Delhi High Court
Resident Welfare Association & ... vs Lt. Governor Of Delhi & Ors on 26 July, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.07.2017
Pronounced on: 26.07.2017
+ W.P.(C) 4841/2016 & CM APPL.20182/2016
RESIDENT WELFARE ASSOCIATION & ANR .....Petitioners
versus
LT. GOVERNOR OF DELHI & ORS ..... Respondents
+ W.P.(C) 4842/2016 & CM APPL. 20184/2016
RANDHIR SINGH & ORS ..... Petitioners
versus
LT. GOVERNOR OF DELHI & ORS ..... Respondents
+ W.P.(C) 6159/2016 & CM APPL.25301/2016
SURESH CHAND GARG ..... Petitioner
versus
LT GOVERNOR OF DELHI AND ORS ..... Respondents
+ W.P.(C) 6150/2016 & CM APPL.25264/2016
NETRA AGENCY PVT. LTD. ..... Petitioner
versus
LT. GOVERNOR OF DELHI & ORS ..... Respondents
W.P.(C) No.4841/2016 & connected matters Page 1 of 16
+ W.P.(C) 6134/2016 & CM APPL.25156/2016
ARUN KAPOOR ..... Petitioner
versus
LT. GOVERNOR OF DELHI & ORS ..... Respondents
Through : Dr. Surat Singh with Mr. Saurabh Agarwal
and Mr. Abhimanyu Siradhana, Advocates
for the petitioners.
Mr. Yeeshu Jain, Standing Counsel for
L&B/LAC with Ms. Jyoti Tyagi, Advocate
for L&B/LAC in W.P.(C) Nos.4841/2016,
6150/2016, 6134/2016 & 6159/2016.
Mr. Sanjay Kumar Pathak with
Mrs. K Kaumudi Kiran Pathak, Mr. Sunil
Kumar Jha and Mr. Kaushal Raj, Advocates
for L&B / GNCTD in W.P.(C) No.
4842/2016.
Mr. Pawan Mathur, Adv. for DDA.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P. GARG
S. RAVINDRA BHAT, J.
%
With consent of counsel, all these writ petitions were heard
independently but are being disposed of by a common order.
1. In these petitions, the common relief sought is a direction to quash the
letters of the Government of NCT ("the appropriate government") declining
to exercise power under Section 48 of the Land Acquisition Act, 1894
(hereafter referred as "the Act"); consequential directions are sought to
quash an award made by the Land Acquisition Collector ("LAC") assessing
compensation based upon market value of the petitioners‟ lands.
2. All petitioners claim to be owners of different parts of land (khasra
Nos.63/19-22, 65/2, 63/3, 3, 4, 8, 9, 12, 13 and 24; khasra Nos.65/4 (2-19),
8 (3-1), 9 min (2-14), 12 min (3-15), 65/9 min (2-2) and 12 min (1-0); 58/24
and 65/20 and 66/16, 24 and 25 of village Pooth Khurd, Delhi) (referred to
as the "suit lands"). The facts of the case are that on 21.03.2003 the
appropriate Government issued a notification proposing the acquisition of
6129 bigha 10 biswa land for a public purpose i.e. for development of the
Rohini Residential Scheme. The acquisition further proceeded by a
declaration under Section 6 of the Act dated 19.03.2004. Physical possession
of the land so acquired was taken over in 2005 and an award assessing
market value compensation was finalized by Award No.12/2005-06 dated
01.08.2005. Another notification under Section 4(1) read with Section 17 of
the Act was issued on 09.09.2009 in respect of village Pooth Khurd for the
expressed public purpose of construction of a 100 meter wide road.
Consequently, a declaration under Section 6 was issued on 08.09.2010.
These two acquisitions included the suit lands. The award in respect of the
second acquisition notification was made on 05.09.2012. The possession of
the suit lands was also taken over soon thereafter on 04.10.2012. It is a
matter of record that the possession of the suit lands too was taken over.
3. All petitioners complain that even though possession of land in village
Pooth Khurd was taken over, some parts of it were illegally encroached by
some powerful people with political influence and that the Delhi
Development Authority was unable to rid the encroachments by such
unlawful occupants. It is alleged that due to the State‟s inability to free the
encroachments, the lands which are the subject matter of later acquisition
i.e. through the second notification on 09.09.2009 was resorted to, to divert
the alignment of the proposed 100 mtr. road. It is submitted that this
diversion was to accommodate or paper over the inability of the authorities
to secure public lands and had the effect of diverting the alignment of the
proposed 100 mtr. road which was what the Master Plan had indicated. The
petitioners‟ rely upon the Zonal Development Plan for Zone „M‟ Part 1,
which they say reveals that the proposed road has been shown to be in a
straight line, but due to the active inaction of the respondents, who were
reluctant to remove the encroachers, acting on their convenience; their lands
have been now subjected to acquisition.
4. The controversy was the subject matter of an earlier petition (by one
of the petitioners in the present batch W.P.(C) No.4841/2016 who had
earlier filed W.P.(C) No.5401/2010), where it was stated that the Court had
directed status quo with respect to the lands having regard to the allegations
made, and thereafter disposed of the petitions on 13.10.2011 permitting
liberty to seek recourse to Section 48 of the Act. It is stated that contrary to
the order of the Court, petitioners were never afforded an opportunity of
hearing before the De-notification Committee of the appropriate
Government which is alleged to have considered the plea seeking release of
the lands and rejected it.
5. Learned counsel for the petitioners Dr. Surat Singh in all these
proceedings argues that the conduct of the respondents is not only
reprehensible but cannot be justified except as lacking in good faith. In this
context, he submits that the sequence of events i.e. the notification of lands
in 2003, taking over of possession of vast stretches of land for the alleged
development of a residential colony, allowing encroachers on a part of the
land and thereafter resorting to acquisition in order to skirt the alignment
and indeed change the alignment of the 100 mtr. road, renders it arbitrary. It
is submitted that even at this stage, after the possession of lands has been
taken over, the appropriate Government could and should have exercised its
powers under Section 48 to remedy the injustice.
6. Learned counsel refers to the previous proceedings, particularly, the
interim order of the Court directing status quo, based upon the allegations
which were found to be prima facie justified. He submits that the clear
intention of the Court in its final order was that the petitioners‟ collective
de-notification requests were to be considered objectively and decided after
granting them hearing. The De-notification Committee not only did not
consider the petitioners‟ requests but flouted the direction to grant hearing
and passed an unreasoned order. These are fatal infirmities which undermine
the respondent‟s decision.
7. To support his argument that the encroachers were favoured and to
especially accommodate them, that the subsequent acquisition was resorted
to, reliance is placed upon a response received in reply to an RTI query from
the DDA dated 10.03.2010. The said letter inter alia reads as follows:
"To
Shri Ravinder Kumar Gupta,
B-1/236, Sector-17, Rohini.
Delhi-110085.
Sub: Information under RTI Act-2005.
Ref: ID No.634/PIO/RTI/DDA/411 dt. 3.2.10
Reference your RTI application as stated above, the reply
in respect of para No.8 is as under:
Information based on survey is not available in
this office. As regards removal of unauthorised
encroachment / constructions in khasra Nos.65/4,
8, 9 & 12 in village Pooth Khurd is concerned,
action will be taken as per procedure on the
request of user deptt. in due course.
Para 9, 10, 11, 12: All these paras pertain to Planning
(Rohini). The RTI application is being
transferred to them for giving reply to you.
Dy. Director (LM) Rohini"
8. The respondents argue that the petitioners do not have any vested
right to claim withdrawal of notification under Section 48. It is submitted
that once possession of land is taken over, the authority of the appropriate
Government to release the lands ceases. In any case, even otherwise, there
is no vested right to claim an oral hearing in respect of a request for
withdrawal of notification under Section 48. Being an administrative
decision, although couched in statutory terms, it has content entirely
different from the one made in exercise of Section 4 powers which have an
adverse effect on the land owner‟s property. In the latter case, the land
owner has to be mandatorily afforded a hearing under Section 5A. No such
obligation is cast upon the appropriate Government which has to consider all
relevant and material factors and any peculiar features which might be
highlighted by the land owner or the requisitioning authority at whose behest
the acquisition takes place.
9. The respondents deny any mala fides in the rejection of the
petitioners‟ requests for de-notification. It is submitted that possession was
taken over long back and that the argument that the road alignment was
changed merely at the behest of some encroachers who have occupied lands
taken over under the first notification is baseless. It is submitted that the
Broad Alignment Plan of UER-II from Western Yamuna Canal to Rohtak
Road Railway Line is in Zone „M‟ with a 40 mtr. wide Green Belt on either
side. It was approved in the Technical Committee Meeting held on
29.01.2002 and later in the meeting of 25.10.2004 with cross sectional
detail. This formed part of the Urban Extension proposal in MPD 2001 and
2021.
10. It is also stated in the DDA‟s counter affidavit that during the
demarcation of the alignment, it was noticed that the proposed alignment of
the road was affected by the Lal Dora near Village Barwala and Pooth
Khurd and that to save the Lal Dora and the extended Lal Dora land, the
alignment plan was again placed before the Technical Committee for
consideration on 03.07.2006 when it was decided that the proposal itself
should be further examined to consider its feasibility. A modified proposal
was again put up on 01.02.2007 and approved after detailed deliberation.
11. The DDA also avers in its counter affidavit that:
"That it would not be out of place to mention here that the
earlier proposed road would have also fallen in Khasra
No.87/4 (30-18) and Khasra No.87/6 (8-10). It is stated that
the said Khasra No.87/4 (30-18) and Khasra No.87/6 (8-10)
forms part of Gram Sabha Johar i.e. water body. It is stated
that if the old alignment road is to be considered for
construction, that would mean that major portion of the water
body as detailed above would have to be removed."
12. During the hearings, the Court had summoned the de-notification file
in relation to the lands owned by the petitioners. This file discloses that the
meeting of the Committee held on 14.08.2013 considered the proposal for
de-notification of land. Twenty-five (25) items were placed before the
Committee of which 4 pertained to Pooth Khurd. Item Nos.16, 19 and 20
pertained to 3 of the petitioners. The file also discloses that the application
of the petitioners in W.P.(C) No.4841/2016 represented by Mange Ram was
considered by the Committee on 15.04.2013. In regard to all these
applications, the Committee which comprised of senior officials of the
Government of NCT of Delhi, decided as follows:
"The De-notification Committee considered the representation
of the applicant. DDA informed vide its letter dated 02.01.2013
that the land is required for construction of 100 mts. wide road
(UER-II) under PDD. Hence, the case cannot be recommended
for de-notification."
13. The official file also reveals that the representations of all the
petitioners are on the record and were in fact the subject matter of
consideration by the De-notification Committee.
14. The first question is whether the petitioners‟ argument with respect to
denial of opportunity of a hearing vitiates the decision of GNCTD not to
withdraw from acquisition. The petitioners in this regard rely upon the order
of this Court of 13.11.2011 in W.P.(C) No.5401/2010. That order reads as
follows:
"We consider it appropriate that the petitioners should
file a comprehensive representation under Section 48 of the
said Act within 4 weeks from today. The De-notification
Committee examining the matter will consider the
representation on merits and take a reasoned decision after
giving an opportunity to the representative of the petitioners to
explain their stand. Such an order is being passed in the
peculiar facts of the present case for the reason that there was
land earlier acquired including for the purpose of the road in
2003, but the land of the petitioners was sought to be acquired
in 2009 on account of re-alignment of the road ostensibly on
the ground that some Lal DORA area was required to be saved.
It is the further say of the petitioners that there is unauthorized
occupation of the land earlier acquired, which is causing the
diversion of the road and that too at the behest of an influential
person.
The interim order dated 11.08.2011 made absolute on
25.04.2011 would continue to enure for the benefit of the
petitioners till such time a decision is taken on the application
and communicated to the petitioners and for a period of 15
days thereafter so that in case of an adverse decision, the
petitioners are not left remedyless."
15. It is a matter of record that all the petitioners preferred applications or
representations seeking withdrawal in exercise of power under Section 48 to
withdraw from the acquisition. These applications were no doubt
considered in a similar manner on two dates i.e. 15.04.2013 and 13.08.2013
and the requests were declined. It is a matter of record that the petitioner in
W.P.(C) No.5401/2010 was not granted the opportunity of oral hearing
through its representative.
16. The power of the appropriate Government to withdraw from the
acquisition - it has been repeatedly emphasised, is discretionary. If one
examines the entire scheme of the Act - which has now been repealed, it
contemplates two stages in the acquisition process. The first stage of it is
when prior to the acquisition a survey is conducted to assess suitability of
the land; based upon the decision of the survey and its inspection, a
notification under Section 4 of the Act is issued declaring that the lands
included in it would be acquired. At this stage, the appropriate Government
has to give hearing to every land owner who wishes to object or represent
against the acquisition, by virtue of Section 5A. This procedure constitutes
the material gathering process after which the appropriate Government
finalizes its intention, expressed through a declaration under Section 6 of the
Act as to the final lands that would be subject matter of acquisition. This
ends the first phase.
17. The second phase then commences immediately when the appropriate
Government has 2 years‟ time through the LAC to assess market value and
determine compensation for the lands of every land and property owner.
This process involves consideration of evidence and materials led by the
land owners as well as materials gathered by the revenue authorities of the
appropriate Government. The second phase ends with the taking over of
possession. In case the land owner is aggrieved by the determination of
compensation and wishes to contest the assessment, he can seek recourse to
a reference under Section 18; the Reference Court has to re-examine the
matter and the evidence afresh and re-determine the compensation in the
light of what is produced before it.
18. Section 48 reads as follows:
"48. Completion of acquisition not compulsory, but
compensation to be awarded when not completed (1) Except in
the case provided for in Section 36 , the Government shall be at
liberty to withdraw from the acquisition of any land of which
possession has not been taken.
(2) Whenever the Government withdraws from any such
acquisition, the Collector shall determine the amount of
compensation due for the damage suffered by the owner in
consequence of the notice or of any proceedings thereunder,
and shall pay such amount to the person interested, together
with all costs reasonably incurred by him in the prosecution of
the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as
may be, to the determination of the compensation payable
under this Section."
Speaking about the exercise of discretion under Section 48, the Supreme
Court held in Ved Prakash v Ministry of Industry Lucknow (2003) 9 SCC
542 it was held that:
"in examining the validity of an order in such matters the test is
to see whether there is any infirmity in the decision making
process and not the decision itself. From this decision it is also
clear that when choices are open to the authority it is for that
authority to decide upon the choice and not for the court to
substitute its view. The High Court keeping in view the scope of
judicial review in such matters considered the respective
contentions raised before it. On finding that the Authority
passed the impugned order dated 3.12.1999 on proper
consideration of the evidence placed before it and after hearing
the parties in the light of the directions given and observations
made by this Court in the case of Om Prakash, did not consider
it appropriate to interfere with the impugned order. We do not
find any good or valid reason so as to interfere with the
impugned judgment of the High Court affirming the order
passed by the Authority. Thus, taking an overall view of the
matter having regard to the facts of the case, in the light of law
applicable to them and keeping in view the parameters stated
by this Court in paras 31 and 32 of the judgment in Om
Prakash case, the authority rejected the representations made
by the appellants and the High Court affirmed the same and
rightly so in our opinion."
As to whether a landowner can be said to be prejudiced in the manner of
exercise of discretion under Section 48, the Court ruled in Larsen & Toubro
Ltd v State of Gujarat & Ors (1998) 4 SCC 387, that:
"Section 48 of the Act can be exercised by the Government
without notifying the factum of withdrawal to the beneficiary of
the acquisition. It was argued that in contrast to Section 4
and 6, Section 48 (1) of the Act does not contemplate issue of
any notification and withdrawal from the acquisition can be
done by an order simpliciter. It was further argued that power
under Section 21 of the General Clauses Act can be exercised
for withdrawing notifications issued under Section 4 and 6.
While rejecting the argument, the Court observed:
"..... When Section 4 and 6 notifications are issued, much has
been done towards the acquisition process and that process
cannot be reversed merely by rescinding those notifications.
Rather it is Section 48 under which, after withdrawal from
acquisition is made, compensation due for any damage suffered
by the owner during the course of acquisition proceedings is
determined and given to him. It is, therefore, implicit that
withdrawal from acquisition has to be notified.
31. Principles of law are, therefore, well settled. A notification
in the Official Gazette is required to be issued if the State
Government decides to withdraw from the acquisition
under Section 48 of the Act of any land of which possession has
not been taken. An owner need not be given any notice of the
intention of the State Government to withdraw from the
acquisition and the State Government is at liberty to do so.
Rights of the owner are well protected by sub-section (2)
of Section 48 of the Act and if he suffered any damage in
consequence of the acquisition proceedings, he is to be
compensated and sub-section (3) of Section 48 provides as to
how such compensation is to be determined. There is, therefore,
no difficulty when it is the owner whose land is withdrawn from
acquisition is concerned. However, in the case of a company,
opportunity has to be given to it to show cause against any
order which the State Government proposes to make
withdrawing from the acquisition. Reasons for this are not far
to seek. After notification under Section 4 is issued, when it
appears to the State Government that the land in any locality is
needed for a company, any person interested in such land
which has been notified can file objections under Section
5A(1) of the Act. Such objections are to be made to the
Collector in writing and who after giving the objector an
opportunity of being heard and after hearing of such objections
and after making such further enquiry, if any, as the Collector
thinks necessary, is to make a report to the State Government
for its decision. Then the decision of the State Government on
the objections is final. Before the applicability of other
provisions in the process of acquisition, in the case of a
company, previous consent of the State Government is required
under Section 39 of the Act nor (sic) unless the company shall
have executed the agreement as provided in Section 41 of the
Act. Before giving such consent, Section 40 contemplates a
previous enquiry. Then compliance with Rules 3 and 4 of the
Land Acquisition (Company) Rules, 1963 is mandatorily
required. After the stage of Sections 40 and 41 is reached, the
agreement so entered into by the company with the State
Government is to be published in the Official Gazette. This
is Section 42 of the Act which provides that the agreement on
its publication would have the same effect as if it had formed
part of the Act. After having done all this, the State Government
cannot unilaterally and without notice to the company
withdraw from acquisition. Opportunity has to be given to the
company to show cause against the proposed action of the State
Government to withdraw from acquisition. A declaration
under Section 6 of the Act is made by notification only after
formalities under Part VII of the Act which contains Sections 39
to 42 have been complied and the report of the Collector
under Section 5A (2) of the Act is before the State Government
who consents to acquire the land on its satisfaction that it is
needed for the company. A valuable right, thus, accrues to the
company to oppose the proposed decision of the State
Government withdrawing from acquisition. The State
Government may have sound reasons to withdraw from
acquisition but those must be made known to the company
which may have equally sound reasons or perhaps more, which
might persuade the State Government to reverse its decision
withdrawing from acquisition."
19. Section 48 - therefore, empowers the appropriate Government to
withdraw from acquisition at any stage; however an important caveat has
been added. In case possession of the land is taken over after determination
of compensation, the property becomes that of the appropriate Government.
In that event, the power under Section 48 is not available. In the present
case, possession of the suit lands was taken over. The interim order inured
only in the case of petitioner in W.P.(C) No.5401/2010 i.e. the petitioner in
W.P.(C) No.4841/2016 in this case.
20. It is evident from the preceding discussion that the nature and
character of the power under Section 48 is different from the power under
Section 5A. The latter is mandatory and the failure of the Government to
comply with its terms renders the acquisition suspect. No such consequence
occurs in case of failure to afford opportunity of personal hearing. The grant
of mandatory hearing has been expressly provided for in certain instances,
such as under Section 5A. For exercise of other powers which are more
administrative in nature, having regard to convenience of the acquiring
body, utility of the lands, etc., no such pre-condition is stipulated. In the
present case itself, the Court notices that as between the four petitioners,
only one was to be afforded the right to an oral hearing. Now, if that
representationist had in fact been given hearing and others denied, could it
be argued that there was failure to comply with principles of natural justice?
The answer is in the negative because there is no right to seek such oral
hearing. Indeed, there is no right to demand de-notification itself; if the land
owner wishes the appropriate Government to exercise such power, no doubt
she or he can represent to the executive authority in that behalf.
The representation or any additional documents may point out the reasons
for the request. Those representations are opportunities or hearings beyond
which the right to an oral hearing cannot be mandated. For these reasons, it
is held that there was no denial of natural justice.
21. So far as the argument with respect to change in road alignment, etc.
is concerned, the official file which includes the De-notification
Committee‟s report clearly indicates that the Technical Committee
considered the issue twice, especially after it was discovered that Lal Dora
and extended Lal Dora lands were coming in the way. More particularly,
the decision to change the location of the bridge was on account of presence
of a Johar (a water body). This decision cannot be characterized as
unreasonable. Furthermore, there is no material on the record that the
acquisition of 2009 which culminated in an award in 2012 was on account of
encroachment of public lands.
22. For the above reasons, this Court is of the opinion that the rejection of
the petitioners‟ requests for de-notification is neither illegal nor arbitrary.
These petitions therefore have to fail and are dismissed without costs.
S. RAVINDRA BHAT, J.
S. P. GARG, J.
JULY 26, 2017
kks
