Sandaya Educational Society & ... vs Union Of India & Ors
2011 Latest Caselaw 5538 Del

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  CM APPL. 5607/2004 (REVIEW)
                                                 &
                                      CM APPL. 6488/2005 (STAY)
                                                 in
                                       W.P. (C) 3596 OF 1987

                                                                  RESERVED ON: 17.10.2011
%                                                                PRONOUNCED ON: 18.11.2011

SANDAYA EDUCATIONAL SOCIETY & ANR.                                          . . . APPLICANT

                                             Through:             Mr. Ravinder Sethi, Sr. Advocate with
                                                                  Mr. Rajiv K.Ghawana, Advocate.


                                                        VERSUS

UNION OF INDIA & ORS                                                         . . .RESPONDENTS

                                             Through:             Mr. Sachin Datta, CGSC alongwith Mr.
                                                                  Abhimanyu Kumar, Ms. Gayatri Verma,
                                                                  Advocates for R1/UOI.
                                                                  Mr. Sanjay Poddar, Sr. Advocate with
                                                                  Mr. S.K. Pathak, Mr. M.R. Jadhav,
                                                                  Advocates for R.2,3, & 5.
                                                                  Ms. Sangeeta Chandra, Adv. for
                                                                  R.4/DDA.

CORAM :-

          HON'BLE THE ACTING CHIEF JUSTICE
          HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Whether Reporters of Local newspapers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

A.K. SIKRI, ACTING CHIEF JUSTICE

1. Vide CM Appl. 5607/2004 the applicant (who was the petitioner in

W.P.(C)3596/1987) seeks review of the judgment dated 26th March, 2004 on the

limited ground. Other application is for interim stay. Before we advert to the

ground on which review of the aforesaid judgment is sought, it would be

appropriate to take into account the subject matter of the writ petition and the

decision which was rendered thereupon.

2. The petitioners had filed the aforesaid writ petition with a prayer to quash

the notification No. F.8(1)/80- l & b: (1) dated 22nd December, 1987 issued under

Section 4 read with Section 17 (1) and (4) of the Land Acquisition Act, 1894

(hereinafter referred to as the Act). They had also prayed for quashing the

proceedings initiated pursuant to the aforesaid notification and to declare that the

land of the petitioner no.1 Society cannot be acquired.

3. It was the case of the petitioners that the petitioner no.1 had purchased the

said land on 19th December, 1987 (mere three days before the issuance of

impugned notification dated 22nd December, 1987) admeasuring 4 bighas 3 biswa in

Khasra No. 401 in village Ghonda Gujran Khadar on full payment of Rs. 1.50 lacs.

It was averred in the petition that since the petitioner no.1 is an educational society,

the aforesaid land was purchased for the educational purposes. The main ground on

which the impugned notification and resultant proceedings were challenged was

that the provisions of Section 5A of the Act was not applied thereby depriving the

petitioners to file objections to the proposed acquisition. It was contended that

there was no reason for invoking urgency provisions contained in Section 17 of the

Act thereby giving a go by to the right conferred upon the petitioners under Section

5A of the Act. It was also contended that had the petitioner been given opportunity

of being heard it would have pointed out that there was no "public purpose" behind

the said acquisition.

4. The respondent had refuted the averments of the petitioners by filing

Counter Affidavit in which it was inter alia pleaded that the land was acquired for

the "Planned Development of Delhi" namely for being developed as "Green" as

per the approved plan of the area. The ownership of the petitioner no.1 was also

questioned on the ground that only on the basis of agreement to sell or General

Power of Attorney, the petitioner no.1 had not become the owner of the land in

question as these documents do not confer any ownership right in favour of the

petitioners. The possession of the petitioners was also questioned. It was also

stated that even if the petitioners want to start a Senior Secondary School for girls as

alleged by them, the same was not permissible as the land use of the impugned land

is as per provisions of plan is "Green" and not "Institutional". According to the

respondents, there are number of Senior Secondary Schools run by the Delhi

Administration for the girls and boys in the said vicinity and insofar as the said

land is concerned, it was meant for "Green" or "Park". The invocation of urgency

provisions contained in Section 17 (4) was also sought to be justified.

5. After taking note of the pleadings of the parties and their respective

contentions in the impugned decision dated 26th March, 2004, the Division Bench

noted that the notification was primarily challenged on the following two

grounds:-

"1. There was no occasion to resort to urgency provisions contained in Section 17(1) and (4) of the Act and deprive the petitioners of their valuable right secured under Section %A of the Act.

2.The exercise done in issuing the impugned notification and seeking to acquire the land of the petitioners is colourable exercise of power."

6. Thereafter, both the grounds were taken up for discussion and consideration

in seriatum and challenge repelled holding them to be without any merit. As a

result, this writ petition was dismissed.

7. In this review petition filed by the petitioner, it is argued that though while

rejecting the ground no.1 namely that there was no occasion to resort to urgency

provisions contained in Section 17 (1) and (4) of the Act, the basic contention

advanced by the petitioners has not been dealt with. According to the petitioners, it

was argued that there was no order of the Competent Authority i.e. Lt. Governor

dispensing with the provisions of Section 17(4) of the Act and in the absence of

any such order or direction issued by the Lt. Governor dispensing with the filing of

the objections under Section 5A of the Act, no such notification could have been

issued. It is contended that to dispense with filing of objection under Section 5A of

the Act, a separate and independent enquiry is to be conducted and on its basis, a

separate order under Section 17(4) of the Act is required to be made which was not

made by the Lt. Governor in the instant case. It is further stated that in support of

this contention, the petitioners had relied upon certain judgments which were not

dealt with in the impugned decision.

8. We may point out at this stage that after the judgment dated 26th March,

2004, the petitioners had preferred SLP being SLP 8735/2004 before the Supreme

Court of India. In this SLP, the following order dated 6th May, 2004 was passed:-

"It is argued that the High Court had called for the files and found that there was no direction to dispense with notice under Section 5-A of the Land Acquisition Act. We do not find any such material in the Judgment of the High Court. Liberty is granted to the petitioners to approach the High Court again and have it clarified whether the High Court had found, from the files, that there was no direction to dispense with notice under Section 5-A. The High Court must also clarify whether any such point was pressed before it.

In view of the above, learned Senior Counsel for the Petitioners seeks leave of the Court to withdraw the present petition.

The Special Leave Petition is allowed to be withdrawn."

9. It would also be necessary to record at this stage that after the dismissal of

the writ petition, the respondents took possession of the land in question. As per the

respondents, the land is now being maintained as "Green" by the respondents,

though disputed by the petitioners.

10. Be as it may, it is clear from the sequence of events noted above, insofar as

judgment dated 26th March,2004 is concerned, twin grounds are recorded forming

the basis for challenging the notification.

11. Insofar as first ground is concerned, which is relevant for our purposes, it

notes the argument of the petitioners that there was no occasion to resort to the

urgency provisions contained in Section 17(1) and 17(4) of the Act. The ground

now raised in the review petition is that what was argued was that there was no

order at all passed under Section17(4) of the Act by the Lt. Governor dispensing

with the provisions of Section 5A of the Act. First aspect which needs to be dealt

with, particularly having regard to the orders dated 6th May, 2004 passed by the

Supreme Court in the SLP as to whether such a contention was at all raised or

not. When we go through the writ petition, we find that there is not even a whisper

about this. There is no challenge to the impugned acquisition notification on the

ground that Lt. Governor did not pass any order under Section17 (4) of the Act.

This makes it doubtful as to whether such a contention was advanced at the time of

oral arguments without taking this kind of plea in the writ petition and more so

when the amendment in the writ petition was not sought raising this plea.

12. That apart, perusal of the impugned decision dated 26th March, 2004 would

reveal that the Division Bench discussed the events which led to the passing of the

impugned notification dated 22nd December 1987. Actually, for acquisition of the

same land, there was earlier notification issued under Section 4 of the Act on 20th

October, 1961 followed by a declaration dated 2nd September, 1966 under Section 6

of the Act. Even Award bearing No. 9/73-74 was made vide which large area was

acquired. However, later on it transpired that land admeasuring 4 bigha and 3

biswa on Khasra No. 401 was not included in the Award and the period to make the

Award had also lapsed. At the time of issuance of the first set of notification,

procedure for inviting objections under Section 5A of the Act was duly followed.

Since the area in question could not be taken possession of due to the negligence of

the officers, impugned notification was issued invoking the urgency provisions

under Section 17 (4) of the Act. It was under these circumstances, the Division

Bench concluded in its order dated 26th March, 2004 that it was not necessary for

the State to give the opportunity of filing objections to the petitioner again under

Section 5A of the Act and such an exercise would have been redundant once it had

already been done and objections of the owners had been turned down forming the

opinion that the land in question was required for public purpose.

13. In the aforesaid backdrop, we are of the opinion that no case for review of

the impugned order is made out.

14. Mr. Poddar is right in his submission that the scope of review jurisdiction is

very limited. He referred a Division Bench judgment of this Court Anil Kmar Jain

& Anr. Vs. Union of India & Ors. 2005 V AD (DELHI) 491 and Sarla Devi Jain

Vs. Union of India & Ors. 121 (2005) DLT 426.

15. We are, therefore, of the opinion that no case for review is made out. These

applications are accordingly dismissed.

ACTING CHIEF JUSTICE

( RAJIV SAHAI ENDLAW ) JUDGE November 18, 2011 skb