Prem Raj vs Land & Building Department & Ors.
2014 Latest Caselaw 4578 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 18th September, 2014

+                                   LPA No.417/2013

       PREM RAJ                                                  ..... Appellant
                               Through:      Mr. N.S. Dalal with Mr. Devesh
                                             Pratap Singh & Mr. Amit Rana, Advs.

                                          Versus

       LAND & BUILDING DEPARTMENT & ORS. ..... Respondents
                    Through: Mr. Sanjay Poddar, Sr. Adv. with Mr.
                             Yeeshu Jain & Mr. Siddharth Panda,
                             Advs. for R-1&2.
                             Ms. Shobhana Takiar, Adv. for DDA.

                                          AND

+                                   LPA No.444/2013
       GIRI RAJ                                                  ..... Appellant
                               Through:      Mr. N.S. Dalal with Mr. Devesh
                                             Pratap Singh & Mr. Amit Rana, Advs.

                                          Versus

       LAND & BUILDING DEPARTMENT & ORS. ..... Respondents
                    Through: Mr. Sanjay Poddar, Sr. Adv. with Mr.
                             Yeeshu Jain & Mr. Siddharth Panda,
                             Advs. for R-1&2.
                             Ms. Shobhana Takiar, Adv. for DDA.

CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


LPA Nos. 417/2013 & 444/2013                                           Page 1 of 30
 RAJIV SAHAI ENDLAW, J.

1. These intra-court appeals impugn the common judgment dated 10 th May,

2013 of the learned Single Judge of this Court of dismissal of W.P.(C)

No.3036/2013 and W.P.(C) No.3058/2013 filed by the appellants respectively.

2. Notices of the appeals were issued and on 27th September, 2013, the

appeals were admitted to hearing. A counter affidavit has been filed in LPA

No.444/2013 and which has been adopted in the other appeal as well. We have

heard the counsel for the parties.

3. The writ petitions from which these appeals arise were filed, a)

impugning the two identical letters, both dated 8th April, 2013, of the Land and

Building Department of the Government of National Capital Territory of Delhi

(GNCTD) issued to the appellants respectively, informing them that their

request for separate alternative plots in lieu of acquired land had been rejected

on the ground that the acquired land had been purchased by the appellants

jointly along with some other persons; and, b) seeking a direction to the

respondents to allot separate alternative plots to each of the appellants against

the acquired land. It was inter alia the case of each of the appellants in the writ

petition filed by them:-

(i) that the appellants who are brothers, along with another brother

had purchased the land which was subsequently acquired, vide

single Sale Deed executed in their names;

(ii) that the said land, on the basis of the said Sale Deed, was mutated

in the revenue records in the name of the appellants and their

another brother;

(iii) that upon acquisition of the said land under the provisions of the

Land Acquisition Act, 1894, each of the two appellants and their

another brother was paid compensation of his / her respective

share;

(iv) that each of the appellants separately applied for alternative plot in

lieu of acquired land under the Scheme of Delhi Administration of

the year 1961 as amended from time to time; and,

(v) that just like they were separately paid compensation for land

acquisition according to their respective shares in the acquired

land, the two appellants and their another brother were similarly

entitled to separate alternative plots in accordance with their

respective shares in the acquired land.

4. The learned Single Judge dismissed the writ petitions, finding/observing/

holding:

(a) that there is absolutely no provision in the Scheme of allotment of

alternative plots which entitles the owners of jointly owned land to

allotment of individual alternative plots of sizes as per their share

in the acquired land;

(b) logically also if the acquired land was owned by two or more

persons, the alternative plot also should be allotted jointly to all of

them;

(c) that in the absence of any provision in the Scheme, entitling the

joint owners of acquired land to allotment of individual alternative

plots, it cannot be said that all joint owners should get individual

alternative plots in accordance with their share in the acquired

land; and,

(d) that the benefit available to the legal heirs of a person who died

before the issue of Notification under Section 4 of the Land

Acquisition Act cannot be extended to the appellants since that

would amount to modification by the Court of the Scheme framed

by the Government and particularly when no challenge to the

Scheme had been made in the petitions.

5. The counsel for the appellants has drawn our attention to the relevant

provisions of the Scheme which are as under:

"SCHEME This Department is implementing Scheme of allotment of alternative plots in lieu of acquired land under "Large Scale Acquisition Development & Disposal of Land in Delhi" announced by Govt. of India, Ministry of Home Affairs vide their letter No.37/16/60-Delhi (i) dated 2nd May, 1961.

This scheme is in force with effect from 2.5.61. The department has been inviting applications for grant of alternative plots through press advertisements from time to time. The plots are allotted by the D.D.A. on the recommendation of this department as per policy laid down in this regard by Govt. of Delhi.

WHO IS ELIGIBLE?

               I       WHERE THE                ACQUIRED         LAND         IS
                       ANCESTRAL
                   1. The persons who are RECORDED OWNER prior to

issue of notification u/s 4 of Land Acquisition Act.

2. The persons whose lands have been acquired must have received the compensation as rightful owners from the

LAC / Court and the Govt. has taken the possession of acquired land.

3. The applicants should not own a house / residential plot / flat out of village abadi in his / her dependent relation's name including unmarried children, nor he should be a member of any Co-operative Housing Society.

4. For awards announced prior to 3.4.86, the land acquired is not less than 150 sq. yds. and for awards announced post 3.4.86, the land must not be less than one bigha.

               II      CASES WHERE   LAND                    PURCHASED
                       THROUGH SALE DEED

The following conditions are also to be fulfilled in addition to above:-

1. For awards announced before 3.4.86, land should have been purchased prior to issue of notification u/s 4 of Land Acquisition Act and mutation must have carried out in their names.

2. For awards announced post 3.4.1986 land must have been purchased 5 years earlier from the date of notification u/s 4 of Land Acquisition Act and

mutation has been carried out in the name of the purchaser.

3. That where the land was purchased by an auction purchaser from the Ministry of Rehabilitation and the applicant had entered into a written agreement with the auction purchaser to buy the same, after the sale certificate was issued by the Ministry of Rehabilitation, his case would be processed for allotment on the basis of agreement and the compensation awarded by the L.A.C.

III OTHER CASES When the recorded owner of the land acquired dies before notification u/s4 of L.A. Act, allotment is to be made separately to all the legal heirs of the deceased, according to their shares recognized by the LAC, but if he dies after the notification u/s 4 of LA Act, all legal heirs are entitled to one plot of the size to which the deceased would have been entitled.

1. Where the land of an individual is situated in a colony to be regularized by the MCD and if his plot falls in the area reserve for community facilities or for non- residential purpose pending the acquisition of his plot; alternative plot can be allotted to him if he produces a certificate from the MCD confirming that in the revised lay out of the colony, his plot is earmarked for a non-

resident purpose and that if he gives an undertaking in writing that he would not agitate the acquisition of his old plot and claims no additional plot in lieu thereof.

2. Where, as a result of clubbing of the shares of nearest blood relations, the area of the acquired land comes to 150 sq. yds. or more, allotment of one plot can be made in their joint names.

3. Where a property is owned by a firm not being a registered company, the allotment of land would be made to individual partners in accordance with their share defined in the partnership deed subject to their fulfilling the prescribed condition.

4. Where an individual entered into contract for purchase of plots from certain insurance companies (which were subsequently taken over from the (LIC), the affected person would be considered for allotment of alternative plot if:-

Their deeds were registered before the crucial date i.e. u/s 4 Notification.

They had made full payment, they would be considered for allotment, provided LIC certify that the balance was tendered was refused by the LIC due to acquisition of land.

Where in a Hindu joint family, a large area has been purchased before the crucial date by a person for his own accommodation and that of his children, the title over the said land for the purpose of allotment of alternative land will be considered even on the basis of decrees obtained by his children from the Civil Court."

6. The counsel for the appellants has argued that when under Clause III(3)

(supra) of the Scheme, in the case of ownership of acquired land of a

partnership firm, allotment of land is to be made to individual partners in

accordance with their shares defined in the Partnership Deed, there is no reason

to discriminate against persons jointly owing land and on the parity of a

partnership firm, they should also be held entitled to allotment in their separate

names as per their shares in the joint ownership. It is yet further argued that the

two appellants and their another brother at the time of purchase of the land

could have bought the same vide separate Sale Deeds also instead of vide one

Sale Deed and in which case, upon acquisition, each of them would have been

entitled to apply for allotment of separate alternative plots of land; that there is

no reason to deny the same to the appellants merely because they chose to

make the purchase through one Sale Deed instead of vide three separate Sale

Deeds. Reference is made to Tukaram Kana Joshi Vs. Maharashtra

Industrial Development Corporation (2013) 1 SCC 353, in para no.9 whereof,

it has been held that right to property is not only a Constitutional or a statutory

right but also a facet of human rights which are gaining greater multifaceted

dimensions. It is contended that depriving the appellants of separate alternative

plots in lieu of their acquired land is clearly in violation of Article 21 of the

Constitution of India and that the respondents are bound not only to pay

adequate compensation but are also obliged to rehabilitate the persons whose

land has been acquired and such rehabilitation can only be by allotment of

separate alternative plots of land.

7. Per contra, the senior counsel for the respondent GNCTD has argued that

the appellants and their another brother having purchased the land, which was

subsequently acquired, vide one Sale Deed and the said land having stood

jointly mutated in their name and having not been partitioned, the two

appellants and their another brother have to be considered jointly for allotment

of alternative land. Attention is invited to Ramanand Vs. Union of India AIR

1994 Del 29 where the Full Bench of this Court held that an individual whose

land has been acquired for planned development of Delhi has no absolute right

to allotment of alternative plot and is only eligible to be considered for

allotment of alternative plot for residential purpose, that too subject to certain

conditions including payment of premium at pre-determined rates prevailing on

the date when the offer of alternative plot is made. Attention is next invited to

Satluj Jal Vidyut Nigam Ltd. Vs. Dila Ram (2005) 2 SCC 122 which, in para

no.12 thereof holds, the Scheme for allotment of alternative land in lieu of

acquired land subject matter of consideration therein to be applicable to each

„family‟ which is rendered landless and further holds that the question, whether

any member of the family was residing separately is irrelevant as the test to be

adopted under the Scheme was whether there was a „joint holding‟ and

relationship as a „family‟; the judgment of the High Court on the basis that the

Scheme was intended to give benefit to each member of the landless family was

set aside, holding that if this interpretation were to be accepted then the

authorities would have to provide more land, for distribution to each member of

the landless family, than perhaps even the total land acquired. Attention is next

invited to paras no.59, 93, 94, 96 to 98 of State of Madhya Pradesh Vs.

Narmada Bachao Andolan (2011) 7 SCC 639 and it is argued that the

observations in Tukaram Kana Joshi (supra) relied upon by the counsel for the

appellants are on the basis thereof and which judgment is in the context only of

acquisition of land and not allotment of alternative plots in lieu thereof. A copy

of the judgment dated 1st October, 1997 of the Division Bench of this Court in

Civil Writ No.2788/1993 titled Shri Bhagwan Sahai Vs. Union of India, also

holding that in the event of death of the land owner after the Notification under

Section 4 of the Land Acquisition Act, as per the Scheme of allotment of

alternative land in lieu of acquired land, entitlement will be only for one plot of

land and not for separate plots for each heir; the argument that because

compensation for acquisition had been separately paid, each heir was also

entitled to separate alternative plot, was negatived.

8. The counsel for the appellants in rejoinder has argued that the reliance by

the senior counsel for the respondents on Ramanand (supra) is misconceived as

the appellants are not claiming contrary thereto and are merely contending that

they are entitled to separate allotment of alternative land and their case be

considered.

9. The Scheme, as filed before us, while laying down the norms of size of

alternative plots to be allotted, provides that where the acquired land is less

than one bigha, no alternative plot is to be allotted; where the acquired land ad-

measures one bigha, alternative plot of 40 sq. yds. is to be allotted; where the

land acquired is above one bigha and upto five bighas, alternative plot ad-

measuring 80 sq. yds. is to be allotted; where the land acquired is above five

bighas and upto ten bighas, alternative plot ad-measuring 150 sq. yds. is to be

allotted; and, where the land acquired is above ten bighas, alternative plot ad-

measuring 250 sq. yds. is to be allotted.

10. We had during the hearing enquired from the counsel for the appellants

whether not acceptance of his argument that in the case of joint ownership

under one Sale Deed of acquired land, allotment of alternative plots is to be

separate to each of the owners, as per their respective shares, in the event of

acquired land being of say four bighas jointly owned by five persons each

having less than one bigha share, would result in none of the five being entitled

to any alternative plot though if considered jointly would have been entitled to

alternative plot ad-measuring 80 sq. yds. and whether not the same would result

in defeating the provisions of the Scheme which is a beneficial measure.

11. No answer was forthcoming from the counsel for the appellants.

12. The Scheme admittedly does not provide for allotment of separate plots

to persons jointly owing the acquired land. The Scheme, as noted by the

learned Single Judge also, is not under challenge. The only argument of the

appellants is that since under Clause III(3) of the Scheme, in the case of

ownership in the name of a partnership firm, partners are entitled to separate

alternative plots, similarly in the case of joint ownership, each of the joint

owners is entitled to allotment of separate plots of alternative land and unless it

is so done, it will result in discrimination.

13. The senior counsel for the respondents in this regard has stated that the

occasion for putting Clause III(3) into use has till date not arisen as no such

claim has been made.

14. We may notice that the counsel for the appellants also has not given any

instance of allotment of separate alternative plots of land to partners of a firm

owning land which was acquired.

15. A reading of Clause III(3) however does not unequivocally support the

contention of the counsel for the appellants that in the case of acquired land

being owned by a partnership firm, allotment of alternative plots of land is to

be made separately to each of the partners thereof. All that Clause III(3)

provides is that the allotment of land in such case would not be in the firm‟s

name but would be in the name of individual partners in accordance with their

share defined in the Partnership Deed. From a bare reading of Clause III(3) we

are unable to interpret the same as entitling the partners of a firm to allotment

of separate alternative plots. We however refrain from rendering any final

opinion on this aspect so as not to prejudice any claim made thereon.

16. Though the counsel for the appellants has not argued but we drew the

attention of the counsels to Clause III (supra) of the Scheme which provides for

"allotment to be made separately to all the legal heirs" in the event of the

recorded owner of the acquired land dying before the Notification under

Section 4 of the Land Acquisition Act; however if the demise is after the

Notification all legal heirs are entitled to one plot of the size to which the

deceased would have been entitled to. The language thereof vis-à-vis two

situations is clearly suggestive of the allotment of alternative land in the event

of demise prior to the Notification being separately to each of the legal heirs

and in the event of demise after the Notification jointly to all the legal heirs.

We have enquired from the senior counsel for the respondents, the reason for

providing for separate allotment of alternative plot in the event of demise

before the Notification. We have further put to the senior counsel that as far as

we know, there is no provision for automatic partition of the land on demise of

the owner thereof and thus the legal heirs cannot be construed to be owners of

separate portions of the land.

17. The senior counsel stated that he has no instructions on the said aspect

and which has not been urged / pleaded.

18. We have also drawn the attention of the counsels to the concept of

„holding‟ applicable to agricultural land, with respect to acquisition whereof we

are dealing in these appeals. We have enquired, whether not the reference in

the Scheme to the size of the acquired land is in the context of „holding‟,

whether in the name of one or more person and not in the context of respective

shares in the holding. Agricultural land, insofar as the State of Delhi is

concerned, is generally governed by the provisions of the Delhi Land Reforms

Act, 1954 (Reforms Act). The Delhi Land Revenue Act, 1954 (Revenue Act)

lays down the law relating to land revenue and jurisdiction of Revenue Officers

in the State of Delhi. The former, in Section 3(11a) thereof defines „holding‟ as

a parcel or parcels of land held under one tenure, lease, engagement or grant

and in Section 3(22) defines „uneconomic holding‟ as a holding of less than

eight standard acres, which according to local conditions, is not sufficient to

maintain a family unit consisting of a person, his minor children, his wife or her

husband. There is no prohibition in law to more than one person having rights

in one holding. Section 33 of the Reforms Act dealing with „restrictions on

transfers by a bhumidhar‟, prohibits transfer as a result whereof the transferor

shall be left with less than eight standard acres of land in the Union Territory of

Delhi but further provides that a bhumidhar holding less than eight standard

acres of land is entitled to transfer the same provided such transfer is of the

entire land held by him. Section 55 of the Reforms Act enables a bhumidhar to

sue for partition of his holding and which is again suggestive of one holding of

land being owned by more than one person. To the same effect are the proviso

to Section 10(2), the proviso to Section 36(1) and Section 42(1) of the said Act.

Section 123 of the Reforms Act provides that the land which shall be assessed

to land revenue shall be the aggregate holding area of bhumidhars in a village

in the year of record and Section 124 of the Reforms Act provides for

assessment of land revenue payable for a holding and Section 136 providing for

the „procedure for the recovery of an arrear of land revenue‟ also inter alia

provides for by attachment and sale of the holding in respect of which the

arrear is due. A further analysis of the two Acts and the Rules framed

thereunder shows that just like in urban municipal areas where the properties

are identified by a municipal number with a property having one municipal

number being a distinct identifiable unit, the „holding‟ is a unit of agricultural

land in village with the only difference being that while generally all

municipalities prohibit division of one property, size of a holding is variable.

19. Unfortunately, inspite of our prodding, neither counsels addressed on

the said aspect.

20. We have wondered whether on the basis of Clause III of the Scheme

(supra) providing for allotment to be made separately to all the legal heirs in the

event of recorded owner of the acquired land dying before the Notification for

acquisition, it can similarly be said that the joint owners also would similarly be

entitled to separate alternative lands or whether for the reason of joint owners

being discriminated against, the action of the respondents of refusing to allot

separate alternative plots to the appellants can be set aside. In this context, we

have further wondered whether the provisions of the Scheme (supra) are to be

interpreted on the same principles as a statute.

21. We find the Supreme Court, in Secretary, Ministry of Chemicals &

Fertilizers, Government of India Vs. Cipla Ltd. (2003) 7 SCC 1 dealing with

the drug policy, to have held that the contents of a policy document cannot be

read and interpreted as statutory provisions and that too much of legalism

cannot be imported in understanding the scope and meaning of the clauses

contained in policy formulations. Similarly it has been laid down in Desh

Bandhu Gupta and Co. Vs. Delhi Stock Exchange Association Ltd. (1979) 4

SCC 565 that contemporanea expositio i.e. the construction placed by the

administrative or executive officers charged with executing a statute, generally

should be clearly wrong before it is overturned. It has been further held that

such construction commonly referred to as practical construction, although not

controlling, is nevertheless entitled to considerable weight; it is highly

persuasive. The said principle was recently reiterated in Manohar Lal Sharma

Vs. The Principal Secretary MANU/SC/0727/2014 (commonly known as Coal

Block Allocation Scam case). Applying the said principle also, we are of the

view that the Scheme aforesaid should be interpreted in consonance with the

understanding thereof by the respondents who have made the said Scheme and

are responsible for implementation thereof. We may also add that we do not

find any case of discrimination also to have been made out on the basis of

Clause III (supra) of the Scheme. Clause III of the Scheme deals with a clearly

distinct situation. The heirs of a deceased become joint owners not by choice

but by inheritance. On the contrary, joint owners are joint, of their own

volition, having opted to hold a parcel of agricultural land jointly and to

continue to hold it jointly till the date of acquisition thereof though they had a

choice of suing for partition thereof.

22. We thus hold that the appellants‟ interpretation of the Scheme is not

acceptable.

23. We further find the question to be no longer res integra. We find a

reference, in the judgment of a Division Bench of this Court in Rajinder

Kumar Vs. Union of India 57 (1995) DLT 271 also dealing with the said

Scheme, to a judgment dated 27th January, 1994 of the Supreme court in Civil

Appeals No.97 & 98 of 1992 titled Shiv Nath Sharma Vs. Union of India, as

laying down that when there were several claimants to a plot, one of the co-

sharers alone could not be held entitled to the plot in the absence of the other

co-sharers and that the Scheme did not envisage allotment of plots to each one

prorata of the land acquired and that the Scheme contemplates only one

allotment of plot to the owner whose land was acquired. We were however

unable to find the said judgment either on the website of the Supreme Court or

in any of the law journals. We finally requisitioned the file of Rajinder Kumar

(supra) which has since been digitized and therein found a copy of the

judgment in Shiv Nath Sharma (supra) and find the same to be concerned with

a case, where a father having only 1/10th share equivalent to 2400 sq. yds. in

undivided 24 bighas of land which was acquired, having sold by a registered

Sale Deed, post the Notification for acquisition, to his son (appellant in the said

judgment) who applied for allotment of alternative land. The Supreme Court

held:

".......... the government sold the property in public auction where at along with the father of the appellant, others jointly purchased the land for a sum of Rs.98,000/-. Under the Scheme only a plot is to be allotted to the owner. In view of the fact that there are 10 sharers entitled to claim a single plot and as we do not have any definite evidence on record whether others have laid any claim for their share in the plot, it is difficult to countenance the contention that one of the sharers alone is entitled to the allotment of plot. The Scheme does not envisage allotment of any plots pro rata of the land acquired to each one. It contemplates only allotment of one plot to the owner whose land was acquired. In this view, we find that though the appellant's entitlement to receive compensation was recognized by paying compensation to him, pursuant to the sale made by his father, he is not entitled to any allotment of the plot under the Scheme. ...... the entitlement to the compensation for the bundle of rights of the owner in the land is distinct from the entitlement to the benefit of a Scheme formulated by the government. If the owner himself continued to remain to be the owner and if he is not already possessed of any land building or plot for his residential or industrial purpose, he alone is entitled to be considered for the benefit. Take an instance that knowing that a land has been proposed for acquisition, the owner, with a view to get some extra consideration towards the proposed entitlement for allotment of the plots, may enter into different sale transactions

with the third parties alienating his rights in the land. It is settled law that no owner can create any encumbrance on the land, after the Notification under Section 4(1) was published in the Gazette as the publication of the Notification is a notice to the public that the land is proposed to be acquired by the Government for a public purpose and that, therefore, any encumbrance created thereafter does not bind the Government. When such is the law, the subsequent purchaser would not stand on a higher footing, to get an interest in a beneficial policy unrelatable to the payment of compensation for the acquired land. In determining the compensation or the market value under Section 11, allotment of a plot is not one of the components. The Collector has no jurisdiction or authority in that behalf. His power is to determine the extent of the land, fix the market value and to apportion among the claimants, if more than one exist and offer the same to him / them. As stated earlier, it is only an enabling scheme to relieve the owner from hardship of displacement from his residential house or land due to acquisition. The Policy was envisaged to allot a suitable plot for rehabilitation."

24. The judgment of the Supreme Court in Shiv Nath Sharma (supra) arises

out of the judgment dated 28th November, 1984 of the Division Bench of this

Court in W.P.(C) No.532/1983. However a perusal thereof showed the same to

have merely relied upon the judgment of the same date in Krishan Kumar

Malik Vs. UOI reported as AIR 1985 Delhi 225, the challenge wherein was to

the rejection of the request for alternative plot on the ground of the petitioner

therein having purchased the land which was already notified under Section 4

of the Land Acquisition Act, 1894. While dismissing the petition and

disagreeing with the judgment dated 22nd April, 1983 of a Division Bench of

this Court in W.P.(C) No.591/1982 titled Udai Raj Giri Vs. UOI, it was

reasoned as under:

".......... Here Damomal the original vendor was the owner of 62 bighas of land. In terms of the Scheme if he had continued to be the owner till the land was acquired, he would have been entitled to alternative land to the extent of anything between 200 to 800 sq. yds. of land. Now the petitioner and a number of others have purchased part of the share i.e. 1/8th share each from the said Damomal. Each one of these vendees is now claiming the right to an alternative accommodation which at the minimum would total to anything between 2000 to 4000 sq. yds. To take another illustration Damomal was the owner of 62 bighas which means about 62000 sq. yds. he could have sold 1000 yds. pieces of land to 62 persons. In such a case if the argument of the petitioner was to be accepted, it would be that there would be 62 claimants entitled for alternative accommodation. The result would be that

whereas if Damomal continued to remain the owner till the land was acquired, he would have been entitled at a maximum of 800 sq. yds. of land but by the device of the land having been sold prior to the final acquisition, the authorities will have now to give land to each of the 62 claimants which even at a minimum of 200 sq. yds. each would work out over 12000 sq. yds. i.e. at least 15 times more than what would have been the entitlement of the original owner Damomal. Surely such an absurd result could never have been contemplated by the framers of the Scheme. If this interpretation was to be given the whole of the land would be exhausted amongst the few such land owners thus destroying the very object of the Scheme and making a mockery of it. This is another reason why we feel that the ratio of the Udai Raj Giri's case is not applicable to the facts of the case."

25. We may clarify that the conflicting opinion of the Division Benches in

in Udai Raj Giri and in Krishan Kumar Malik (supra) on the aspect of

whether persons who have purchased the land after the Notification under

Section 4 of the Land Acquisition Act, 1894 was resolved by the judgment

of the Full Bench of this Court in Shiv Devi Vs. Lt. Governor AIR 1987

Delhi 46 in which it was held that such purchasers also are entitled to apply

for alternative plot. However the subsequent Division Bench of this Court in

judgment dated 24th August, 1990 in W.P.(C) No.2720/1990 titled Kulwant

Kaur Vs. UOI, dealing with a challenge to the modifications made in the

Scheme (supra) in the year 1989 entitling only those who were the recorded

owners on the date when Section 4 Notification was issued, negatived the

said challenge holding that the judgment of the Full Bench in Shiv Devi

(supra) did not prevent the Government from varying the earlier Scheme

which was non-statutory. However another Division Bench of this Court in

Jaswant Kaur Vs. Lt. Governor 65 (1997) DLT 512 referring to U.P. Jal

Nigam Lucknow Vs. Kalra Properties (P) Ltd., Lucknow (1996) 3 SCC

124, Yudu Nandan Garg Vs. State of Rajasthan (1996) 1 SCC 334, Sneh

Prabha Vs. State of U.P. (1996) 7 SCC 426 and Union of India Vs.

Shivkumar Bhargava (1995) 2 SCC 427 held the judgment of the Full

Bench of this Court in Shiv Devi (supra) even in respect of the Scheme as

stood prior to the modification in the year 1989 to be not good law;

resultantly, it was held that persons who have purchased the land after the

Section 4 Notification have no right to apply for alternative land.

26. In Rajinder Kumar (supra) also, though finding that as per the size of

the acquired land, alternative plot ad-measuring 400 sq. yds. was to be

allotted but further finding that the applicant was of one of the two

successors of the owner of the acquired land, he was held entitled to a plot

size of 200 sq. yds. only.

27. The consistent view thus has been that persons who own a holding of

agricultural land which has been acquired, being together entitled to an

alternative plot and being not entitled to separate allotments of alternative

land.

28. We may however notice a judgment of the Single Judge of this Court

in Jagdish Vs. Government of NCT of Delhi MANU/DE/4550/2009 where

a holding of agricultural land admeasuring 7 bighas 3 biswas was acquired.

Seven persons having 1/7th share each i.e. equivalent to 1.0003 bigha each

were the recorded owners thereof. Each of them was offered alternative plot

ad-measuring 40 sq. yds. As per the applicable norms, alternative plot ad-

measuring, 40 sq. yds. for a holding of one bigha, 80 sq. yds. for a holding

above one bigha upto five bighas, 150 sq. yds. for a holding above five

bighas upto ten bighas, and of 250 sq. yds. for a holding of above ten bighas

was to be allotted. The petitioners in that case contended that since the share

of each was in excess of one bigha and since for a holding ad-measuring one

bigha to five bighas, the entitlement was 80 sq. yds., each of them was

entitled to alternative plot ad-measuring 80 sq. yds. It was held "that the

entitlements were based on the acquired land rather than who held it". It

was reasoned that if each of them was offered 40 sq. yds. of alternative plot,

the total land allotted to them would be 280 sq. yds. while on the other hand

for the holding of 7 bighas 3 biswas, they were jointly entitled to 150 sq.

yds. Thus, the claim of the petitioners for 80 sq. yds. was rejected. Though

the said judgment does not deal with the issue whether allotment of

alternative land in such case is to be made jointly or separately but the same

nevertheless shows that the Government itself at least in the said case

offered separate allotments of alternative land even though the total land

allotted in such case exceeded the entitlement against the joint holding.

29. We, from Airports Authority of India Vs. Nirmala Devi 199 (2013)

DLT 373 also find that with respect to the acquisition of land in village

Nangal Dewat, the Airports Authority of India agreed to allotment of

separate alternative plots to legal heirs if their names appeared separately in

the survey report and naksha muntazamin in respect of distinct holdings and

if they had raised separate structures in separate holdings for which they

were given separate compensation.

30. It thus appears that the respondents, from time to time have been

making separate allotments to joint owners.

31. Though neither from the pleadings in the present case can the extent

of the joint holding or the status in the revenue records be known nor could

the counsels during the hearing inform categorically in that respect, however

it appeared during the hearing that if each of the appellants and their another

brother are made separate allotments of alternative land, the total size thereof

would be less than the size of alternative land to which the appellants

together would be entitled. We had for this reason only during the hearing

enquired from the senior counsel for the respondents as to why the

respondents could not accede to the request of the appellants for separate

allotments. However the senior counsel informed that the respondents,

besides the size of the alternative land are also concerned with the number of

plots of land which are available for alternative allotment and separate

alternative plots even if total admeasuring less than in the case of joint

allotment, may not be available.

32. Though we find the aforesaid explanation to be reasonable but are of

the view that the respondents, in the matter of consideration for allotment of

alternative plots of land in lieu of acquired land ought not to adopt a very

rigid stand. After all, the nature and character of alternative land allotted in

urban limits for residential purpose is entirely different from agricultural or

village land which is acquired. Compelling jointness in such urban

residential properties may have consequences on family ties. We are

therefore of the opinion that subject to the availability of requisite number of

plots for separate allotment and further subject to the total size thereof not

exceeding the entitlement against the joint holder, the respondents should,

wherever the joint owners so opt, consider the same.

33. Accordingly, we dispose of these appeals by holding that more than

one recorded owner of each parcel / holding of acquired land, under the

Scheme aforesaid, are not entitled to as a matter of right, separately apply for

allotment of alternative land and are entitled to joint allotment only. We

however further hold that if such joint owners are desirous of separate

allotments, they would be entitled to, in alternative to their application for

joint allotment, apply so and if the respondents find that the total land to be

so allotted in the case of separate allotments is not more than the alternative

land to which they would be jointly entitled to and further find that plots of

smaller sizes for separate allotments are available, the respondents would

consider the said request.

34. With the aforesaid observations, the appeals are disposed of.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE SEPTEMBER 18, 2014 „gsr‟