Delhi High Court
Mrs. Mithlesh Sharma & Ors vs Union Of India & Ors. on 5 December, 2012
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 09.08.2012
% Judgment delivered on: 05.12.2012
+ W.P.(C) 3725/2011
MRS. MITHLESH SHARMA & ORS ..... Petitioners
Through: Mr. Sumit Bansal, Mr. Ateev Mathur
& Ms. Sumi Anand, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Yeeshu Jain, Advocate for the
respondents No. 2 & 3.
Mr. Sanjay Poddar, Senior Advocate
along with Mr. Ajay Arora,
Mr.Govind Kumar & Ms. Navlin
Swain, Advocates for the respondent
No.4/MCD.
+ W.P.(C) 3726/2011
SHRI RAMESHWAR GOPAL & ORS ..... Petitioners
Through: Mr. Ravinder Sethi, Senior Advocate
along with Mr. Rajiv Kumar
Ghawana, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Yeeshu Jain, Advocate for the
respondent No. 2.
Mr. Sanjay Poddar, Senior Advocate
along with Mr. Ajay Arora,
Mr.Govind Kumar & Ms. Navlin
Swain, Advocates for the respondent
No.3/MCD.
WP(C) Nos. 3725-26/2011 Page 1 of 32
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. These writ petitions have been preferred under Article 226 of the
Constitution of India to seek the quashing of the notification dated
27.04.2010 issued under Section 4 of the Land Acquisition Act, 1894 (the
Act) and the consequent declaration issued under Section 6 of the Act dated
21.03.2011 in respect of the land comprised in Khasra No.835 min, 836 min,
837 min, 838 min, 839 min and 840 min, admeasuring 6800 sq. yds situated
in the revenue estate of Village Tihar, Tehsil Rajouri Garden, G- Block, Hari
Nagar Extension, Delhi (referred to as the said land). Since the issues
arising in these petitions, and the reliefs sought are the same, we have heard
common arguments and proceed to dispose them of with this common
judgment.
2. W.P.(C.) No.3726/2011 has been preferred by five petitioners, i.e.,
Sh. Rameshwar Gopal, Sh. Ashish Dewan, Smt. Vandana Srivastava, Ms.
Ruby Dewan and Ms. Swati Gopal, who claim to be the legal heirs of late
Sh. Bans Gopal, the original recorded owner of the said land, who is stated
to have died in 1979. Petitioner no.1 Sh. Rameshwar Gopal is the son of
late Sh. Bans Gopal, whereas petitioner nos.2 to 4 and respondent nos.4 and
5 are legal heirs of late Rajeshwar Gopal, deceased son of late Sh. Bans
Gopal. Petitioner no.5 is the daughter of late Sh. Shiveshwar Gopal, who is
also a deceased son of late Sh. Bans Gopal. Respondent no.1 is the Union of
India, respondent no.2 is the GNCT of Delhi and respondent no.3 is the
MCD.
3. W.P.(C.) No.3725/2011 has been preferred by various persons
claiming to be owner of the shops in the structure constructed on land
forming part of Khasra 837 min, 838 min and 839 min having an
approximate area of 621.11 sq. mtrs. from out of the said land.
4. We may note the common case made out by the petitioners in
these two petitions. The petitioners state that late Sh. Bans Gopal was the
exclusive owner of a large tract of land in village Tihar. On a part of his
holding, he developed a colony known as Hari Nagar G-Block. The
building plans submitted by various plot holders were sanctioned on the
basis of the lay out plan of the colony submitted by late Sh. Bans Gopal.
The said land, which is the subject matter of the writ petitions is a part of the
said colony and was earmarked in the lay out plan by the Delhi
Improvement Trust in 1951 for establishing a cinema hall.
5. The petitioners state that out of the said land admeasuring 6800 sq.
yds, in about 800 sq. yds of land, 26 shops were constructed, out of which
16 shops are owned by the petitioners in W.P.(C.) No.3726/2011, whereas
the remaining were sold to third parties. The petitioners state that plans for
raising construction of cinema hall and shops were submitted to the MCD,
which assumed jurisdiction upon its formation in 1957. These plans were
neither rejected, nor any objection was communicated to the same.
Consequently, according to the petitioners, there was deemed sanction of the
building plans. Late Sh. Bans Gopal started raising construction. He
constructed the basement of the building and 26 shops. The compound wall
was also constructed. The shops were let out to tenants - some of which
were subsequently sold. The said shops are being subjected to property tax
by the MCD. When the construction of the cinema building above the plinth
level was being raised, the officers of the MCD and DDA started interfering
with the construction and threatened its demolition. Consequently, late Sh.
Bans Gopal filed Suit No.255/63/260/80, which was subsequently
withdrawn. Thereafter, in 1968 he filed Suit No.698/68 against the
respondent MCD and the DDA to seek a permanent injunction restraining
them from interfering in his right to complete construction of the cinema
building.
6. The said suit as well as the first appeal of late Sh. Bans Gopal were
dismissed on the premise that although sanction was deemed to have been
granted, the actual construction had not commenced within the period of one
year. The petitioners submit that while the aforesaid suit proceedings were
pending, in the year 1979 the Government came out with the policy for
regularization of unauthorized colonies and formulated plans for
regularization of unauthorized colonies. The plans for Hari Nagar group of
colonies including Hari Nagar G-Block were also considered and vide
resolution dated 02.04.1979, the DDA approved the said lay out plan for
Hari Nagar G-Block colony. In the said lay out plan, the area in question
was shown for commercial purpose as local shopping centre (LSC).
7. Against the said order passed in the first appeal, a second appeal
being RSA No.84/80 was preferred. This second appeal of late Shri Bans
Gopal (pursued by his legal heirs) was allowed by judgment dated
30.08.1982 (it is not clear whether the date is 30.08.1982 or 13.08.1982 as
the date of the order as noted in the copy of the order dated 29.08.1992
passed in R.C.A. No.37/1983 by S.N. Dhingra, ADJ, as his Lordship then
was, notes the date as 13.08.1982) and the matter was remanded back to the
First Appellate Court for a fresh decision.
8. After the remand, the first appeal was heard and vide judgment
dated 29.08.1992, it was allowed by Sh. S.N. Dhingra, ADJ, as his Lordship
then was, and the suit was decreed. The finding of fact returned by the First
Appellate Court read as follows:
"....Thus from the above witnesses and record and from other
records as approved on record, it was proved by the
appellant/plaintiff that the site in question was marked for
cinema and it was not earmarked as Central Park. The issue
should have been decided in favour of the plaintiff....."
9. Against the judgment of the learned ADJ in first appeal, the MCD
preferred a second appeal being RSA No.25/1993, which was dismissed by
this Court on 23.03.1998. The MCD sought to place reliance on resolution
no.292 dated 24.06.1960, stated to have been passed under Section 313 of
the Delhi Municipal Corporation Act, 1957 (DMC Act), to claim that the
land in question was meant for a park. The High Court held that the
resolution passed by the standing committee of the MCD under Section 313
of the DMC Act had no force in law. It was held that by virtue of the said
notification, the plot in question could not have been earmarked as a public
park. It was further held that even as per the zonal development plan
prepared by the DDA, the land in question was earmarked for a LSC and the
same was prohibited from being used as a public park. The relevant
observations from this judgment dated 23.03.1998 are extracted
hereinbelow:
"There is no quarrel with the proposition urged by Mr. R.D.
Jolly, counsel for the appellant that a resolution passed by the
Standing Committee of MCD under Section 313 of the Act has a
force of law. His contention that Resolution No.292 dated 24 th
June, 1960 had a force of law, but the moot question for
consideration is whether this Resolution was passed in
accordance with the provision of the Act? The answer is
clearly in the negative.
x x x x x x x x x x
Admittedly, in this case no written application seeking sanction
of lay out plan was submitted by the owner of the land i.e. the
respondent. On the contrary the lay out plan had already been
sanctioned by the then Committee, a competent authority.
Therefore, in the absence of any written application which has
been filed by the respondent to the Commissioner, MCD
seeking sanction of lay out plan of the land the appellant could
not have invoked the provisions of Section 313 of the Act. Even
otherwise as Mr. Mukul Rohtagi, Senior Advocate appearing
for the respondent pointed out that in view of subsequent
Resolution No.48 dated 8th March, 1985 the Resolution No.292
lost its importance and relevance. Item No.21 of the Resolution
No.48 indicates that the Standing Committee on re-examination
of the whole matter came to the conclusion and said that "site
in question does not vest with the MCD and, therefore, no
comments can be offered. The case may be placed before the
Standing Committee for information". Accordingly it was
resolved that since the land belonged to a private person hence
public park could not be carved out from this plot. Thus it is
apparent that even appellant admitted vide Resolution No.48
that since the land belonged to somebody else the MCD could
not have resolved to ear-mark that land for a park. This apart,
the fact on record is fully established that a Competent
Authority had already sanctioned the lay out plan submitted by
the respondent. Therefore, MCD had no authority under the
Act nor under any bye-law to review the already sanctioned lay
out plan suo-moto and impose conditions on the property of a
private person. That apart even the zonal plan of the DDA
prohibits this plot to be a public park. As per zonal plan the
area has been shown to be a shopping centre. The First
Appellate Court at length dealt this aspect though specifically
not mentioned Resolution No.292 but in substance dealt with
the same. It was after considering all aspect of the matter and
also the stand of the appellant, the First Appellate Court came
to the conclusion that land belonged to respondent and
appellant had no right to interfere with the same. Moreover,
lay out plan already stood sanctioned by the Competent
Authority. For the above reasons, I find no merits in the
contention of the appellant."
10. The Supreme Court dismissed the Special Leave Petition
No.11569/1999 of the MCD against the judgment of the learned Single
Judge of this Court on 05.11.2001 holding that since the property belongs to
the petitioners, therefore, the MCD has no right to prevent the petitioners
from using the same in accordance with law.
11. The petitioners submit that in the meantime, a general notification
under Section 4 of the Act was issued on 13.11.1959 covering a large tract
of land admeasuring 340.70 acres for the planned development of Delhi.
The land in question also fell within the notified boundaries. The
declaration under Section 6 was issued on 06.11.1969. However, no award
was made and no steps were taken in respect of the land belonging to Sh.
Bans Gopal which included the land in question. The petitioners state that
upon exertion of political pressure, notices under Section 9 and 10 of the Act
were issued on 14.03.1986.
12. The land owners filed W.P.(C.) No.1298/1986 upon receipt of the
said notices under Section 9 and 10 of the Act to challenge the acquisition
proceedings. During the pendency of the said writ petition, the MCD sought
to pass a fresh resolution being resolution no.231 on 18.05.1987 to retain the
said land as a park instead of permitting its use for a LSC. The aforesaid
writ petition was dismissed as withdrawn on 20.02.2009 when it transpired
that the acquisition proceedings had lapsed. The Land Acquisition Collector
filed an affidavit in that writ petition stating that the land in question is being
notified afresh for acquisition.
13. The petitioners in both the writ petitions have alleged that there
was an attempt to grab the land in question by persons belonging to a
minority community to set up a religious place of worship. That attempt
failed in litigation which was contested right upto the Supreme Court. The
petitioners allege that thereafter, a municipal councilor and elected mayor of
Delhi started using his influence by demanding that the land in question be
converted into a park.
14. The petitioners submit that the impugned notification under
Section 4 of the Act was issued on 27.04.2010 which was published in the
newspaper on 30.04.2010.
15. The petitioners filed their objections to the said notification under
Section 5A of the Act stating that the lay out plan of the colony has been
duly approved by the erstwhile Delhi Improvement Trust showing the user
of the land in question as commercial. The shops had been constructed prior
to the year 1959. The layout plan of the colony has been duly approved by
the DDA on 02.04.1979 and the land user had been shown as LSC. It was
stated that the said land had not been shown in the legally sanctioned lay out
plan as a park. It was further stated that in the layout plan, ten parks had
been shown to be in existence in the vicinity. The said parks had been
allowed to be encroached upon and now the land in question was sought to
be acquired ostensibly for setting up a public park. The petitioners narrated
the history of the earlier litigation undertaken by them and the findings
returned by the Courts which had attained finality. Specific reliance was
placed on the judgments of the First Appellate Court dated 29.08.1992 of
Shri S.N. Dhingra, ADJ, and of this Court in R.S.A. No. 25/1993 dated
23.03.1998. They stated that the impugned notification under Section 4 was
contrary to the lay out plan and was, therefore, liable to be withdrawn.
16. The petitioners further submit that they were heard through
counsel by the AMD/Land Acquisition Collector, West Distt., Rampura,
Delhi. The LAC was shown the lay out plan of the colony which showed
the earmarked user of the said land as LSC. The LAC was also shown the
judgment rendered in RSA No.25/1993 dated 23.03.1998. Inspite of the
same, and without consideration of the objections preferred by the
petitioners, the impugned declaration under Section 6 of the Act was issued
on 21.03.2011, leading to the filing of the present writ petitions.
17. We have heard the submissions of Mr. Sumeet Bansal, Advocate
who appears for the petitioners in W.P(C) 3725/2011, Mr.Ravinder Sethi,
Senior Advocate who appears for the petitioners in W.P(C) 3726/2011 and
the learned counsels for the respondents, who appear in both these cases led
by Mr. Sanjay Poddar, Senior Advocate.
18. The submission of learned counsels for the petitioners, firstly, is
that the issuance of the notification dated 27.04.2010 under Section 4 of the
Act itself is laconic and vitiated on account of the fact that the same
proceeded on the fundamentally erroneous premise that the said land was
earmarked for a park. This misstatement was made before the Competent
Authority, namely, the Lt. Governor who granted approval for issuance of
notification under Section 4 of the Act on the basis of the resolution passed
by the MCD seeking to resolve to use the land in question as a park, even
though this Court had in clear terms held in its decision rendered in RSA
25/1993 dated 23.03.1998, that the Resolution No.292 dated 24.06.1960,
relied upon by the MCD had not been passed in accordance with the
provisions of the DMC Act. It is argued that the Court had further held that
the Standing Committee of the MCD had resolved vide Resolution No.48
dated 08.03.1985 that the land in question does not vest with the MCD and,
therefore, the MCD could not have resolved to earmark the same for the
purpose of setting up of a park. The Court had also held that the MCD had
no authority under the DMC Act nor under any byelaw to review the already
sanctioned lay out plan suo moto and impose conditions on the owners of the
land. The zonal plan prepared by the DDA earmarked the said land for
setting up a LSC and, consequently, prohibits the user of the said land as
public park.
19. It is further submitted that placing of wrong material before the
Hon'ble Lieutenant Governor for his consideration whether, or not, to direct
issuance of a notification under Section 4 of the Act vitiates the decision
taken by the Hon'ble Lieutenant Governor as he was mislead into believing
that the land in question was validly earmarked for the setting up of a
Central Park. It is argued that the Hon'ble Lieutenant Governor was not
apprised of the fact that a portion of the land in question already stands
constructed as is evident from the photographs filed on record, particularly
at page 91 of W.P.(C.) No. 3725/2011, which not only shows the
construction already existing, but also the factum of its commercial user.
20. It is further submitted by the petitioners that their objections under
Section 5A of the Act were perfunctorily dealt with, even though they had
specifically placed reliance on the earlier decisions of the First Appellate
Court; of this Court in second appeal, and; of the Hon'ble Supreme Court, as
aforesaid. In this regard attention has been drawn to the report prepared by
the Collector on 25.11.2010, which merely states that following the mandate
of Section 5A of the Act, a hearing in person was given to all the interested
persons who had filed the objections and that, in his opinion since the
acquisition is being made on the request of a Government agency, i.e., the
MCD for the purpose of a Central Park, it is recommended that notification
under Section 6 of the Act may be issued and acquisition proceedings may
be allowed to be continued. It is submitted that there is no consideration of
the specific objections raised by the petitioners, as aforesaid, before the
ADM/LAC (West).
21. Our attention has also been drawn to the already sanctioned layout
plan stated to have been approved by the Delhi Improvement Trust in the
early 1950's, which showed the plot in question as a site for Cinema with
shops.
22. The petitioners have also drawn our attention to documents
marked A-3 filed along with the counter-affidavit of MCD in W.P.(C.) No.
3725/2011 at page 116 of the record, which appears to be Resolution No.182
of the Standing Committee of the MCD. It is argued that this Resolution
also proceeds on a wrong premise - describing the status of the said land as
a site earmarked for a park as per the approved regularization plan of Hari
Nagar approved by the MCD vide Resolution No.292 dated 24.04.1960. It
is submitted that the aforesaid is contrary to and in the teeth of the decision
of this Court in R.S.A. No.25/1993. It is also pointed out that this
Resolution ignores the fact, despite noticing the same, that the DDA
changed the use of the site to LSC. The recommendation was made by the
MCD to the Land & Building Department for acquisition of the said land on
the premise that the said land had been denotified under the Delhi
Development Act and was no longer a development area and had reverted
back to the MCD. It was claimed that the MCD had passed a Resolution
No. 231 dated 10.03.1987 in its Standing Committee, stating that the land
use was originally earmarked for "Central Park" and that it was resolved to
retain the same as a park instead of a LSC and that the land be developed as
a park.
23. It is argued by the petitioners that mere passing of the Resolution
No.231 dated 10.03.1987 by the MCD was of no avail, since the MCD had
no authority or competence to act contrary to the judgment rendered by this
Court in R.S.A. No. 25/1993 which had been approved by the Supreme
Court on 05.11.2001.
24. The petitioners have sought to place reliance on various decisions,
including the decisions of the Supreme Court in Hindustan Petroleum
Corporation Limited Vs. Darius Shapur Chennai & Others, JT 2005 (8)
SC 470; Raghbir Singh Sehrawat Vs. State of Haryana & Others, (2012) 1
SCC 792; and Kamal Trading (P.) Ltd. Vs. State of West Bengal & Others,
(2012) 2 SCC 25.
25. The petitions have been opposed primarily by the MCD, arrayed as
respondent No.4 in W.P.(C.) No. 3725/2011 and respondent No.3 in
W.P.(C.) No. 3726/2011.
26. The first submission of Mr. Poddar is that the petitioners in
W.P.(C.) No. 3725/2011 claim ownership of various shops, but they have
not filed any document of ownership before this Court. He, therefore, seeks
to question their locus standi to file the said writ petition. In this regard,
reliance is placed on Rajinder Kishan Gupta & Another Vs. Union of India
& Others, (2010) 9 SCC 46.
27. The further submission of Mr. Poddar is that the judgment of this
Court in R.S.A. No.25/1993 does not pronounce on the validity of the
resolutions passed by the MCD converting the earmarked user of the land in
question as "Central Park". He, therefore, submits that this judgment cannot
operate as res judicata and would not bind the respondent-MCD from
changing the user of the land in question to a public park. In support of his
submission, he placed reliance on Sajjadanashin Sayed MD. B.E. (D) By
LRS Vs. Musa Dadabhai Ummer & Others, (2000) 3 SCC 350. He submits
that, in any event, the Resolution No. 231 dated 10.03.1987 has never been
assailed by the petitioners and this resolution has not been pronounced upon
by the Court.
28. Mr. Poddar has also placed reliance on the judgment of the
Division Bench of this Court in The Radha Soami Satsang Beas & Another
Vs. The Delhi Administration & Another rendered in W.P.(C.)
No.1282/1978 on 15.10.2004, to submit that since the Resolution No. 231
dated 10.03.1987 is valid, it has force of law and cannot be brushed aside.
The same has to be given its full legal effect.
29. The respondents, lastly, argued that since the land in question is
required for a public purpose, namely for development of a public
park/Central Park, this Court should not interfere with the acquisition
proceedings in larger public interest.
30. In their rejoinder, the petitioners have submitted that Resolution
No.231 dated 10.03.1987 suffers from the same lacuna as Resolution
No.292 dated 24.06.1960, whereby the MCD had earlier sought to approve
the layout plan of Hari Nagar Colony showing the land in question as a park.
The said Resolution No. 292 dated 24.06.1960 had been considered by the
Court in R.S.A. No. 25/1993 and it was found to be of no avail.
31. We may first deal with the objection raised by the respondent-
MCD to the maintainability of the writ petition being W.P.(C.)
No.3725/2011 by the various persons, who claim to be shop owners on the
constructed portion of the said land.
32. There can be no quarrel with the proposition that the petitioners
should establish their interest in the property, of which acquisition
proceedings are challenged by them. However, one finds from a perusal of
the counter-affidavit of respondent No.4/MCD in W.P.(C.) No. 3725/2011
that no such plea has been raised by them. Had such an objection been
raised, the petitioners in this petition would have had the opportunity to
place their documents of title on record. In fact, there is no denial of their
claim to title, as made by them in the writ petition. This objection loses
force even for the reason that the owners - who are the heirs of late Sh. Bans
Gopal - the original owner of the land, have also simultaneously challenged
the acquisition proceedings by filing their own writ petition being W.P.(C.)
No. 3726/2011, which is also being dealt with simultaneously.
Consequently, this objection of the respondents is rejected.
33. The issue which arises for our consideration is whether the
notification dated 27.04.2010 issued under Section 4 of the Act, and the
declaration issued under Section 6 of the Act in respect of the said land
suffer from any legal infirmity and, if so, the consequence thereof.
34. We called for the original file of the Land Acquisition Branch of
the Land & Building Department and have perused the same. From the facts
as narrated hereinabove and also from the original record it appears that on
07.07.2004 the Administrative Officer, Land & Estate Department of the
MCD addressed a communication to the Secretary (L&B) requesting the
latter to start the acquisition proceedings in respect of the said land. Along
with this communication the copy of the Resolution No.231 dated
18.03.1987 was also enclosed, which was discussed as Item No.210. The
relevant extract from the said Resolution reads as follows:
"Whereas in the regularised plan of Hari Nagar „G‟ block a
site for a park abutting Jail Road was provided in the Plan
approved in 1961-62.
Whereas in the revised regularisation plan the land use
of the site was changed from park to Local Shopping.
Whereas this is the only site available for development of
park in the entire area and there is no other land available for
this purpose.
Whereas the site is still lying vacant, the standing
committee resolves that the land use of the site be restored as
part as per the original approved regularisation plan and the
land developed as a park.
The case has been looked in and it is observed that the
site in question was earmarked for central park in the
regularised plan approved by the Standing Committee of the
MCD vide its Res. No. 292 dt. 24.6.1960. The plan was
subsequently revised by the DDA because the area in the
meanwhile was declared as "Development Area" of the DDA
and in the revised regularisation plan approved by the DDA
vide its Res. No. 23 dt. 2.4.1979 the site is shown for local
shopping. The group of Hari Nagar „G‟ Block, Shiv Nagar,
Virender Nagar Colonies has now been notified from the
„Development Area‟ of the DDA vide notification No.
F.7A(11)/79-L&B/LA(P)/15457 dt. 10.5.1979 and these
colonies are now in the MCD jurisdiction. In the Zonal Plan
the land use of this site is shown as Residential and parks are
permissible use in Residential area. From planning point of
view, there is no objection if the site as originally earmarked
for central park be retained as park instead of local shopping.
The above report is submitted to the Standing Committee.
Resolution Having considered the position brought out by
No. 231 the Commissioner in his letter No.
F.33/TP/750/C&C dated 26.2.1987, resolved
that the site as originally earmarked for central
park be retained as park instead of local
shopping and the land be developed as a
park."
35. It would, therefore, be seen that the aforesaid Resolution proceeds
on the basis that in the regularization plan of Hari Nagar G-Block, "a site
for a park abetting the Jail Road was provided and approved in 1961-62".
However, the details of the so-called site, namely the field/Khasra Nos,
directions/boundaries or even the names of the owners are conspicuously
missing. It is, therefore, not clear whether this Resolution refers to the said
land, or to some other land in the area.
36. The Resolution goes on to observe that in the revised
regularization plan prepared by the DDA, the use of the site was changed
from park to LSC. We may note that the MCD has failed to produce before
us any approved plan of 1961-62 vintage to show that the said land was
earmarked or approved for setting up of a park. We may also note that the
positive case of the petitioners is that the Delhi Improvement Trust had
approved the initial plan, even before the so-called approval of the MCD,
wherein the user of the said land was earmarked as for a Cinema and shops.
It is also noteworthy that the Resolution No. 231 dated 18.03.1987 is
blissfully silent about the legal proceedings which had already been
undertaken between late Sh. Bans Gopal and his successors, namely the
petitioners in W.P.(C.) No. 3726/2011, and the MCD, and the findings
returned by the Court in those proceedings.
37. Firstly, the First Appellate Court, namely Sh. S.N. Dhingra, ADJ
had returned the finding that the site in question was earmarked for Cinema
and it was not earmarked as a Central Park. Even more importantly, this
Court in its decision dated 23.03.1998 in R.S.A. No. 25/1993 had squarely
held that Resolution No. 292 dated 24.06.1960 had not been passed in
accordance with the provisions of the DMC Act. Moreover, the MCD itself
has passed the subsequent Resolution No.48 dated 08.03.1985 stating that on
re-examination of the whole matter, it had come to the conclusion that the
site in question does not vest with the Standing Committee of the MCD and,
therefore, no comments could be offered. Hence, it was resolved that since
the land belonged to a private person, no public park could be carved out
from the said land. This Court had already held that the MCD had no
authority under the Act or any other bye-law to review the already
sanctioned layout suo moto and impose conditions on the owners in respect
of the said land. That apart, even the zonal plan of the DDA prohibits the
user of the said land as a public park, wherein it had been shown as a LSC.
38. Consequently, when the proposal for acquisition of the said land
was sent to the Land & Building Department, it was founded upon the
erroneous premise that there was a valid and legal resolution passed by the
MCD way back on 24.06.1960 in earmarking the said land as a
public/Central Park, which was not the case.
39. We may here itself deal with the submission of Mr. Poddar that the
resolutions passed by the MCD, on which it placed reliance have not been
challenged by the petitioners. The respondent-MCD had sought to place
reliance on its Resolution No. 292 dated 24.06.1960 to defend its action of
not permitting late Sh. Bans Gopal to raise construction of a Cinema Hall
over the said land. This defence of the MCD was rejected by the Court by
squarely holding that the said Resolution had not been legally passed by the
MCD and that it had no authority to pass such a Resolution. It was not
necessary in these circumstances for the petitioners, or even late Sh. Bans
Gopal, to have specifically assailed the Resolution No. 292 dated
24.06.1960 in separate independent proceedings. The finding and
declaration of the Court, as aforesaid, was returned in litigation inter-partes
and would bind the MCD as it has attained finality. Pertinently, the
judgment in the aforesaid R.S.A. was rendered on 23.03.1998, whereas
Resolution No. 231 had already been passed as early as on 18.03.1987, yet
the MCD had not sought to place reliance thereon before the Court. We do
not find merit in the respondent's submission that the validity of the
Resolution No. 292 dated 24.06.1960 was not directly and substantially in
issue before the Court deciding R.S.A. No.25/1993, or that it was only
collaterally or incidentally in issue in those proceedings. The defence,
founded upon legality and validity of the Resolution No. 292 dated
24.06.1960, was raised by the respondent-MCD itself with a view to defend
its action in not permitting late Sh. Bans Gopal to raise construction of a
Cinema Hall. Consequently, the MCD had itself invited the Courts verdict
on the legality and validity of its said Resolution. The decision in
Sajjadanashin Sayed (supra), therefore, in our view, is of no avail to the
respondent.
40. The repeated passing of resolutions by the MCD merely reiterating
the earlier Resolution of 24.06.1960 would not lend validity to the said
original resolution or even the later resolution. Also the Resolution No. 231
dated 18.03.1987 is in the teeth of the judgment of this Court in R.S.A.
No.25/1993, the said resolution is bad and laconic for the same reasons for
which this Court declared Resolution No. 292 dated 24.06.1960 as invalid.
41. It is, therefore, clear that the Land & Building Department was
mislead into believing that there it was a legally valid and binding
Resolution of the MCD dated 24.06.1960, which was sought to be reiterated
on 18.03.1987 after the said had been denotified and was no longer
development area within the control of the DDA. Clearly, the decision of
the learned ADJ, as aforesaid, and of this Court were not brought to the
notice of the Land & Building Department. The file of the Land & Building
Department, as produced, does not show the consideration of the aforesaid
aspects even by the Competent Authority, namely the Hon'ble Lieutenant
Governor when he gave his approval to the issuance of notification under
Section 4 of the Act on 07.04.2010.
42. We fail to appreciate the purpose of citing the judgment of the
Division Bench of this Court in The Radha Soami Satsang Beas & Another
(supra). In our view, the same does not answer the issues raised in the
present writ petitions in any manner.
43. The Supreme Court in Raja Anand Brahma Shah Vs. The State
of U.P. & Others, AIR 1967 SC 1081, while dealing with a challenge to
issuance of a notification under Section 17 of the Act, quashed the same on
the ground that the same had been issued in ignorance of the correct factual
position by the Competent Authority. The Supreme Court in paragraph 8 of
the report held as follows:
" 8. It is true that the opinion of the State Government which is
a condition for the exercise of the power under Section 17(4) of
the Act, is subjective and a court cannot normally enquire
whether there were sufficient grounds or justification of the
opinion formed by the State Government under Section 17(4).
The legal position has been explained by the Judicial
Committee in King Emperor v. Shibnath Banerjee [ 72 IA 241]
and by this Court in a recent case -- Jaichand Lal Sethia v.
State of West Bengal [ Criminal Appeal No 110 of 1966 --
decided on July 27, 1966] But even though the power of the
State Government has been formulated under Section 17(4) of
the Act in subjective terms the expression of opinion of the State
Government can be challenged as ultra vires in a court of law if
it could be shown that the State Government never applied it
mind to the matter or that the action of the State Government is
mala fide. If therefore in a case the land under acquisition is
not actually waste or arable land but the State Government has
formed the opinion that the provisions of sub-section (1) of
Section 17 are applicable, the court may legitimately draw an
inference that the State Government did not honestly form that
opinion or that in forming that opinion the State Government
did not apply its mind to the relevant facts bearing on the
question at issue. It follows therefore that the notification of the
State Government under Section 17(4) of the Act directing that
the provisions of Section 5-A shall not apply to the land is ultra
vires. The view that we have expressed is borne out by the
decision of the Judicial Committee in Estate and Trust Agencies
Ltd.v. Singapore Improvement Trust [ (1937) AC 898] in which
a declaration made by the Improvement Trust of Singapore
under Section 57 of the Singapore Improvement Ordinance
1927 that the appellants, property was in an insanitary
condition and therefore liable to be demolished was challenged.
Section 57 of the Ordinance stated as follows:
"57. Whenever it appears to the Board that within
its administrative area any building which is used
or is intended or is likely to be used as a dwelling
place is of such a construction or is in such a
condition as to be unfit for human habitation, the
Board may by resolution declare such building to
be insanitary."
The Judicial Committee set aside the declaration of the
Improvement Trust on two grounds: (1) that though it was
made in exercise of an administrative function and in good
faith, the power was limited by the terms of the said Ordinance
and therefore the declaration was liable to a challenge if the
authority stepped beyond those terms, and (2) that the ground
on which it was made was other than the one set out in the
Ordinance. In another case -- Ross Clunis v. Papadopoullos
[(1958) 1 WLR 546] ---- the appellant challenged an order of
collective fine passed under Regulation 3 of the Cyprus
Emergency Powers (Collective Punishment) Regulations, 1955
which provided that if an offence was committed within any
area of the colony and the Commissioner "has reason to
believe" that all or any of the inhabitants of that area failed to
take reasonable steps to prevent it and to render assistance to
discover the offender or offenders it would be lawful for the
Commissioner with the approval of the Governor to levy a
collective fine after holding an inquiry in such manner as he
thinks proper subject to satisfying himself that the inhabitants
of the area had been given an adequate opportunity of
understanding the subject-matter of the inquiry and making
representations thereon. It was contended on behalf of the
appellant that the only duty cast on the Commissioner was to
satisfy himself of the facts set out in the Regulation, that the test
was a subjective one and that the statement as to the
satisfaction in his affidavit was a complete answer to the
contention of the respondents. In rejecting the contention the
Judicial Committee observed as follows:
"Their Lordships feel the force of this argument,
but they think that if it could be shown that there
were no grounds upon which the Commissioner
could be so satisfied, a court might infer either that
he did not honestly form that view or that in
forming it he could not have applied his mind to
the relevant facts."
In another case -- R.v. Austratian Stevedoring Industry Board
[(1952) 88 CLR 100] -- the High Court of Australia was called
upon to review the conduct of a board empowered to cancel the
registration of an employer of dock labour if "satisfied" that he
was unfit to be registered or had so acted as to interfere with
the proper performance of stevedoring work. It was held by the
High Court that it was entitled to award prohibition against the
board if the board was acting without any evidence to support
the facts upon which its jurisdiction depended, or if it was
adopting an erroneous test of the employer's liability to
cancellation of his registration, or if it appeared likely to go
outside the scope of its statutory discretion."
44. For the aforesaid reasons, we are of the view that the notification
issued under Section 4 of the Act cannot be sustained, it having been issued
by the Hon'ble Lieutenant Governor on the basis of incorrect and misleading
information. Had the Hon'ble Lieutenant Governor been provided with the
complete history relating to the earlier litigation between the owners and the
MCD in respect of the said land, wherein authoritative pronouncement had
been made by the Court regarding the resolutions passed by the MCD
(which were sought to be relied upon by the MCD to recommend acquisition
of the said land), the Hon'ble Lieutenant Governor may, or may not, have
arrived at the same conclusion with regard to the issuance of the impugned
notification under Section 4 of the Act. Since the relevant and germane
material and evidence has escaped the consideration of the Hon'ble
Lieutenant Governor in the decision making process, the decision of the
Hon'ble Lieutenant Governor to approve issuance of the notification under
Section 4 of the Act cannot be sustained and is, accordingly, quashed.
45. Since the impugned notification under Section 4 of the Act is
unsustainable, consequently, further proceedings undertaken including the
issuance of the declaration under Section 6 of the Act in respect of the said
land must also fail. However, we have even otherwise independently
examined the submission of the petitioners that their objections under
Section 5A of the Act have not been duly considered and that the Land
Acquisition Collector has made a perfunctory report to the Competent
Authority, i.e., the Lieutenant Governor in this regard.
46. The submission of the petitioners is that they were granted hearing
by the LAC(West)/ADM on their objections and that they had placed before
him the relevant material, as aforesaid. However, a perusal of the report
prepared by the LAC(West)/ADM dated 25.11.2010 shows that the same is
cryptic and apart from stating that he has followed the mandate of Section
5A of the Act of granting a hearing in person to the interested persons, who
had filed their objections, it does not deal with the objections. As to what
these objections are has not even been taken note of by the
LAC(West)/ADM in his aforesaid communication. The least that was
expected of the LAC(West)/ADM was that he should have taken note of the
objections raised by the petitioners/interested persons and should have dealt
with the same by giving his opinion thereon while recommending that the
said land be acquired. Grant of a hearing of objections raised under Section
5A of the Act is not a mere empty formality. Vital rights of persons whose
land is sought to be acquired are adversely affected as the acquisition of land
is a compulsory acquisition and not a voluntary bipartite agreement between
the land owners and the land acquiring authority. The right to file objections
under Section 5A and to be heard on those objections is the only safeguard
provided in the Act to the land owners to effectually oppose the proposal to
acquire their land before a decision is made by the Competent Authority
whether, or not, to acquire the land.
47. We have perused the original record produced before us and even
the said record is blissfully silent about the objections raised by the
petitioners to the proposed acquisition of their land and the reasons why the
LAC recommended the acquisition of the land in the face of such objections.
The mere recital of the factum that the acquisition of land has been sought
by a public authority for establishment of a Central Park is not good enough
a reason to make a recommendation as the said public purpose was known to
the LAC even before the filing of the objections and grant of hearing to the
land owners. If that by itself were to be enough, there was no purpose of
inviting objections under Section 5A of the Act and granting a hearing as
that would mean that the fate of the land owners was already sealed when
the notification under Section 4 of the Act was issued, and that the right to
file objections and seek a hearing before the LAC was a mere formality.
The focus of the LAC, once he has granted a hearing on the objections to the
land owners, should have been on the objections. Unfortunately, that has
not happened in the present case. We are, therefore, of the view that the
LAC(West)/ADM has dealt with the objections of the petitioners in the most
perfunctory and casual manner, and his recommendation has been made
without any application of mind.
48. Unfortunately, a perusal of the record shows that before arriving at
his decision to grant his approval to the issuance of a declaration under
Section 6 of the Act, the Hon'ble Lieutenant Governor did not
independently examine the objections of the petitioners as he has merely
penned down his signatures on 05.03.2011 in token of grant of approval to
the proposal for issuance of notification under Section 6 of the Act without
disclosing any consideration or reasons therefor.
49. In Hindustan Petroleum Corporation Limited (supra), the
Supreme Court considered the scope and importance of the right conferred
on the land owners under Section 5A of the Act. The Supreme Court
observed:
"7. It is not in dispute that Section 5-A of the Act confers a
valuable right in favour of a person whose lands are sought to
be acquired. Having regard to the provisions contained in
Article 300-A of the Constitution, the State in exercise of its
power of "eminent domain" may interfere with the right of
property of a person by acquiring the same but the same must
be for a public purpose and reasonable compensation therefor
must be paid.
x x x x x x x x x x
9. The conclusiveness contained in Section 6 of the Act
indisputably is attached to a need as also to the purpose and in
this regard ordinarily, the jurisdiction of the court is limited but
it is equally true that when an opportunity of being heard has
expressly been conferred by a statute, the same must
scrupulously be complied with. For the said purpose, Sections
4, 5-A and 6 of the Act must be read conjointly. The court in a
case, where there has been total non-compliance or substantial
non-compliance with the provisions of Section 5-A of the Act,
cannot fold its hands and refuse to grant a relief to the writ
petitioner. Sub-section (3) of Section 6 of the Act renders a
declaration to be a conclusive evidence. But when the decision-
making process itself is in question, the power of judicial
review can be exercised by the court in the event the order
impugned suffers from well-known principles viz. illegality,
irrationality and procedural impropriety. Moreover, when a
statutory authority exercises such enormous power it must be
done in a fair and reasonable manner.
10. It is trite that hearing given to a person must be an effective
one and not a mere formality. Formation of opinion as regards
the public purpose as also suitability thereof must be preceded
by application of mind as regards consideration of relevant
factors and rejection of irrelevant ones. The State in its
decision-making process must not commit any misdirection in
law. It is also not in dispute that Section 5-A of the Act confers
a valuable important right and having regard to the provisions
contained in Article 300-A of the Constitution it has been held
to be akin to a fundamental right."
50. The Supreme Court referred to its earlier decisions in various cases
in this decision and went on to observe:
"18. Section 5-A of the Act is in two parts. Upon receipt of
objections, the Collector is required to make such further
enquiry as he may think necessary whereupon he must submit a
report to the appropriate Government in respect of the land
which is the subject-matter of notification under Section 4(1) of
the Act. The said report would also contain recommendations
on the objections filed by the owner of the land. He is required
to forward the records of the proceedings held by him together
with the report. On receipt of such a report together with the
records of the case, the Government is to render a decision
thereupon. It is now well settled in view of a catena of decisions
that the declaration made under Section 6 of the Act need not
contain any reason. (See Kalumiya Karimmiya v. State of
Gujarat [(1977) 1 SCC 715] and Delhi Admn. v. Gurdip Singh
Uban [(2000) 7 SCC 296] .)
19. However, considerations of the objections by the owner of
the land and the acceptance of the recommendations by the
Government, it is trite, must precede a proper application of
mind on the part of the Government. As and when a person
aggrieved questions the decision-making process, the court in
order to satisfy itself as to whether one or more grounds for
judicial review exist, may call for the records whereupon such
records must be produced.
x x x x x x x x x x
21. In view of the fact that the action required to be taken by the
State Government is distinct and different from the action
required to be taken by the Collector; when the ultimate order
is in question it was for the State to satisfy the court about the
validity thereof and for the said purpose the counter-affidavit
filed on behalf of a Collector cannot be held to be sufficient
compliance with the requirements of law. The job of the
Collector in terms of Section 5-A would be over once he
submits his report. The Land Acquisition Collector would not
know the contents of the proceedings before the State and,
therefore, he would be incompetent to affirm an affidavit on its
behalf.
22. Furthermore, the State is required to apply its mind not only
on the objections filed by the owner of the land but also on the
report which is submitted by the Collector upon making other
and further enquiries therefor as also the recommendations
made by him in that behalf. The State Government may further
inquire into the matter, if any case is made out therefor, for
arriving at its own satisfaction that it is necessary to deprive a
citizen of his right to property. It is in that situation that
production of records by the State is necessary.
x x x x x x x x x x
32. Although assignment of reasons is the part of principles of
natural justice, necessity thereof may be taken away by a
statute either expressly or by necessary implication. A
declaration contained in a notification issued under Section 6
of the Act need not contain any reason but such a notification
must precede the decision of the appropriate Government.
When a decision is required to be taken after giving an
opportunity of hearing to a person who may suffer civil or evil
consequences by reason thereof, the same would mean an
effective hearing."
51. Unfortunately, the aforesaid dictum of the Supreme Court has been
followed only in breach rather than in compliance in the present case.
52. In Raghbir Singh Sehrawat (supra), the Supreme Court held that
the Land Acquisition Collector should give a fair opportunity of hearing to
the objector and "objectively consider his plea against the acquisition of
land". Only thereafter, he should make recommendations supported by
brief reasons as to why the particular piece of land should or should not be
acquired and whether or not the plea put forward by the objector merits
acceptance. The recommendations of the Collector must reflect objective
application of mind to the objections filed by the land owners and other
interested persons.
53. As aforesaid, in the present case, the recommendation made by the
LAC (West) is completely devoid of any application of mind. Neither there
is any objective consideration of the pleas of the land owners against the
acquisition of their land nor is the recommendation supported by reasons -
brief or otherwise, as to why the said land should be acquired. As there is
no reference to the pleas put forward by the objectors/petitioners there is,
obviously, no question of consideration of the aspect whether the said plea
merit acceptance. The recommendation made by the LAC (West) betrays
lack of objective application of mind to the objections of the land
owners/interested persons.
54. Kamal Trading (P.) Ltd. (supra) is an example of a case where,
once again, the objections of the objectors were dealt with perfunctorily and
without application of mind. The manner in which the LAC dealt with the
objections, and the comment of the Supreme Court are found in the paras 27
& 28 of the judgment, which read as follows:
"27. The paragraphs which contain the submissions and the
so-called reasons of the Second Land Acquisition Officer need
to be quoted:
"Heard the officers present from the requiring
body. They vehemently protested as regards the
statements contained in this particular letter. Their
submissions in short that the statements made by
the interested persons are all fake, arbitrary and
groundless. They simply endeavour to oust the
requiring body by hook or crook in order to grab
this office space so that in turn can realise higher
rent. Further, the purpose of the requiring body is
very much public-oriented and if it is not acquired
they will suffer immensely. They further submitted
that acquisition proceeding to be completed as
quickly as possible inasmuch as they have the
time-bound programmes to implement it as per
guidelines of the Government for the greater
interest of public.
In view of these circumstances and for greater
interest of the public, the submissions made by the
interested persons by their letter dated 8-9-1997
are overruled."
28. By no stretch of imagination, can it be said that the Second
Land Acquisition Officer had applied his mind to the objections
raised by the appellant. The abovequoted paragraphs are bereft
of any recommendations. The Second Land Acquisition Officer
has only reproduced the contentions of the officers of the
acquiring body. The objections taken by the appellants are
rejected on a very vague ground. Mere use of the words "for
the greater interest of public" does not lend the report the
character of a report made after application of mind. Though in
our opinion, the declaration under Section 6 of the LA Act must
be set aside because the appellant was not given hearing as
contemplated under Section 5-A(2) of the LA Act, which is the
appellant's substantive right, we must record that in the facts of
this case, we are totally dissatisfied with the report submitted
by the Second Land Acquisition Officer. His report is utterly
laconic and bereft of any recommendations. He was not
expected to write a detailed report but, his report, however
brief, should have reflected application of mind. Needless to say
that as to which report made under Section 5-A(2) could be
said to be a report disclosing application of mind will depend
on the facts and circumstances of each case."
55. For all the aforesaid reasons, we are of the view that the impugned
declaration under Section 6 of the Act dated 21.03.2011 is wholly
unsustainable and we hereby quash the same.
56. Consequently, both the writ petitions are allowed and the rule is
made absolute. The impugned notification dated 27.04.2010 issued under
Section 4 of the Act and the declaration dated 21.03.2011 issued under
Section 6 of the Act in respect of the said land are quashed. The petitioners
in each of these petitions shall be entitled to Costs quantified at Rs.20,000/-
each to be paid by the respondent-MCD. The Costs be paid within four
weeks.
(VIPIN SANGHI)
JUDGE
(SANJAY KISHAN KAUL)
JUDGE
DECEMBER 05, 2012 /SR /'BSR'
