Delhi High Court
Bhoop Singh And Ors vs Union Of India And Anr on 20 April, 2018
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 20th April, 2018
+ W.P.(C) 11637/2016
BHOOP SINGH & ORS ..... Petitioners
Through: Dr. Sarabjit Sharma and Ms. Palak
Vashisth, Advocates.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Ms. Maninder Acharya, Senior
Advocate, ASG with Mr. Kirtiman
Singh, CGSC, Mr. Kavindra Gill
(G.P.), with Mr. Yashish Chandra,
Mr. Sahil Sood, Mr. Harshul
Choudhary and Mr. Viplov Acharya,
Advocates for Union of India.
Mr. Ajay Verma, Senior Standing
Counsel and Mr. Sanjeev Sabharwal,
Standing Counsel for
respondent/DDA.
Mr. Sanjay Kr. Pathak, Mr. Sunil Kr.
Jha and Mr. Kushal Raj Tater,
Advocates for respondent
/LAC/GNCTD.
Ms. Vibha Mahajan Seth, Advocate
for respondent/DMRC.
Mr. Rahul Kashyap, Director,
Ministry of Housing & Urban Affairs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
CM No. To be numbered) (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CM No. (To be numbered) (for impleadment)
This is an application under Order 1 Rule 10 of Code of Civil
Procedure, 1908 (in short 'CPC'), filed by applicant/DMRC for impleadment
in the present writ petition.
Notice.
Mr. Sarabjit Sharma, counsel for the petitioners accepts notice. The
prayer made in the application is not opposed. Accordingly, the application
is allowed.
DMRC being a beneficiary party is impleaded as a party/respondent in
the present writ petition. Let the amended Memo of Parties be filed.
The application is disposed of.
CM Nos.15263/2018, 15265/2018 & 15267/2018 (for delay)
These are applications filed by the applicants/petitioners seeking
condonation of delay in filing the application for substitution of the legal
heirs of the deceased petitioners.
Notice. Counsels for the non-applicants accept notice. The prayer
made in these applications are not opposed. Accordingly, the delay in filing
the applications is condoned.
The applications stand disposed of.
CM Nos.15262/2018, 15264/2018 & 15266/2018 (for substitution of legal
heirs of deceased petitioners)
By the present applications filed under Order 22 Rule-3 of CPC, the
petitioners/applicants wish to substitute the legal heirs of the deceased
petitioner No.7 (ii), petitioner No. 3(i) and petitioner No.15 as mentioned in
the applications.
The prayers made in these applications are not opposed. Accordingly,
the applications are allowed. The names of legal heirs of the deceased
petitioners as mentioned in the applications be substituted in the writ petition
subject to just objections.
The applications are disposed of.
CM No.15268/2018 (amendment of memo of parties)
This is an application under Order 6 Rule 17 read with Order 1 Rule
10 of CPC, filed by applicants/petitioners for amendment in the memo of
parties.
Notice.
The prayer made in the application is not opposed. Accordingly, the
application is allowed.
Let amended memo of parties be filed.
CM No.15298/2018 & CM No. ...... (To be numbered) (vacation of stay
filed by the DDA & DMRC) in W.P.(C) 11637/2016
1. Present applications under Section 151 of CPC filed on behalf of
applicant/respondent no.2/DDA and respondent/DMRC for vacation
of stay.
2. Necessary facts to be noticed for disposal of these applications are that
the petitioners have filed present writ petition under Article 226 of the
Constitution of India seeking a declaration that the acquisition
proceedings pertaining to their land is deemed to have lapsed, as
actual physical possession has not been taken, although compensation
stands paid. Reliance is placed on Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013.
3. While issuing notice in the matter on 14.12.2016, parties were directed
to maintain status quo with regard to the nature, title and possession of
the subject land. The interim order dated 14.12.2016 was confirmed on
27.11.2017 and the following order was passed:
"Counter affidavit has not been filed. Counsel for the LAC
submits that the counter affidavit has been sent for signatures.
She submits that she has instructions to submit that enhanced
compensation has been paid. Let the counter affidavit be filed
within one week. Rejoinder, if any, be filed within one week
thereafter.
List on 13.12.2017.
CM.APPL 45859/2016 (stay)
Reply has not been filed. While issuing notice in this
matter, parties were directed to maintain status quo with
regard to the nature, title and possession of the subject land.
The interim order dated 14.12.2016 is confirmed till the
disposal of the writ petition with the modification that the
parties would maintain status quo with regard to the nature,
title, possession and construction of the subject land. This is
subject to variation at the instance of either of the parties.
The application stands disposed of".
4. Being aggrieved by the action initiated by the respondents led to the
filing of Contempt Case (C) No.180/2018 which was listed before this
Court on 13.03.2018. The petitioners claim to be in cultivatory
possession and it was submitted that despite the impugned order, the
petitioners were being forcibly dispossessed by M/s Larsen & Toubro
(L&T) (who was impleaded as a party) who apparently has been
engaged to carry out the construction over the land. Upon receipt of
notice, for the first time DDA realized that the possession of the
subject land had, in fact, been handed over to the Department of
Industrial Policy and Promotion under the Ministry of Commerce and
Industry, for the purpose of constructing Exhibition-cum-Conventional
Centre (in short 'ECC') on land measuring 89.72 hectares in Sector-25
Dwarka, New Delhi. The DDA has since filed an additional affidavit
and also the present application bearing CM No.15298/2018 seeking
the vacation of stay. The DMRC has also filed an application for
vacation of stay on the ground that possession of part of the land has
been handed over to them for the purpose of construction of the
Airport Express Line from Dwarka Sector 21 to Dwarka Sector 25 and
for which this work has already been awarded. The prayer made in this
application is supported by the counsel for the LAC who also sought
to place additional documents on record. Ministry is also represented
by Ms. Maninder Acharya, learned Additional Solicitor General
(ASG) who has also expressed the urgency for the construction of the
ECC. She has also highlighted the fact that a decision was taken by the
Cabinet for the construction of the aforesaid centre.
5. Learned counsel for the petitioners candidly admits that the petitioners
have received the compensation and also enhanced compensation on a
reference made before the Additional District Judge, thereafter further
enhanced compensation by an order passed by the Delhi High Court
and thereafter another enhanced compensation in terms of the order of
the Apex Court. However, Mr. Sharma contends that the petitioners
are in actual physical cultivatory possession of the land and crops are
standing over the land in question.
6. Learned counsels for the respondents submit as under:
(i) Mr. Verma, learned counsel for the respondent/DDA, contends
that the possession proceedings would show (copy whereof has been
placed on record) that the present case is not a case of paper
possession or possession being taken in the office of the DDA but the
official of the respondents were present at the site for almost three
days and thereafter 15 days time was granted to the petitioners to cut
their crops. In the year 2002 physical possession was taken and handed
over to the beneficiary who has put the land to use.
(ii) Mr. Pathak, learned counsel appearing for LAC/L&B,
highlights that the respondents are in actual physical possession which
is evident from the document including the applications made by the
petitioners seeking release of the compensation wherein the petitioners
have admitted that they are not in possession and thus, they are
estopped from raising the plea of possession;
(iii) Ms. Mahajan, learned counsel appearing for DMRC, submits
that part of the land is required by the DMRC for the construction of
Airport Express line from Dwarka Sector-21 to Dwarka Sector-25 and
for which work has already been awarded. She further submits that
the petitioners have additionally approached the Land & Building
Department, Delhi Government to apply for alternate plot in lieu of
the acquired land.
7. The attention of the Court is drawn to the copy of proforma affidavit
filed along with the application under the Scheme of allotment of
alternative plots in lieu of the acquired lands. Paras 2 & 3 of the
proforma affidavit read as under:
"2. That there is no land remains with me out of the above
acquired land and the possession of the entire acquired land
stated above has been taken over by the L.A.C. on ------
except ---------------- (details to be given).
3. That I am claiming alternative plot against the land so
acquired by the L.A.C. of which the undersigned is recorded
owner before the notification issued u/s 4 of the L.A.Act. My
land has acquired in entirety and no land is left,
unacquired, in my name in the territory of Delhi".
8. The sum and substance of the arguments of learned counsels
appearing for the respondents are that not only the stay granted in the
writ petition is liable to be vacated but writ petition is also to be
dismissed, as the compensation has been paid which is evident from
reading paras 8 & 10 of the counter affidavit filed by the LAC which
are reproduced below:
"8. That as regards possession and compensation it is
humbly submitted that as per possession proceeding report,
possession of the subject land comprised in Khasra Nos.
41/1,2,3,8,9,10,11,12,13,19,20,26, 42/4/2, 5/2, 6, 7/1, 15
(Measuring 12 acres 3 bigha 2 biswa), 19/9/2, 10/2, 11, 12
(measuring 2 acres 3 bigha 3 biswas), 27/17, 24, 30, 44/4/1,
(measuring 15 acre 6 bigha), 9/24, 25/ ..., 21/10/2, 11,20,28,
22//4,5,6,7,8, 14/ 1, 15, 16, 29 (measuring 5 acre 2 bigha 18
biswa), 42/7/2, 14, (1 acre), 21/14/2, 13, 15/2, 16,17,18, 23,
28/2/3, 3, 4/1, (measuring 7 acres 1 bighas 8 biswa), 22/3,4,8,
12 (measuring 1 acre 2 bigha 13.5 biswa),
29/12,13,14,17,18,19,22/1, 24/1, 30, (measuring 6 acre, 4
bigha 7 biswa), 20/6/2, 7/2, 8/2, 13, 14, 15,16,17/1, 27,
(measuring 5 acre 3 bigha 13 biswa) 31/2/2, 3/2min.,7,8,9,14,
16/1, 17/1, 12/1, 13/1,28 (measuring 6 acre 10 biswa), 30/16,
24/1, 25/29, 31//20, 21/1 (measuring 2 acres 1 bigha 2
biswa), 18/21, 30/6, 15, 31//1, 10, 11,26, (measuring 5 acres
3 bigha 5 biswa), 44/23/1, (measuring 1 bigha 12 biswa),
21/5,6,4/2,7,15,16/1 (4 acres 6 biswas), 39/25/2/2, 53/5/2,
6/1,54/10/2, (measuring 2.5 acres bigha 3 biswa), 27/17,
24,30/44/4/1, 200/1, 307 (measuring 2 acres 1 bigha 18
biswas), 22/11/2,12,13/2,14/2,17,18,19,22,23/1,24/1, 30,
162/2, 245/1 (measuring 8 acres 17 biswa) was taken on
14.08.2002.
10. That after passing of the award by the collector, the
recorded owner of the subject land filed reference under
section 18 of the Old Act. Again being dissatisfied with the
enhanced compensation awarded by the reference court, they
filed Land Acquisition Appeal before the Hon'ble High Court.
The compensation amount for the acquired land has been
enhanced even by the Supreme Court. This is not the case of
the petitioner that possession of the acquired land has not
been taken or compensation has not been paid. In the present
case not only the possession of the acquired land has been
taken but compensation and enhanced compensation has also
been paid to the recorded owner of the subject land. Under
this circumstances, the Right to fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 cannot be applied in the present case
for release of the land of the petitioners. Hence the present
petition is liable to be dismissed with cost".
9. Mr. Sharma, counsel for the petitioners submits that though the
possession of the subject land was taken in the year 2002 and 15 days
time was granted to the petitioners to cut the crops and they have
applied for alternate plot between the years 2003 and 2004, however it
cannot be said that the petitioners are not in actual physical possession
of the subject land.
10. Learned counsels for the respondents have also relied upon the
decisions rendered by this Court in Writ Petition Nos.2783/2015
(Vijender Singh & Ors vs. Govt. of NCT of Delhi), 9101/2014 (Bhim
Singh vs. Govt. of NCT of Delhi), 2387/2016 (Jai Singh vs. Union of
India) and 2608/2016 (Chatar Singh vs. Union of India) wherein the
petitioners had received enhanced compensation and the writ petitions
were dismissed. The operative portion of the judgment rendered by
this Court in Chatar Singh vs. Union of India, W.P.(C)2608/2016
reads as under:-
"9. Based on the affidavits and undertakings, it would
leave no room for doubt that the petitioners had accepted the
compensation including Special Rehabilitation Package and
had given up all rights of challenge in any court of law much
prior to coming into force of the 2013 Act.
10. Mr. Gupta has laboured hard to convince this Court
that the onus was on the LAC to show that the actual physical
possession was taken and law laid down by the Supreme
Court giving mandatory directions with regard to the manner
in which possession has to be taken has been ignored. In our
view, this argument is not open to the petitioners as the
petitioners have not disputed that possession has not been
taken. Such an argument would be open only to those
petitioners who contest that actual physical possession was
not taken or given by them. In this case, once the petitioners
themselves have admitted that actual physical possession was
taken, it does not lie for the petitioners either to raise a
ground or to contest that the LAC must discharge its onus. In
our view, once the land owner himself has admitted that
possession was taken, nothing further would be required to
show that possession was taken, more so, where not only
compensation has been paid to the petitioners, the petitioners
have also availed of Special Rehabilitation Package and
received additional payments and thus, divested themselves of
all rights in respect of the acquired land.
11. For the reasons stated above, we find no merits in the
writ petitions. The writ petitions are accordingly dismissed."
11. We have heard the learned counsels for the parties and given our
thoughtful consideration to the matter. We are constrained to note that
when the counter affidavit was filed, no averment was made that the
possession of the land has been handed over to the Department of
Industrial Policy and Promotion under the Ministry of Commerce and
Industry who are beneficiary, for the purpose of constructing ECC. In
case this fact would have been brought to the notice of this Court the
impugned order would not have been passed.
12. We find force in the submissions made by learned counsels for the
respondents as also learned ASG that the possession proceedings
would show that actual physical possession of the land was taken but
15 days time was granted to the petitioners to cut the crops. We may
also note that when the petitioners approached the respondents for
grant of alternate plot, they categorically stated that they are no longer
in possession of the land.
13. Sample copy of application for release of payment to Bhoop Singh s/o
Late Shri Gulab Singh has been handed over in Court. Copy of same
has been supplied to Mr. Sharma, counsel for the petitioners. The
same is reproduced below:
"Under Protest
Before The Land Acquisition Collector (S.W) Delhi.
Village: Bharthal
Award No. 26/2002-03
Application For Release Of Payment By Sh. Bhoop Singh
Son Of Late Sh. Gulab Singh, R/O Village Bharthal Delhi.
Sir,
1. The appellant is bhumidhar in possession of land in
Khasra No. 41/1(4-9), 2(4-16), 3(4-16), 8(4-2), 9(4-16), 10(4-
9), 11(4-9), 12(4-16), 13(4-16), 19(3-2), 20(0-17), 26(0-14),
42/4/2(1-17), 5/2(3-11), 6(4-16), 7/1(2-2) and 15(3-10) as
specifically shown in the revenue record of the revenue estate
of village, Bharthal Delhi.
2. That land acquisition collector has taken possession of
the land and award in respect of the land of the applicant has
been announced.
3. That the applicant does not accept the valuation of
land and reserve his rights to challenge the award in
appropriate proceedings. Applicant wants to receive payment
under protest and without prejudice to his legal rights.
4. That the amount as assessed by the Land Acquisition
Collector in respect of entire land of the applicant is liable to
be paid to the applicant only and there is no other persons
other than applicant entitle to claim the same. Possession of
the land has already been taken by Land Acquisition
Collector.
It is, therefore, prayed that the payment of amount of
compensation may be released to the applicant.
Applicant
Delhi.
Dated: 28/10/02 Through
(N.S. Negi & H.S. Rautela)
Advocates".
14. Having regard to the submissions made, the documents referred
hereinabove and taking into consideration that the compensation of the
entire land has been received including enhanced compensation up-to
the Supreme Court, interim order dated 14.12.2016 which was
confirmed on 27.11.2017 is vacated.
15. The applications are disposed of.
16. The Registry is directed to number the applications.
W.P.(C) 11637/2016
As prayed, list for hearing on 14.05.2018.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
APRIL 20, 2018
ssc
