3.1981 on the respondents,

contended that even a symbolic possession by preparing a

panchnama would be sufficient compliance of the

requirement of Section 16 of Land Acquisition Act, where

the acquired land is unbuilt land. It was also submitted by

him that in fact no resistance at all was offered by petitioner

No.3 when possession was taken by the revenue officials on

31.3.1981. In support of his contention, Mr Poddar relied

upon Sita Ram Bhandar Society, New Delhi Vs. Lt.

Governor, Govt. of N.C.T. Delhi and Ors. 2009 (10) SCC

501. In particular, Mr Poddar relied upon the following view

taken by the Supreme Court:

"It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible

for the Collector or the Revenue Official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government.

Mr. Gupta has, with great emphasis, pointed out that from the affidavit dated 30.07.1996 sworn by Mr. G.S. Meena, Under Secretary, Land and Building Department, it was clear that the appellant continued to remain in possession on account of the stay of dispossession granted by the High Court on 15.07.1981 in WP No. 2220/1981 and the confirmation of the said order on 16.09.1982 and as such the stand of the appellants that possession had been taken was not correct. We have, however, already observed that possession had been taken between 20.06.1980 and 24.06.1980 and the acquired land thus stood vested in the State free from all encumbrances under Section 16 of the Act. It is also relevant that the afore- referred writ petition was dismissed meaning thereby that the said order should automatically be vacated as well. Even assuming for a moment that the petitioner had re-possessed the acquired land at some stage would be of no consequence in view of the provisions of Section 16 ibidem.

In Narayan Bhagde's case (supra) one of the arguments raised by the land owner was that as per the communication of the

Commissioner the land was still with the land owner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the land owner had re-entered the acquired land immediately after its possession had been taken by the government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under:

"29.....This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting.

To our mind, therefore, even assuming that the appellant had re-entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons, (1) that the suits/petitions were ultimately dismissed and (2) that the land once having vested in the Government by virtue of Section 16 of the Act, re-entry by the land owner would not obliterate the consequences of vesting."

12. During the course of arguments, the learned

Counsel for the petitioners relied upon the notings dated

6.4.1999 and 5.5.1999 recorded by Shri U.P.Singh OSD

(Litigation) in the relevant file of Land & Building

department and the letter dated 26.5.1999 written by Shri

Shamim Ahmed, Director (LM) HQ to DS (LA), Land &

Building Department in support of his contention that

possession was not taken from the petitioners on 31.3.1981.

This however, was controverted by the learned Counsel for

the respondents who submitted that the noting recorded by

Shri U.P.Singh was the view of an individual, which was not

accepted by the competent authority and therefore does not

constitute the view of the Government or an admission on

its part. It was also pointed out that other Officers who

dealt with the file in Land & Building Department did not

agree with the view taken by Shri U.P.Singh. Mr. Poddar in

this regard drew our attention to the note dated 9.2.2000

recorded by Ms. Pratibha Karan, Principal Secretary

(PWD/L&B) whereby the file was placed before the

Lieutenant Governor and the recommendation of the De-

notification Committee was approved by him on 10.2.2000.

In his note dated 6.4.1999 Mr. U.P.Singh opined

that since the copy of status quo order dated 24.3.1981 had

been served in Land & Building Department on 31.3.1981, a

mistake was committed by LAC in possession proceedings

dated 31.3.1981 by including disputed land along with the

other land acquired by the Government. He also noted that

from a perusal of page 2 of annexure P-V of the

representation dated 24.2.1999, it appeared that inspection

of the disputed land was carried out by the field staff and at

that time it was found that a built up structure of senior

secondary school was functioning on it and a building

occupied by Oriental Bank of Commerce also existed on it.

He was of the view that if the possession of the disputed

land was taken on 31.3.1981 prior to service of status quo

order, this should have been brought to the notice of the

High Court and the status quo order should have been got

vacated. He thus opined that the possession proceedings

dated 31.3.1981 being in contravention of the status quo

order dated 24.3.1981 were invalid and illegal and need to

be corrected.

We also find from the notings on the file that De-

notification Committee in its meeting held on 27.1.1991

recommended rejection of the representation made by the

petitioners on the ground that possession of land in

question was taken over on 31.3.1981 and the above

referred noting by Mr. U.P.Singh was made thereafter, on

the representation dated 24.2.1999 made by the petitioners.

We find that in the subsequent note dated

2.12.2000 Mr. V.B.Pandey, Legal Advisor recorded that

possession of the acquired land was taken by LAC on

31.3.1981 because the status quo order was not served on

him. He also noted that DDA vide letters dated 7.1.2000

and 25.1.2000 had reiterated its stand that possession of

the land was with them.

In her note dated 9.2.2000 Principal Secretary

(PWD/L&B) noted that as the order of this Court dated

24.3.1981 directing maintaining of status quo was not

served on the Land Acquisition Collector, the possession of

land was taken over on 31.3.1981 and handed over to DDA.

She also noted that though the contention of the petitioners

was that the possession of the land had remained with

them, the record showed otherwise and Additional Secretary

(NCR) had confirmed that possession was with DDA. She

also noted that latest communication from DDA also

showed that physical possession of the land was transferred

by LAC and Land & Building Department to DDA vide

notifications under Section 22(1) of DDA Act.

It would thus be seen that the opinion of Mr.

U.P.Singh was not accepted by his superiors and certainly

not by the Lieutenant Governor who was the Competent

Authority in the matter and before whom the entire file

which included the notings recorded by Mr. U.P.Singh, was

placed.

As regards the letter dated 26.5.1999 written by

Mr. Shamim Ahmed we find that in this letter he was only

referring to the opinion of Mr. U.P.Singh OSD (Litigation).

He did say that the site was inspected by the field staff and

it was found that an authorized building of senior secondary

school existed there along with a nursery, playground, staff

quarters and a building occupied by Oriental Bank of

Commerce. However, he did not say that the inspection by

the field staff was carried out on or before 31.3.1981. In

fact, this is nobody‟s case before us that the inspection

referred in the letter of Mr. Shamim Ahmed was carried out

prior to 31.3.1981. No such inspection report has been filed

by any of the parties to this petition. We find merit in the

contention of Mr. Poddar that if possession of the land was

taken over by revenue officials on 31.3.1981, trespass on

that land by the petitioners at a later date and construction

of buildings on it would be of no consequence and would

not be recognized by the Court. Mr. Poddar also pointed out

to us that it was Mr. Shamim Ahmed who filed counter

affidavit in this behalf on behalf of DDA and stated on oath

that possession of land in question was taken over on

31.3.1981 and the land was placed at the disposal of DDA.

The following observations made by Supreme

Court in Shanti Sports Club (Supra) are pertinent with

respect to notings/opinions recorded by the Government

Officers/Ministers on the file:

A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government, unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.

In Sethi Auto Service Station v. DDA (2009) 1 SCC 180

Supreme Court observed as under:

It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.

Hence, we cannot conclude, merely on the basis of

the noting of Mr U.P. Singh and/or the letter of Mr Shamim

Ahmed that the possession of land in question was not

taken on 31.03.1981.

13. Policy Guidelines dated 02.12.1998 for de-

notification of land acquired under the provisions of Land

Acquisition Act, which the petitioners themselves have

relied upon and placed on record, inter alia, read as under:-

"4.0 CASE WHICH MAY BE CONSIDERED FOR DENOTIFICATION

Cases of the following nature may be considered for denotification:-

4.4 PROPERTIES BUILT-UP AFTER THE ISSUE OF NOTIFICATION U/S.4 OF THE LAND ACQUISITION ACT, 1894.

(1) Land on which built-up structures have come up after issue of notification under Section 4 of the Land Acquisition Act, shall normally not be considered for denotification. However, if cluster of largely residential structures has come up over a long period of time and demolition of the structures shall cause immense hardship to a large number of inhabitants, the following procedures may be adopted:

(a) Where there is a recommendation from a technical department/committee of the Government, that the land is inappropriate/unsuitable.

(b) Where the feasibility studies if any, conducted show that the land is not suitable for the public purpose for which it is being acquired.

(c) Where the colony including the area in question has itself been regularized and services handed over to MCD, the land may be recommended for denotification.

(2) In all cases, a sub-committee comprising the Land Acquisition Collector, a representative of Land & Building Department (not below the rank of a Dy. Secretary) and a representative of DDA (not below the rank of a Dy.

Secretary), shall inspect the land and submit a detailed report outlining the number and nature of structures, the feasibility of taking over the land after demolition of the structures, and the specific recommendation on denotification of the land. The Denotification Committee shall consider the report of the sub-committee, the

comments of the requisitioning department with specific reference to its need for land, and then make a recommendation to the Lt. Governor for considering or rejecting the proposal."

It would thus be seen that the land on which

structures have been raised after issuance of notification

under Section 4 of Land Acquisition Act is not to be

considered for notification, the exception being cluster of

largely residential structures, demolition of which shall

cause immense hardship to a large number of inhabitants.

In the case before us, admittedly, notification under Section

4 of Land Acquisition Act was issued on 23.01.1965. It is an

admitted case that this land was purchased by petitioner

No. 3 vide Sale Deed dated 18.4.1967. The structures which

presently exist on this land, therefore, must necessarily

have come up only after 18.04.1967, which was more than

two years after issuance of notification under Section 4 of

the Act. This is not the case of the petitioners that

residential structures exist on the land in question and

demolition of which would cause hardship to those who are

living in those residential structures. The case of the

petitioners is that they are running a school on this land,

though the Survey Report, referred in the notings in the file

of Land & Building Department, shows that Oriental Bank

of Commerce is also being run in one of the buildings. The

built-up structures being used for running a school are not

covered under the exception carved out in clause 4.4 (1) of

the guidelines and, therefore, going by these guidelines, the

Government/Lieutenant Governor cannot de-notify land in

question. We would like to note here that the guidelines

dated 02.12.1998 have not been challenged in this petition

and have, in fact, been relied upon by them on the premise

that their case is covered under them.

14. During the course of arguments, it was contended

by the learned counsel for the petitioners that these

guidelines having been issued after they had already

represented to the Government for de-notification of their

land, cannot be applied to their case. We, however, find no

merit in this contention for two reasons. Firstly, the

petitioners themselves having relied upon these guidelines

and claiming to be covered under them, it is not open to

them to say that the guidelines cannot be applied to their

case. More importantly, the Government/Lieutenant

Governor, while deciding the representation(s), seeking de-

notification of acquired land, must necessarily be guided by

the policy which is applicable on the date they take decision

on such representations. It would not be open to the

Government/Lieutenant Governor to ignore these guidelines

and de-notify the acquired land even in those cases where

such de-notification is not permissible.

As observed by Supreme Court in Home

Secretary, UT of Chandigarh & Anr. v. Darshjit Singh

Grewal & Ors. (1993) 4 SCC 25, the policy guidelines of

general applications relatable to the executive power of the

Government are binding on the Government and they are

bound to adhere to it unless the policy itself is changed.

Assuming that in one or more cases, the

government has de-notified acquired land even if it was

purchased and construction on the land was raised after

issue of notification under Section 4 of Land Acquisition

Act, we cannot and ought not to perpetuate that illegality by

directing the government to once again commit breach of

the guidelines issued by it by de-notifying the land which

the petitioners have purchased after issue of notification

under Section 4 of the Land Acquisition Act. The court

cannot be a party to such an illegality by giving directions

sought by the petitioners. Having issued a policy, the

Government is duty bound to rigidly follow the policy

guidelines and therefore, all its actions in the matter of de-

notification of acquired land need to strictly conform to

those guidelines of general application.

15. We are in agreement with the learned counsel for

the respondents, who contended that the petitioners having

purchased land in question, after issuance of notification

under Section 4 of Land Acquisition Act, have no legal right

to seek de-notification of the acquired land purchased by

them in this regard. We may, at this stage, refer to the

decision of Supreme Court in Smt. Sneh Prabha etc. Vs.

State of U.P. and Another: AIR 1996 Supreme Court 540. In

that case, notification under Section 4 of Land Acquisition

Act was issued on 16.07.1960. The appellant purchased

land vide Sale Deeds dated 15.03.1967 and 27.03.1967.

The State Government issued what was known as „land

policy‟, to lease out areas to the persons from whom the

land was acquired. The appellant applied for allotment of

plot under the aforesaid policy. She also re-deposited the

compensation which she had received from Land

Acquisition Officer and sought allotment of land. The

allotment was, however, denied to her on the ground that

she had purchased the land after issuance of notification

under Section 4 of the Act and, therefore, was not eligible

for allotment. After issuance of policy, the State

Government issued two G.Os. containing guidelines for

implementation of the land policy. As per those guidelines,

the persons who had purchased the land after publication of

notification for its acquisition were not to be given any

benefit under the land policy. It was contended on behalf of

the appellant that it makes little difference if the subsequent

purchaser steps into the shoes of the owner of lays claim for

allotment. The contention was, however, rejected by

Supreme Court which held that she was not entitled to

benefit of the land policy. Dismissing the appeal, Supreme

Court held as under:

"It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own peril. The object of publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings points out an impediment to anyone to encumber the land acquired thereunder. It authorises the designated officer to enter upon the land to do preliminaries etc. Therefore, any alienation of land after the publication of the notification under Section 4(1) does

not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, titles and interests in land stand vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder. If any subsequent purchaser acquires land, his/her only right would be subject to the provisions of the Act and/or to receive compensation for the land. In a recent judgment, this Court in Union of India v. Shri Shivkumar Bhargava and Ors. (1995) 6 JT (SC) 274: (1995) AIR SCW 595) considered the controversy and held that a person who purchases land subsequent to the notification is not entitled to alternative site. It is seen that the Land Policy expressly conferred that right only on that person whose land was acquired. In other words, the person must be the owner of the land on the date on which notification under Section 4(1) was published. By necessary implication, the subsequent purchaser was elbowed out from the policy and became disentitled to the benefit of the Land Policy.

It would be pertinent to note here that even in the

case before Supreme Court, the policy guidelines came to be

issued by the State Government much after the acquired

land had been purchased by the appellant.

In Yadu Nandan Garg Vs. State of Rajasthan and

Others: AIR 1996 Supreme Court 520, notification under

Section 4(1) of Rajasthan Land Acquisition Act, 1953 was

published on 17.10.1963. The appellant purchased land in

question vide Sale Deed dated 15.07.1970 before issue of

declaration under Section 6 of the Act on 07.01.1991. The

appellant filed an application seeking exemption which was

turned down. He then filed a writ petition in the High Court

which was rejected by the learned Single Judge as well as

by the Division Bench of the High Court. During appeal

before Supreme Court, it was contended on behalf of the

petitioner that Anand Nursery, which was adjacent to

appellant‟s site was given exemption from acquisition,

whereas the appellant‟s site used for residential purposes

had not been exempted, which amounted to discrimination

offending Article 14 of the Constitution. The contention was,

however, rejected by Supreme Court. Dismissing the appeal,

the Court, inter alia, held as under:

"It is seen that long after the notification under Section 4(1) was published in the Gazette, the appellant had purchased the property and constructed the house thereon. Therefore, as against the State his purchase was not lawful and it could not be used against the State to cloth it with a colour of title as against the State. It is in encumbrance against the State and when the acquisition was finalised and the possession is taken, the State under Section 16 is entitled to have the possession with absolute title free from

all encumbrances. The appellant cannot get any title much less valid title to the property."

We are of the view that irrespective of the fact that

land in question was purchased by the petitioner No. 3

before coming into force of Delhi Land (Restriction on

Transfer) Act, 1973 which specifically prohibits such

transfer, the purchase after issue of notifications under

Section 4 of Land Acquisition Act would not clothe the

petitioners with a right to seek de-notification of the

acquired land purchased by them.

16. It was also contended by the learned Counsel for

the petitioners that since the De-notification Committee

which recommended rejection of the representation of the

petitioners was not properly constituted, the

recommendation made by it became vitiated in law and

consequently the possession taken on the basis of such a

recommendation becomes unsustainable. We however, find

no merit in the contention. Para 22 of the guidelines clearly

stipulates that the recommendations made by the De-

notification Committee are not binding on the Lieutenant

Governor, who may take a decision on each

recommendation, at his discretion. Since the

recommendations of the Committee are not binding on the

Lieutenant Governor, any irregularity in constitution of the

Committee becomes insignificant and does not vitiate the

decision taken by the Lieutenant Governor, who had the

benefit of having the whole of the file containing notings of

various Officers as well as the correspondence, with him at

the time of taking decision in the matter.

17. As regards alleged discrimination with the

petitioners on the ground that the land belonging to

Hamdard Public School, St. Xavier Society, Ramjas

Foundation and Scindia Potteries, etc. had been de-notified

while denying de-notification of the land of the petitioners,

we find that the respondents have duly explained the

circumstances in which the aforesaid lands were de-

notified.

We also note that a similar contention citing the

same instances of de-notification of land was examined by

Supreme Court in Shanti Sports Club and Anr. Vs. Union

of India (UOI) and Ors. 2009 (15) SCC 705. A perusal of

the judgment would show that the appellants contended

that the Government was duty bound to treat them at par

with others like Hamdard Public School, St. Xavier School,

Shahbad Estate Extension Welfare Association, Scindia

Potteries, etc., whose land was released from acquisition

despite the fact that constructions were made after issuance

of a notification under Section 4(1) and declaration under

Section 6 of the Act and in some cases even after the award

was made. This was also their contention that in view of the

observations contained in the last part of para 182 of the

judgment of the Full Bench in Roshanara Begum v. Union

of India: AIR 1996 Delhi 206 and the statement made by

Shri N.N.Goswami, counsel for the State, which was

recorded in para 21 of the judgment of the Supreme Court

in Murari and Ors. Vs. Union of India (UOI) and Ors. AIR

(1997) 1 SCC 15, the representations made by them for

release of the land could not have been rejected on the

ground that the construction had been raised after

acquisition of land. Rejecting the contention of the

appellants, Supreme Court, inter alia, observed as under:

"The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any

illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities."

Supreme Court, while rejecting the plea of

discrimination taken by the appellants, referred to the

following observations made in Chandigarh Administration

v. Jagjit Singh: (1995) 1 SCC 745:

"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one

illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law -- indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law -- but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.

In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world."

With respect to the observations made by the Full

Bench of this Court in Roshanara Begum (supra) and the

statement made by Shri N.N. Goswami before Supreme

Court in the Case of Murari and Ors. (supra), the Court

observed as under:

"59. In our opinion, the Government's decision not to withdraw from the acquisition of land in question or de- notify the acquired land, does not suffer from the vice of discrimination or arbitrary exercise of power or non application of mind. With due deference to the Full Bench of the High Court which disposed of the batch of writ petitions and miscellaneous applications, the observations contained in the last part of paragraph 182 of the judgment suggesting that the petitioner/applicant can make representation for release of the land and the concerned authorities can examine whether the sports complex could serve the purpose of acquiring the land for the particular scheme or the scheme can be modified or amended in respect of the land in question were nothing more than pious hope and the Government rightly did not take them seriously because in the same paragraph the Full Bench unequivocally ruled that the land is required for residential scheme of Vasant Kunj and the sports complex built by the applicant was not in consonance with the public purpose for which the land was earmarked in the scheme.

The statement made by the counsel representing the State before this Court which finds mention in paragraph 21 of the judgment in Murari v. Union of India

(supra) was neither here nor there. It did not amount to a commitment on behalf of the Government that representations made for release of land will receive favourable consideration. In any case, once this Court had made it clear in Murari v. Union of India (supra) that in a matter involving acquisition of thousands of acres of land, it would not be proper to leave out some small portions here and there over which some construction may have been made, the decision of the Government not to withdraw from the acquisition of the land in question cannot be faulted."

18. Dealing with the plea of discrimination in the

matter of application of land policy, Supreme Court, in the

case of Smt. Sneh Prabha (supra), inter alia, observed as

under:-

"Even if a benefit is wrongly given in favour of one or two, it does not clothe with a right to perpetuate the wrong and the Court cannot give countenance to such actions though they are blameworthy and condemnable. Equality clause does not extend to perpetuate wrong nor can anyone equate a right to have the wrong repeated and benefit reaped thereunder."

In Yadu Nandan Garg (supra), the contention

before Supreme Court was that one Anand Nursery was

granted exemption while denying similar benefit to the

appellant. Rejecting the plea of discrimination, Supreme

Court, inter alia, observed as under:-

"It is true, for reasons best known to the authorities, that Anand Nursery had the benefit of the exemption. The wrong exemption under wrong action taken by the authorities will not cloth others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination."

We, therefore, find no substance in the plea of

discrimination taken by the petitioners.

19. Even if we assume that actual physical possession

of the acquired land was not taken by the Government on

31.03.1981, as is claimed by the petitioners, we are of the

view that since land in question was acquired by them after

issue of notification under Section 4 of Land Acquisition

Act, their case is not covered under the guidelines issued by

the Government on 02.12.1998 for de-notification of

acquired land. We, therefore, find no ground to direct either

de-notification of land in question from acquisition by

issuing a notification under Section 48 of Land Acquisition