Delhi High Court
Jai Singh Kanwar vs Union Of India (Uoi) And Ors. on 22 April, 2008
Equivalent citations: 149(2008)DLT354
Author: S. Muralidhar
Bench: S. Muralidhar, Sudershan Kumar Misra
JUDGMENT S. Muralidhar, J.
1. This petition under Article 226 of the Constitution of India seeks a direction to the Respondents to allot an alternative plot of appropriate size at the rates prevailing on 4th December 1985 in lieu of the land acquired by the respondents for the planned development of Delhi. It raises significant questions concerning the interpretation of the policy of the Government of India for allotment of alternative plots in light of the changes announced to it from time to time and the judgments of this Court.
Facts of the case 2.1. The facts leading to the filing of the petition are that Shri Chajju Singh, the grandfather of the Petitioner, was the recorded owner of 24 bighas and 16 biswas of land located at village Babarpur, Shahdara, Delhi. On 13th November 1959 a notification was issued under Section 4 of the Land Acquisition Act, 1954 (LA Act) for acquisition of the several lands which included the said land. Thereafter, following a Notification under Section 6 LA Act, an award was passed on 24th November 1969. Pursuant to the award, when the authorities sought to take possession of the land, some of the land owners filed Civil Writ Petition No. 1293 of 1969 (Chiranji Lal and Ors. v. Union of India) in this Court. It is stated that in view of an interim order granted by this Court staying dispossession of the landowners, a substantial portion of the land in question which had been acquired could not be taken possession of by the Respondents. Meanwhile, the acquired land came to be encroached upon resulting in housing colonies coming to be constructed thereon. Ultimately the said writ petition was dismissed as withdrawn since the petitioners informed the court that the government was formulating a scheme to regularise the unauthorised colonies that had sprung on the acquired land.
2.2. It is stated that out of the entire extent of 24 bighas and 16 biswas of land belonging to Sri Chhaju Singh that was the subject matter of acquisition, the Respondents could take possession of land only to the extent of 7 bighas and 1 biswas on 18th July 1971. Compensation in respect of the said 7 bighas and 1 biswas was paid to Shri Chajju Singh on 4th April 1970. Compensation for the remaining portion was not paid because possession was not taken.
2.3. Shri Chajju Singh expired on 26th February 1976. The legal representatives including four other sons and five grand sons by a registered deed dated 8th May 1976 relinquished their rights to alternative plots/shops that they were entitled to in terms of the government policy in favor of his other son Shri Om Singh Kanwar, the father of the present petitioner. It is claimed that Shri Om Singh Kanwar was illiterate and therefore not aware of the scheme for the allotment of alternative plots. He made an application for an alternative plot only on 4th December 1985.
2.4. By a communication dated 26th December 1985 the competent authority directed the Land Acquisition Controller (LAC) to make the necessary verification. Pursuant thereto on 18th February 1986, the competent authority, Respondent No. 2, directed Shri Om Singh Kanwar to submit certain documents. These documents when submitted were duly verified on 20th May 1986. Thereafter, the competent authority by a letter dated 21st July 1986 asked Shri Om Singh Kanwar to visit its office for personal verification. This too was complied with. Pursuant to a communication from the Respondents, Shri Om Singh Kanwar furnished the survivorship certificate on 29th February 1988 and the payment certificate on 25th May 1988. The reasons for the delay in applying for an alternative plot was given in an application dated 30th May 1988 accompanied by an affidavit. On 25th May 1988 Respondent No. 2 again required Shri Om Singh Kanwar to submit the certificate showing payment of compensation and also explain the reasons for late submission of application for allotment of an alternative plot. This was complied with by Shri Om Singh Kanwar by filing an affidavit dated 12th July, 1988. When no alternative plot was allotted, Shri Om Singh Kanwar once again wrote to the Respondent on 3rd August, 1988. By a letter dated 17th August, 1988 the competent authority asked Shri Om Singh Kanwar to submit the death certificate of his father Shri Chajju Sikngh. This was furnished on 28th October, 1988.
2.5. It is submitted that despite submitting all of the above documents, the Respondent did not allot any plot to Shri Om Singh Kanwar. He then wrote to the Prime Minister of India and the Lt. Governor on 1st November 1989. By a letter No. F. No. 30 (10) 1/85/LandB/Alt/16657 dated 9th July 1990 the Joint Secretary (LandB) informed Shri Om Singh Kanwar that his case had been considered and it is found that out of total land measuring 24.16 Bighas possession of only 7.01 bighas was taken over by the Government and rest of the land stated to be in dispute. However, your case is being kept pending till the decision of the case and you are requested to furnish the documentary evidence of Court after final decision. Shri Om Singh Kanwar by a letter dated 16th July 1990 informed the Respondent that there was no case relating the said land in any Court of law and sought the particulars of any such case stated to be pending. He sent reminders on 9th August, 13th September and 8th October 1990 saying that no case was pending in any court, that his application was being unnecessarily delayed. He pointed out that this was perhaps on account of the fact that he had made complaints about the corruption in the LandB Department.
2.6. By a letter dated 23rd October 1990, the Joint Secretary (LandB) informed Shri Om Singh Kanwar that 7 bighas and 1 biswas of land pertaining to Shri Chhaju Singh had already been acquired by the Respondent and payment had been made to that extent. However it was stated that as per the policy of the Government where 80% of the land which has been acquired has not been taken possession of, then the person to whom the land acquired belonged would not be entitled to seek an alternative plot in terms of the government policy. It was stated that the decision already communicated by a letter No. F. No. 30 (10) 1/85/LandB/Alt/16657 dated 9th July 1990 stands unaltered. This was the first time that Shri Om Singh Kanwar was being informed of the policy of the Government regarding possession of at least 80% of the land having to be taken before the application for an alternative plot could be considered. Naturally therefore Shri Om Singh Kanwar by his letter dated 8th December 1990 sought a copy of concerned rules etc. regarding allotment of alternative plot. However, by a further letter dated 20th February 1991 the Joint Secretary (LandB) repeated what had been stated in the letter dated 23rd October 1990.
2.7. The Petitioner did not give up hope and kept sending reminders on 6th March, 13th March and 1st April. In his further reminder dated 9th August 1991, Shri Om Singh Kanwar pointed out that at the time of taking possession only 7 bighas and 1 biswas of the land was vacant and that the rest of the land were in the unauthorised possession of others. It was thereafter pointed out that:
10. That the possession of the remaining land was not possible because it was built up much prior the acquisition proceedings started.
11. That the Delhi Administration revenue deptt. is responsible for all this and not applicant.
12. That the concern authorities have already regularized the said colony.
The reasons for persisting with his demand for an alternative lot were set out in paras 14 to 17 as under:
14. That Delhi Administration introduced scheme of alternative plot to provide better living to the concern villagers.
15. That applicant s more than 1 acre lands were acquired and as per scheme of Delhi Administration applicant deserves for an alternative plot in all court.
16. That the applicant has three married sons and there is no sufficient accommodation for the expanded family. The entire family is living in old small house of village Babarpur.
17. That the problem of applicant is genuine and he is in urgent need of proper accommodation.
2.8. It is claimed that at that stage verbally the Petitioner was advised to file an affidavit that the Petitioner was claiming alternative plot only against 7.1 bighas land for which the payment has been made by Respondent No. 1. It is further claimed that being satisfied with this affidavit, the Respondents decided to allot the alternative plot and directed Shri Om Singh Kanwar to submit the copy of the ration card duly attested by the Gazetted Officer and passport size photographs with three specimen signatures duly attested by the Gazetted Officer. According to Shri Om Singh Kanwar, he complied with all these formalities and furnished the requisite documents on 2nd January, 1992. Despite of all the above steps, no alternative plot was allotted. By a letter dated 7th July, 1992 Shri Om Singh Kanwar sought copies of the policy under which his request had been processed. Thereafter the present petition was filed.
3. During the pendency of this writ petition, the original petitioner Shri Om Singh Kanwar died on 24th February 1997. By a Will executed on 28th May 1995 he bequeathed his right of alternative plot in favor of my elder son Jai Singh Kanwar. C.M. No. 9382 of 1998 was then filed in these proceedings. This was allowed by an order dated 19th September 2006 and the Petitioner was substituted in place of Shri Om Singh Kanwar.
Submissions of Counsel
4. Mr. A.K. Singh, learned Counsel for the Petitioner urged that refusal to allot alternative plot to the Petitioner was not justified. The Respondents kept the Petitioner running from pillar to post and sought for various documents from time to time. Despite all these documents and affidavits being submitted, the Respondents were illegally withholding the grant of an alternative plot to the Petitioner. It is submitted that having processed his application for allotment of an alternative plot for so many years it is not open to the Respondents now to raise an objection on the ground of laches. Secondly, the reason for rejection of the claim of the petitioner the so-called policy decision requiring 80% of the acquired land to be taken possession of is untenable since such policy was prospective and did not apply to the claim of the petitioner. No copy of any such policy decision was furnished to the Petitioner despite his demanding it. In any event the petitioner was restricting his claim for alternative land to the extent of 7 bighas and 1biswas of land which has been taken possession of and compensation paid. His claim cannot therefore be defeated by resort to a policy that requires the state to take possession of at least 80% of the land under acquisition as a pre-condition to making allotment of an alternative plot. It is further submitted that the Petitioner was not responsible for the State not taking the possession of entire extent of 24 bighas of land. In the circumstances, it was unfair on the part of the Government to both deny compensation for the portion remaining to be taken possession of and at the same time not allotting an alternative plot even to the extent of 7 bighas and 1 biswas which has been taken possession of. Lastly, it is submitted that, the locus of the petitioner to make the claim was never in doubt as the policy changes and the procedure as announced by the DDA permits the claim for an alternative plot to be made even by a legal heir of the original recorded owner. Reliance is placed on the decision of the Full Bench of this Court in Shiv Devi Virlley v. Lt. Governor of Delhi AIR 1987 Del 46.
5. Mr. Arun Birbal, learned Counsel appearing for the Delhi Government raises a preliminary objection that the claim made by the petitioner is barred by laches. He points out that the acquisition was completed way back in 1969 with the passing of the Award and in 1970 when possession was taken. The claim for an alternative plot was made only in 1985 despite the Award being announced in 1969. Further, although the claim was first rejected in 1990 itself, the present petition was filed only in 1993. He then submits that the claim for alternative plot is not a matter of right but a matter of discretion under the policy subject to fulfillling the conditions that kept getting revised from time to time. He relies on the judgment of the Full Bench this Court in Ramanand v. Union of India AIR 1994 Del 29. He reiterates that the application for allotment of an alternative plot cannot be entertained in the present case for various reasons some of which are set out in the documents enclosed with the petition. He then submits that in any event the land at the time of acquisition did not stand in the name of the present petitioner or his father. Neither could have therefore applied for the allotment of an alternative plot. Since the Petitioner s grandfather was alive at the time of the grant of compensation and the taking of possession and he himself did not chose to apply for alternative plot in lieu of the land to the extent of 7 bighas having been acquired, such an application could not be filed by his successor-in-interest. He then submits that the decision of the Government, as expressed in the order dated 30th January, 1987 to the extent that alternative plot can be allotted only if 80 % of the land for which an award has been announced has been taken possession of, was a policy decision. Given the shortage of land in Delhi and difficulty in taking possession of lands notified for acquisition in view of the unauthorised colonies that have sprung up thereon, it cannot be said that the policy was arbitrary and unreasonable. He submits that the earlier policy of 2nd May, 1961 has to be seen in view of the later policy changes. The policy has been uniformly applied and cannot be said to be discriminatory. In the present case possession has been taken only of 7 bighas whereas the total extent is 24 bighas. Therefore, the claim for allotment of an alternative plot must fail.
Background to the policy of allotment of alternative plots 6.1. Before dealing with the issues that arise for determination, it is necessary to set out in brief the background to the policy of the Government of India for allotment of alternative plots in lieu of lands acquired. The large-scale acquisition of lands for the planned development of the capital city in Delhi commenced in 1957. In order to study the problem of devising measures to control land value and stabilizing the land prices in Delhi, the Government of India set up a Committee which submitted its report on 6th June 1959. The Chief Commissioner Delhi also submitted a note to the Government of India regarding acquisition, development and disposal of land in Delhi. Thereafter the Government of India framed a scheme titled Large Scale Acquisition, Development and Disposal of Land in Delhi, 1961. The detailed provisions of the Scheme were set out in the letter dated 2nd May 1961 of the Government of India, Ministry of Home Affairs addressed to the Chief Commissioner, Delhi. For the purposes of present case, it is sufficient to note that in para 8 of the Scheme it was stated that as a general policy disposal of developed land should be made by auction and the premium should be determined by the highest bid except in the following cases where land may be allotted at pre-determined rates, viz., the cost of acquisition and development plus additional charges. The first category of the excepted category which had to pay for the alternative plots at pre-determined rates were:
(i) to individuals whose land has been acquired as a result of the Chief Commissioner s notification dated the 7th March, 1957 the 3rd September, 1957, the 13th November, 1959 and the 10th November, 1960 or other subsequent notifications provided that this conces will not be available in the case of individuals affected by the Notification dated the 7th March, 1957 and the September 1957 if the acquisition proceedings have been completed and payment made or deposited in court by the 1st January, 1961.
(a) If a residential plot is to be allotted, the size of such plot subject to the ceilings prescribed may be determined by the Chief Commissioner, taking into consideration the area and the value of the land acquired from the individual and the location and value of the plot to be allotted, and
(b) If an industrial plot is to be allotted, its size may be determined with reference to the requirement of the industry to be set up, provided that the setting up of industry is in accordance with the matter plan and the industrialists concerned has the capacity to establish and run such industry and provided further that the extent of land allotted at predetermined rates should not exceed the area acquired from the industrialist concerned. In making such allotment for industries the Chief Commissioner will be advised by an Advisory Committee to be nominated by him.
6.2. In Clause 10 further conditions were imposed when alternative plots were allotted to individuals. These were first, that the person being allotted the alternative plot should not own any other residential plot in Delhi, secondly, that a building should be constructed thereon within two years of the allotment and thirdly that the plot cannot be transferred for a period of ten years from the date of allotment except with the permission of the Chief Commissioner.
6.3. Thus it is seen that the scheme for allotment of alternative plots, although in force from 2nd May 1961, covered even those acquisitions that were made prior to that date and in particular the large-scale acquisitions of 1957, 1959 and 1960. The scheme of allotment of alternative plots acquired a statutory character under the provisions of the Delhi Development Act, 1957 (DD Act) read with the Delhi Development Authority (Disposal of Nazul Land) Rules, 1981 (Nazul Rules). The lands acquired by the Central Government and placed at the disposal of the Delhi Development Authority (DDA), Respondent No. 3 herein, for development fell under the category of Nazul lands within the meaning of Section 21 of the DD Act. The elements of the 1961 Scheme were engrafted into the Nazul Rules. The categories mentioned in Clause 8 of the 1961 Scheme were expanded under Rule 4 of the Nazul Rules.
6.4. Subsequently in 1986 the Scheme underwent changes. The task of identifying plots for allotment was entrusted to the DDA although the clearance of an application for an alternative plot was the task of the Land and Buildings Department (LandB) of the Delhi Administration (subsequently the Government of the NCT of Delhi), Respondent No. 4 herein.
6.5. These changes to the policy are relevant for the present case and require to be discussed in some detail. On 3rd April, 1986 an office order was issued by the LandB Department of the Delhi Administration which reads as under:
Delhi Administration: Delhi Land And Building Department Vikas Bhawan: New Delhi.
NO. F. 37(39)/1/82/LandB/Alt Dated the 3rd April 86 OFFICE ORDER In supersession of all previous orders issued on the subject the Administrator, Delhi is pleased to order that following norms should be followed in respect of allotment of alternative plots in lieu of the land acquired for Planned Development of Delhi under the Scheme of Large Scale Acquisition, Development and Disposal of land in Delhi of the Govt. of India contained in their letter dated 2.5.1961.
1. In order to make the applicant eligible for allotment of alternative plot, the minimum land acquired for Planned Development of Delhi will be one bigha instead of 150 Sq. Yds.
2. In case the applicant has purchased the requisite land of 1 bigha he should have purchased the land 5 years earlier than the date of notification under Section 4 of the Land Acquisition Act in order to make him eligible for allotment of alternative plot.
3. Condition No. 2 will, however, not be applicable in respect of ancestral cases.
4. Maximum size of the plot will be restricted to 250 Sq. Yds. where land acquired is more than 10 bighas. Cases where land acquired is more than 5 bighas but up to 10 bighas plot size of 150 Sq. Yds will be recommended and in respect of the cases where the land acquired ranges between 1 bigha to 5 bighas the size of the plot to be recommended will be restricted to 80 Sq. Yds.
5. The plots will be allotted by DDA on pre-determined rates fixed by the Competent Authority from time-to-time. It is also clarified that these orders shall also apply to all pending applicants.
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(P. Bhatnagar) Secretary (Land and Building) A copy of this order was marked to the DDA for necessary action because by this time the procedure that was followed was that the LandB Department would first screen the applications for their eligibility and entitlement and make a recommendation to the DDA for allotment of the alternative plot.
6.6. This was followed by an order dated 15th September 1986 which read as under:
Delhi Administration: Delhi Land And Building Department Vikas Bhawan: New Delhi.
No. F. 37(30)/1/82-LandB/Alt 8754 Dated: 15th Sep, 86 OFFICE ORDER In partial modification of office order No. F.37(39)1/82-LandB/Alt dated 8.4.1986 regarding the eligibility and entitlement for recommencing the cases to DDA for the allotment of alternative plots in lieu of the acquired land for Planned Development of Delhi. It has now been decided that all applications covering the Awards announced before 3.4.1986. received/to be received in this regard, will be considered according to the norms being followed till the issue of the above mentioned office order dated 3.4.1986. However, the provisions of the Office Order dated 3.4.1986 will apply in respect of all applications received relating to the Awards announced on and after 3.4.1986.
All applications considered and rejected in pursuance of Office Order dated 3.4.1986 will, therefore, now be re-opened and considered suo-moto and such individual applicants informed accordingly.
Apart from the above, all such eligible applicants whose cases were recommended to DDA regarding the size of plots in accordance with the above mentioned office order, will also be revised suo-moto.
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(N. Diwakar) Joint Secretary :Land and Bldg.) 6.7. A further modification was brought about by an order dated 30th January, 1987 where for the first time it was stated that even if possession of the entire land was not taken, the recommendation for allotment of alternative plots could be made but it would have to be considered whether not less than 80% of the total land for which the award has been announced should be taken possession of. The said order reads as under:
Delhi Administration: Delhi Land and Building Department Vikas Bhawan: New Delhi.
NO. F. 37(39) 82-LandB/3703 Dated: the 30/1/1987.
Office Order It has been decided that henceforth, the recommendation for the allotment of alternative plots may be made even where the possession of the entire land acquired has not been taken by the concerned departments of the Government/agencies. But the Zonal Officers while scrutinizing such cases will take into consideration the possession of land to the extent of 80% and not lesser than 80% of total land for which award has been announced.
It has also been decided that the Harijans and other landless persons of the villages who were allotted agricultural land under 20 point programme of the Government may also be considered for the allotment of alternative plots even if they have been declared Bhumidar/owner of the land after notification Under Section 4 of the L.A. Act. While examining such cases the Zonal Officer concerned may examine all relevant factors including the orders passed by Sub-Divisional Magistrate/Revenue Asstt. by which Bhumidari rights were conferred upon the applicants Under Section 74 of the Delhi Land Reforms Act.
In both these cases mentioned above, other conditions of recommendations for the allotment of alternative plot, pertaining to determination of eligibility of size etc. will remain the same.
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(G.S. Chaturvedi) Under Secretary (Alt. Allotment) 6.8. The DDA on its part issued a printed version of the scheme of allotment of alternative plots where it clearly indicated the eligibility criteria and the norms for the sizes of plots, the procedure to be followed etc. Significantly a reference was made to the Scheme contained in the letter of the Government of India dated 2nd May, 1961. It was stated that the plots are allotted by the DDA on the recommendation of this Department as per policy laid down in this regard by Government of Delhi. Relevant to this case it was stated that the persons eligible to apply, in the event that the land acquired was ancestral, were those who are recorded owner prior to the issue of the Notification under Section 4 LA Act. Further, such persons must have received the compensation as rightful owners. And possession of the acquired land should have been taken by the Govt. The applicants should not own a house or residential plot in their own name or name of the near and dependent relations. Lastly for awards announced prior to 3.4.1986 the land acquired is not less than 150 sq. yards and for awards announced post 3.4.1986 the land must not be less than 1 bigha. The norms set out for the size of plots for awards announced before 3.4.1986 was where the land acquired was above 1 bigha and up to 10 bighas the plot size would be 250 sq. yards. Under the sub-heading procedure followed by the Department, there were two columns for documents to be submitted. The first was in case of applicant being recorded owner at the time of Notification under Section 4 LA Act. The other column was if the applicant is not the recorded owner is one of the legal heirs of the deceased recorded owner. In the latter case in addition to the documents required to be submitted by the applicants belonging to the first category, certain other documents like death certificate, heirship certificate, relinquishment deed of other legal heirs and indemnity bond have to be submitted.
6.9. The Respondents have placed on record copies of the public notice issued by the Delhi Administration in 1989 informing the public that all persons in whose case acquisition proceedings have been finalized under the scheme of Large Scale acquisition, Development and Disposal of land in Delhi for planned Development of Delhi between the period of 16th November 1963 and 31st December 1988, (both date inclusive) may apply in the prescribed form along with all requisite enclosures for recommendation of the allotment of an alternative plot of land in lieu of acquired land in accordance with the policy laid down in his behalf by Delhi Administration from time to time so that their application reaches the officer of the Secretary (LandB) D Block, Vikas Bhawan, I.P. Estate, New Delhi, latest by 30.4.1989. Therefore it is clear that even as on 30th April, 1989 the Delhi Administration was prepared to consider applications for the allotment of alternative plot to persons whose lands have been acquired in a 25 year period between 1963 and 1988 for the planned development of Delhi.
6.10. A collective reading of the aforementioned policy changes could be summarized as under:
(i) Since 2nd May, 1961 there was a policy for allotment of alternative plots to those whose lands were acquired under the Scheme of large scale acquisition for the planned development of Delhi.
(ii) Subject to fulfilllment of the specified criteria the acquired land could be disposed of other than by way of public auction, by allotment at pre-determined rates to certain categories of persons which included individuals. There were conditions which included non-transferability for a period of ten years and completion of construction on the plot within two years from the date of allotment.
(iii) The said policy continued notwithstanding the enactment of DD Act. Some of the essential features of the policy were engrafted into the Nazul Rules. The policy therefore took on a statutory character.
(iv) Applications were invited for allotment of alternative plots even as late as April 1989. Persons whose lands had been acquired during a 25-year period between 1963 and 1988 could apply up to 30th April, 1989 for allotment of alternative plots.
(v) The changes brought about by the office order dated 3rd April, 1986 was that there was a minimum extent of land which had to be acquired (1 bigha) i.e. 1000 sq.yds approx. before such person could be entitled to alternative plots. As regards the sizes of plot to be allotted it would be 250 sq. yards where land acquired was more than 10 bighas 150 sq. yards when it was between 5 and 10 bighas and 80 sq. yards when it was between 1 and 5 bighas. However as clarified by the subsequent office order dated 15th September 1986 this changed condition applied only to those awards announced on and after 3rd April 1986.
(vi) The Office Order dated 30th January 1987 stipulated that allotment of alternative plots may be made even where the possession of the entire land acquired has not been taken. However while scrutinizing such cases the authorities had to take into consideration whether possession of at least 80% for total land of which award has been announced has been taken. The said Office Order was prospective.
(vii) The procedure announced by the DDA incorporating the features of the policy of the government for allotment of alternative plots, setting out the eligibility criteria and procedure made it explicit that an application could be made by even a legal heir of the person who was the recorded owner of the land at the time of acquisition.
Full Bench judgments of this Court 7.1. The purport of the 1961 Scheme was explained in some of the judgments of this Court which will be discussed presently. In Shiv Devi Virlley v. Lt. Governor of Delhi (supra), a Full Bench of this Court was considering the question as to who would be eligible to be allotted an alternative plot: a person who was the recorded owner of the acquired land at the time of the notification under Section 4 LA Act (as held by some benches of this Court) or a person who was the recorded owner at the time of acquisition The Full Bench explained that the provisions of the Delhi Lands (Restrictions on Transfer) Act 1972 did not apply to these allotments or their transfers since the Scheme was brought into force much earlier in 1961. After analyzing the provisions of the LA Act and concluding that the government takes over the land only after an award is passed and therefore there was no restriction on the transfer of the land till then, the Full Bench in para 18 (AIR p.50) held:
18. It is quite clear that any one whose land has been acquired as a result of the Notifications mentioned in Clause 8 of the Scheme is entitled to apply. By anyone is meant: the owner of the land at the time of acquisition and not the owner at the time of the issue of the Notification under Section 4. In fact, there is no impediment in law at all either today or earlier regarding transfers, after the Notification has been issued under Section 4. There is an impediment after the acquisition notice is issued under Section 6, but that too applies after 1972. We have not yet come across a case in which the acquisitions of planned development were made after 1972. We would not like to comment upon them.
7.2. Giving its imprimatur to the policy the Full Bench in Shiv Devi Virlley explained the rationale for the policy was to see that the population of Delhi is properly housed and has the means for acquiring residential houses and further that if a person has bought a residential plot privately and the State chooses to acquire that land at a very meager price, then surely it is the duty of the State to give an alternative plot at a moderate price to those persons who have been deprived of possible residential houses, which they could have constructed on the land they have acquired.
7.3. The next important decision interpreting the clauses of the policy is of the Full Bench of this Court in Ramanand v. Union of India (supra). The questions considered by the Full Bench here were whether: (a) a person whose lands had been acquired under the Scheme for large-scale acquisition of land for the planned development of Delhi had a vested right to the allotment of an alternative plot in terms of the 1961 Scheme (b) an allottee of an alternative plot can be asked to pay the pre-determined rates prevalent at the time of the allotment of the plot or, as contended by the allottees, those prevalent on the date of their making an application The Court discussed the provisions of the DD Act and the Nazul Rules. The Court concluded that in respect of such lands the provisions earlier made in the 1961 Scheme stand impliedly repealed by the more comprehensive and detailed provisions made later, on the same subject and in the same field, by the Nazul Rules in 1981. The Full Bench found that the categories mentioned in Clause 8 of the 1961 Scheme to whom alternative plots could be allotted had been expanded in Rule 4 of the Nazul Rules. It held (para 24, AIR p.41) that:
The principle expressed in the form of exception in Clause 8 of the 1961 Scheme, which has already been discussed above, is embodied into the Nazul Rules.
7.4. The conclusions arrived at by the Full Bench in Ramanand were:
28. As a result of the above discussions, we find that 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 purposes; 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.
34. We, therefore, proceed to answer the second question, and hold that the rates of premium chargeable from different categories of persons, including an individual whose land has been acquired, shall be the predetermined rates in force at the time when the offer is made to the concerned person for allotment of a specific plot of land in a particular area or zone, under Rule 6 of Nazul Rules.
7.5. To recapitulate, the Full Bench in Shiv Devi Virlley decided that even those who had purchased the lands after the issuance of the notification under Section 4 LA Act could apply for allotment of an alternative plot as long as they were the recorded owners at the time of acquisition. In Ramanand the Full Bench pointed out that the 1961 Scheme was now overridden by the Nazul Rules and thus was of a statutory character. The policy of making allotments of alternative plots in lieu of acquired land would be governed by those Rules. A person whose lands had been acquired for the planned development of Delhi had no absolute right to allotment, but he is eligible to be considered for allotment of an alternative plot for residential purposes in accordance with the Nazul Rules. Such person, if allotted an alternative plot would have to pay the predetermined rates in force at the time when the offer is made to the concerned person for allotment of a specific plot of land in a particular area or zone under Rule 6 of the Nazul Rules.
7.6. In neither of the above decisions did the Court notice the changes brought about in 1986 and 1987 to the 1961 Scheme, which are relevant for the purposes of the present case.
Is the claim barred by laches 8.1. The preliminary objection on the ground of laches raised by the Respondents is based on the fact that the decision rejecting the claim of Shri Om Singh Kanwar was communicated to him on 23rd October 1990, and reiterated on 20th February 1991 and 1st May 1992 and that, therefore, he could have approached this Court even earlier.
8.2. The detailed documentation placed on record in this petition reveals that, after applying well within the deadline of 30th April 1989, Shri Om Singh Kanwar kept knocking on the doors of the government for several years for the allotment of an alternative plot. He submitted every document demanded from him from time to time and was led to believe, time and again, that his application was being considered. Even as on 24th March, 1992 he kept submitting documents in support of his claim. The documentation further shows that he was making representations even thereafter till April 1993, when he filed this petition.
8.3. The Petition also encloses the duly acknowledged letters dated 2nd January, 1992 forwarding the specimen signatures and photographs and the letter dated 24th March, 1992 enclosing an indemnity bond. Obviously even while on the one hand the Respondents were sending letters rejecting the request for allotment of an alternative plot, they were demanding documents from the Petitioner s father in support of the claim for alternative land. The Respondents have not denied the statements made in para 12 of the petition to the effect that the Petitioner s father Shri Om Singh Kanwar had been verbally advised to file an affidavit that he was claiming an alternative plot only against 7.1 bigha land for which payment was made by Respondent No. 1. They also have not denied that pursuant thereto Shri Om Singh Kanwar did submit such an affidavit. The counter affidavit filed is not a parawise reply and these averments in the petition remain unrebutted. The last of the rejection letters is dated 1st May 1992 and the present petition was filed after representations were made thereafter by Shri Om Singh Kanwar on 7th July 1992 and 2nd April 1993.
8.4. In view of the above factual position this Court rejects the preliminary objection of the Respondents that the Petitioner s claim is barred by laches.
Is the Petitioner entitled to be considered for allotment of an alternative plot 9.1. The principal question that requires to be answered is whether the substituted Petitioner Shri Jai Singh Kanwar is entitled to the allotment of an alternative plot when he was not the recorded owner as on the date of the acquisition. A further question that arises is whether in view of the policy decision as contained in the office order dated 30th January, 1987 the claim for allotment of alternative plot cannot be considered since possession has not been taken of 80% of the entire extent of 24 bighas 16 biswas of the land notified for acquisition.
9.2. The undisputed fact is that the lands owned by the Petitioner s grandfather to the extent of 24 bighas and 1biswas was covered by Section 4 Notification dated 13th November, 1959. The Award dated 24th November, 1969 also shows that the entire extent of the land was subject matter of the acquisition. The Acquisition Payment Certificate dated 25th May 1988, reveals that possession was taken only of 7 bighas and 1 biswas of land and the compensation was also paid only to that extent. It was further stated that the possession of the aforementioned land was transferred to the Government on 18th July, 1971.
9.3. The above factual position is acknowledged in a letter addressed to the Petitioner on 9th July 1990, to the following effect:
Delhi Administration Delhi Land And Building Deptt.
Vikas Bhavan, New Delhi.
No. F. 30(10)/1/85-LandB/Alt. 16657 Dated: 9/7/90 To Shri Om Singh Kanwar, S/O Shri Chhaju Singh, R/o Village Babarpur, Subject: Request for allotment of alternative plot against the acquired land.
Sir, With reference to your application on the subject cited above, I am directed to inform you that your case has been considered very carefully and it is found that out of total land measuring 24.16 Bighas possession of only 7.01 Bighas was taken over by the Govt. and rest of the land stated to be in dispute. However your case is being kept pending till the decision of the case and you are requested to furnish the documentary evidence of Court after final decision.
Yours Faithfully, Sd/-
(Gita Sagar) Joint Secretary (LandB) 9.4. While as on 9th July 1990 the case of Shri Om Singh Kanwar was still pending consideration notwithstanding the office order dated 30th January 1987 there appears to have been a change in the thinking of the authorities in regard to that claim thereafter. Till then it was thought that the land in question was the subject matter of some case in Court. That was factually incorrect. Therefore, obviously somebody in the concerned Department decided to apply the office order dated 30th January 1987 to reject the claim of Shri Om Singh Kanwar. This led to the letter dated 23rd October, 1990 by the Joint Secretary, Land and Building addressed to him which reads as under:
Subject: Request for allotment of alternative plot.
Sir, With reference to your representation dated 26.6.90 addressed to Hon ble P.M. and letter dated 16.7.90 addressed to Joint Secretary (LandB) on the subject cited above, I am directed to say that as per report of Land Acquisition Collector (DS), Delhi the land bearing Kh. Nos. 510/367/3(0.12), 511/368 (1.13), 377 (3.0), 378 (2.17), 558/379 (2.8), 559/379 (0.3), 366 (2.2), 508/367/1 (1.10), 513/368/1 (1.19), 509/367/2 (3.9), 512/368 (1.2), 440/361(0.12), 380(2.8), 441/381(1.1), total measuring 24 Bighas 16 Biswas. Out of aforesaid khashra Nos. 366(2.2), 508/36/1(1.10), 513/368/1(1.19), 509/36/2(3.9), 512/368 (1.2) 440/381 (1.12), 380(2.8) 441/381(1.1), total measuring 24 bighas 16 Biswas. Out of aforesaid one biswas had been paid to Shri Chajju Singh. The compensation of remaining land has not been paid because the possession has not been taken over due to built up.
As per policy regarding Alternative plot prevailing in this department in case where possession of 80% of land has not been taken over due to stay of the court on built up the alternative plot can t be recommended.
The points raised in your representation referred above are not based on facts stating that the department/Officer S/Officials are harassing due to one reason or the other.
I would like to inform you again that the decision already communicated to you vide this office letter No. F.30(10)1/85/LandB/Alt/16657 dated 7/790 stands unaltered.
9.5. It was this reason for rejection that was repeated in the subsequent letters dated 23rd October 1990 and 20th February 1991. In the counter affidavit dated 28th August 2006 filed by the Government of NCT in these proceedings in para 4 the stand taken is as under:
4. That as per the policy for allotment for alternative plot of land framed by the Ministry of Home Affairs, Govt. of India 1961, a person is entitled to alternative plot of land only if he is divested of more than 80% of land of which he is the recorded owner on account of acquisition of land. In other words, if more than 20% of the total land owned by an individual is not taken possession of consequent to notification/declaration, for one reason or the other, that individual is not entitled to alternative plot of land.
9.6. Since this appears to be the only real reason for rejection of the claim for an alternative plot in the present case it calls for a detailed scrutiny. In the first place it needs to be noticed that the decision of the Delhi Administration to implement the policy that alternative plot would be allotted only where possession of the land not lesser than 80% of the total land for which the award has been announced is taken, was prospective as is clear from the word henceforth in the first sentence of that Office Order. Clearly, therefore, the said policy decision was not intended to affect those cases where the land had already been acquired. Also, a distinction was sought to be drawn between land acquired and land for which award has been announced. The purport of the Office Order dated 30th January 1987 is that the recommendation for the allotment of an alternative plot should not be withheld merely because possession of the entire land acquired has not been taken. It is therefore important to ascertain how much land in the present case has in fact been acquired. The same Office Order uses a different expression land for which award has been announced when it requires the concerned officers scrutinizing such cases to consider whether 80% of such land has been taken possession of.
10. The question relevant to the present case therefore is whether in fact the Government has acquired the entire extent of 24.16 bighas of the land in question or not The question as to when a land which is the subject matter of the acquisition under the LA Act can be said to have in fact been acquired has been answered in some of the judgments of the Supreme Court and this Court. In Jethmull Bhojraj v. State of Bihar and Ors. it was explained that the Government would become the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Section 17(1). Both these provisions provide that when the Collector takes possession of any waste or arable land, the land shall thereupon vest absolutely with the Government from all encumbrances. To the same effect is the decision of a learned Single Judge of this Court in Smt. Renu Gupta v. Govt. of NCT of Delhi and Anr. CW No. 4854 of 1999 dated 27th March, 2003 which was affirmed by the Division Bench of this Court in Govt. of NCT of Delhi v. Smt. Poonam Gupta and Anr. 125 (2000) DLT 423 (DB) while dismissing the appeal of the State.
11. The government has in the instant case announced an Award for 24 bighas and 16 biswas of land thus completely precluding the land owner Shri Chhaju Singh from dealing with that land thereafter in any manner whatsoever. However, in view of the law explained in Jethmull Bhojraj and the later decisions of this Court, only 7 bighas and 1 biswas can be said to have been acquired within the meaning of the LA Act since possession has been taken of and compensation paid only to that extent. In one sense therefore the entire claim of the petitioner for alternate land, can, if at all, be examined only on the basis that the extent of land acquired is 7 bighas and 1 biswas. The purport of the Office Order dated 3rd April 1986 was that no claim for an alternative plot for a size larger than that which corresponds to the aforementioned extent of land acquired can be considered for allotment. This condition would, however, not apply here as is evident from the subsequent Office Order dated 15th September 1986 which makes it clear that the norms announced by the office order dated 3rd April 1986 would apply in respect of all applications received relating to the award on or after 3.4.1986. The second paragraph of the office order dated 15th September 1986 therefore clarifies that all applications considered and rejected in pursuance of the office order dated 3.4.1986 will, therefore, now be reopened and considered suo moto and such individual applicants informed accordingly. The idea was that in cases like the present one where the award was already announced in 1969 the entire question of eligibility for allotment of alternative land was not to be reopened and was to be determined with reference to what was prevailing prior to 3rd April 1986.
12. Therefore, in the considered view of this Court, the correct way of interpreting the Office Order dated 30th January 1987 is that the condition requiring possession to be taken of 80% of the land for which an Award has been announced is relevant only where the Office Order dated 3rd April 1986 would apply, to restrict the size of the plot to be allotted in the alternative. The Office Order dated 30th January 1987 is relevant therefore only to that extent. Far from restricting the claim of the petitioner, it permits the allotment of an alternative plot notwithstanding the fact that the entire extent of the land has not been taken possession of.
13. This interpretation is consistent with the scheme of the LA Act and in particular Section 48 thereof which permits the State to consider request for denotification of any parcel of notified land, even after the announcement of an award, so long as the possession has not been taken thereof by the Government. The land owner in such a case is not totally prejudiced because he can invoke this provision by contending that the land should be denotified since neither the possession has been taken nor compensation paid. In fact where compensation is paid it is possible for the government to insist on the refund of the compensation paid as a pre-condition for restoring the land to the original owner. In other words, the Office Order dated 30th January 1987 was not intended to make the person whose lands had been notified for acquisition worse off because for some reason, not of his doing, the government was unable to take possession of his entire land. It would be unfair and unjust that for that reason he is neither paid compensation for the portion not taken possession of and he is also deprived of his entitlement to an alternative land. The appropriate manner of interpreting this Office Order would be to hold that the person whose lands have been acquired would still be considered eligible for being considered for allotment of alternative land to the extent of the land that has been acquired. This explains why Shri Om Singh Kanwar was asked to restrict his claim for alternative land to the extent of the 7 bighas 1 biswas of land which was taken possession of, and which he did. The subsequent stand of the government denying his claim altogether was not based on a correct interpretation of the said Office Order.
14. The resultant position is that the case of the petitioner will have to be processed on the basis that 7 bighas 1 biswas of land has been acquired. The size of the alternative plot should be determined without reference to the office order dated 3rd April 1986 since the restriction on plot size as contained in that order will apply only to those awards made after 3rd April 1986 whereas in the present case the award was made in 1969 itself.
15. As already noticed, despite the petitioner not being the recorded owner of the land at the time of its acquisition, he would as the legal heir of Shri Chajju Singh nevertheless be eligible to apply for an alternative plot. It has been held by a Full Bench of this Court in Shiv Devi Virlley that the person shown as the owner of the land at the time of acquisition and not the owner of the land at the time of the Notification under Section 4, who is entitled to apply for alternative plot. Therefore in view of the judgment in Shiv Devi Virlley, the Petitioner s grandfather was eligible to apply for alternative plot in respect of 7 bighas and 1 biswas of the land. The Petitioner s father s application was thereafter being processed from time to time. This position has been explicitly acknowledged in the procedure announced by the DDA. The objection as to laches on the part of the petitioner has already been negatived for the reasons discussed earlier. Therefore the petitioner's claim for being considered for the allotment of an alternative plot cannot be denied either on the ground of laches or on the ground of ineligibility for any reason whatsoever. In light of the law as explained by the Full Bench in Ramanand the petitioner is entitled to be considered for allotment of an alternative plot in lieu of the 7 bighas 1 biswas land acquired by the Government.
16. The next question concerns the rate which should be charged from the petitioner in the event of his being allotted an alternative plot. This Court in Ramanand held that the rate would be that prevalent at the time of offering the alternative plot for allotment. However, this Court cannot be unmindful of the fact that this petition has been pending since 1993. If the petition had been decided within reasonable time i.e. by the end of 1995, then the petitioner s case would have been considered soon thereafter and if he had been allotted the alternative plot of land the rate that would be charged would be that prevalent as on 31st December 1995. The petitioner should not suffer for the delay caused for reasons not of his making. Therefore, it would be equitable to direct that in the event of the petitioner being allotted an alternative plot of land he should be charged the rate prevalent as on 31st December 1995.
17. Before concluding this judgment, this Court would like to observe that this is a case where a citizen, deprived of his land for the larger good of the planned development of Delhi since 1970, has been made to run from pillar to post for over eight years for the allotment of an alternative plot. Thereafter, in sheer desperation, he approached this Court. Before he could get any relief, he died and thereafter his son has been pursuing the cause. The anguish of Shri Om Singh Kanwar in pursuing his claim by repeated visits to the department concerned can well be imagined. In any event it is writ large in the numerous letters written by him to the government, copies of which were carefully preserved by him and annexed to the petition. In it he explains that the applicant has three married sons and there is no sufficient accommodation for the expanded family. The entire family is living in old small house of village Babarpur. This is precisely what this Court sought to remind when in Shiv Devi Virlley it explained the rationale for the policy (para 21 at AIR p.51):
21. We think we should look at this problem from quite a different angle. The Government has decided to undertake the planned development of Delhi. It is to see that the population of Delhi is properly housed and has the means for acquiring residential houses. If a person has bought a residential plot privately and the State chooses to acquire that land at a very meager price, the surely it is the duty of the State to give an alternative plot at a moderate price to those persons who have been deprived of possible residential houses, which they could have constructed on the land they have acquired. The planned development is for the good of the people and not for the good of the State. There is public element involved in the planned development and that public element is the housing of the population of Delhi. The Scheme visualises one house per person. When there is a situation of no house or no plot when the existing plot of that person has been acquired by the State, then it is the duty of the State to give an alternative plot. That is the purpose and the end-all and be-all of the Scheme. We do not think that it is doing violence to the Scheme that plots are allotted to persons who have lost their residential plots as a result of the acquisition proceedings under the Land Acquisition Act.
18. Therefore, while allowing the petition and directing the Respondents to now process the claim of the petitioner in terms of this judgment within a period of twelve weeks from today, we award the petitioner costs of Rs. 10,000/- which will be paid by the Respondent to the Petitioner within a period of four weeks from today.