Resident Welfare Association & ... vs Lt. Governor Of Delhi & Ors
2017 Latest Caselaw 5341 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Date of Decision: 22.09.2017

+       REVIEW PET. 367/2017, CM APPL.32637-32639/2017 IN
        W.P. (C) 4841/2016

        RESIDENT WELFARE ASSOCIATION & ANR ..... Petitioners
                                 versus
        LT. GOVERNOR OF DELHI & ORS                                    ..... Respondents

+ REVIEW PET.382/2017, CM APPL.33818-33821/2017 IN W.P. (C) 4842/2016 RANDHIR SINGH & ORS ..... Petitioners versus LT. GOVERNOR OF DELHI & ORS ..... Respondents + REVIEW PET.383/2017, CM APPL.33825-33828/2017 IN W.P. (C) 6134/2016 ARUN KAPOOR ..... Petitioner versus LT GOVERNOR OF DELHI AND ORS ..... Respondents + REVIEW PET.385/2017, CM APPL.33870-33873/2017 IN W.P. (C) 6150/2016 NETRA AGENCY PVT LTD ..... Petitioner versus LT GOVERNOR OF DELHI AND ORS ..... Respondents

Appearance: Mr. Sanjay Sharawat with Mr. Digvijay Rai and Mr. Pulkit Tyagi, Advocates for petitioners in all matters. Mr. Yeeshu Jain, Standing Counsel for LAC/L&B with Ms. Jyoti Tyagi, Advocate.

Mr. Sanjay Kumar Pathak, Advocate for L&B/GNCTD with Mrs. K. Kaumudi Kiran Pathak, Mr. Sunil Kumar Jha and Mr. Kushal Raj Tater, Advocate.

Mr. Pawan Mathur, Advocate for DDA in all matters.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG

MR. JUSTICE S. RAVINDRA BHAT

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1. This judgment will dispose of four review petitions preferred in respect of a common judgment delivered in W.P.(C) No.4841/2016 and connected cases. This Court had in the said judgment (hereafter referred to as "the main judgment") upheld the rejection and a request made by the present petitioners that the acquired lands should be de-notified under Section 48 of the (now repealed) Land Acquisition Act, 1894 (hereafter referred to as "the old Act").

2. The facts that led to the filing of the writ petition do not need to be re- counted except to say that the petitioners had approached the Court on an earlier occasion challenging the acquisition made through Section 4 notification, issued on 21.03.2003. The grievance urged in those proceedings was that the acquisition was motivated by mala fides because public lands which had been acquired for purposes of development were encroached upon by influential people and that the respondent authorities were unable to clear the encroachment as a result of which the petitioners' lands were subsequently notified for acquisition. The writ petitions were disposed of by granting liberty to the land-owners (who had approached the Court i.e. the Resident Welfare Association concerned) to approach the competent

authorities i.e. the Lt. Governor with a request for de-notifying their lands from acquisition.

3. The order of the Court (in W.P.(C) No.5401/2010) in this regard dated 13.10.2011 reads as follows:

"After hearing learned counsel for the parties, learned counsel for the petitioners states that he is satisfied if his representation under Section 48 of the Land Acquisition Act, 1894 (for short, „the said Act‟) at pages 50 to 61 is examined and a reasoned decision is taken after giving an opportunity of hearing to the petitioners. He further prays that, in the meantime, the interim orders must continue to enure for the benefit of the petitioners.

Learned counsel further states that some subsequent facts have also come to the notice of the petitioners including the fact of absence of any change in the Master Plan and, thus, he would like to file an additional representation.

In view of the aforesaid prayer, 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.

The writ petition accordingly stands disposed of.

Dasti to learned counsel for the parties."

4. The main judgment considered the grievance of the writ petitioners articulated in a fresh round of litigation i.e. that the appropriate Government and the Lt. Governor failed to comply with the principles of natural justice and did not grant any opportunity of hearing. The Court also considered and rejected the argument that plans were modified only with a view to accommodate encroachers. Based upon the records which were produced and the appreciation of law, this Court concluded that though the previous judgment had stated that authorities should grant hearing, the law did not mandate such a hearing given the position of the statute i.e. Section 48. The Court juxtaposed the necessity of hearing at the stage of acquisition, which is mandatory under Section 5A of the old Act and compared it with the choice of the agency whether, to continue with the acquisition or drop it after issuing the declaration, in terms of Section 48. In holding that there was no right to be heard per se, this Court also took note of the law declared by the Supreme Court in several judgments in its interpretation of Section

48.

5. Before this Court in review proceedings, it is argued firstly that subsequent materials in the form of queries made under the Right to Information Act, 2005 (RTI Act) and internal notings of the officials clearly established the allegations that encroachments existed and that furthermore there was no need for the lands that were notified for acquisition in 2009.

6. Highlighting that hearing, especially when a direction in that regard is issued, is an invaluable component of the entire acquisition process. Learned counsel relied upon the judgment reported as Essex Farms Pvt. Ltd. v. Union of India ILR (2008) I Delhi 122. He also relied upon Dayanand v. Union of India 2004 (78) DRJ 202 (DB) to say that when the appropriate Government is alive to the fact that several residential households exist at site, their interests are to be balanced with the public interest in acquisition and wherever accommodation and adjustment is possible, to do so. It was also urged that the mere circumstance that Section 48 did not contain anything express with respect to a hearing, did not per se rule out the grant of opportunity of hearing, more so, when in previous litigation a specific direction had been issued. It was contended that ignoring that previous direction is a clear error of law.

7. Mr. Sanjay Sherawat, learned counsel for review petitioners, argued that the documents available now, to the land owners, clearly showed that the authorities had based their decision on wrong facts. A noting of an engineering officer, expressing these concerns, was relied upon. The relevant extract of the said note, dated 8 June 2017, reads as follows:

"Issue raised is about unnnecessary diverting UER-11 near Barwala and provision of two kinks.

Residents have started at Para 3,4,9 that Smt. Memwati Barwala, the then Municipal Corporate and her corrupt

husband Shri Baldev Barwala with the connivance of some official of land department fabricated documents to show that existing structure falls in the alignment are actually in Laldora and oh the basis of this, realignment was got approved in the Technical Committee Meeting. (Copy Enclosed) at C.P.... Technically this is as faulty alignment and Urban Extention Road 11(100m wide) crosses 220Ky.] T Line twice near Junction of Bawana Road. This is very busy road and there is will be huge traffic once UERII is opened to traffic.Crossing of H.T Line twice will never allow construction of R.O.B at this location in Future.

As per representation para 8, There is no Laldora extention and road crosses through Gramsabha land residents have also submitted some papers and drawings in support of their claim..."

The other official noting dated 7 October, 2015 relied upon, written by the then Project Manager, reads as follows:

"The applicant has raised two issues (i) regarding acquisition of 80 Bigha of land in Village Pooth Khurd and (ii) regarding the revised alignment of 100m road making it pass twice below the High Tension line.

The undersigned is at a loss to understand as to why 80 bigha of land in Pooth Khurd Village was acquired while the land already acquired for construction of 100m road could not be saved from the unauthorised encroachment by a single person as alleged in the representation. The Lands Wing and the Planning Wing are in a better position to throw some light on the sequences of the evidence leading to change in alignment of 100m road and acquisition of 80 bigha of land thereafter specially when the'.-land under the original alignment was clear and had already been acquired and has been, allowed to be encroached upon.

It is thus, proposed that a meeting- may kindly be reconvened either in your chairmanship or under the chairmanship of Hon'ble VC where the Lands Wing, Planning Wing, Legal Wing and the Engineering Wing should be invited to participate and deliberate the issue to bring it to a logical conclusion. End: As above"

8. It is argued, in addition, that the De-notification Committee while rejecting the petitioners' representation under Section 48 (1) of the Act observed that the land was required for construction of 100 meter wide Master Plan Road (UER) under PDD for public purposes, which was also the subject matter of the Notification dated 09.09.2009 under Section 4 of the Act. In effect, no reasons for rejection of the petitioners' representation were furnished in the letter dated 04.05.2016 which goes to show that in absence of a hearing, there was a mechanical rejection and it was thrust upon the petitioners without considering the representation on merits.

9. It was argued on behalf of the respondents, on advance notice, that the review petitions should not be entertained, because the court took note of each contention that is sought to be advanced. It was argued that so far as the fresh material sought to be urged is concerned, that only reflects the notings of two officers; they were made much after the decision of the De-notification committee's recommendations and the final decision of the Lt. Governor. In these circumstances, those notings cannot confer any right to the petitioners. It was also argued that the decision of this court was a considered one, after taking into account the minutes of the De-notification Committee's recommendations and the entire official file. Any review of those findings would be one on merits, which is not permissible.

10. It is well settled that when the court sits in review jurisdiction, it cannot consider the merits of an argument, or even that an argument, which ought to have been made, was not made. A finding rendered after considering certain facts, cannot be re-opened unless that finding is premised on a facial error apparent on the record, such as omission to take into consideration essential facts, or mis-appreciating facts, etc. As far as the first argument about not granting a hearing despite the previous court order to that effect is concerned, the main judgment had dealt with that aspect and noticed that statutorily there was no right to be heard in the decision making process which de-notification was concerned with. The court had also held that failure to give opportunity of hearing despite a court order did not per se vitiate the rejection of the representation because others like the petitioners who too had applied for de-notification were not and could not be granted such rights. This part of the argument was expressly dealt with in the main judgment. The error, which the petitioners point out, is not something that can be corrected in review; it is a matter of appreciation of law, for which the remedy lies elsewhere.

11. The allegations of mala fides, in this Court's opinion touch upon the merits of the acquisition, and the power to acquire exercised by the appropriate government in 2009. The primary challenge to that acquisition failed, when the first petition was allowed to be withdrawn. The fact that the petitioners were afforded the opportunity to seek de-notification meant that the acquisition was not illegal. The right preserved to the petitioners was then to challenge the decision of the de-notification committee, if it were adverse to the petitioners, not have a re-run of something which the court refused to and did not

adjudicate upon, in the first round and for which the petitioner gave up the challenge. Therefore, this submission is not available to the petitioners.

12. As regards the file notings, the Court is of the opinion that there is nothing conclusive or final about them. As opposed to such copies of file notings the records of the case, including the decision of the de-notification committee, reveal that all relevant materials were considered, including the need for road diversion, on account of a johar or water body. The recommendations of the technical committee in that regard were also shown to the court, during the proceedings leading to the main judgment. In these circumstances, the court discerns no merit on this ground.

13. The Supreme Court has observed in Thungabhadra Industries Ltd v. The Government of Andhra Pradesh 1965 (5) SCR 174 that -

"even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinct which is real, though it might not always be capable of exposition between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent." A review is by no means an appeal in disguise whereby an erroneous decision is reheard corrected. but lies only for patent error."

In Abhiram Taleshwar Sharma Vs. Abhiram Pishak Sharma & Ors (1979 (4) SCC 389), the Supreme Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. It has also been ruled that "An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review" (Ref. Parsion Devi v Sumitra Devi (1997) 8 SCC 715). In the present case, each of the arguments urged on behalf of the review petitioners is actually

a reiteration of the submissions made during the hearing of the writ petition; those arguments have been dealt with. There is no discernable or apparent error on the face of the record; equally the material produced in review is not of such nature as to fundamentally undermine the findings in the main judgment.

14. For the above reasons, the court is of the opinion that there is no merit in the present review petitions. The review petitions are, therefore, dismissed, without any order on costs.

S. RAVINDRA BHAT

S.P. GARG, J SEPTEMBER 22, 2017 kks