Gouttam Chhabra & Anr vs Governor Of Delhi & Ors
2013 Latest Caselaw 3757 Del

$~34
*      IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                                 DECIDED ON: 26.08.2013



+      W.P.(C) 4729/2013, C.M. APPL. 10793/2013 & 10794/2013

       GOUTTAM CHHABRA & ANR                       ..... Petitioners
                   Through : Ms. Esha Mazumdar with
                   Sh. Setu Niket, Advocates.

                            versus

       GOVERNOR OF DELHI & ORS                    ..... Respondents

Through : Sh. C. Parkash, Advocate, for R-1.

Ms. Jhum Jhum Sarkar, Advocate, for R-3.

Sh. Ajay Verma, Advocate, for DDA.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. The petitioners in these proceedings under Article 226 question the land acquisition proceedings, issued by the respondents, especially the one dated 20.03.2013, publishing the final declaration under Section 6 of the Land Acquisition Act (hereafter referred to as "the Act").

2. The petitioners claim to be owners of Khasra Nos. 6//14/2, 15/1, 6/17 min and 17 min, Village Shahbad Daulatpur (hereafter

WP (C) 4729/2013 Page 1 referred to as "suit lands"). These were included in the notification, proposing to acquire large tracts of land, for a public purpose, i.e. Rohini Residential Scheme on 27.10.1999. The respondents issued a final declaration under Sections 6 and 17 of the Act on 03.04.2000. At the same time, they invoked the "urgency clause" and sought to exempt operation of Section 5A. The respondents' claim of the acquisition being for an urgent purpose was questioned in Writ proceedings by other land owners. The challenge was unsuccessful. Eventually, the land owners appealed to the Supreme Court by Special Leave. The matter remained pending before the Supreme Court, which, eventually on 27.04.2012 allowed the appeal, holding that no valid grounds for dispensing with Section 5A hearing were made out. The Court, however, left it open to the respondent administration to continue with the acquisition proceedings from the stage of Section 4. Consequently, the respondents proceeded to issue notices to such of the land owners who had approached the Courts and after hearing them, issued a final declaration which is now the subject matter of challenge.

3. The petitioners have disclosed that during the interregnum, i.e. the pendency of the proceedings of the Supreme Court, at the behest of land owners, the Land Acquisition Collector (LAC) had in their (i.e. the writ petitioners') cases, proceeded to frame and publish the award on 01.11.2002. The petitioners - as was noticed earlier - had neither challenged the acquisition proceedings nor the dispensing with requirement of Section 5A. They felt aggrieved by determination of compensation @ `12,16,000/- per acre and sought for review, which

WP (C) 4729/2013 Page 2 is pending consideration before the concerned District Court. The petitioners have also disclosed to this Court that they applied for allotment of alternative land in tune with the prevalent policies at the time of such acquisition. Apparently, the application is pending as also the reference.

4. The petitioners contend that the respondents' inaction in completing the acquisition has altered the situation. Learned counsel points out that the utilization of some of the lands acquired originally for the purpose of a Residential Scheme by diversion, i.e. construction of malls and shopping complexes, altered the situation entirely. Learned counsel relies upon the decision of the Supreme Court in M/s. Royal Orchid Hotels Limited and Anr. v. G. Jayaramma Reddy and Ors. 2011 (10) SCC 608. It is emphasized that the Supreme Court had, on that occasion, dealt with an acquisition where the lands were diverted similarly and that these diversion of lands - (acquired concededly for public purpose), for setting-up Golf-cum-Hotel Resort

- was quashed.

5. Learned counsel also relied upon the decision of the Supreme Court reported as Anand Singh and Anr. v. State of Uttar Pradesh and Ors. 2010 (11) SCC 242, where it was held that:

"50. Use of the power by the Government under Section 17 for "planned development of the city" or "the development of residential area" or for "housing" must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz. rehabilitation of natural calamity affected persons:

rehabilitation of persons uprooted due to commissioning of dam or housing the lower strata of the society

WP (C) 4729/2013 Page 3 urgently; rehabilitation of persons affected by time-bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the Government to justify the exercise of such power."

6. This Court has considered the submissions. It is apparent from the previous discussion that the petitioners did not choose to challenge the acquisition in time. It would appear that they had even participated in the proceedings before the LAC, for the purpose of determining the market value of lands as compensation. They were aggrieved by determination so arrived at by the LAC - `12,16,000/- per acre. They consequently sought a reference. During the pendency of the reference, they also apparently sought for an allotment of alternative plot.

7. All these events occurred almost a decade ago. That the Supreme Court had occasion to deal with the same acquisition and had declared the previous action of the respondents' dispensing with the Section 5A enquiry in respect of other land owners to be illegal. However, that cannot be made a ground for the present petitioners to approach this Court belatedly after 14 years. Such is really the case since the petitioners' conduct reveals that they were never aggrieved by acquisition when Section 4 notification was issued in 1999 and later when award was issued. They consciously chose to contest the compensation amount and foreclose their rights, if any, to challenge the acquisition at that stage. To compound matters they even sought for allotment of an alternative plot. Therefore, this Court is of the

WP (C) 4729/2013 Page 4 opinion that the petition is highly belated and should not to be entertained.

8. So far as diversion of lands for a purpose other than the notified one is concerned, the reliance placed on M/s. Royal Orchid Hotels Limited and Anr. (supra) appears to be facially convincing. However, the fact situation in that case was that the land owner had approached the Court, challenging the acquisition proceedings in 1986 itself. It was in these circumstances that the Supreme Court observed as it did that such diversion for a purpose which was not public, amounted to a colourable exercise of power and consequently quashed the acquisition proceeding. In the present case, such a charge cannot be made against the respondents; the petitioners have approached the Court in the first instance after a delay of 14 years. As far as the ruling in Anand Singh and Anr. (supra) goes, there too the land owners had approached the Court challenging the dispensing with Section 5A enquiry at the earliest opportunity. There too, the petitions were entertained and adjudicated on the merits. The Court also notices that in M/s. Royal Orchid Hotels Limited and Anr. (supra), the entire lands - subject matter of acquisition, was sought to be diverted, for setting-up a mall-cum-hotel resort. Furthermore, the Court is bound by precedent in this regard by the previous Division Bench ruling in Naresh Kumar and Ors. v. UOI [W.P.(C) 2501/2013, decided on 17.04.2013].

9. Here the petitioner does not stand in the same footing and cannot claim the same rights as the original land owners who had approached the Court in 1999/2000. In view of the above discussion,

WP (C) 4729/2013 Page 5 the Court is unpersuaded by the submissions made in the writ petition which is consequently dismissed. No costs.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE)

AUGUST 26, 2013 'ajk'

WP (C) 4729/2013 Page 6