Delhi High Court
Dharam Pal & Anr. vs Delhi Administration & Anr. on 15 April, 2009
Author: Sudershan Kumar Misra
Bench: Sanjay Kishan Kaul, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (C) NO. 675 OF 1993
Reserved on : January 7, 2009
Date of Decision : April 15, 2009
DHARAM PAL & ANR. ......Petitioners
Through : Mr. I.S.Dahiya, Advocate
Versus
DELHI ADMINISTRATION & ANR. ......Respondents
Through : Mr. Sanjay Poddar, Advocate
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
SUDERSHAN KUMAR MISRA, J.
1. By this petition, the petitioners are seeking the implementation of a policy of the Delhi Administration to allot alternative residential plots in lieu of land compulsorily acquired for the planned development of Delhi. The relevant facts are as follows:-
2. To begin with, four brothers, namely, Harphool, Lakhi Ram, Ram Nath and Indraj, jointly owned agricultural land measuring 14 bighas 5 biswas situated in revenue estate of village Nangloi, Delhi. WP(C) No. 675 of 1993 Page 1 of 21 On 4th March, 1963, this land was notified under Section 4 of the Land Acquisition Act, 1894 and, ultimately, on 4th March, 1967, award No. 1957, inter alia, pertaining to this land was announced and compensation awarded by the Land Acquisition Collector was received by all the four brothers. On 11th August, 1973, one of the brothers, Harphool died. He bequeathed all benefits arising out of the aforesaid land in favour of two of his nephews, namely, Dharam Pal and Jai Pal, both of whom are the sons of his brother Indraj. Consequent upon this, even the compensation assessed later on by the court towards the late Harphool‟s share was paid to them.
3. On 8th August, 1986, the second petitioner Jai Pal relinquished his share in the inheritance received under the aforesaid Will of his uncle Harphool in favour of the other co-legatee, namely, Dharam Pal, i.e., the first petitioner before us.
4. On 27th May, 1987, one of the surviving brothers Indraj applied to the respondent for an alternative plot in lieu of their aforesaid agricultural land under the extant policy. The other two, Lakhi Ram and Ram Nath also made similar applications. On 2nd June, 1987, the first petitioner, Dharam Pal, also applied for the same as the successor of late Harphool, who also happened to be his uncle, as aforesaid.
5. It appears that on 17th August, 1989, the first respondent recommended the allotment of a plot of 250 sq. yds. to Mohar Singh who is the son of one of the aforesaid brothers, Lakhi Ram. Again, on 30th December, 1988, the first respondent recommended that another plot of 250 sq. yds. be allotted to Zile Singh who was the son of WP(C) No. 675 of 1993 Page 2 of 21 another brother, namely, Ram Nath. Presumably, both Lakhi Ram and Ram Nath had expired by that time and, therefore, the allotments were made to Mohar Singh and Zile Singh as their sons and legal heirs. This left the entitlement of the two remaining brothers, namely, Indraj and Harphool.
6. On 27th October, 1988, Jai Pal, the son of one of the brothers, Indraj, applied to the Assistant Housing Commissioner (Loans), Delhi Administration, Delhi informing him that his father Indraj died on 29th July, 1988, the alternative plot in question be allotted to him instead. Ultimately, on 27th June, 1991, the first respondent recommended allotment of a single plot of 250 sq. yds. to both Dharam Pal and Jaipal, both of whom are sons of Indraj in lieu of the entitlement of Indraj who had since died.
7. However, since the application by Dharam Pal claiming allotment of the alternative plot in lieu of his late uncle Harphool was ignored and the respondent had merely directed a joint allotment of a single plot measuring 250 sq. yds. to Dharam Pal and Jai Pal as the sons of the other brother Indraj, a legal notice was sent to the respondents on 10th January, 1992 clarifying the position and pointing out that both Dharam Pal and Jai Pal were in fact entitled to one plot each. This was because on the one hand, they were entitled to one plot in lieu of the entitlement of their late father Indraj, while on the other hand, they had become entitled to another plot in lieu of the entitlement of their late uncle Harphool because the same had been bequeathed by him to them. As regards the alternative plot that they were entitled to in lieu of entitlement of their late father Indraj, it was WP(C) No. 675 of 1993 Page 3 of 21 pointed out that both Dharam Pal and Jai Pal had further entered into a mutual agreement whereby Dharam Pal had relinquished his share in that plot in favour of his brother Jai Pal. At the same time, with regard to the alternative plot to which Harphool was entitled, and which was bequeathed by him to both Dharam Pal and Jai Pal, Jai Pal is supporting the claim of Dharam Pal alone to the same. On receiving no response from the respondents in this behalf, the petitioners have approached this Court praying the aforesaid letter dated 27 th June, 1991 (Annexure P8) whereby a joint allotment in the name of Dharam Pal and Jai Pal has been recommended in lieu of the entitlement of late Indraj, be quashed and as against this, the allotment of an alternative plot in lieu of Indraj‟s entitlement be recommended only in the name of Jai Pal. It is also prayed that the first respondent be directed to recommend allotment of a separate residential plot to Dharam Pal in lieu of the entitlement of late Harphool.
8. Jaipal died on 18th December, 1991. Consequently, his legal representatives have moved this petition along with Dharam Pal. As mentioned, both Dharam Pal and Jaipal are the sons of Indraj. In addition, admittedly, by virtue of a Will made in this behalf by their aforesaid uncle Harphool, they had become his successors-in-interest.
9. The petitioners are relying on the Scheme of allotment of alternative plots in lieu of acquired land under Large Scale Acquisition, Development and Disposal of Land in Delhi dated 2nd May, 1961 which came into effect from 2nd May, 1961 itself. This is described as a „welfare Scheme to rehabilitate the agriculturists whose land is acquired by the Government‟. Under the Scheme, inter alia, persons WP(C) No. 675 of 1993 Page 4 of 21 who are recorded owners of the land which has been acquired before the notification under Section 4 of the Land Acquisition Act is issued are stated to be eligible for the benefits of the Scheme. In paragraph 1 under the sub-heading „Other Cases‟, it is also stated that in case the Recorded Owner of the land dies after the notification under Section 4 of the Land Acquisition Act, "all legal heirs are entitled to one plot of the size to which the deceased would have been entitled". Here, in this case, admittedly, late Harphool was the Recorded Owner of land which came to be acquired. That he died after the notification under Section 4 of the Land Acquisition Act was issued is also not in dispute. The only question that remains to be seen is how the entitlement to re-habilitate late Harphool ought to have been dealt with by the first respondent. It is also not seriously disputed before us that Harphool had executed a Will whereby he bequeathed his interests and benefits arising out of the acquired land in favour of Dharam Pal and Jai Pal. Jai Pal is not pursuing the claim of Dharam Pal to the legacy of Harphool. To our mind, the claim brought by the beneficiary under the Will of Harphool has to be examined with respect to the right and entitlement of Harphool and that of his successor by Will in the light of the aforesaid Scheme for allotment of alternative plots. An examination of the Scheme shows that there is no restriction on any person inheriting any property by a Will from two separate allottees. Consequently, the question whether Dharam Pal would also be entitled to a share in any other alternative plot i.e. allotted through another line of inheritance is immaterial for this purpose. The relevant requirement is that he should be a legal heir of WP(C) No. 675 of 1993 Page 5 of 21 the Recorded Owner who has died after the notification under Section 4 of the Land Acquisition Act, 1894.
10. During the course of arguments, learned counsel for the respondent relied on the decision of this Court in Gulshan vs. Government of NCT of Delhi, LPA No. 1347/2007 decided on 11th January, 2008, to contend that the petitioners acquired no right to Harphool‟s share. On going through this case, we find that the facts of that case were entirely different. In that case, it was found that the appellant only had cultivatory possession and could not be regarded as the Recorded Owner of the land on the date of notification under Section 4. It further held that since the appellant was not even recorded as a bhumidhar in the revenue records on the date when notification under Section 4 of the Land Acquisition Act, 1894 was issued, nor were any steps taken by the appellant in that case under the Delhi Land Reforms Act for recording his name as a bhumidhar, therefore, the petitioner in that matter was not entitled to allotment of alternative plot. There, the Court concluded as follows:-
"10. Therefore, when it is established that the appellant was not the recorded owner of the land in question on the date of issuance of notification under Section 4 of the Land Acquisition Act, he cannot apply for the allotment of alternative plot of land."
In this case, admittedly, late Harphool was the Recorded Owner of the land on the date when the notification under Section 4 of the Land Acquisition Act, 1894 came to be issued. Based on this fact, we have no doubt that Harphool himself was clearly entitled to consideration WP(C) No. 675 of 1993 Page 6 of 21 under the Scheme. Consequently, this authority is of no use to the respondents.
11. The next proposition raised by the respondent‟s counsel is that the right to allotment of an alternative plot under the Scheme is not a vested right and that it is only a right in personam that gets extinguished on his death, therefore, Dharam Pal could not have inherited anything from his uncle Harphool. For this he relies on the case of Ramanand vs. Union of India and Ors. AIR 1994 Delhi 29. There, this Court had held as follows:-
"28. ........an individual whose land has been acquired for planned development of Delhi, has no absolute right to allotment, but, he is eligible to be considered for allotment of an alternative plot for residential purpose; and that the DDA may allot Nazul land to such an individual, in conformity with the plans and subject to other provisions of the Nazul Rules."
And that, "40. .......We hold that an individual, whose land is acquired, does not have an absolute right to the allotment of alternative plot of land for residential purposes, and that such a person is only eligible to be considered for allotment of a plot, subject to certain conditions. ........"
We do not find that the aforesaid authority is of much use to the respondents. There is no discussion about any right in personam that gets extinguished on the death of the recorded owner. In fact the paragraphs extracted above clearly bear out the right of the recorded owner to consideration for allotment of an alternative plot. Here, what is being claimed by the petitioners is the consideration of the claim of Dharam Pal for alternative allotment in lieu of the entitlement of his predecessor-in-interest, Harphool, to such consideration in conformity WP(C) No. 675 of 1993 Page 7 of 21 with the Scheme. Therefore, Ramanand's case (supra) is also of no help to the respondents. No other authority has been brought to our notice nor has any further argument being advanced before us in support of this contention.
12. The main point which requires to be examined, and which was not addressed by either party, is whether such a right to consideration can be inherited under a Will? For this, the scope of the expression, „legal heir‟ used in sub-para 1 under paragraph „C‟ dealing with „other cases‟ contemplated under the Scheme of allotment of alternative plots has to be examined.
13. The expression, "legal heir" is not defined in the aforesaid Scheme of allotment under which relief is claimed by the petitioners before us. It has however been defined by Black‟s Law Dictionary, 6th Edition, to mean, "persons entitled under laws of descent and distribution. Person to whom law would give decedent‟s property if decedent died intestate." The word „heir‟ has been defined under Section 3(f) of the Hindu Succession Act, 1956, which codifies the law relating to intestate succession among Hindus, to mean, "any person, male or female, who is entitled to succeed to the property of an intestate under this Act." In other words, the expressions „heir‟ and „legal heir‟ carry similar meanings under certain circumstances. At the same time, however, while defining the expression "heirs", Black‟s Law Dictionary, 6th Edition, also states, inter alia, as follows:
"Heirs. ........... Moreover, the term is frequently used in a popular sense to designate a successor to property either by will or by law. Word "heirs"
is no longer limited to designated character of WP(C) No. 675 of 1993 Page 8 of 21 estate as at common law. Jay v. Dollarhide, 3 Cal.App.3d 1001, 84 Cal.Rptr. 538, 547."
An examination of the above would show that the expressions, „heir‟ and „legal heir‟ are also used in a popular sense to designate a successor to property either by a Will or by law. In this context, we might add that while under the Hindu Succession Act, 1956, the word "heir" has been defined with a view to securing the objects of the Statute, which is, inter alia, to provide for intestate succession. However, the Scheme of allotment with which we are concerned, has an entirely different object, which is, to provide for alternative plots under a given set of circumstances. Therefore, in our view, the meaning ascribed to the expression "heir" under the Hindu Succession Act, 1956 would not automatically be applicable to the Scheme.
14. Here, in this case, the relevant provisions under the Scheme state that if the Recorded Owner of the land acquired dies after the issuance of the Notification under Section 4 of the Land Acquisition Act, 1894, "all legal heirs are entitled to one plot of the size to which the deceased would have been entitled". Since the expression, "legal heirs" has not been statutorily defined anywhere and has also not been explained or defined in the Scheme of allotment and in view of the aforesaid meanings accorded to this expression by Black‟s Law Dictionary, 6th Edition, specially the fact that the expression, "heirs" is frequently used in a popular sense to designate a successor to property either by a Will or by law, we consider it necessary to examine the scope and intent of the aforesaid re-habilitation Scheme to decide whether the expression, "legal heir"
should be construed in the restricted sense of the English common law WP(C) No. 675 of 1993 Page 9 of 21 to mean persons who would be entitled to succeed to the property of an intestate or whether the term has been used in a more popular sense to also designate a successor to property by Will as defined by Black‟s Law Dictionary (supra). In the re-habilitation Scheme, a limited right to be considered for the grant of alternative plot has been granted to those whose lands have been acquired under, "Large Scale Development and Disposal of Land in Delhi" provided they satisfy the various requirements mentioned in the Scheme (see Ramanand vs. Union of India AIR 1994 Delhi 29). A perusal of the Scheme would show that it contemplates a large number of cases and situations under which the allotment of an alternative plot may be recommended. In particular, paragraph „C‟ titled „Other Cases‟ is relevant for our purpose. It states as follows:-
"1. When the recorded owner of the land acquired dies before notification u/s 4 of L.A. Act, allotment is to be made separately to all the legal heirs of the deceased, according to their shares recognized by the LAC, but if he dies after the notification u/s 4 of L.A. Act, all legal heirs are entitled to one plot of the size to which the deceased would have been entitled."
This shows that if the Recorded Owner happened to die before the date of Notification under Section 4 of the Land Acquisition Act, 1894, allotment is to be made to all the legal heirs of the deceased according to their shares. However, if the Recorded Owner dies after the issuance of Notification, then also, all his legal heirs are together entitled to allotment of one plot of the size to which the deceased would have been entitled. At the same time, from a reading of the Scheme, it is clear that once the eligibility conditions are satisfied, the WP(C) No. 675 of 1993 Page 10 of 21 Recorded Owner of the land which is being acquired is entitled to consideration for allotment of an alternative plot. It goes without saying that any alternative plot, that is so allotted to the Recorded Owner would become his absolute property and he would be within his rights to dispose of the same in any way including by Will. That being so, the intention of the framers of the Scheme could only have been to allot such an alternative plot in lieu of property acquired, as further recompense, with a view to re-habilitating the person who was divested of his property by the Government. If that be so, we can see no logic or reason, and in fact none is given in the Scheme, or addressed at the bar, to conclude that the Government intended to limit the disposing power of the person entitled to be considered for allotment and make this entitlement available only to those heirs of the Recorded Owner who would succeed by intestate succession whilst excluding any heir who succeeds under a Will. Such an interpretation, to our mind, does not conform to the scope and intent of the Scheme. Admittedly, if the allotment in fact was made during the life time of the Recorded Owner, that plot of land could have been validly bequeathed by him through Will, failing which, ownership thereof would devolve through intestate succession. At the same time, it is not as if the right to be considered for alternative allotment will vanish in case the Recorded Owner dies either before or after the Notification under Section 4 of the Land Acquisition Act, 1894. The Scheme itself contemplates that in such a case, his legal heirs will be entitled to the same. Therefore, even if it is assumed for a moment that Harphool had no children, his entitlement would not vanish into thin air. In WP(C) No. 675 of 1993 Page 11 of 21 such a case, his entitlement would pass on to the other heirs specified in class II under the Schedule to the Hindu Succession Act, 1956. In other words, if the heirs claiming under a Will are to be excluded, the allotment would still go to the heirs of the deceased under the law pertaining to intestate succession. This is indubitably contemplated by the Scheme itself. Under the circumstances, to our mind, it would be illogical to restrict the scope and meaning of the expression "legal heir" used in the aforesaid portion of the Scheme, to only those heirs who would succeed to the estate of the deceased in the case of intestate succession. There is nothing in the scope or object of the Scheme that would persuade us to apply such a narrow construction in this case. It is not as if the Scheme enables the government to save the plot of land that would have gone to Harphool had he lived. In case Harphool had died intestate, his class I legal heirs, if any, would have been entitled to the land. If he had no class I legal heirs, it would have gone to the next in line in terms of the Schedule as aforesaid. The possibility of the entire line of succession set down in the Schedule failing, and the property then reverting to the State, is really too remote to be considered as a relevant consideration that may have weighed with the framers of the Scheme to restrict the devolution to intestate succession only by knowingly using the expression "legal heirs" in a restricted sense. Under the circumstances, to hold that the Scheme did not have within its contemplation testamentary succession, is illogical.
15. With a view to ascertaining the heirs of Harphool, if any, in the line of intestate succession in terms of Hindu Succession Act, WP(C) No. 675 of 1993 Page 12 of 21 1956, learned counsel appearing for the petitioners informs us that whilst Harphool died on 11th August, 1973; his father had already pre-deceased him because of which, the land was mutated jointly in the name of Harphool and his brothers. Learned counsel for the petitioners also stated that Harphool was not married during his life time. This fact does not seem to be correct because in the English translation of the Will of Harphool, dated 2nd December, 1971, annexed by the petitioners themselves, it is stated that he has one daughter who is married and that at the time of her marriage, he had given her sufficient dowry and has also since been regularly sending her customary gifts too. Later on, in the same Will, he also stated that neither his daughter or any of her issue shall have any claim on the properties being bequeathed by him to his nephews Jai Pal and Dharam Pal. Contrary to this, in the list of dates, it is categorically stated by the petitioners that, "Shri Harphool Singh died issueless ........". This is also reiterated in paragraph 4 of the petition. Again in the legal notice sent by petitioners to the respondents on 10 th January, 1992, which is annexed as Annexure P-10 to the petition, the fact of Shri Harphool having died issueless has been reiterated in paragraph 4 thereof. In view of what is so clearly stated in the Will of late Harphool which has been annexed by the petitioners themselves, we are not inclined to believe the assertions of the petitioners that Harphool died issueless. The correct position appears to be that he had one daughter, who was his only child. Consequently, in terms of Sections 9 and 11 of the Hindu Succession Act, 1956 read with the Schedule to the said Act, the property of Harphool, in case he died WP(C) No. 675 of 1993 Page 13 of 21 intestate, would have been divided between his class I heirs in terms of the Schedule to that Act. This would have been his aforesaid daughter and in case she was still alive, his widow.
16. We might mention that this writ petition had been filed in the year 1993 and after issuing of notice to show cause why rule nisi be not issued on 9th February, 1993, counsel for the respondent sought time to file a reply to the show cause on 22nd April, 1993. However, since no reply was forthcoming, this Court issued Rule on 22nd September, 1993. Even thereafter, no counter affidavit was filed and ultimately, the matter came to be heard finally on 7 th January, 2009. On that date also, no request was made for filing any counter affidavit and after hearing arguments of both sides, judgment was reserved. After conclusion of arguments, counsel for the parties were permitted to file a short synopsis of the arguments advanced by them along with supporting case laws within one week. Although synopsis as permitted were duly filed by the petitioner, however, nothing was filed by the respondents. Since we found it necessary to seek further clarifications on facts from the petitioner, the matter was again listed before the Court on 31st March, 2009 and on 1st April, 2009. On 1st April, 2009, Mr. Poddar, learned counsel appearing for the respondents/Delhi Administration stated that he is handing over a short synopsis on behalf of the first respondent. He was permitted to do so. Later, on examining the same, we find that in fact Mr. Poddar has handed over what purports to be "reply on behalf of respondent GNCT of Delhi" running into two pages along with an Annexure purporting to be a communication from the Government of India, WP(C) No. 675 of 1993 Page 14 of 21 Ministry of Home Affairs to the Chief Commissioner, Delhi, dated 2nd May, 1961 on the subject of the control on land values in the urban areas of Delhi Acquisition Development and Disposal of Land. This reply bears no date. As already stated, no permission for filing this reply was either sought or granted. It is not supported by any affidavit of the respondents nor has any copy been supplied to the petitioner. Further, arguments had already been concluded in the matter. We cannot permit a reply on behalf of the respondents to be placed on the record at this belated stage in this manner. However, in order to obviate any controversy later on, we are proceeding to examine the stand taken in that reply by treating the same as a short synopsis. The case of Daulat Ram Mehndiratta vs. Lt. Governor of Delhi and ors. AIR 1982 Delhi 470 referred to by the respondents in the aforesaid synopsis was not cited at the bar. In any case, we feel that the same is of no help to the respondents. In that case, the Court was examining the validity of the transfer of an allotment of a residential plot by a member of a co-operative Society under the Delhi Co-operative Societies Act and Rules, 1973 in favour of a son and whether on that transfer, his son was entitled to the allotment in his stead. This was declined by the Court on the ground that the father in that case could only have transferred his entitlement to allotment to his son provided the father himself was entitled to that allotment in the first place. In other words, the petitioner had to first establish his own right to the allotment, and since the petitioner had been found disentitled to the allotment of the plot, it held that, "it is axiomatic that he could not logically ask that the plot be instead allotted to his as his WP(C) No. 675 of 1993 Page 15 of 21 nominee". Under these circumstances, it was held that the Registrar‟s refusal to allot any plot to the petitioner‟s son as his nominee was unexceptionable. It was in this context that the Court also examined the right of the lessor i.e the Delhi Administration to lay down conditions for allotment of land, and held that the condition prescribed by the Delhi Administration to the effect that any person who owns a house in Delhi will not be eligible for being allotted land as the member of a Society is valid since such a condition, inter alia, serves the, "pre-eminent purpose of equitable distribution so as to enable the need of housing to be satisfied for as much a number of persons as possible." This was also described as a rational manner for allotting land to those who are without any land. For these reasons, and in view of the fact that the petitioner in that case already owned a house, it was held that the petitioner could not demand the allotment of land to him in his capacity as a Member of the Housing Society.
17. The facts and circumstances of this case are entirely different. They are governed by separate Statutes as well as completely different rules. The Scheme of allotment of alternative plots is one that was brought about with a view to re-habilitating agriculturists whose land is acquired by the government. It cannot possibly have any parallel with any rules that may be made by the Delhi Government under the Delhi Co-operative Societies Act barring the allotment of any land to any member of a Housing Society in case he already owns another house. In the one case, an alternative residential plot is being made available in lieu of agricultural land that is compulsorily acquired. On the other hand, allotment of a residential WP(C) No. 675 of 1993 Page 16 of 21 plot as a member of Co-operative Society is being denied in case that Member already owns another residential property. The two have nothing in common. The Act and Rules that govern the former case are different to the Scheme which governs the latter case. The provisions of the two are not even pari materia. The only commonality seems to be that in both cases, a plot of land is to be allotted by the government to someone. However, the terms and conditions as also the circumstances that have brought about the decision of the Government to allot the land in each of the two cases is markedly different. The condition mentioned in Class I of paragraph „C‟ of the Scheme relating to "Other Cases" which states that, all legal heirs of a Recorded Owner of the land acquired, who happens to die after the Notification under Section 4 of the Land Acquisition Act, are entitled to one plot of the size to which the deceased would have been entitled, does not find any parallel with the facts and rules considered by the Court in Mehndiratta's case (supra). This authority is, therefore, of no help to the respondents.
18. The other contention of the respondent is that as per the law, "the persons who are in real need of land can be considered for allotment of alternative plot". We are unable to understand the scope and intent of this submission. No arguments were actually addressed in this behalf at the bar. What has to be seen is only the scope of the policy before us. The eligibility of the petitioner for allotment would be considered on that basis alone and not on the basis of any imagined hypothetical standards such as an unsubstantiated WP(C) No. 675 of 1993 Page 17 of 21 "real need" for the land. The next point mentioned in the synopsis is as follows:
"That no one can be permitted to accumulate wealth by acquiring the land at a concessional price. Thus, the petitioners can claim one allotment from the share of their father and not from the share of their uncle who even did not apply for the same."
This submission is also without substance. It is not supported by any authority or cogent, logical, legal reasoning. When alternative plots are to be allotted to persons or their successors, albeit at a concessional price, because their land has been appropriated by the Government in the exercise of its right of eminent domain, it can hardly be contended by the Government that those who succeed to the estate of the erstwhile owners by Will are, "accumulating wealth" and that the Government must not permit this. If the policy permits the allotment of a plot, and there is no impediment to the same, then the allotment can certainly be done. As regards the allegation that the petitioner‟s deceased uncle Harphool did not apply for the alternative plot is concerned; he was obviously unable to do so since he was dead on the date on which applications were made by the three surviving brothers of Harphool claiming allotment under the Scheme against their share of the land. At around the same time, the first petitioner Dharam Pal had also applied for allotment of the deceased Harphool‟s share to him as his uncle‟s successor by Will. Since the first respondent has entertained the application of the three surviving brothers as validly made, we see no reason why the same application ought not to have been entertained in the case of Harphool‟s WP(C) No. 675 of 1993 Page 18 of 21 successor. In any case, we might mention that the application of the first petitioner Dharam Pal seeking allotment of alternative plot in lieu of Harphool‟s entitlement has not been rejected on the ground that the same was not maintainable because Harphool himself had not applied for the same. A perusal of the Scheme also does not show any such requirement to the effect that such an application must be made only by the Recorded Owners themselves. On the contrary, in view of the fact that the Scheme itself contemplates the entitlement of legal heirs to plots in lieu of the Recorded Owners of the land, both in cases where the Recorded Owner died before the Notification under Section 4 of the Land Acquisition Act was published as well as in case the Recorded Owner died after the publication of Notification, shows unequivocally that such an application can also be moved by an heir after the death of the Recorded Owner. This is because in case the Recorded Owner had died before the publication of Notification under Section 4, then, in that case since the cause of action for claiming alternative plots under the Scheme would only arise once Notification under Sections 4 and 6 have been published, therefore, it follows that in such a case, application for alternative plots could never have been moved by the Recorded Owner himself, and if the submission of the respondents is accepted, then it would mean that in case the Recorded Owner happened to die before the Notification, no alternative plot could either be claimed or allotted to his heirs despite the aforesaid provision granting entitlement to the heirs in the Scheme. Similarly, the submission that the claim for alternative plot is a right, "in WP(C) No. 675 of 1993 Page 19 of 21 personam" available to a displaced person and not to his heirs is also clearly without substance.
19. It follows, therefore, that the first petitioner‟s claim to be considered for allotment of an alternative plot in lieu of the entitlement of his late uncle Harphool, who was admittedly the Recorded Owner of the land and had died after the Notification under Section 4 of the Land Acquisition Act acquiring that land was published, ought to have been considered by the first respondent. None of the other heirs of Harphool have put in any claim. His brother Jai Pal who was joint legatee with the first petitioner is also not pressing any claim in this behalf. At the same time, since the first petitioner had relinquished all his claims to an alternative plot in lieu of his own father Indraj‟s entitlement in favour of his brother Jai Pal, the first respondent was obliged to examine and recommend the case of Jai Pal alone against the entitlement of late Indraj. Consequently, the writ petition deserves to be allowed with the following directions:
(a) That the communication dated 27th June, 1991 (Annexure P8) issued by the first respondent recommending allotment of a residential plot of land jointly to Dharam Pal and Indraj is quashed and the said respondent is directed to recommend the case of allotment of alternative plot in lieu of the land of Indraj to Jai Pal alone. Since Jai Pal has died, it would be open to the first respondent to make the said recommendation and allotment to his legal representatives.
WP(C) No. 675 of 1993 Page 20 of 21
(b) Since we have held that Dharam Pal is entitled to such consideration, respondent No. 1 is further directed to consider the case of allotment of an alternative plot of land in lieu of the entitlement of late Harphool to the first petitioner Dharam Pal in terms of the aforesaid policy.
(c) Looking to the fact that this petition has been pending for the last 16 years, the respondents are directed to take all necessary steps within three months from today.
20. The writ petition is allowed in the above terms leaving parties to bear their own costs.
SUDERSHAN KUMAR MISRA, J.
SANJAY KISHAN KAUL, J.
APRIL 15, 2009 sl WP(C) No. 675 of 1993 Page 21 of 21