Delhi High Court
Rohit Raj Chhabra And Ors. vs Union Of India And Ors. on 25 August, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 31.07.2017
% PRONOUNCED ON: 25.08.2017
+ W.P.(C) 1578/2013, CM APPL.2968/2013
ROHIT RAJ CHHABRA AND ORS. ...Petitioners
Versus
UNION OF INDIA AND ORS. ...Respondents
W.P.(C) 1585/2013, CM APPL.2976/2013
RAVINDER KUMAR MITTAL AND ORS. ...Petitioners
Versus
UNION OF INDIA AND ORS. ...Respondents
W.P.(C) 2193/2013
K.K. GUPTA AND ORS. ...Petitioners
Versus
UNION OF INDIA AND ANR. ...Respondents
W.P.(C) 4759/2013
MANGAT RAM ...Petitioners
Versus
UNION OF INDIA AND ORS. ...Respondents
Through: Ms. Nandni Sahni, Advocate for
petitioners in W.P.(C)1578/2013 &
1585/2013.
None for the petitioners in W.P.(C)
2193/2013.
W.P.(C)1578, 1585, 2193 & 4759/2013 Page 1 of 26
Mr. Manoj Sharma with Mr. Kapil Kaushik,
Advocates for petitioner in W.P.(C)
4759/2013.
Mr. Sanjay Poddar, Sr. Advocate with Mr.
B. Mahapatra, Mr. Yeeshu Jain and Mr.
Govind Kumar, Advocates for LAC in all
matters.
Mr. Ajay Verma, Advocate for DDA with
Ms. Akshila, Advocate, in W.P.(C) 1578
&1585/2013.
Mr. Yeeshu Jain, Standing Counsel for
L&B/LAC with Ms. Jyoti Tyagi, Advocate,
in W.P.(C)2193/2013 & 4759/2013.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P. GARG
S.RAVINDRA BHAT, J.
Facts
1. This batch of petitions involve decision on the same question of
whether the cut off date for the impugned policy of relocation
and rehabilitation issued by the Government of NCT is
arbitrary, discriminatory and violative of Article 14 of the
Constitution; and whether the Petitioners have a right to
allotment to alternative plots in lieu of their properties which
were acquired by the Government (the Respondents).
2. The Petitioners owned shops or were occupants of premises and
also members of the Old Market Azadpur Association (Regd.)
and were in possession/occupation of their respective properties
situated in G. T. Karnal Road, Azadpur, Delhi (hereafter the
"subject properties") for 70 to 100 years. They challenge the
relocation and rehabilitation policy for the owners of urban
properties whose land was acquired for public purpose, notified
by the Land and Building Department of the Govt. of NCT of
Delhi vide letter dated 25.7.2012 (hereafter, "the Policy"), for
alleged malafide reasons, such as, inter alia, to exclude the
Petitioners from such benefit.
3. The Petitioners had earlier filed, inter alia, W.P. Nos. 756/2008
challenging the acquisition proceedings and the notifications
issued under Section 4 of the Land Acquisition Act, 1894
(hereinafter, "the Act"), on 01.04.2007 and the Section 6
declaration dated 11.01.2008 as well as, notices under Sections
7 and 17 of the Act in respect of the Petitioners' land. The
Petitioners were permitted by the Court by order dated
25.08.2008 in those writ petitions to file their substantive writ
petition for allotment of alternative plot.
4. The Petitioners thereafter, filed W.P. No.6782 of 2008 seeking
issuance of writ, order or direction by the Court directing the
Respondents to give alternative plots/properties to rehabilitate
them in lieu of the properties which had been acquired and
taken possession of, for the construction of a grade separator
and underpass at G.T. Karnal Road, Azadpur, Delhi; and also
for the allotment of commercial land/plots/shops to them in
nearby areas at subsidized rates.
5. By way of acquisition proceedings, the Respondents had issued
a notification under Section 4 of the Act dated 18.04.2007 for
the purpose of construction of the said grade separator and
underpass. The Petitioners asserted that the objections filed
under Section 5A of the Act were decided by the Land
Acquisition Collector in a mechanical manner and without
affording any meaningful hearing and the objections were
dismissed on mere surmises and conjectures. During the
pendency of their earlier writ petition, the Petitioners had
withdrawn their challenge to the acquisition proceedings on the
assurance/promises made by the Respondents and other
government authorities that they were actively considering their
case for allotment of alternative plots and a scheme was being
framed by them; and as a result of these assurance/promises, the
Petitioners acted to their detriment by demolishing their
shops/residences on 27.3.2008 and handed over the possession
of the same to the Respondents in lieu of the assurance of
allotment of alternative plot/sites. The Petitioners asserted that
the Respondents cannot go back from their promises and are
estopped in law.
6. During the pendency of W.P. (C) No. 6782/ 2008 in June 2009,
the Respondents framed a draft policy for the benefit of
dislocated persons, including the Petitioners, for providing
alternative land to them in lieu of taking over their
industrial/commercial units for the construction of flyovers,
grade separators etc. The Policy notified by the Respondents
was made effective from 19.09.2011 by the Government of
India order No.0-16021/3/2010- DDVA(909), Central
Government, Ministry of Urban Development, Delhi dated
22.09.2011. In terms of Clause XVIII of the said Policy, the cut
off date for its eligibility was 19.09.2011, which the Petitioners
argue is unreasonable, unfair and discriminatory. The
Petitioners contended that the Respondents purposefully and
deliberately made the rehabilitation Policy applicable from
19.9.2011 to exclude them from receiving benefit of the said
Policy. They submit that there is no nexus or justification for
fixing the said date as the effective date of applicability of the
said Policy. Thus, the Petitioners challenge this relocation and
rehabilitation Policy and the alleged discriminatory cut-off date
of 19.09.2011.
Contentions of the Parties
7. The Petitioners argue that the cut-off date of 19.09.2011 for the
application of the rehabilitation Policy is discriminatory and
irrational; no reasons were cited by the Respondents to explain
how this date became sacrosanct for the applicability of the said
Policy. The Petitioners also highlight the constitutional
assurance of equal treatment to all the citizens of India and the
concept of fairness and reasonableness enshrined in Article 14
of the Constitution. It is asserted that the Petitioners had a
legitimate expectation that they would be given alternative plots
and they would be treated at par with other persons placed in
like or similar circumstances. However, the failure of the
Respondents has rendered their impugned actions an arbitrary
exercise of power by them.
8. The Petitioners further cited the policy decision dated
14.07.1987, and urge how pursuant to the said Policy, all lands
including lands acquired for non-plan purposes were to be
acquired through the D.D.A., to demonstrate how, even in the
present case, the impugned notifications are in violation of this
Policy since, the proposal for acquisition of land has come
directly from the Respondents/PWD and not through the proper
channel, i.e., the DDA. They highlighted the judgment of this
Court passed in relation to the allotment of alternative plots in
Inder Singh Solanki v. Lt. Governor of Delhi 112 (2004) DLT
332 (DB) to request similar treatment.
9. It was a further contention of the Petitioners that the
Respondents in a malafide manner proposed to seize their
properties without rehabilitating them and thus, discriminating
against them, whereas similarly situated persons including
unauthorized occupants/encroachers of the same area i.e.
Azadpur Delhi, which was located across the road from the
properties of the Petitioners- were given alternative shops in the
year 1961-62 for the road widening project of the Respondents
for the construction of the national highway. In the same vein,
the Petitioners also cited the instance when in the year 2002 the
Respondents had given alternative land to the
squatters/encroachers of Timber Market in a petition filed in the
Delhi High Court.
10.Additionally, the Petitioners also cited how the bill titled
"National Rehabilitation and Resettlement Policy 2007" which
is applicable not only to those presently affected by the
acquisition of land for projects for public purpose, but also to
the involuntarily displacement of a permanent nature for any
cause; to claim a legal right to claim alternative land/plots. To
this effect, the Petitioners noted that a suitable site on Road
No.51, Naniwalabagh, Azadpur, Delhi, lying vacant under
PWD control, is under consideration by the Respondents for
allotment to the Petitioners.
11.The Petitioners cited the Supreme Court decisions in D.S.
Nakara v. UOI AIR 1983 SC 130 and Babita Puniya v.
Secretary & Anr 168 DLT (2010) 1L5 where it was held that
courts can interfere in policy matters, if the Government has
acted unreasonably or discriminately, to submit that the present
case is fit for the application of a similar decision, as the action
of the Respondents mirror similar discrimination.
12.The Respondents urge that there is no infirmity either in the
Policy on its merits, nor as regards adoption of a cut-off
date.The decision of the Cabinet was to implement the
rehabilitation Policy from the date when the scheme was
approved by the Government. The project affected persons (105
in number, in terms of the report of the PWD) were not covered
under the proposed policy. Since there was no policy of
rehabilitation affected due to acquisition of land for the Azadpur
Grade Separator, it was asserted that the possible financial
implication of rehabilitating them could not have been taken
into consideration at the time of acquisition. This is highlighted
in the affidavit of the Deputy Secretary (Alt) in the Land &
Building Department, as follows:
"4. That the cabinet in its decision dated 11.6.2009 held
that the scheme would be implemented from the date as
per the approval by the government of India, However,
the Cabinet on the same day decided to forward
applications of 105 project affected persons to DDA for
consideration as a special case for rehabilitation. The
question of forwarding 105 applications has nothing to
do with the rehabilitation policy. It was only for
consideration of DDA as a one-time special case not
intended to serve as even a precedent. A copy of the said
letter is annexed here to as Annexure R 1.
5. That the issue of allotment of alternative plot in lieu of
the properties taken in land acquisition cannot be raised
as a matter of right in addition to compensation
receivable by them as a consequence to acquisition of
their properties. Rehabilitation is not a recognized right
either under the constitution or under the provisions of
the Land Acquisition Act, 1894.
6. That in respect of acquisition proceedings for
construction of a grade separator and underpass at GT
Karnal Road, Azadpur Delhi on Road numbers 58 and
64, a number of litigations had been filed for allotment of
alternative plots and in those cases the petitioners have
failed to persuade this Hon'ble Court and also the
Hon'ble Supreme Court. So the issue of seeking an
alternative plot under a rehabilitation of scheme in
respect of the acquisition proceedings in 2006 and 2007
have already been closed long back by virtue of judicial
pronouncement by this Hon'ble and also the Supreme
Court.
7. It is respectfully submitted that introduction of any
rehabilitation scheme, after the acquisition process gets
over, may result in potential recipe for considerable
confusion and resultant litigation. Moreover, the
direction to confine the benefit of retrospective
application of the scheme that came in 2012 to the
petitioners only may open an opportunity for litigations
in respect of the other land acquisition matters after
25.10.2006. The rehabilitation policy dated 25.7.2012
effective from September 19, 2011, under which the
benefit is being sought by the petitioners, is only
prospective and cannot be made retrospective by a
judicial order to cover acquisitions that may have since
long been finalized. Hence the matter may be disposed of
accordingly."
13.In the counter affidavit filed on behalf of the Respondents in
W.P. No. 1578 of 2013 dated 29.06.2013 it was contended that
the Petitioners were not covered under any scheme and again
particularly not under the scheme/ policy dated 25.07.2012
w.e.f. September 19, 2011; thereby they were not entitled to any
alternative plot. The Respondents were of the opinion that any
cut off date with regard to the implementation of a policy was
bound to create controversies in case of retrospective
application. It was the assertion of the Respondents that the
implementation of a policy was bound to create controversies in
case they are applied retrospectively. In the present case, it was
argued by the Respondents, that there was no allegation of
arbitrariness or discrimination within the Policy and hence, the
Policy cannot be said to be bad in law if it does not cover all the
previous land acquisition cases.
14.It is submitted that the choice of a cut-off date in the present
case, cannot be termed arbitrary, nor can the classification
resulting from it, be called discriminatory. Counsel for the
Respondents explained that in policy formulation, extensive
deliberations and consultations take place. The date when the
scheme was approved by the Central Government, thus became
the cut-off date for its applicability, even though it was made
known or published subsequently in a policy.
15.The Respondents further relied upon the decision in Amarjit
Singh and Ors v. the State of Punjab and Ors (2010) 10 SCC 43
where it was held that:
"Not only that in order that the scheme works effectively
the authorities for whom acquisition is being made will
have to take a broader initiative at the appropriate stage
to make provision for allocation to the owners of what is
due to them under the scheme. This can be done only
when an acquisition is tailored according to the scheme.
The scheme cannot be introduced after the acquisition
and even allotment process is over. A mechanical
extension of the scheme to acquisitions that have since
become final cannot help. Any such attempt would be a
potential recipe for considerable confusion and resultant
litigation."
It was argued that if the Petitioners' contentions were to be
accepted, the authorities would be compelled to acquire lands
afresh, whereas in those cases, covered by the Policy, adequate
compensation to provide for rehabilitation through allotment of
alternative plots or other measures, can be obtained.
Analysis
16.The preceding history of the relocation and rehabilitation Policy
as stated above, is extracted from the impugned policy:
"Large scale acquisition of land had been resorted to, in
Delhi, under provisions of the Land Acquisition Act,
1894, as per the policy of Large Scale Acquisition
Development and Disposal of land in Delhi, 1961. In the
event of agricultural lands being acquired, besides
compensation as prescribed under the Act, alternative
plots of prescribed size, at pre-determined rates; are
allotted by the DDA to each eligible land owner whose
agricultural land is acquired. However, in case of
acquisition of urban properties there has been no formal
scheme for rehabilitation/relocation barring a few
specific cases and the recent policy announced in
respect of acquisition for MRTS projects of the DMRC.
To this end, the Rehabilitation Policy for Owners of
Urban Properties whose land is acquired for public
purpose (other than MRTS) ("the Policy") was framed on
the lines of the policy of rehabilitation and resettlement
approved by the government of India in respect of MRTS'
PAP (Project Affected Persons)."
17.The significant contentious clauses in the proposed Policy are as
follows:
"(xvii) A cut off date shall be set preferably at the project
preparation stage so as to prevent the subsequent influx of
encroachment or others who wish to take advantage of the
scheme.
(xviii) Further, the full resettlement costs shall be included in
the presentation of the project costs and benefits. This shall
include the cost of compensation, projected enhanced
compensation, relocation and rehabilitation etc.
This policy has been made effective from September 19, 2011
vide Government of India order No. O- 16021/3/2010-DDVA
(909), Govt. of India, Ministry of Urban Development (Delhi
Division) dated September 22, 2011."
18.The Petitioners argue that this cut-off date is arbitrary and
unreasonable as it precludes them from receiving the benefit of
the Policy; whereas, it is the assertion of the Respondents that
the allotment of alternative plots or properties is not a matter of
right. In order to examine whether this cut off date was an
arbitrary decision, it needs to be tested in the light of Article 14
of the Constitution. Article 14 strikes arbitrariness in state
action and ensures fairness and equality in treatment, and
necessarily requires that State action must not be arbitrary, but
must be based on some rational and relevant principle which is
non- discriminatory. The question here is whether the same
position applies in respect of policies.
19.The Petitioners relied on Nakara (supra) where the decision of
the Central Government not to apply the liberalized pension
formula proposed by a Pay Commission recommendation to
those who retired earlier, was held to be discriminatory. The
Court proceeded to hold that there was no rationale for
introducing such a cut off date for a liberalized pension formula
and that all retired officers and employees formed one
homogenous class. The Nakara principle, so to say, was
considered in another Constitution bench decision in Krishena
Kumar And Anr. Etc. v. Union Of India & Ors AIR 1990 SC
1782. The Court drew a distinction between those who retired
as pensioners and those who retired and were entitled to
benefits of contributory provident fund and held that granting
benefit to one of them (i.e., the pensioners), and denying it to
others, from a particular date was not arbitrary.
20.In V. Kasturi v. Managing Director, State Bank of India.
Bombay & Anr, [1998] 8 SCC 30 the Supreme Court, reviewing
its previous judgments, held that:
"However, if an employee at the time of his retirement is
not eligible for earning pension and stands outside the
class of pensioners, if subsequently by amendment of the
relevant pension rules any beneficial umbrella of pension
scheme is extended to cover a new class of pensioners
and when such a subsequent scheme comes into force, the
erstwhile non-pensioner might have survived, then only if
such extension of pension scheme to erstwhile non-
pensioners is expressly made retrospective by the
authorities promulgating such scheme; the erstwhile non-
pensioner who has retired prior to the advent of such
extended pension scheme can claim benefit of such a new
extended pension scheme. If such new scheme is
prospective only, old retirees non-pensioners cannot get
the benefit of such a scheme even if they survive such new
scheme. They will remain outside its sweep."
The Supreme Court had earlier, in All India Reserve Bank
Retired Officers Association and others v. Union Of India AIR
1992 SC 767 held that not all classifications based on cut off
dates are invalid:
"14. Nakara's judgment has itself drawn a distinction
between an existing scheme and a new scheme. Where an
existing scheme is revised or liberalised all those who are
governed by the said scheme must ordinarily receive the
benefit of such revision or liberalisation and if the State
desires to deny it to a group thereof, it must justify its
action on the touchstone of Article 14 and must show
that a certain group is denied the benefit of
revision/liberalisation on sound reason and not entirely
on the whim and caprice of the State. The underlying
principle is that when the State decides to revise and
liberalise an existing pension scheme with a view to
augmenting the social security cover granted to
pensioners, it cannot ordinarily grant the benefit to a
section of the pensioners and deny the same to others by
drawing an artificial cut-off line which cannot be justified
on rational grounds and is wholly unconnected with the
object intended to be achieved. But when an employer
introduces an entirely new scheme which has no
connection with the existing scheme, different
considerations enter the decision making process. One
such consideration may be the financial implications of
the scheme and the extent of capacity of the employer to
bear the burden. Keeping in view its capacity to absorb
the financial burden that the scheme would throw, the
employer would have to decide upon the extent of
applicability of the scheme. That is why in Nakara's case
this Court drew a distinction between continuance of an
existing scheme in its liberalised form and introduction of
a wholly new scheme; in the case of the former all the
pensioners had a right to pension on uniform basis and
any division which classified them into two groups by
introducing a cutoff date would ordinarily violate the
principle of equality in treatment unless there is strong
rationale discernible for so doing and the same can be
supported on the ground that it will subserve the object
sought to be achieved. But in the case of a new scheme, in
respect whereof the retired employees have no vested
right, the employer can restrict the same to certain class
of retirees, having regard to the fact-situation in which it
came to be introduced, the extent of additional financial
burden that it will throw, the capacity of the employer to
bear the same, the feasibility of extending the scheme to
all retirees regardless of the dates of their retirement, the
availability of records of every retiree, etc. etc. It must be
realised that in the case of an employee governed by the
CPF scheme his relations with the employer come to an
end on his retirement and receipt of the CPF amount but
in the case of an employee governed under the pension
scheme his relations with the employer merely undergo a
change but do not snap altogether. That is the reason why
this Court in Nakara's case drew a distinction between
liberalisation of an existing benefit and introduction of a
totally new scheme. In the case of pensioners it is
necessary to revise the pension periodically as the
continuous fall in the rupee value and the rise in prices of
essential commodities necessitates an adjustment of the
pension amount but that is not the case of employees
governed under the CPF scheme, since they had received
the lump sum payment which they were at liberty to invest
in a manner that would yield optimum return which
would take care of the inflationary trends. This
distinction between those belonging to the pension
scheme and those belonging to the CPF scheme has been
rightly emphasised by this Court in Krishena's case
(supra)."
Likewise, State Of Punjab & ors v. Amar Nath Goyal [2005] 6
SCC 754 held as follows:
"It is difficult to accede to the argument on behalf of the
employees that a decision of the Central Government/
State Governments to limit the benefits only to employees,
who retire or die on or after 1.4.1995, after calculating
the financial implications thereon, was either irrational
or arbitrary. Financial and economic implications are
very relevant and germane for any policy decision
touching the administration of the Government, at the
Centre or at the State level."
21.It would also be useful to recollect the decision in B. Prabhakar
Rao v. State of Andhra Pradesh AIR 1986 SC 210. The
Supreme Court had to then decide whether the decision of the
Government of Andhra Pradesh to reduce the age of
superannuation of its employees from 58 to 55 years was
correct. It was held that Article 14 does no forbid reasonable
classification for the purpose of legislation for which two
conditions are to be satisfied: (1) that the classification must be
founded on intelligible differentia which distinguishes persons
or things that are grouped together from those that are left out of
the group (2) that the differentia must have a rational relation to
the objects sought to be achieved. A significant paragraph from
the decision in Nakara (supra) that was cited in this case is as
follows:
"There is nothing inmutable about the choosing of an
event as an eligibility criteria subsequent to a specified
date. If the event is certain but its occurrence at a point of
time is considered wholly irrelevant and arbitrarily
selected having no rationale for selecting it and having
an undesirable effect of dividing homogeneous class and
of introducing the discrimination, the same can be easily
severed and set aside. While examining the case under
Article 14, the approach is not : 'either take it or leave it',
the approach is removal of arbitrariness and if that can
be brought about by severing the mischievous portion the
court ought to remove the discriminatory part retaining
the beneficial portion. The pensioners do not challenge
the liberalised pension scheme. They seek the benefit of it.
Their grievance is of the denial to them of the same by
arbitrary introduction of words of limitation and we find
no difficulty in severing and quashing the same. This
approach can be legitimised on the ground that every
Government servant retires. State grants upward revision
of pension undoubtedly from a date. Event has occurred
revision has been earned. Date is merely to avoid
payment of arrears which may impose a heavy burden. If
the date is wholly removed, revised pensions will have to
be paid from the actual date of retirement of each
pensioner. That is impermissible. The State cannot be
burdened with arrears commencing from the date of
retirement of each pensioner. But effective from the
specified date future pension of earlier retired
Government servants can be computed and paid on the
analogy of fitments in revised pay-scales becoming
prospectively operative. That removes the nefarious
unconstitutional part and retains the beneficial portion. It
does not adversely affect future pensioners and their
presence in the petitions becomes irrelevant. But before
we do so, we must look into the reasons assigned for
eligibility criteria, namely, 'in service on the specified
date and retiring after that date."
22.Thus, the key to a finding that the cut off date in a policy or law
is discriminatory is if it is"having no rationale for selecting it
and having an undesirable effect of dividing homogeneous class
and of introducing the discrimination". In the present case, the
justification for the cut off date of 19.09.2011 was that it was
the date of the decision, which was announced through a
notification later. The State and the other respondents in the
present case, assert that extending the retrospective application
of the Policy to include the Petitioners would cause undue chaos
and uncertainty; it is also stated that the entire rehabilitation
scheme would be unworkable. Their argument further is that
land is acquired through one law i.e. the Land Acquisition Act;
yet the public agencies that need it are different, with different
specifications. In the absence of a uniform policy, it would not
be possible to expect every agency, for which land was acquired
in the past (and who had fulfilled the financial demands as
preconditions for land acquisition) to give additional amounts.
23.The Policy of rehabilitation adequately demonstrates positive
action on the part of the Respondents towards consideration of
allotment of alternative lands. No doubt, the Petitioners
conducted demolition of their properties. This is borne out by
letters dated 10.05.2007 and 30.05.2008 from the PWD to the
MCD, as well as various newspaper articles, and the
Respondents' statements made. These could arguably be
construed as assurances. However, the law is well settled that
the Government is not bound by its promises or expectations
from evolving a new policy. While doing so, its actions have to
be rational and non-discriminatory. Can it therefore be held that
the decision to confine the operation of the rehabilitation policy
from a particular date is arbitrary? The answer in the opinion of
this Court, is in the negative, for the following reasons.
24.When the government or an executive agency or department
formulates a policy, myriad considerations- the effect of the
policy on existing systems, the likely impact on stakeholders
concerned, financial implications, etc. are to be taken into
account and appropriately balanced. Often, aspirations and
expectations of groups are to be accommodated. In carrying out
a policy formulation exercise for rehabilitation of landowners
and other occupants displaced from their holdings or properties
on account of land acquisition, the government has to
necessarily consider availability of such alternative lands, its
cost (including cost of acquisition and cost of development,
etc). If the power of eminent domain is exercised for a public
purpose to be fulfilled by a third party executive agency, which
funds the acquisition, the government would take or collect the
requisite compensation amount (for disbursement) as well as
additional sums to fund fresh land acquisition or purchase of
property for development of alternative plots. These necessarily
involve detailed planning and financial forecasting. If the
amounts are not forthcoming, the government has to budget for
them. If a policy, is made effective from a particular date, the
government is then better placed to assesses its own needs and
collect the requisite sums from the third party agency, which
needs lands. However, if the date of the policy is changed, or
advanced by a few years, inevitably, the agency might well find
it impossible to achieve its very objectives. The pressure on
resources (availability of readily developed land, money or
budget allocation for acquiring alternative land that is not
provided for etc.) can be burdensome and beyond the Court's
domain of expertise.
25.In the present case, there is a clear intelligible differentia,
discernable to the Court between those landowners, whose
properties were acquired earlier and those, whose properties
were acquired subsequently after policy formulation. The
government had the opportunity of factoring all rehabilitation
costs, including the cost of alternative properties, in addition to
the compensation collected, to be paid to landowners in the
latter case. Furthermore all landowners subjected to acquisition
cannot be treated as part of a homogenous class. In some cases,
the lands acquired were for the purpose of setting up Metro
infrastructure; in other cases, for planned development of the
city and in yet others, for municipal corporations' need or those
of utilities etc. Each of these expropriations was with a specific
purpose; the compensation paid too, varied, depending upon the
nature, location, quality and potential future value of the land.
To club all these diverse landowners in the broadest class of
those losing their property and then demand that such enforced
homogeneity should receive uniform treatment is not what
Article 14 dictates. It is no doubt a truism that the provision
mandates the rule of equality and not the rule of classification.
Yet, to say that two individuals or articles are alike, it is open to
the policy maker or the legislature to adopt clear criteria, which
should be "intelligible" with the added condition that such
criteria should have a rational nexus with the policy or
legislative objective. As held in Amarjit Singh and Ors (supra)
that "The scheme cannot be introduced after the acquisition and
even allotment process is over. A mechanical extension of the
scheme to acquisitions that have since become final cannot
help. Any such attempt would be a potential recipe for
considerable confusion and resultant litigation."
26.The Court is mindful of the ruling in K.S. Paripoornan v State
of Kerala & Ors 1994 (5) SCC 593 where the Supreme Court
had to deal with a contention that the transition provision in the
Land Acquisition Amendment Act, 1984 which enabled
landowners whose lands were acquired earlier to the appointed
date, could get the benefit of some additional solatium but not at
the same rate, which was given to those whose lands were
acquired later. The Court held that:
"Merely because Parliament has decided to give a
limited retrospectivity so as to cover awards that were
made by the Collector during the period from 30-41982,
when the original Bill was introduced in the LokSabha till
the date of the commencement of the amending Act would
not result in the said provisions being infected with the
vice of arbitrariness. The choice of 30-41982, the date on
which the original Bill was introduced in Parliament,
cannot be said to be arbitrary and confining the ambit of
retrospectivity so as to exclude awards made by Collector
prior to 30-4-1982, would not render the provisions of
Section 30 (1) of the amending Act unconstitutional. The
question of expanding the field of retrospectivity so as to
cover all the awards made by the Collector prior to the
commencement of the amending Act irrespective of the
date when they were made, therefore, does not arise.
********* *************
it must be concluded that in respect of acquisition
proceedings initiated prior to date of commencement of
the amending Act the payment of the additional amount
payable under Section 23 (1A) of the Act will be
restricted to matters referred to in clauses (a) and (b) of
sub-section (1) of Section 30 of the amending Act."
27.Yet again, in Government of A.P. v N. Subbarayudu (2008) 14
SCC 702 the Supreme Court, speaking in its judgment, while
considering a challenge to a cut off date held that:
"7. There may be various considerations in the mind of
the executive authorities due to which a particular cut-off
date has been fixed. These considerations can be
financial, administrative or other considerations. The
Court must exercise judicial restraint and must ordinarily
leave it to the executive authorities to fix the cut off date.
The Government must be left with some leeway and free
play at the joints in this connection.
8. In fact several decisions of this Court have gone to the
extent of saying that the choice of a cut off date cannot be
dubbed as arbitrary even if no particular reason is given
for the same in the counter affidavit filed by the
Government, (unless it is shown to be totally capricious
or whimsical), vide State of Bihar v Ramjee Prasad,
Union of India v Sudhir Kumar Jaiswal (vide SSC para
5), Ramrao v All India Backward Class Bank Employees
Welfare Asson. (vide SCC para 31), University Grants
Commission v Sadhana Chaudhary etc. It follows,
therefore, that even if no reason has been given in the
counter affidavit of the Government or the executive
authority as to why a particular cut off date has been
chosen, the Court must still not declare that date to be
arbitrary and violative of Article 14 unless the said cut-
off date leads to some blatantly capricious or outrageous
result."
In view of the above discussion, it is held that there is no
invidious discrimination or arbitrariness in the matter of choice
of date for making the impugned notification and the benefits
spelt out therein, effective. The cut-off date was not "picked
out from a hat" (to borrow the expression from D.R. Nim v
Union of India AIR 1967 SC 1301). The date based
classification was not irrational.
28.The last limb of this judgment is the argument to legitimate
expectations. The Supreme Court, in some judgments, has ruled
that judicial review can be exercised to interfere with change in
policy when denial of legitimate expectation amounts to denial
of rights guaranteed or is arbitrary, discriminatory, caused abuse
of power or violated principles of natural justice as was held in
Punjab Communications Ltd. v. Union of India, AIR 1999 SC
1801. Thus, in State of Haryana v Gurucharan Singh (2004) 12
SCC 540 it was held that where the government has taken a
policy decision to restore the land acquired by it as per standing
orders and has also implemented the same in favour of some
persons, refusal to restore the land to similarly situated persons
was held to be arbitrary and discriminatory.
29.The question in this case, that would a change in policy from
one where no rehabilitation measures existed into one
containing such measures, where those entitled to the benefits
under the new scheme, be characterized as denying legitimate
expectations of those falling in the former category? No doubt,
the courts have spoken about legitimate expectation being a
facet of non arbitrariness, which law and policy makers are to
take into account. Yet, here is a case, when the Petitioners, as
landowners, knew that they were not entitled to allotment of any
alternative plot, since there was no policy at the time of
acquisition of their properties. The Government's assurance can
only be construed as an expression that it would consider all
aspects and frame a policy in due time. This did not, however,
crystallize into an enforceable right. In Ramanand v Union of
India AIR 1993 (26) DRJ 594, it was held that a landowner of
acquired land is entitled only to compensation but not any right
to alternative plot, unless sanctioned by law or rules:
"Now, let us turn to the second question. It may be stated
at the outset that individuals whose land has been
acquired, are not given residential plots in lieu of
acquisition of their land, for which they are paid full
compensation, under the Land Acquisition Act . This is an
additional benefit envisaged for resettlement of the
displaced individuals, and premium is chargeable from
such individuals at predetermined rates for allotment of
alternative plots under the Nazul Rules."
A case of legitimate expectation would arise when a body by
representation or by past practice arouses expectations, which
would be within its power to fulfill. In Food Corporation of
India v. M/s. Kamdhenu Cattle Feed Industries JT (1992) 6 SC
259 it was observed, inter alia:
"to satisfy this requirement of non-arbitrariness in a
State action, it is therefore, necessary to consider and
give due weight to the reasonable or legitimate
expectations of the persons likely to be affected by the
decision or else that unfairness in the exercise of the
power may amount to an abuse or excess of power apart
from affecting the bonafides of the decision in a given
case."
30.In this case, the assurances made to the Petitioners could not
have resulted in an enforceable right, because at the time such
statements were made, no policy or even a policy framework
was known. It has been held that "The concept of legitimate
expectation is "not the key which unlocks the treasury of natural
justice and it ought not to unlock the gates which shuts the
court out of review on the merits,"(See Union of India v.
Hindustan Development Corporation (1993) 2 SCR 128). Since
there was no enforceable right at the point of time, when the
Petitioners claim their legitimate expectations arose, the
question of giving retrospectivity to an executive policy cannot
arise.
31.In view of the foregoing conclusions, these writ petitions have
to fail; they are dismissed without any order as to costs.
S. RAVINDRA BHAT
(JUDGE)
S.P. GARG
(JUDGE)
AUGUST 25, 2017
