Delhi High Court
B S Tolani vs Govt. Of Nct Of Delhi & Ors. on 21 December, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: December 21, 2018
+ W.P.(C) 3049/2014, CM No. 6380/2014
B S TOLANI ..... Petitioner
Through: Mr. Rajesh Rawal, Adv.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. B. Mahapatra, Adv. for R-1 & 3
Ms. Shobhana Takiar, Adv. for DDA
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner with the
following prayers:
"That in view of the above, it is therefore most respectfully
prayed that this Hon'ble Court may be pleased to: -
Issue a Writ, Order or Direction in the nature of
Certiorari thereby Quashing the Award passed by the
Respondent under Section 11 of the Land Acquisition Act,
1894 bearing no.05/2013-2014 dated 27.12.2013 whereby
the Respondent wants to acquire the land of the Petitioner
admeasuring 34 Bighas 18 Biswas (35,172 Sq. Yards) in
Mehrauli.
Issue a Writ, Order or Direction in the nature of
Certiorari thereby Quashing all other related notifications
under Section 4 dated 21.07.2011 and Section 6 dated
19.07.2012 under the Land Acquisition Act, 1894 and the
Alleged Notice allegedly sent to the Petitioner under
Section 9 and Section 10 of the Land Acquisition Act, 1894
dated 14/11/213;
Issue of a Writ, Order or Direction in the Nature of
Mandamus thereby directing the Respondents not to
interfere with the peaceful possession of the Petitioner in
the land of the Petitioner admeasuring 34 Bighas 18
Biswas in Mehrauli.
Issue such other writ, order or a direction as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case; and
Also award costs of the present proceedings in favour of
the petitioner and against the respondent"
2. It is the case of the petitioner that he is the owner of the Land at Village
- Mehrauli, touching DDA Residential Colony, Vasant Kunj, Sector-A,
Pocket-C, alongside Mehrauli-Mahipal Road, New Delhi-110030, area
measuring 34 Bighas 18 Biswas bearing Khasra Nos. 1303 (0-13), 1304
(0-18), 1305 (0-10), 1306 (18), 1307 (0-18), 1309 (0-18), 1310 (1-14), 1311
(1-10), 1312 (1-10), 1313 (017), 1314 (0-17), 1315 (4-16), 1316 (4-9), 1317
(2-6), 1329 (4-8), 1331 (1-8), 1332 (0-17), 1333 (1-18), 1336 (0-5), 1472 (0-
10), 1473 (0-14), 2855 / 1470 (02), 1329 (1-13) sold by Government of India
as freehold land under sale deed dated 13.09.1966 and respondent DDA had
earlier in the year 1983 attempted to acquire the land of the petitioner through
Land Acquisition Award dated January 17, 1983. However, this Court vide
order dated September 23, 1986 in W.P.(C) 753/1983 had quashed the said
Award and held that the land of the petitioner was an evacuee land sold to the
petitioner by the Govt. of India and therefore could not be a subject matter of
acquisition proceedings.
3. Despite the aforesaid order of this court and various representations by
the petitioner, respondent / DDA retained the subject land in the name of
DDA / Sarkari in Mehrauli Tehsildar records and DDA Land Management
Department records and DDA Tehsildar Records for over 30 years, due to
which the petitioner could not sell or develop the land even though the
physical possession of the said land remained with the petitioner. It is stated
that on July 21, 2011 respondent no.1 got issued Notification No.
F.9(4)/08/L&B/LA/5136 under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as the Act) disclosing therein their intention to acquire
the land measuring 44 Bighas, which included the land of the petitioner.
Within 30 days of getting knowledge of the said Notification under Section 4
of the Act, the petitioner filed an objection petition before the LAC, Delhi and
prayed for quashing and setting aside of the notice. The petitioner requested
and was granted a personal hearing before the respondent no.3 on November
21, 2011 at 3 PM.
4. It is stated that the petitioner reached the office of respondent no.3 at
the pointed hour, however, the respondent remained unavailable for the said
personal hearing as required under Section 5A of the Act. The respondent
no.3 however assured the petitioner on telephone that a personal hearing
would be given to the petitioner in accordance with Section 5A of the Act.
The petitioner therefore filed written objections at the office of respondent
no.3 on the same day, i.e., November, 21, 2011. The said letter of objections
stated to have clearly indicated the petitioner‟s address at Mumbai.
Thereafter, the petitioner had made repeated representations to the respondent
in writing for cancellation of notice under Section 4 of the Act while also
requesting for a personal hearing under Section 5A of the Act. The petitioner
also submitted a review application to the Hon‟ble Lt. Governor of Delhi vide
letter dated August 18, 2011 requesting for cancellation of the said
notification. The said application was forwarded by the Lt. Governor to
Secretary, L&B Department for consideration, however no action was taken.
On January 7, 2012, the petitioner also filed an application under Section
48(1) of the Act to the respondent no.1 and kept following up for action to be
taken through several representations. It is stated that the respondent sent a
belated letter dated May 31, 2012 to the petitioner stating therein that the said
application was not addressed to the Hon‟ble Lt. Governor and therefore
could not be considered.
5. It is stated that on May 16, 2012, respondent no.2 is stated to have
prepared and sent a recommendation report in favour of the intended land
acquisition to respondent no.1 being report no. ADM/LAC/(S)/2012/7672
stating falsely therein the inability of the petitioner to meet respondent no.3
on account of being a resident of Mumbai. Subsequently, notification no.
F9(4)08/L&B/LA/6956 dated July 19, 2012 under Section 6 of the Act was
issued confirming the intention to acquire the land of the petitioner for the
purpose of "Planned Development of Delhi" at Mehrauli.
6. In accordance with Scheme of the Act of 1894, notice under Sections
9 and 10 of the Act dated November 14, 2013 was sent to the petitioner
stating therein that the respondent intended to take possession of the said land
and therefore called upon the petitioner to show any interest in land or claims
to compensation for such interest in land as notified in the notification dated
July 19, 2012 under Section 6 of the Act. The notice further informed the
petitioner to be present at the office of respondent no.3 on November 30,
2013 at 3 PM for personal hearing. It is submitted that the notice under
Sections 9 and 10 of the Act dated November 14, 2013 was sent on a false
and fictitious Delhi address of the petitioner and the same was never received
by him.
7. It is averred that the respondent no.3 without affording a just and fair
opportunity to the petitioner to present his objections and claim for
compensation and determination of right current market value of his land has
passed the impugned award dated December 27, 2013 being NO. 05/2013-14
and the same is arbitrary, illegal and null and void.
8. It is the case of the petitioner that the Notification under Section 6 of
the Act is invalid and bad in law as the same was not issued within one year
from the issuance of notification under Section 4 of the Act. The notification
under Section 4 was issued on July 21, 2011, however Section 6 notification
was published in the Govt. Gazette only on July 27, 2012. The same is stated
to have been confirmed by the Govt. of India Press Manager in his letter dated
December 14, 2012 obtained under RTI by the petitioner.
9. It is the case of the petitioner that according to procedures formulated
by Govt. of NCT of Delhi under Provisions of the Land Acquisition Act,
1894, the proposal for acquisition of land for furnishing the draft notification
under the provisions of the Act of 1894, after conducting the joint survey of
the land proposed to be acquired, is first forwarded by DDA or any other
Govt. Department to the concerned Land Acquisition Collector. In the
present case, however, no joint survey of the subject land is stated to have
been carried out, nor was any land demarcation or measurement carried out.
According to the petitioner the respondent no.2 neither had financial sanction
nor any approval of the Scheme / Project by higher authorities. No formal
proposal for land acquisition by way of an application was submitted by
respondent no.2 / DDA, but instead letters dated January 22, 2007, August 18,
2008 and February 22, 2009 were sent to respondent no.1 requesting to
acquire 118 bighas 18 biswas of land for the unspecified public purpose of
"Planned Development of Delhi" without having any actual or specific
Scheme / Project in place.
10. It is the case of the petitioner that respondent no.2 / DDA without any
basis issued two subsequent letters dated March 3, 2011 and June 22, 2011 to
respondent no.1 to issue notifications under Sections 4, 6 and 17(1) of the Act
of 1894 for the subject land on urgent / priority basis citing the reasons as
compliance in cases pending against the respondent / DDA before this Court.
It is averred that on the basis of the naked discrimination names of several
land owners were deleted from the original list of 118 bighas of total land to
be acquired and brought down to 44 bighas which also included the land of
the petitioner. It is his case that no explanation was communicated to him for
such action and the same is therefore violative of the Right to Equality
guaranteed by the Constitution.
11. It is the case of the petitioner that the respondent no.2 / DDA had failed
to deposit the required 80% mandatory cash deposit of the estimated cost of
acquisition with the respondent no.3 as is required by the procedure as
provided on the website of Govt. of NCT of Delhi for land acquisition read
with Section 6 of the Act of 1894. In terms of the above stated procedure, the
demand to deposit the said 80% of the estimated cost of acquisition was
raised by respondent no.3 in its letter dated June 30, 2011 addressed to
respondent no.1 with a copy marked to respondent no.2 / DDA. It is therefore
stated that since respondent / DDA failed to deposit the said amount,
respondent no.1 had no authority to issue the notification under Section 6 of
the Act of 1894.
12. It is averred that as per Policy of Govt. of NCT of Delhi / respondent
no.1, no land within 50 meters from village abadi could be acquired. It is
stated that the respondents failed to consider that the land of the petitioner
touches DDA residential flats, which is less than 50 meters away.
13. It is further averred that the petitioner‟s application for de-notification
dated January 7, 2012 under Section 48 (1) of the Act was required to be
addressed and dealt with by the De-notification Committee and then
forwarded to the Hon‟ble Lt. Governor. By not considering the said
application of the petitioner and simply rejecting it outright without giving a
personal hearing to the petitioner, the respondents are stated to have violated
their own policy and procedures.
14. It is the case of the petitioner that the respondent no.3 has fixed the fair
market value of petitioner‟s land at about Rs.100 per sq. ft. shown in the
impugned award at Rs.53 Lacs per acre, whereas the DDA flats in the
adjacent Vasant Kunj colony touching the petitioner‟s land are selling at
about Rs.25,000/- per sq. ft.
15. It is further the petitioner‟s case that the impugned award dated
December 27, 2013 was passed only two working days before January 1,
2014, when the Land Acquisition Act, 2013 came into force, by which time
the respondents had neither taken physical possession of the petitioner‟s land
nor paid any compensation to the petitioner. It is his case that the subject land
has always been in his actual physical possession being walled and fenced off
and being occupied by the petitioner‟s staff and several security guards and
supervisor.
16. The respondent nos. 1 and 3 have jointly filed their counter-affidavit
wherein they have challenged the maintainability of the present petition
stating that the award had already been pronounced on December 27, 2013
and therefore, the proceedings so far as the land acquisition is concerned,
having been completed in all respects under the old Act cannot now be
challenged. It is stated that the possession of the subject land had already
been taken over by the department under Section 16 of the Act and handed
over to the beneficiary. Reliance is placed on the Kabza Karwahai report
dated December 30, 2013.
17. It is the case of respondent nos. 1 and 3 that the petitioner, despite
having information about a date of hearing under Section 5 A of the Act could
not attend the same on account of his residing in Mumbai. It is stated that the
petitioner therefore filed written objections vide letter dated November 21,
2011. The written objections as raised by the petitioner are stated to have
been taken into consideration by respondent no.3 while preparing the report
for the purpose of acquisition of land in question. It is further stated that the
notice under Sections 9 and 10 of the Act were duly issued and served on the
petitioner.
18. It is averred that the notification under Section 6 of the Act was
actually issued on July 19, 2012 and only published in the Gazette on July 27,
2012. The same is, therefore, stated to have been issued within one year from
the date of issuance of the notification under Section 4 of the Act on July 21,
2012. It is further stated that in any case Annexure P-3 relied upon by the
petitioner is of newspaper dated July 29, 2011 and therefore the Notification
under Section 6 of the Act would still lie within one year from the said date if
published on July 27, 2012.
19. It is the case of the respondents that the petitioner‟s application for de-
notification under Section 48 (1) of the Act was duly considered by the Lt.
Governor and ultimately rejected. It is further stated that the petitioner‟s
grievance with regard to amount of compensation can be agitated before the
appropriate authority.
20. It is the respondents‟ case that the compensation of the acquired land in
accordance with prevalent rate has already been calculated, and since there
were certain litigations pending with regard to title and apportionment of the
land, the compensation would be subject to outcome of adjudication under
Section 30 and 31 of the Act. It is therefore stated that the petitioner was in
no way prejudiced by the procedure adopted by the respondents nor can it be
said that the impugned award dated December 27, 2013 was passed without
following due procedure of law.
21. Respondents in their additional affidavit filed on August 30, 2016
stated that two e-mails were sent from the office of LAC on February 7, 2012
and February 8, 2012 requiring the petitioner to appear before him for hearing
under Section 5A of the Act. The same were received by the petitioner, who
vide letter dated February 7, 2012 requested the LAC to consider his
submissions dated November 21, 2011. The said letter of the petitioner dated
February 7, 2012 further read "today I received a phone call in my office in
Bombay while I was away, from a person who claimed that he is SDM calling
from New Delhi and wants Mr. Tolani to be present on February 10, 2012
(Friday) at 3 PM for personal hearing. Regrettably, he refused to give his
landline telephone no. and any other details". It is therefore stated that the
petitioner has therefore denied himself the opportunity of being heard and that
the enquiry under Section 5A of the Act is not vitiated by error of law.
22. Petitioner in his rejoinder stated that the impugned award and
notifications under Section 4, 6, 9 and 11 of the Act have been challenged not
just under Sections 9 and 11 of the Act but under several other provisions of
the Act. It is further stated that there is no bar under the Act from challenging
the notifications after the passing of the Award.
23. It is further stated that the Kabza Karwahai report is a manufactured
and self-serving document and that the possession of the land still remains
with the petitioner. The petitioner further stated that although the Kabza
Karwahai report states the possession of the said land had been handed over
to one Mr. Khemchand (Patwari, L&B), it does not however, mention who
handed over the possession of the said land. It is stated that the petitioner
resides in Mumbai and therefore for the possession to be handed over, the
respondent would have to fix a date and time, for the petitioner to be present
at his land to hand over the possession to respondent / DDA. No such notice
was ever received by the petitioner and the Kabza Karwahai report falsely
states that the land comprising of 44 bighas and 10 biswas was demarcated on
the spot by area Patwari. The petitioner‟s land is an enclosed land having
boundary walls and steel wire fences and has several security guards and
other staff present at the said land at all times. No demarcation of land and
no measurements were taken on December 30, 2013. In the absence of
several workmen and tools the same could also not have been carried out by
the officers of the respondent. The petitioner relies on affidavit dated
February 20, 2015 of Sh. Sohrab Ansari owner of the Security Agency
engaged by the petitioner to state that on December 30, 2013 no outsider
visited the petitioner‟s land and the same remains in possession of the
petitioner and his staff till date. The petitioner further relies on various bills
from the year 2013 to 2015 evidencing payments made to the Security
Agency.
24. It is stated that the subject land is guarded by security personnel,
employed by the petitioner, and that no one could enter the land without his
permission. The petitioner is stated to have additionally employed staff
member (caretaker) to take care of the said land who is also residing in staff
quarters (dwelling house) at the said land with his whole family. It is stated
that the order of status quo passed by this Court on May 16, 2014 on the
representation of the petitioner that he was still in possession of the subject
land is still in operation and the petitioner therefore continues to be in
continuous uninterrupted possession of the said land till date.
25. The petitioner denies the respondents‟ contention that he failed to
attend the proceedings under Section 5A of the Act in view of the fact that he
resided in Mumbai. The petitioner is stated to have reached the office of
respondent no.3 at the given time on November 21, 2011. The respondent
no.3 being unavailable for hearing, the petitioner filed written objections
under Section 5A of the Act on the same date on the assurance that a personal
hearing would be granted later. Subsequently, the petitioner visited Joint
Secretary and Deputy Secretary, L&B Department twice requesting the LAC
to be directed to give a personal hearing to him. It is pointed out that the
respondent LAC has failed to file / produce any proof of serving notice on the
petitioner after respondent LAC failed to give hearing on November 21, 2011
whereas the petitioner has been repeatedly knocking at the door of respondent
LAC for personal hearing under Section 5A of the Act.
26. It is averred that the impugned award dated December 27, 2013 is
stated to have been signed by LAC (East), Delhi without application of mind
and having no jurisdiction. The same is stated to have been within the
jurisdiction of LAC (South).
27. It is stated that the Hon‟ble Lt. Governor of Delhi never took any
decision on the de-notification application filed by the petitioner and the same
had simply been forwarded to Vice-Chairman, DDA for his examination and
comments. The petitioner relies on RTI reply dated April 4, 2012 in support
of the same. Further vide RTI reply dated March 11, 2015, the said
application is stated to have been forwarded to the Office of DDA and
Department of Land and Building for information. Further RTI reply dated
March 27, 2015, the Hon‟ble Lt. Governor is stated to have categorically
denied rejecting the petitioner‟s application for de-notification. It is therefore
stated that the impugned notification under Section 6 of the Act and the
consequent award have been passed without due consideration of the de-
notification application of the petitioner which is violative of the procedures
in place.
28. It is the case of the petitioner that he is the sole and single owner of the
subject land and has been in possession of the same since 1960 when the said
land was sold to him directly by the Govt. of India. It is stated that there is no
dispute or litigation pending before any Court as regards title.
29. In his additional rejoinder the petitioner has stated that the e-mails
dated February 7, 2012 and February 8, 2012 were written by Mr. Sanjeet
Sangwan, however, nothing was disclosed / explained as to his designation
and authority to send such e-mails nor was it proved that the said e-mails were
official communications from the concerned LAC.
30. The petitioner has further pointed out the last paragraph of his letter
dated February 7, 2012, wherein it is categorically stated that "if in spite of
above you decide to go against above submissions, please be kind to confirm
fixed time and date for personal hearing which will allow few days to enable
my legal counsel to adjust his programme to travel with me to Delhi". It is
stated that the said letter was never responded to nor was any personal hearing
given on February 10, 2012. It is further stated that the petitioner had again
written to respondent no.3 vide letter dated July 5, 2012 wherein reference
was made to the letter dated February 7, 2012 and the failed hearing of
November 21, 2011. Still, however, no response or hearing from the
respondents was forthcoming.
31. Respondent / DDA in its counter-affidavit has stated that the impugned
award having been passed and the possession being taken over under Section
16 of the Act on December 30, 2013, the subject land now vests in State free
from all encumbrances. The acquisition is stated to have been for the
Planned Development of Delhi namely "Development of Vasant Kunj
Residential Scheme". It is stated that the notification dated July 21, 2011
under Section 4 of the Act was issued at request of the respondent DDA.
32. It is further stated that the land in question was jointly surveyed by
Land and Building Department and LAC with DDA vide Survey Report dated
October 27, 2010. The land is stated to be lying vacant and being maintained
by Horticulture Department of DDA. It is averred that after the Declaration
under Section 6 of the Act was issued, the award was declared on December
27, 2013, possession taken was over on December 30, 2013 and compensation
duly paid. In view of these facts, it is stated that the acquisition has become
final.
33. It is averred that there is no dispute that the purpose of acquisition is a
public purpose supported with a plan of the land acquired. The respondent is
stated to have a complete, comprehensive and detailed Scheme or Plan as to
the manner in which they are to develop the said land and the actual use to
which it is proposed to be put to. It is further stated that the prices of the land
prevailing in the areas which have been developed much earlier cannot be
equated with those of undeveloped agricultural land. In view of the fact that
major portion of the land in the area has been utilized for allotment to
schemes of DDA, i.e., LIG / MIG / EWS, there is no reason to exclude the
land of the petitioner from acquisition.
34. It is the case of the respondent / DDA that the land in question has been
acquired by following the due of process of law and the same now vests in
State. The petitioner therefore has no right, title or interest in the land. The
land has been placed at disposal of the DDA and the impugned notifications
and award cannot now be challenged. It is stated that in light of aforesaid
facts, there is no question of correcting the revenue records in favour of the
petitioner.
35. In his rejoinder to the counter-affidavit filed by respondent / DDA,
petitioner has stated that the approval for notification under Section 4 of the
Act by the Hon‟ble Lt. Governor has been obtained by misrepresenting facts
inasmuch as the respondent no.2 had described the said land as heritage land
(historical-allowing no development) and also classifying it as Forest Land
(Ridge Land), which is to be developed by Forest Department and not DDA.
It is stated that all the area in Vasant Kunj, Sector-A, Pocket-C was converted
into residential area and Master Plan Delhi - 2021 shows the petitioner‟s land
as being residential. It is further stated that the petitioner‟s representation for
quashing of notification under Section 4 of the Act could not reach its logical
conclusion on account of the fact that the respondent never furnished its
comments in that regard for perusal of the Hon‟ble Lt. Governor.
36. It is averred that Vasant Kunj Residential Scheme, Sector-A, Pocket-C,
where the petitioner‟s land is located was completed long ago and the
residential colony was handed over more than 15 years ago to "Vasant Kunj
Residents Welfare Association" and the said Scheme was completed, DDA
handed over all the roads and utilities to Delhi Municipal Corporation. The
said scheme being completed long ago, the respondent / DDA is no more
incharge. There has also been no amendment or change of the end user in
MPD-2021.
37. The petitioner further stated that the respondent / DDA never took
actual physical possession of the subject land in 1983 and the same is also not
supported by any documentary evidence. Similarly, actual physical possession
of the subject land was again not taken on December 30, 2013 as no-one ever
visited the petitioner‟s land. No maintenance, no planting of flowers, lawn or
any other activity was ever carried out by the Department of Horticulture in
the petitioner‟s land. The petitioner reiterates that several Security Guards
and other staff are available on his land round the clock and that no-one is
allowed to enter without permission. It is also categorically denied that the
petitioner‟s land was jointly surveyed by L&B, LAC and DDA on October
27, 2010 or that the land is lying vacant and being maintained by Horticulture
Department.
38. It is averred that compensation was never paid to the petitioner, nor has
the respondent placed any evidence on record to substantiate its stand that the
amount has already been paid. It is stated that the respondent had also not
deposited 80% of the estimated cost of acquisition as demanded by LAC
through repeated reminders prior to issuance of notification under Section 6
of the Act. It is further stated that the actual intended final usage of the
subject land is still not clear.
39. It is the case of the petitioner that he was not granted a hearing under
Section 5A of the Act which is mandatory in nature and non-compliance of
which would be fatal to the entire acquisition proceedings. The report of the
LAC dated May 16, 2012 is the result of non-application of mind and non-
consideration of submissions made on behalf of the land owners. The said
report is stated to be cryptic and does not deal with the petitioner‟s objections
substantively. The petitioner claims to have been deprived of his valuable
rights with the report being rendered in violation of principles of natural
justice.
40. The petitioner has denied the respondent‟s stand that there is no need
for correcting the revenue records in favour of the petitioner. It is stated that
the respondent DDA through Tehsildar has falsified Govt. records of
ownership by showing the petitioner land as DDA property for the past 30
years. The same has resulted in the petitioner not being able to fully enjoy his
land or develop it accordingly. The error has remained despite several
representations to DDA and to the Tehsildar to correct the records of
ownership.
Submissions.
41. Mr. Rajesh Rawal, learned counsel appearing for the petitioner in his
submissions stated that the petitioner had purchased the subject property vide
Sale Deed dated September 30, 1966. According to him, earlier also the
subject property was sought to be acquired. However, the said acquisition
was quashed by this court vide order September 23, 1996 in W.P.(C)
753/1983 on the ground that the subject property was a evacuee land and
could not be the subject matter of acquisition proceedings.
42. It was the submission of Mr. Rawal that the respondent nos. 1 and 3
again sought to acquire the subject land of 118 Bighas and 18 Biswas of land
Village - Mehrauli and the land was alleged to fall within Mehrauli Heritage
Zone and Ridge / regional park. He by drawing our attention to a letter dated
June 22, 2011 submitted that a contempt petition was filed by Sh. Mahender
Gupta for non compliance of order dated February 11, 2011, whereby this
court had directed to restore back the possession to him of his land.
Accordingly, a notification was issued under Section 4 of the Act of 1894 on
priority basis so as to avoid facing the contempt proceedings as stated in the
said letter. A section 4 notification was issued to acquire the land of Sh.
Mahender Gupta and the subject property as well. He stated that there was no
public purpose and the acquisition proceedings were initiated only to avoid
contempt proceedings. He also stated that in terms of Page 118 of the paper
book the acquisition proceedings were confined to aforesaid two lands of
Sh. Mahender Gupta and the petitioner. The same is arbitrary, discriminatory
and without any basis, whereas initial proposal was to acquire 118 Bighas and
18 Biswas of land.
43. It was the submission of Mr. Rawal that the petitioner was in receipt of
notice dated October 5, 2011 for personal hearing to be held on October 17,
2011 and the said notice was received by the petitioner only on October 17,
2017 which allowed no time to the petitioner who is based at Mumbai to
travel to Delhi to attend the said hearing. He submitted that thereafter
petitioner repeatedly requested the respondents to give personal hearing. The
date of personal hearing was fixed on November 21, 2011 at 3 PM and this
date was fixed on telephone and no notice as per the Act of 1894 was issued
to the petitioner for the said hearing. The petitioner along with his local
Advocate travelled from Mumbai to Delhi to attend the hearing on November
21, 2011, however, the learned Officer was not available and the hearing did
not take place. He stated, the petitioner submitted his written submissions on
November 21, 2011, wherein the detailed submissions were made against the
proposed acquisition and the aforesaid facts of failed hearing were narrated
therein as well.
44. He argued that on February 7, 2012, telephone call was received in the
Mumbai office of the petitioner while the petitioner was not there, from a
person who claimed to be SDM calling from New Delhi, and wanted the
petitioner to be present on February 10, 2012 at 3 PM for personal hearing.
However, he refused to give his landline telephone number and other details.
Immediately petitioner wrote a letter dated February 7, 2012 narrating the
above facts and also the fact of failed hearing of November 21, 2011 and
accordingly expressed his apprehension that in view of the aforesaid scenario,
the petitioner was not aware whether the telephonic appointment / date of
personal hearing on February 10, 2012 was authentic and had requested for
personal hearing, which would enable the petitioner to make travel
arrangements to Delhi along with his Counsel from Mumbai. He further
submitted that in the meantime, the submission of the petitioner narrated in
the said letter may be considered and if the same did not find favour then it
was requested that personal hearing may kindly be fixed by formal notice and
sufficient time to be given to the petitioner to make travel arrangements to
Delhi along with his Counsel. However, in this regard, no response was
received from the respondent no.3. Mr. Rawal would submit that without
giving mandatory hearing to the petitioner, respondents submitted report
under Section 5A of the Act of 1894 on May 16, 2012. He has drawn our
attention to Page 98 to contend that the petitioner had taken few objections
whereas the Land Acquisition Collector by non speaking order and without
application of mind concluded that in view of larger public interest the
objectors‟ prayers for excluding their land is not acceptable and recommended
acquisition accordingly. He also referred to e-mails dated February 7, 2012
and February 8, 2012 from Mr. Sanjeet Sangwan, claiming to be writing on
behalf of LAC as produced by the respondents, but the same did not disclose /
explain his designation or authority to send the said mails. It was also not
clear whether such mails constituted official communication on behalf of
LAC as the same were not sent from designated e-mail ID of the Government
Department of LAC. He alleges that the said copy of mails produced by the
respondents is only a cut paste of two alleged e-mails. From perusal of the
said documents it is found that one of the document is of February 18, 2012
being a Saturday and non-working and time stamped as 8.53 AM which is
well before the official working hours of respondent no.3.
45. He argued that the mandatory hearing under Section 5A of the Act have
not been granted to the petitioner and on that account alone the acquisition
proceedings need to be set aside. He also pleaded that the report under Section
5A was absolutely vague among other as to when and how the alleged next
date was fixed and communicated to the petitioner; when and how the
petitioner has expressed his alleged inability to the said alleged hearing as he
resides in Mumbai. According to Mr. Rawal, earlier also the petitioner had
come down from Mumbai to New Delhi to attend the hearing fixed on
November 21, 2011 which hearing, in fact, failed and there was no cause or
reason for the petitioner not to attend the hearing as the same is the only
opportunity available to the petitioner to convince the respondents that his
land should be excluded from the acquisition, as proposed.
46. According to Mr. Rawal, the objector has to be given an opportunity of
being heard in person or by any person authorized by him in his behalf and
that non-grant of such personal hearing vitiates the acquisition proceedings.
Without prejudice, it is also submission that consideration of the objections of
the petitioner / the objector without giving opportunity of being heard in terms
of Section 5A of the Act, 1894, still cannot be considered as compliance of
mandatory provisions of Section 5A of the Act., 1894 and in the absence of
such personal hearing, the acquisition proceedings needs to be set aside. He
further stated that the petitioner had written a letter dated July 5, 2012 which
was duly received by the respondents pointing out that the aforesaid letter
dated February 7, 2012 was written for grant of personal hearing, however, no
hearing thereafter was accorded to the petitioner and the petitioner had
reasons to believe that the acquisition proceedings have been dropped. He
lays stress on the fact that no response to this letter was received from the
respondent. On this aspect of the matter, Mr. Rawal relied upon the following
judgments of the Supreme Court:
Lajja Ram v. Union Territory, Chandigarh 2013 (11) SCC 235.
Kamal Trading v. State of West Bengal, 2012 (2) SCC 25
Raghbir Singh Sehrawat v. State of Haryana 2012 (1) SCC 792
Gojer Borthers. V. State of west of Bengal 2013 (16) SC 660
47. Mr. Rawal submitted that notification under Section 6 of the Act dated
July 19, 2012 was issued. At the time of hearing, it was argued that Section 6
requires that, prior to issue of notification there under there has to be
application of mind after considering the report under Section 5A that
particular land is needed for public purpose and none of the aforesaid
requirements were complied within the instant case, as it is apparent from the
notification issued under Section 6 of the Act, the contents of which are mere
reproduction of notification issued under Section 4 of the Act and the same
does not even refer to report issued under Section 5A of the Act. He stated
that thereafter, the alleged notice under Section 9 and 10 of the Act of 1894
dated November 14, 2013 was allegedly sent to the petitioner calling upon the
petitioner to appear on November 30, 2013 inter alia to make submissions in
regard to claim for compensation and objections with regard to measurement
made under Section 8 of the Act. He argued that as per the aforesaid report
under Section 5A of the Act, the petitioner has expressed his inability to come
from Mumbai to New Delhi and it is undisputed fact that the petitioner is
resident of Mumbai and even the notice was sent to the petitioner on a
fictitious address at New Delhi, which notice obviously was not received back
by the petitioner. According to Mr. Rawal the entire proceedings were mala
fide in nature so as to acquire the subject land by any means and the same
resulted in the impugned award dated December 27, 2013 which was passed
ex parte acquiring amongst others the subject land which his under challenge.
48. It is the submission of Mr. Rawal that the actual and physical
possession of the subject property was with the petitioner and the respondent
had not paid any compensation whatsoever to the petitioner not even 80%
before taking possession in terms of Section 17 of the Act which was invoked
in the present case. According to Mr. Rawal, the respondents by relying on
the Kabza Karwahai dated December 30, 2013 alleged that the actual physical
possession of the subject property has been taken over on the same day. It is
however, submitted that the petitioner continues to be in actual physical
possession of the said land and the possession as contended by the
respondents remains only on paper and that the same cannot be any hindrance
in setting aside the impugned acquisition proceedings. Reliance is placed on
Raghbir Singh (supra), wherein the Hon‟ble Apex Court has culled out the
proposition as to what Act would constitute taking of possession of the
acquired land and amongst others it was held that if there was crop standing
on the acquired land or building / structure existing, then in such cases, the
authority concerned will have to give notice to the occupier of the building /
structure and take possession in the presence of independent witnesses and get
their signatures on the panchnama. It is the submission of Mr. Rawal that no
such acts have been done by authorities in terms of the law laid down by the
Hon‟ble Apex Court in the aforesaid case.
49. It was further argued that in the instant case, no notice for taking
possession of the subject property was ever given to the petitioner and when
the alleged possession of the subject property was taken, there were no
independent witnesses present at the time and these facts are very much
evident from the said Kabza Karwahai report. It is his submission that the
joint survey report dated October 27, 2010 produced by the respondents
clearly shows existence of three structures of the subject land, mango trees
and crops standing thereupon. Even as per impugned award reference was
made to aforesaid joined survey report and it was held that there were mango
trees on the subject land for which compensation was also awarded. Mr.
Rawal therefore submitted that the subject land was not vacant and the
possession thereof could not have been taken without giving notice to the
petitioner and without complying with the aforesaid guidelines / propositions
enumerated by the Apex Court in Raghbir Singh (supra). The alleged
possession having been taken by respondents therefore has no legal sanctity
and the same does not vest in State as alleged.
50. Mr. Rawal further referred to the affidavit of the owner of the Security
Agency engaged by the petitioner, which is placed at Page 170-171 of the
paper book to contend that no one had visited the subject property on
December 30, 2013 as alleged by the respondents much less to take over
possession. Mr. Rawal finally refers to the report of the LAC under Section
5A of the Act which itself does not state that a hearing was ever given on
February 10, 2012 or that the petitioner did not attend the same.
51. On the other hand, it is the submission of Mr. B. Mahapatra, learned
counsel for respondent nos. 1 and 3 that the primary ground in this petition is
about the alleged failure on the part of LAC in granting opportunity of
hearing under Section 5A of the Act. He counters the said allegation by
submitting that the petitioner, despite having information did not attend
aforesaid the hearing. He submitted that the petitioner had received a notice
dated October 5, 2011 under Section 5A of the Act for the purpose of
personal hearing on October 17, 2011. He contacted the LAC on mobile and
consequently a hearing was fixed for November 21, 2011 at 3 PM. When the
petitioner came to Delhi on that day, the LAC was not available and therefore,
the petitioner filed written submissions on the same day.
52. Mr. Mahapatra argued that the petitioner admitted to having received
the telephone calls from the office of LAC on February 7, 2012 to the effect
that a personal hearing would be held on February 10, 2012 at 3 PM at the
office of the LAC. He further points out that the petitioner has neither
disclosed in his petition that he was issued a notice under Section 5A of the
Act nor that he received a telephone call to attend the personal hearing on
February 10, 2012. He also pointed out that the petitioner has not disclosed,
if he received any e-mails on February 7, 2012 and February 8, 2012 from the
office of LAC and has instead in his answer to the additional affidavit only
questioned the authenticity of the e-mails and call received from the office of
LAC. It was argued by Mr. Mahapatra that petitioner has admitted writing
the letter dated February 7, 2012 and also the telephone call as regards the
hearing on February 10, 2012. He further argued that the petitioner being in
touch with LAC on mobile phone strangely could not confirm if any hearing
was to actually take place on the said day. He therefore submits that the
petitioner has not come to court with clean hands and has concealed material
information to take advantage of the judgments under Section 5A of the Act.
53. Mr. Mahapatra refers to the report prepared by the LAC under Section
5A of the Act placed at Page 97 of the paper book to state that the LAC had
on different occasions conducted hearing of the interested parties, whose land
had been acquired. The report shows that all of them except the petitioner
appeared for personal hearing. He further contended that the petitioner had
received a notice under Section 5A and also telephone calls and e-mails from
the office of the LAC, despite which he failed to appear for the hearing. He
further argued that the report under Section 5A is a detailed one with all the
objections being duly dealt with and the same being forwarded to the
Government. He relies on Ramjas Foundation an Ors. v. Union of India
2012 (14) SCC 38 to submit that the petitioner not having approached this
court with clean hands, his petition deserves to be dismissed.
54. According to Mr. Mahapatra, the possession of the land was taken on
December 30, 2013 on the spot vide Kabza Karwahai report prepared on the
same day. The said report also talks of demarcation on the spot. He submitted
that demarcation report is a piece of conclusive evidence. While referring to
the petitioner‟s contention that the respondent could not have taken
possession of the land, having failed to deposit 80% of the compensation
amount in compliance with Section 17 (3A) of the Act, it is his submission
that it was nowhere the respondent‟s case that the possession was taken under
Section 17 (3A) of the Act. In fact, when hearing under Section 5A had been
undertaken, there was no question of taking possession of the land in question
under Section 17 of the Act. The respondents took possession of the subject
land under Section 16 of the Act.
55. He relies on Radhey Shyam Gupta v. Union of India 107 DLT 696 to
submit that the law as regards accepted modes of taking possession of
acquired land is recording of a memorandum of panchnama by the Land
Acquisition Officer in the presence of witnesses and having the same signed
by them. It would be impossible to take actual physical possession of large
tracts of acquired land. It is also common knowledge that in certain cases, the
owner / interested person may not cooperate in taking possession of the land.
In this regard he further relied upon the judgment of the Supreme Court in the
case of Balmokand Khatri Educational and Industrial Trust, Amritsar v.
State of Punjab 1996 4 SCC 212.
56. He relied on General Manager of Telecommunication and Anr. v. Dr.
Madan Mohan Pradhan and Ors. 1995 Suppl. 4 SCC 268 to contend that
once possession of the subject land is taken and acquisition proceedings
completed, the validity of notification under Sections 4 and 6 cannot be gone
into. He further relied on State of Rajasthan v. D.R. Laxmi 1996 6 SCC 445
& Aflatoon and Ors. v. Lt. Govt. of Delhi and Ors. AIR 1974 SC 2077 in
support of the above contention. He further argued that the petitioner did not
bother to approach the Court immediately after the issuance of notice under
Section 4 of the Act and the present action is therefore belated and deserves to
be dismissed.
57. He relied on State of Tamil Nadu v. Mahalaxmi Ammal and Ors. AIR
1996 SC 866 to contend that non-service of notice under Sections 9 and 10 of
the Act is curable irregularity and on no account does the consequent award
made under Section 11 become invalid.
58. Mr. Mahapatra would rely on Tej Kaur v. State of Punjab, 2003
SCALE 5 to contend that it is not necessary for the LAC to give an actual
personal hearing to the land owner under Section 5A of the Act, if the report
so prepared by him under Section 5A duly deals with all the objections raised
by the concerned land owner. He submitted that in such a situation not
giving a personal hearing would not be fatal to the enquiry under Section 5A
of the Act.
59. While referring to the judgments relied upon by the petitioner in Lajja
Ram and Ors. (supra), Mr. Mahapatra contended that in the instant case the
LAC had not changed his stand and had taken into consideration the
objections of the petitioner after he failed to appear on the appointed date.
Therefore, the factual circumstances as prevalent in Lajja Ram (supra) vary
vastly from the present case. In so far as the reliance placed by the petitioner
in Raghbir Singh (supra), he stated that in the said case, the Collector had
proceeded to decide the objections by assuming that notice had been delivered
to all objectors. There was also an allegation that someone in the office of the
LAC had forged the appellant‟s signature to show his presence at the time of
hearing. He therefore contended that the said judgment would not apply to
the present facts.
60. Ms. Sobhana Takiar, learned counsel for the respondent / DDA would
submit that the subject acquisition proceedings in respect of land in village
Mehrauli was for the planned development of Delhi for Vasant Kunj
Residential Scheme. She would submit that vide communications dated
August 18, 2008, February 22, 2009, May 03, 2011 and June 22, 2011 the
respondent DDA had requested to respondent Nos.1 and 3 to reacquire the
subject land following the quashing of earlier acquisition proceedings. She
would submit that the notification under Section 4 of the Act was issued on
July 21, 2011. The petitioner subsequently filed objections under Section 5A
on November 21, 2011 which was beyond the stipulated 30 day period from
the date of issuance of notification under Section 4.
61. She would submit that the objections filed by the petitioner challenged
the subject acquisition proceedings as being unlawful, illegal and void. The
objections further pointed out to unlawful discretion vis-a-vis owners of
adjacent tracts of land. Ms. Takiar would refer to para 2 of the said objections
wherein the petitioner has stated that respondent / DDA converted all the
agricultural land in Mehrauli including subject land as residential in early
1980 to build Vasant Kunj Pocket „C‟ in Sector A.
62. She would refer to the petitioner‟s communication dated August 18,
2011 wherein he has requested for review on the ground that the current
market price of the subject land was much higher. It was also reiterated
therein that the respondent DDA had converted all the agricultural land in
Mehrauli as residential in the early 1980s to build Vasant Kunj Pocket C in
Sector A.
63. Ms. Takiar would then draw our attention to the petitioner‟s
representation for de-notification under Section 48 of the Act of 1894. In this
regard she would submit that the law as regards section 48 of the Act was
settled inasmuch as it gave an opportunity to the State Government to
withdraw from the acquisition at any stage before possession is taken and that
such power can be exercised unilaterally and there is no requirement that the
owner of the land should be given an opportunity of being heard and that the
State Government cannot be compelled to give cogent reasons for a decision
not to go ahead with its proposal to acquire a piece of land.
64. She would next draw my attention to report of the ADM/LAC under
Section 5A wherein objections of the petitioner have been considered in
detail. She would point out that the petitioner has not in any manner
impugned this report.
65. Ms. Takiar would further submit that the declaration under Section 6 of
the Act of 1894 was issued on July 19, 2012 and the notices under Sections 9
and 10 were issued on November 14, 2013. Award No.05/2013-14 was made
December 27, 2013 and possession of subject land was taken on December
30, 2013 vide possession proceedings of the same date. She further pointed
out that only Khasra No.918 was found built up and the remaining land was
vacant within boundary walls of respondent DDA. She would refer to the
petitioner‟s contentions inter alia:
a. there is no public purpose the land has been acquired to
avoid contempt proceedings in reference to order dated
February 11, 2011 in W.P. (C) 6842/2007;
b. no personal hearing was granted to the petitioner as
required under the Act of 1894; and,
c. actual and physical possession is still with the petitioner.
66. Ms. Sobhana Takiar relied upon Aflatoon vs. LG of Delhi & Ors. AIR
1974 SC 2077 and Ajay Krishan Singhal vs. Union of India 1996 (10) SCC
721 to submit that "planned development of Delhi" is a well defined public
purpose for which large tracts of land could be acquired.
67. She would further relied on General Manager Telecommunication &
Anr. vs. Dr. Madan Mohan Pradhan & Ors. 1995 (4) Supp. SCC 268, P.
Chinnanna & Ors. vs. State of AP & Ors. 1994 (5) SCC 486,
Sanjeevanagar Medical & Health Employees Cooperative Housing Soc. Vs.
Mohd. Abdul Wahab & Ors. 1996 (3) SCC 600, Rajasthan Housing Board
vs. Shiv Kishan 1993 (2) SCC 84 and Awadh Bihari Yadava vs. State of
Bihar 1995 (2) SCC 84 to submit that the law is settled inasmuch as once
possession is taken the land vests in the Government, free from all
encumbrances. She would further relied on Balmokand Khatri Educational
& Industrial Trust, Amritsar vs. State of Punjab & Ors. 1996 (4) SCC 212,
Tamilnadu Housing Board vs. A. Viswam 1996 (8) SCC 259, Balwant
Narain Bagade vs. MD Bhagwat 1976 (1) SCC 700 and Larsen & Toubro
vs. State of Gujarat 1998 (4) SCC 387 to submit that the normal and
accepted mode of taking possession of an acquired tract of land is by drafting
the Panchanama in presence of Panchas and taking possession and giving
delivery to the beneficiary in the presence of witnesses. She further submits
that retention of possession by the erstwhile owner subsequent to completion
of acquisition proceedings would tantamount only to illegal or unlawful
possession.
68. She relies on Gyan Chand Sharma vs. UOI & Anr.
MANU/DE/1385/2011, Tej Kumar & Ors. vs. State of Punjab & Ors. 2003
(3) SCALE 5 and State of Mysore vs. Abdul Razzak AIR 1973 SC 2361 to
submit that even though the right to a hearing under Section 5A of the Act of
1894 was a valuable right, however, with regard to the facts and
circumstances of a case if the objections had already been filed and the merits
of the same had been examined by the LAC, a personal hearing was not
essential.
69. She also relied on New Reviera Coop. Housing Society v. Special
Land Acquisition Officer 1996 (1) SCC 731 and State of Haryana vs.
Sukhdev 1995 (1) SCC 34 to submit that with the notification of the Award
and consequent taking over possession of the subject land the acquisition
proceedings attained finality and the same cannot be set aside at a later stage.
70. She further relied on Roshanara Begum vs. UOI AIR 1996 Delhi 206
to submit that no notice is necessary under section 9 before taking possession
of subject land. She relied on Bharat Singh vs. State of Haryana AIR 1988
SC 2181 to submit that the petitioner could not complain of any
discrimination on the ground that his land has been acquired while leaving
that of others.
71. She also relied on Rammiklal N. Butta & Anr. vs. State of
Maharashtra 1997 (1) SCC 134 to submit that the power under Article 226
of the Constitution must be exercised only in furtherance of interest of justice
and not merely on making of a legal point and also on HFC vs. Jagdamba
Oil Mills & Anr. JT 2002 (1) SC 485 to submit that courts should not place
reliance on decisions without discussing how the factual situation fits in with
the facts and circumstances of the decision relied upon.
72. Having heard the learned counsel for the parties and perused the
record, before we deal with the submissions so made, it is important to refer
to the relief sought for in the present petition.
73. In substance, this petition has been filed challenging the award dated
December 27, 2013 with regard to the land measuring 34 Bighas and 18
Biswa in Mehrauli; notifications issued under Sections 4 and 6 and the notice
issued to the petitioner under Sections 9 and 10 of the Land Acquisition Act
of 1894 (in short Act of 1894). We may state here that the khasras of the
land with which we are concerned have undergone a change in the following
manner:
Present Old Khasra No. Area
Khasra No.
703 1303 0-13
704 1304 0-18
705 1305 0-19
707 1307 0-18
711 1309 0-18
712 1311 1-10
713 1312 1-10
714 1313 0-17
715 1314 0-17
716 1315 4-16
717 1316 4-05
718 1317 2-06
736 1329 4-02
738 1331 1-00
739 1332 0-17
740 1333 1-18
743 1336 0-15
914 1472 0-10
918 2695/1475 0-10
912 2855/1470 0-02
723 1322 1-03
Total Area 32-18
74. Two issues which fall for our consideration are (i) whether the
petitioner was denied the benefit of hearing of his objections to the Section 4
notification as contemplated under Section 5A of the Act of 1894 resulting in
violation of principles of natural justice; and (ii) whether in the facts of this
case, respondent / LAC was required to issue notice for taking possession of
the land in question.
75. On Issue no.1, before we deal with the rival submissions, it is
necessary to reproduce Section 5A of the Act of 1894 as under:
"5A. Hearing of objections:- (1) Any person interested in
any land which has been notified under section 4, Sub-
section (1) as being needed or likely to be needed for a
public purpose or for a Company may, within thirty days
after the issue of the notification, object to the acquisition
of the land or of any land in the locality, as the case may
be.
(2) Every objection under sub-section (1) shall be made to
the Collector in writing, and the Collector shall give the
objector an opportunity of being heard either in person or
by pleader and shall, after hearing all such objections and
after making such further inquiry, if any, as he thinks
necessary, submit the case for the decision of the
appropriate Government, together with the record of the
proceedings held by him and a report containing his
recommendations on the objections. The decision of the
appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be
deemed to be interested in land who would be entitled to
claim an interest in compensation if the land were
acquired under this Act.]
Declaration of intended acquisition"
76. A reading of sub-section 2 of Section 5A envisages the rule of
principles of natural justice and is a sine qua non to the acquisition
proceedings under the Act. The Section contemplates an opportunity of
hearing to the objector to the notification issued under Section 4(1) of the
Act. This is primarily for the reason that taking of a man‟s property is a
serious matter and before depriving him, and to prevent arbitrariness, it is
reasonable that such a hearing is given. (Ref. State of Punjab vs. Gurdayal
Singh 1980 (2) SCC 471 and Raghbir Singh Sehrawat v. State of Haryana
2012 (1) SCC 792).
77. There is no dispute that it is only after objections are made and the
same are considered by the Collector recommendations supported by reasons
are made as to why a particular piece of land should or should not be
acquired.
78. In the case in hand, a notification under Section 4 of the Act of 1894
was issued on July 21, 2011. It is the case of the petitioner as seen from his
representation dated February 7, 2012 (Annexure R1/4), that he had received
on October 17, 2011 a notice dated October 5, 2011 for personal hearing on
October 17, 2011. It is stated that it allowed no time for him to make
arrangements for travel to Delhi to be present in time for the said hearing. He
immediately faxed / telephoned repeatedly the Office of the LAC for another
date of hearing, but was never heard in spite of repeated requests.
79. It is his case that a date of hearing on November 21, 2011 at 3 Pm was
fixed by the Land Acquisition Collector. He along with his Sr. Counsel had
travelled from Mumbai to Delhi and when they appeared, they found that
LAC was not in Office. He submitted his written arguments on the same day
itself. We have seen the written arguments submitted by the petitioner. The
same runs into 5 pages wherein the petitioner challenges the notification
under Section 4 under 15 different heads. Mr. Rawal had contended that on
February 7, 2012 a telephone call was received in his Mumbai Officer, while
he was not there, from a person who claimed to be SDM, calling from Delhi
and wanted the petitioner to be present on February 10, 2012 at 3 PM for
personal hearing. Immediately thereafter, the petitioner wrote a letter dated
February 7, 2012 narrating the aforesaid facts, and informing the reason for
the petitioner not to attend the hearing as he was not sure about the
authenticity of the call. He requested a formal notice be issued so that he can
make travel arrangements to Delhi from Mumbai.
80. Mr. Rawal during his argument had drawn our attention to a letter
dated February 7, 2012 to submit that the petitioner had in the said letter
narrated the events of November 21, 2011. In his letter dated February 7,
2012, petitioner had stated that the submissions made on November 21, 2011,
be considered and if the same did not find favour, then a personal hearing
may kindly be fixed by a formal notice. According to him, this shows that the
petitioner did insist on a personal hearing be given to him, but the same
having been denied, is in violation of principles of Natural Justice and the
right to hearing as contemplated under Section 5A of the Act of 1894.
81. There is no dispute that no further date was fixed, but based on the
written arguments filed by the petitioner, the Collector did file his report on
May 16, 2012 to the objections filed under Section 5A of the Act by the
petitioner. The report reveals that the Collector had considered the following
objections raised by the petitioner and the documents filed by him to the
notification under Section 4 of the Act of 1894:
"The objections filed by Sh. B.S. Tolani are as follows:
a. The said notification is unlawful, invalid and void as their land is
selected on the basis of pick and choose policy and no transparent
and fair basis are there.
b. The said land is within DDA Residential Vasant Kunj Colony and is
surrounded by 3 sides from DDA residential flats.
c. No specific public purpose behind acquisition.
d. That no sanction of Competent Authority within DDA is taken while
making the request for re-acquisition of land."
In support of the objections / claims, the objector has filed following
documents and evidence.
a. Relevant page of Delhi Master Plan 2021 showing land as
residential alongwith Vasant Kunj Colony area in Sector A, Mehrauli.
b. Letter No. F.9(50)/02/CRC/South/DDA/7 dated 14.01.2018 of
Director (N.L.) of DDA to Dy. Secretary LA, L & B Department, Delhi
State.
c. Letter No. F.9(50)/02/CRC/South/DDA/48 dated 22.01.2007 of
Director (N.L.) of DDA to Dy. Secretary LA, L & B Department, Delhi
State.
d. Letter No. F.9(30)/2001/CRC/North/588 dated 18/08/08 of
Director (N.L.) of DDA to Dy. Secretary LA, L & B Department, Delhi
State.
e. Letter No. F.9(60)/2001/CRC/South/52 dated 20/02/2009 of
Director (N.L.) of DDA to Dy. Secretary LA, L & B Department, Delhi
State."
82. From the above it is clear that the objections / arguments as filed by the
petitioner before the Collector were taken on record and considered by him,
but did not find favour.
83. Whether this is a sufficient compliance of the requirement of hearing
under Section 5A of the Act, Mr. Rawal had relied upon the judgment of the
Supreme Court in the case of Lajja Ram (supra). In the said case detailed
objections were filed to Section 4 of the notification. The Land Acquisition
Collector, upon considering the objections recommended exempting the
petitioner‟s land from acquisition proceedings. Later on, after making a
physical inspection / survey, the Land Acquisition Collector altered his
recommendation and withdrew exemption. The High Court in a Petition
under Article 226 held that once an award is passed, the land vests in a State
free from all encumbrances. The Supreme Court held that the order passed
by the Land Acquisition Collector was perverse to the interest of the
appellants and they were entitled to be provided with a reasonable
opportunity of hearing to represent their stand before the LAC in the altered
circumstances of the case. This non-adherence to the principles envisaged
under the Act at the stage of making recommendations not only defeats the
purpose and object of the provisions of the Act but also introduced illegality
into the opinion formulated by the State Government after considering the
report so submitted by the LAC and by necessary implications permeate the
notification issued under Section 6 of the Act with such illegality. He also
relied upon the judgment of the Supreme Court in the case of Kamal Trading
(supra). In the said judgment a notification was issued on July 29, 1997
under Section 4 of the Act of 1894. The objections were filed on September
8, 1997. The Land Acquisition Officer issued notice dated September 23,
1997 fixing the date of hearing to the objections on September 26, 1997. On
receipt of the said notice, the representative of the appellant met the officer
on September 25, 1997 and by a letter requested that the hearing of
September 26, 1997 be postponed to September 29, 1997 because the
constituted attorney of the appellant was held up in Mumbai. The Land
Acquisition Officer issued another notice dated September 26, 1997 fixing
the hearing to the objections on September 30, 1997. Vide a letter dated
September 29, 1997, the appellant again requested for adjournment till
October 28, 1997 on the ground that the constituted attorney was unable to
attend and the Advocate was out of station. It was their case that while
waiting for another notice of hearing, a declaration dated October 24, 1997
under Section 6 of the Act of 1894 was published. The Supreme Court held
that since no hearing was given to the appellant resulting in non-compliance
of Section 5A of the Act of 1894, a declaration published under Section 6 of
the Act must be set aside. We may note here that the Supreme Court has also
found that the report of the Land Acquisition Collector was also vague as the
reasons are following:
27. The paragraphs which contain the submissions and the
so-called reasons of the Second Land Acquisition Officer
need to be quoted:
"Heard the officers present from the requiring body.
They vehemently protested as regards the statements
contained in this particular letter. Their submissions in
short that the statements made by the interested persons
are all fake, arbitrary and groundless. They simply
endeavour to oust the requiring body by hook or crook in
order to grab this office space so that in turn can realise
higher rent. Further, the purpose of the requiring body is
very much public-oriented and if it is not acquired they
will suffer immensely. They further submitted that
acquisition proceeding to be completed as quickly as
possible inasmuch as they have the time-bound
programmes to implement it as per guidelines of the
Government for the greater interest of public.
In view of these circumstances and for greater interest of
the public, the submissions made by the interested persons
by their letter dated 8-9-1997 are overruled."
84. So, in the afore judgment, the Supreme Court has set aside the
acquisition on the ground of violation of provisions of 5A, and also the report
is vague, which is not the case here, inasmuch as, the arguments of the
petitioner were on record which were considered by the LAC, for
recommending acquisition. Ms. Takiar has rightly relied upon the judgment
of the Supreme Court in the case of Tej Kaur and Ors. V. State of Punjab
and Ors. 2003 3 SCALE 45 wherein the facts are that no personal hearing
was given to the appellant therein under Section 5A of the Act of 1894, but
the objections on record were considered by the LAC. The Supreme Court
held that there is a compliance of Section 5A of the Act and no grievance qua
denial of enquiry under 5A can be agitated. In Para 5 of the said judgment
the Supreme Court has held as under:
"5. Similarly, in the decision in Shyam Nandan
Prasad v. State of Bihar [(1993) 4 SCC 255] this Court
observed that affording of opportunity of being heard to
the objector during inquiry under Section 5-A is a must
and that this provision embodies a just and wholesome
principle that a person whose property is being, or is
intended to be, acquired, should have occasion to persuade
the authorities concerned that his property be not touched
for acquisition."
85. In other words, if the Collector considers the objections, which shows
the application of mind, surely there is a compliance of Section 5A of the Act
of 1894. As stated above, this is what precisely happened in the case in hand,
as the learned LAC had considered the objections / written arguments made
and the documents annexed therewith before forming an opinion in his report
which was sent to the Government before a notification under Section 6 of
the Act of 1984 was issued on July 19, 2012. So, it is not a case, where the
report under Section 5A was given by the Collector without considering
written arguments / objections to the subject acquisition proceedings, which
substitute a personal hearing. In fact, we note, the petitioner has not raised
any issue of hearing from November 21, 2011 till February 07, 2012 and also
thereafter, till Section 6 notification was issued on July 19, 2012. Even
thereafter, no representation has been filed by the petitioner to the authorities
challenging the declaration made under Section 6 of the Act, till the filing of
the writ petition in May 2014, by which time, the Award has been passed and
possession taken on December 30, 2013. So, it is clear that the petitioner
allowed the acquisition proceedings to go on until the award was passed /
possession taken. It shows the petitioner had no genuine grievance against
Section 5A proceedings held by the Collector. In fact, the 5A report has not
been impugned. The plea is therefore rejected. The reliance placed by Mr.
Rawal on the last paragraph of letter dated February 7, 2011 would not help
the case of the petitioner as in the said letter the petitioner has stated that "If
in spite of above you decide to against above submissions, please be kind to
confirm fix time and date for personal hearing X X X", which means, if the
authority is satisfied with his arguments, then no hearing is required, if it is
otherwise hearing be given, which surely would not suggest hearing be
mandatorily given before a decision is taken. In any case, the last para is of
no help in view of the aforesaid position of law and our conclusion above.
86. In so far as the second issue, whether the possession of the land in
question has been taken, is concerned, Mr. Rawal had relied upon the joint
survey report dated October 27, 2010 to contend that the site at some places
was cultivated and vegetables were grown and there is a well and two small
rooms, which were constructed of T-Iron and as such it was necessary for the
respondent nos. 1 and 3 / LAC to give a notice to the petitioner under
Sections 9 and 10 of the Act of 1894 before taking possession.
87. In substance it is his plea that the petitioner continued to be in
possession of the land and the Kabza Karwahai dated December 30, 2013 on
which respondent nos. 1 and 3 sought to rely upon is only a paper possession.
We are unable to agree with the said submission of Mr. Rawal for the reason
that the petitioner‟s own case, in Para 2 of his letter dated November 21,
2011, is that the said land is within the DDA Residential Vasnat Kunj Scheme
in Sector-A, Pocket-C, Andheria Mor and two residential buildings of Vasant
Kunj, DDA are constructed on the Tolani‟s land; in other words, two
buildings were constructed by DDA. That apart even in Para 6 of the said
letter, it is clearly stated by the petitioner that DDA through its Officer
Director (Lands) unlawfully obstructed the use of the land by the owner. The
relevant part is reproduced as under:
"The Officer of the DDA, Director (Lands) Vikas Sadan,
unlawfully obstructed use by owner of this said land by
instructing Patwari / Tehsildar Mehrauli, to transfer
Tolani land to DDA, and refused to write to Patwari /
Tehsildar, to correct the land records, by transferring
land to Mr. Tolani, the rightful owner, as DDA could
not purchase / acquire Tolani Land, as per Delhi High
Court Judgment / Stay Order of 1983. Since 25 long
years, DDA and Mehrauli Tehsildar refused to correct
land records, causing serious loss to Mr. Tolani.
88. So, it necessarily follows neither the buildings on the land were
constructed by the petitioner nor the petitioner was in the use of the land. So
to say that the petitioner was in possession of the land, is an incorrect stand on
behalf of the petitioner. The Kabza Karwahai report clearly states that the
land has been demarcated. It also states wherever the land is falling in an
unauthorized colony and is built up at the site, possession of the same has not
been taken. In the case in hand, the possession has been taken the report also
suggests there was no hindrance faced at site. That apart, the possession of
the land was handed over to the DDA, the beneficiary and is in their
possession. So, the petitioner accepts the position that the land was for the
purpose of Vasant Kunj Residential Scheme.
89. In Roshanara Begum (supra), this Court had, while relying on
decisions by the Supreme Court, held that non-service of notices under
Sections 9 and 10 of the Act of 1894 would not be fatal to the subject
acquisition proceedings, as the same are meant only for the purpose of
determination of compensation. (See Ezra Vs Secretary of State, (1905) L.R.
32 I A 93; Kasturi Pillai Vs Municipal Council,AIR 1920 Mad 417;Shivdev
Singh Vs State of Bihar & Others, AIR 1963 Pat 201; Prasanna Kumar
Dass & Others Vs State of Orissa, 1956 Orissa 114, Yousuf Begam Vs State
of Andhra Pradesh & Others, AIR 1969 AP 10; P.K. Shaikh Vs State of
West Bengal & Others, AIR 1976 Cal 149; Lakhbir Chand Vs Land
Acquisition Collector, Delhi & Others,AIR 1979 Delhi 53; State of Punjab
Vs Gurdial Singh & Another,AIR 1984 Punjab & Haryana 1; Manakchand
Sarupchand Lunavat & Others Vs State of Maharashtra & Others,AIR
1989 Bom 339; and Dr.G.H.Grant Vs State of Bihar, [1965] 3 SCR 576 .)
90. The Learned counsel for the Respondent / DDA is justified in
contending that once possession of the subject land is taken, then it would
vest in the government, free from all encumbrances. Reliance in this regard
may be laid on Balwant Narain Bagade vs M D Bhagwat, 1976 (1) SCC 700.
91. In light of our discussion above, we arrive at the conclusion that in the
facts of the present case (i) the Collector had duly complied with the
requirements of the proceedings as contemplated under Section 5A of the Act
of 1894 and no prejudice has been caused to the petitioner; and (ii) in light of
the actual position on-site, no notice was required to be given to the petitioner
prior to taking over possession of the subject land. The present challenge to
the subject acquisition proceedings must, therefore, necessarily fail. The writ
petition is therefore dismissed.
CM No. 6380/2014
Dismissed as infructuous.
V. KAMESWAR RAO, J
G.S.SISTANI, J
DECEMBER 21, 2018/jg
