Delhi High Court
Rajneesh Kumar & Ors vs Lt. Governor Of Delhi & Ors on 19 July, 2013
Author: S.Ravindra Bhat
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 19.07.2013
+ W.P. (C) 4481/2013
CM APPL.10347, 10348/2013
RAJNEESH KUMAR & ORS ..... Petitioners
Through: Mr. Setu Niket with Ms. Esha
Mazumdar, Advocates.
versus
LT. GOVERNOR OF DELHI & ORS ..... Respondents
Through: Mr. Sanjay Poddar, Sr. Advocate with
Mr. Sanjeev Sahay, Advocate for L&B.
Mr. 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 present writ petition questions land acquisition proceedings,
culminating in a notification issued by the respondent Government of NCT
of Delhi, dated 27.10.1999 in respect of the petitioners‟ lands.
2. The facts are that the Respondents issued Notification no.
10(29)/96/L&B/LA/11394 under Section 4(1) of the Land Acquisition Act
(hereafter "the Act") on 27-10-1999, to acquire lands; including those of the
Petitioner, (bearing Khasra No. 62//18/2 & 62/24 of Village Pehladpur
WP (C) 4481/2013 Page 1
Bangar- hereafter "the suit lands") for a public purpose, namely the Rohini
Residential Scheme. Recourse was had to Section 17(1) to the acquisition of
the lands and hearing under Section 5A was dispensed with. A final
declaration was made under Section 6 along with Section 7 of the said Act,
by notification no. F.10(29)/96/L&B/LA/2O dated 03-04-2000. The Land
Acquisition Collector in furtherance of Section 4, 17 & 6 of the Act
proceeded to issue Award No. 14/2002-03 dated 08-07-2002, in respect of
the suit lands.
3. Few landowners, not including the Petitioners, aggrieved by the
issuance of Section 4 notification approached this Court in writ proceedings.
The petitions were dismissed on 09-07-2007. Aggrieved by this judgment
the landowners approached the Supreme Court, which by order dated
22-10-2007 issued notice and granted stay on High Court‟s order. The
Supreme Court thereafter quashed the Section 17 notification, and the
declaration issued and published u/s 6 of the said Act, dated 27-04-2012.
4. The following is the extract from the Supreme Court‟s judgment:
"20. Where the government invokes urgency power under section 17(1)
and (4) for the public purpose like planned development of city or
development of residential area or Residential Scheme the initial
presumption in favour of the government does not arise, and the burden
lies on the government to prove that the use of power was justified and
disponaatation (sic dispensation) of enquiry was necessary .In the
present case, the respondents have miserably failed to show to the
satisfaction of the Court that power of urgency and disponaatation (sic
dispensation) of enquiry under Section 5A has been exercised with
justification .The action of the Lt Governor, Delhi in, the facts of the
case whereby he directed that the prohibition of Section 5A shall not
apply. if allowed to stand, it would amount to depriving a person of his
property without authority of law.
WP (C) 4481/2013 Page 2
21. The power of urgency by the Government under Section 17 for a
public purpose like Residential Scheme cannot be invoked as a rule but
has to be by way of exception. As noted above no material is available
on record that justifies dispensation of enquiry under section 5A of the
Act. The High Court was clearly wrong in holding that there was
sufficient urgency in invoking the provisions of section 17 of the Act.
3. Consequently, the appeal is allowed the Notification dated October
27, 1999 to the effect "the Lt Governor Delhi is satisfied also that
provisions of sub-section (1) of section 17 of the Act are applicable to
this land and is further pleased under sub section (4) of the said section
to direct that all the provisions of section 5 (A) shall not apply" insofar
as appellants land is concerned is quashed. The declaration dated
April 3, 2000 Issued and published under Section 6 of the Land
Acquisition Act., 1894 (for short "the Act") concerning the subject
property is also quashed. The competent Authority may now invite
objections under Section 5A of the Act, pursuant to the Notification
dated 27 October 1999 and proceed with the matter in accordance with
law. No order as to costs."
5. The Petitioners, who had preferred their claims for compensation,
pursuant to notices received by them, had not approached this court or the
Supreme Court, questioning the land acquisition proceedings. The Collector
determined the market value at Rs.12,16,000/- per acre, which was received
by the Petitioners. They then preferred a Reference Petition under Section
18 of the Act, which was decided by the Ld. Additional District Judge,
Rohini on 15-09-2011, 22-10-2011, 18-10-2011 respectively. The Reference
court decided in favour of the Respondents and the compensation payable on
the land remained unchanged at Rs. 12,16,000 per acre. The said court only
allowed grant of other statutory benefits available under the Act. The Third
Respondent, by Notification No. F.10(29)/96/L&B/LA/19599 dated
20-03-2013 issued and published another declaration under Section 6 of the
Act.
WP (C) 4481/2013 Page 3
6. The Petitioners contend that their Constitutional and legal right of
hearing was taken away by the Respondent under the garb of a fraudulent
Section 17 notification. Such acquisition is in violation of Article 14, 19, 21
and 300-A of the Constitution of India and has been acquired in colourable
exercise of power and without due application of mind. It is argued that
Article 300-A has been violated as no public purpose existed at the time
when the land was acquired.
7. It is argued that the Supreme Court‟s judgment resulted in liberty to
the executive Government to issue a declaration after granting hearing under
Section 5A of the Land Acquisition Act; however, that notification was to be
issued within the statutory time period of one year. In the present case, if the
previous periods were to be taken into consideration, the declaration issued
and impugned in the present case was clearly beyond the prescribed time;
the acquisition therefore was a nullity and in contravention of law.
8. It was submitted that the market value determined by the Controller
was directly in contradiction to case bearing L.A.C. No. 180 AI 2009 titled,
„Jaipal v. Union of India & Anr‟, where the market value of the lands of the
same village i.e., Pahladpur Banger, was determined at Rs.2,00,000/- per
bigha, in addition to the amount of compensation awarded by the LAC. It is
averred that the Petitioners also applied for alternative plots in lieu of the
lands compulsorily acquired and the same is yet to be allotted to the
Petitioners. The Respondents failed to develop lands for 13 long years and
also further failed to allocate alternative plots to the Petitioners in a time
bound manner, thereby depriving the petitioners from developing alternative
livelihood.
WP (C) 4481/2013 Page 4
9. Counsel contended that the respondent Government cannot be
allowed to take advantage of it is own wrong, by first wrongly invoking
Section 17, paying exiguous amount of compensation and then again issuing
declaration u/s 6 of the Land Aquisition Act and not working on the land for
thirteen long years The legal maxim "Jure Naturae Aequum Est Neminem
cum Alterius Detrimento Et Injuria Fien Locupletiorem" is applicable in a
situation like this.
10. The official respondents resist the petition, and contend that the
present challenge to the acquisition proceeding is not maintainable. It is
submitted that the petitioner was not a party to the previous court
proceedings and had never questioned the validity of acquisition
proceedings. Therefore, they are bound by the notifications and acquisition
of the suit lands cannot now be challenged at this late stage, after they
claimed and obtained compensation.
11. The respondents relied on Mahadeo (Dead) & Ors. v. State of UP
(2013) 4 SCC 524 where the Supreme Court held that:
"16. There is no dispute with regard to the settled proposition of law
that once the land is acquired and mandatory requirements are
complied with including possession having been taken the land vests
in the State Government free from all encumbrances. Even if some
unutilised land remains, it cannot be re-conveyed or re-assigned to
the erstwhile owner by invoking the provisions of the Land
Acquisition Act. This Court in the case of Govt. of A.P. and Anr. v. V.
Syed Akbar MANU/SC/0987/2004 : AIR 2005 SC 492 held that:
"It is neither debated nor disputed as regards the valid
acquisition of the land in question under the provisions of the
Land Acquisition Act and the possession of the land had been
taken. By virtue of Section 16 of the Land Acquisition Act, the
acquired land has vested absolutely in the Government free
from all encumbrances. Under Section 48 of the Land
WP (C) 4481/2013 Page 5
Acquisition Act, Government could withdraw from the
acquisition of any land of which possession has not been
taken. In the instant case, even under Section 48, the
Government could not withdraw from acquisition or to
reconvey the said land to the Respondent as the possession of
the land had already been taken. The position of law is well
settled. In State of Kerala and Ors. v. M. Bhaskaran Pillai and
Anr. MANU/SC/0731/1997 : (1997) 5 SCC 432 para 4 of the
said judgment reads: (SCC p.433)
4. In view of the admitted position that the land in question
was acquired under the Land Acquisition Act, 1894 by
operation of Section 16 of the Land Acquisition Act, it stood
vested in the State free from all encumbrances. The question
emerges whether the Government can assign the land to the
erstwhile owners? It is settled law that if the land is acquired
for a public purpose, after the public purpose was achieved,
the rest of the land could be used for any other public purpose.
In case there is no other public purpose for which the land is
needed, then instead of disposal by way of sale to the erstwhile
owner, the land should be put to public auction and the
amount fetched in the public auction can be better utilised for
the public purpose envisaged in the Directive Principles of the
Constitution. In the present case, what we find is that the
executive order is not in consonance with the provision of the
Act and is, therefore, invalid. Under these circumstances, the
Division Bench is well justified in declaring the executive
order as invalid. Whatever assignment is made, should be for
a public purpose. Otherwise, the land of the Government
should be sold only through the public auctions so that the
public also gets benefited by getting a higher value.
18. Indisputably, land in question was acquired by the State
Government for the purpose of expansion of city i.e. construction of
residential/commercial building under planned development scheme
by the Meerut Development Authority and that major portion of the
land has already been utilized by the Authority. Merely because some
land was left at the relevant time, that does not give any right to the
Authority to send proposal to the Government for release of the land
WP (C) 4481/2013 Page 6
in favour of the land owners. The impugned orders passed by the
High Court directing the Authority to press the Resolution are
absolutely unwarranted in law"
12. In the present case, the petitioners do not dispute that their lands were
notified for acquisition in 1999 when the requirements of Section 5A were
dispensed with. They were, however, not aggrieved by that action, and chose
to accept the notification. Indeed they never complained that dispensing
Section 5-A was prejudicial to them. Consequently they experienced no
difficulty in attending proceedings for determination of compensation. Their
grievance against compensation determined too, was questioned in reference
proceedings; however the District Court refused enhancement of
compensation. Thus, the matter achieved finality. A facial reading of the
Supreme Court judgment would show that the relief of quashing the
notification in respect of the same scheme, on the ground that the hearing
under Section 5A was wrongly dispensed with, was confined only to those
who approached the courts. The petitioners were concededly not amongst
them. In this context, the Court recollects the larger Bench decision of the
Supreme Court in Aflatoon v Lt. Governor of Delhi AIR 1974 SC 2077,
where it was stressed that a delayed challenge to land acquisition
proceedings should not be entertained:
"Nor do we think that the petitioners in the writ petitions should
be allowed to raise this plea in view of their conduct in not
challenging the validity of the, notification even after the
publication of the declaration under s. 6 in 1966. Of the two writ
petitions, one is filed by one of the appellants. There was
apparently no reason why the writ petitioners should have waited
till 1972 to come to this Court for challenging the validity of the
notification issued in 1959 on the ground that the particulars of
the, public purpose were not specified. A valid notification under
WP (C) 4481/2013 Page 7
s. 4 is a sine qua non for initiation of proceedings for acquisition
of property. To have sat on the fence and allowed the
Government to complete the, acquisition proceedings on the
basis that the notification under s. 4 and the declaration under s.
6 were valid and then to attack the notification on grounds which
were available to them at the time when the notification was
published would be, putting a premium on dilatory tactics. The
writ petitions are liable to be dismissed on the ground of laches
and delay on the part of the petitioners.."
13. The facts of the present case would show that the petitioners were not
aggrieved by the acquisition, notified in the Section 4 notification issued in
1999; they did not complain against the dispensing of hearing under Section
5-A of the Act. Now, after 14 years, they cannot use the occasion of the
Supreme Court judgment quashing the notification vis-à-vis others, to
ventilate what is obviously a stale cause of action. Furthermore, their
grievance against compensation determination was articulated through
reference proceedings under Section 18 of the Act. The present litigation can
only be seen as an opportunistic effort to secure quashing of acquisition
proceedings, whose public purpose was accepted by the petitioners over 13
years ago. In the circumstances, the petition has to fail. It is therefore
dismissed.
S. RAVINDRA BHAT
(JUDGE)
NAJMI WAZIRI
JULY 19, 2013 (JUDGE)
WP (C) 4481/2013 Page 8
