Delhi High Court
Mehar Chand & Ors. vs Union Of India & Ors. on 4 September, 2008
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Sunil Gaur
* IN THE HIGH COURT OF DELHI
+ WP(C) No.2349/1988
MEHAR CHAND & ORS. ........ Petitioners
through: Mr.Ravi Gupta, Adv. with
Mr.Ankit Jain, Adv.
VERSUS
UNION OF INDIA & ORS. ........ Respondents
through: Mr.Sanjay Poddar, Adv.
RESERVED ON :
13.08.2008
DATE OF DECISION:
% 04.09.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice Sunil Gaur
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. At the outset it may be recorded that during course of arguments on 12.8.2008 when final arguments were addressed in the above-captioned writ petition, learned counsel for the petitioners, Shri Ravi Gupta restricted his submissions to prayer 'a' and 'b' made in the writ petition and gave up relief prayed as per prayer 'c'. Thus, we note only prayer 'a' and prayer 'b' prayed WP(C) No.2349/1988 Page No.1 of 20 for in the writ petition. The same read as under :-
"(a) a writ, order or direction in the nature of certiorari be issued to quash the impugned communication bearing No.F.31 (West Zone)/Misc/L&B/ALT dated 7-10-88 issued by respondent No.2 to respondent No.4; a copy of which was endorsed to each of the petitioners;
(b) a writ, order or direction in the nature of mandamus be issued to the respondents to implement its policy and allot alternative plots to the petitioners without any further delay;"
2. Case of the petitioners is that they owned agricultural lands in Village Shahabad Mohmmad Pur, New Delhi which were acquired by the Union Government under Award No.103/72-73 dated 26.3.1973, and there being a policy framed by the respondents under Section 21 of the Delhi Development Act, 1957 to allot a residential plot to the person whose agricultural land was acquired, pursuant to applications submitted by the petitioners, after verification, vide letters annexed as Annexure-A collectively to the writ petition, the Joint Secretary of the Land & Building Department, Delhi Administration recommended allotment of an alternative plot to the petitioners, but without any reason, withdrew the recommendation vide impugned communication dated 7.10.1988 addressed to the Commissioner (Lands) DDA with copy thereof to the petitioners and 36 other persons.
WP(C) No.2349/1988 Page No.2 of 20
3. In a nutshell, on the factual narrations afore-noted, the case pleaded in the writ petition by the petitioners is that there being a policy framed by the respondents to allot an alternative residential plot to every person whose land is acquired in Delhi for the purposes of planned development of Delhi, the petitioners are entitled to the allotment of an alternative plot; and secondly for the reason that a large track of land in Village Shahbad Mohammad Pur was acquired and to all persons who were affected by the acquisition, save and except 43 persons in respect of whom recommendations for allotment of alternative plots were withdrawn by the impugned communication dated 7.10.1988, alternative plots were allotted resulting in the petitioners being discriminated against.
4. In the counter affidavit filed by the respondents it is pleaded that agricultural land in Village Shahbad Mohammad Pur was acquired under the Land Acquisition Act 1894 for the purposes of expansion of the Palam Airport and after taking over possession the Land Acquisition Collector directly handed over possession of the acquired lands to CPWD where-from the land ultimately reached the authorities in charge of the Palam Airport. It is further pleaded that only those persons are entitled to an alternative residential plot, post acquisition of his/her land, if the acquired land is placed at the disposal of DDA for purposes of the WP(C) No.2349/1988 Page No.3 of 20 planned development of Delhi.
5. In a nutshell, the case pleaded in the counter affidavit is that 2 conditions have to be met before a person whose land is acquired in Delhi is entitled to an alternative residential plot. The first condition is that his/her land has to be acquired for the purposes of planned development of Delhi and secondly, the land has to be placed at the disposal of DDA.
6. Before proceeding to analyze the respective versions with respect to law on the subject, we may note that the petitioners have made no grievance on the plea of not being heard before the impugned letter dated 7.10.1988 was issued. We may also note that the petitioners have not filed any rejoinder to controvert the stand taken by the respondents in the counter affidavit which we note was filed fairly belatedly but was permitted to be taken on record pursuant to order dated 21.2.2007. We further note that the relevant record was produced at the hearing and after relevant parts thereof were shown to learned counsel for the petitioners, submissions were made by Shri Sanjay Poddar, learned counsel for the respondents by relying upon the said official record.
7. The relevant record shows that land was acquired in Village Shahbad Mohammad Pur pursuant to a notification issued on 3.12.1971 under Section 4 of the LA Act, 1894 stating that the WP(C) No.2349/1988 Page No.4 of 20 notified lands were proposed to be acquired for a public purpose; namely for the planned development of Delhi. The land being required for expansion of Palam Airport, possession thereof was taken over by the Land Acquisition Collector in the year 1973 and handed over directly to the CPWD. Immediately upon acquisition of the land many persons applied for allotment of an alternative residential plot; predicating a claim under the large scale acquisition policy of the Government of India framed in the year 1961. The said acquisition policy of 1961 stipulates that all persons whose lands are acquired in Delhi for the purposes of planned development of Delhi would be allotted a residential plot. These claims which were made immediately after the acquisition was complete in the Village were processed and alternative allotments were made to these persons.
8. Nothing happened thereafter for a number of years till the year 1986. All of a sudden, after 13 years of the acquisition, which we note was made in the year 1973, 43 applications were received in the year 1986 predicating a claim for allotment of a residential plot under the large scale acquisition policy of the year 1961. Petitioners are a part of said group of 43 applicants. Treating the policy as applicable, as per which if land was acquired for purposes of planned development of Delhi the person affected by the acquisition was entitled to an WP(C) No.2349/1988 Page No.5 of 20 alternative plot, the Department cleared the names of all 43 applicants for allotment of a residential plot resulting in letters of recommendation being issued to all said 43 persons. Thereafter, it came to be noted that there may be something suspicious in 43 persons arising from slumber after 13 years. The matter was put under a scanner and at that stage it was realized that as per existing rules the alternative plot of land could be allotted only to such persons, whose lands, upon acquisition were placed at the disposal of DDA. Ms. Neeru Singh, Joint Secretary (Land & Building) Department of the Delhi Administration penned a note on 10.9.1988 requiring allotment to be withdrawn which was approved by the Secretary, Land & Building Department on 28.9.1988 and pursuant thereto the impugned order dated 7.10.1988 was issued.
9. In line with the grounds of challenge pleaded in the writ petition, Shri Ravi Gupta, learned counsel for the petitioners submitted that under the large scale acquisition policy of 1961, the only requirement was of land being acquired for a public purpose as condition for entitlement of the person affected by the acquisition to be allotted an alternative plot. Counsel urged that expansion of Palam Airport was a public purpose as stated in the notification issued under Section 4 of the LA Act, 1894. Secondly, learned counsel argued that all persons whose lands WP(C) No.2349/1988 Page No.6 of 20 situated in the revenue estate of Village Shabad Mohammad Pur were acquired formed a homogeneous class and there could be no discrimination inter-se or within said class of persons. Counsel urged that admittedly, save and except 43 persons, whose names find recorded in the letter dated 7.10.1988, all others were allotted alternative residential plots.
10. Shri Sanjay Poddar, learned counsel for the respondents submitted that post 1981 the issue of entitlement to an alternative residential plot has to be considered with reference to the Delhi Development Authority (Disposal of Developed Nazul Lands) Rules, 1981 for the reason these Rules are the mandate of the Central Government to the Delhi Development Authority and no allotment contrary to the Rules can be made after the Rules were promulgated in the year 1981. Counsel urged that with the promulgation of the Nazul Land Rules, 1981, all earlier policies occupying an area which came to be occupied by the Rules would cease to exist. Counsel urged that under the Nazul Land Rules, 1981, only such persons were entitled to an alternative plot, whose lands, on acquisition were placed at the disposal of Delhi Development Authority for the purpose of planned development of Delhi. Learned counsel drew attention of the Court to the fact that the petitioners moved applications for allotment of an alternative plot only in the year WP(C) No.2349/1988 Page No.7 of 20 1986 when the Nazul Land Rules, 1981 were in force. On the plea of discrimination, learned counsel urged that all those who had applied prior to the year 1981 were entitled to be considered for allotment of an alternative plot as per the large scale acquisition policy of 1961. Thus, counsel urged that persons who had applied for alternative plots prior to 1981 and allotment made prior to 1981 would form a class distinct from those who applied for allotment of an alternative plot post 1981. Learned counsel further submitted that assuming without admitting, a wrong allotment was made to some person, would not confer a right on somebody else for the reason there cannot be a plea of discrimination founded on a wrong action of the State.
11. Though neither party placed before us the large scale acquisition policy of 1961, relevant part thereof was located by us in a decision dated 3.9.2004 disposing of WP(C) No.2203/1990 Shailender Jain Vs. UOI & Ors. As noted in the said decision, the policy was notified vide office order No.F.37(16)/60-Delhi(i) dated 2.5.1961. Clause 8 of the said policy reads as under:-
"(8) 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, namely, the cost of acquisition and development plus the additional charge mentioned in sub-paragraph (7) above."
(i) to individual whose land had been acquired as a WP(C) No.2349/1988 Page No.8 of 20 result of the Chief Commissioner's notification dated the 7th March, 1957, the 3rd September, 1957, the 18th November, 1959, the 10th November, 1960 other such subsequent notifications provided that this concession will not be available in the case of individuals affected by the notifications dated 7th March, 1957, and the 3rd September, 1957. If acquisition proceedings have been completed and payment made or deposited in Court by the 1st January, 1961, in these cases.
(a) If a residential plot is to be alloted, 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 land acquired from the individual and the location and value of the plot to be allotted."
12. It is apparent that the large scale acquisition policy is a beneficial policy. Ordinarily, if land owned by a person is acquired, he is entitled to compensation as per the provisions of the Land Acquisition Act, 1894. The claim of the owner of the land has to be satisfied by paying him monetary compensation. But, considering that normally it is a farmer who is affected by an acquisition because more often than not agricultural lands are acquired as per a development scheme, be it that of a municipality; a housing board, or a development authority, to give additional relief, many States framed policies where-under either a residential or a commercial plot of land was given to the land owner affected by the acquisition. This allotment was at concessional rates. The large scale acquisition policy of 1961, adopted a beneficial policy in the Union Territory of Delhi. But WP(C) No.2349/1988 Page No.9 of 20 for the policy, none would have a right to claim an alternative plot.
13. In the year 1957 the Delhi Development Act, 1957 was promulgated. An authority called the 'Delhi Development Authority' was constituted under Section 3 of the said Act. As per Section 6 of the Act, the object of the authority was to promote and secure the development of Delhi according to a plan and for that purpose, under Section 15 the authority was empowered to acquire, manage, hold and dispose of land for purposes of development and purposes incidental thereto. By Act No.56 of 1963, Section 15 of the Delhi Development Act, 1957 was substituted with retrospective effect. The substituted provision took away the power of the authority to acquire land and vested the same in the Central Government. In other words, if any land was required for purposes of development in Delhi, it was only the Central Government which could acquire the land required for the development work. Under Section 22 of the Delhi Development Act 1957, by and under a notification containing the terms notified therein, the Central Government was empowered to place the acquired land at the disposal of the Delhi Development Authority for executing a development scheme. These lands are referred to as Nazul Lands.
14. Section 56(2)(j) of the Delhi Development Act, 1957 WP(C) No.2349/1988 Page No.10 of 20 empowers the Central Government to make rules, inter alia, specifying the manner in which Nazul lands can be dealt with by the authority.
15. As noted above, in the year 1981, the Delhi Development Authority (Disposal of Developed Nazul Lands) Rules, 1981 were promulgated by the Central Government. Rule 2(i) of the said Rules defines Nazul Land to mean :-'the land placed at the disposal of the authority and developed by or under the control and supervision of the authority under Section 22 of the Act.'
16. Rule 6 of the Nazul Land Rules, 1981 reads as under:-
"6. Allotment of nazul land at pre-determined rates.- Subject to the other provisions of these rules the Authority shall allot nazul land at the pre- determined rates in the following cases, namely-
(i) to individuals whose land has been acquired for planned development of Delhi after the 1st day of January, 1961, and which forms part of nazul land:
provided that if an individual is to be allotted a residential plot, the size of such plot may be determined by the Administrator after taking into consideration the area and the value of the land acquired from him and the location and the value of the plot to be allotted:
(ii) to individuals in the low income group or the middle income group, other than specified in clause
(i)-
(a) who are tenants in a building in any area, in respect of which a slum clearance order is made under the Slum Areas Act;WP(C) No.2349/1988 Page No.11 of 20
(b) who, in any slum area or the other congested area, own any plot of land measuring less than 67 square metres or own any building in any slum area or other congested area;
(iii) to individuals, other than those specified in clauses (i) and (ii), who are in the low income group or the middle income group, by draw of lots to be conducted under the supervision of the Land Allotment Advisory Committee.
(iv) to individuals belonging to Scheduled Castes and Scheduled Tribes or who are widows of defence personnel killed in action, or ex-servicemen, physically handicapped individuals subject to the provisions of rule 13:
(v) to industrialists or owners and occupiers of warehouses who are required to shift their industries and warehouses from non-conforming areas to conforming areas under the Master Plan, or whose land is acquired or is proposed to be acquired under the Act.
Provided that the size of such industrial plot shall be determined with reference to the requirement of the industry or warehouses set up or to be set up in accordance with the plants and such industrialists and owners of ware-houses have the capacity to establish and run such industries at pre-determined rates shall not, in any case, exceed the size of the land which has been, if any, acquired from such industrialist or owners and occupiers of warehouses and which form part of nazul land;
Provided further that in making such allotment, the Authority shall be advised by the Land Allotment Advisory Committee:
(vi) To co-operate group housing societies, co-
operative housing societies, consumer co-operative societies and co-operative societies of industrialists on "first come first serve basis".
17. We need not spend much time to ascertain the scope WP(C) No.2349/1988 Page No.12 of 20 and effect of Rule 6 of the Nazul Land Rules, 1981. We also need not be verbose on the effect of the Nazul Land Rules, 1981 on the large scale acquisition policy of 1961, for the reason a Full Bench of this Court has dealt with these issues extenso. The decision is reported as AIR 1994 Delhi 29 Ramanand Vs. UOI & Ors.
18. 2 questions were posted, to be answered, by the Full Bench. One of the 2 questions was:- '1. Whether a person whose land has been acquired for planned development of Delhi has got a vested right to the allotment of alternative plot of land for residential Plot.'
19. In para 6 and 7 of its decision, the Full Bench noted that the Delhi Development Act, 1957 was passed by the Parliament to provide for the development of Delhi. That the Delhi Development Authority was established under Section 3 of the Delhi Development Act, 1957 and under Section 6 thereof was empowered to frame a development scheme for Delhi and to achieve the same Section 15 envisaged acquisition of land for purposes of development of Delhi; the power of acquisition being vested in the Central Government. The Full Bench further noted that Section 21 and Section 22 of the Delhi Development Act, 1957 related to the placement of acquired lands in the hands of Delhi Development Authority and the power of Delhi WP(C) No.2349/1988 Page No.13 of 20 Development Authority to dispose of the said lands. The Full Bench also noted that the large scale acquisition policy was framed in 1961 wherein certain rights were created in favour of persons whose lands were acquired. Thereafter, the Full Bench considered the Nazul Land Rules, 1981 and observed as under :-
"8. In 1981, in exercise of powers conferred by Section 56(2)(j) read with Section 22(3) of the Act, the Central Government made the Nazul Rules, providing for the manner of dealing with Nazul land developed by the DDA.
Provision has been made in these Rules, for all matters that were earlier governed by the 1961 Scheme in so far as it concerned disposal of developed Nazul land by the DDA. Rule 3 stipulates that Nazul land may be allotted, inter alia, for residential purposes. Rule 4 specifies the categories of persons to whom Nazul land may be allotted. Provision has been made for regulating the method and manner of making such allotments and also for determination from time to time, of price or premium for allotment of Nazul land to different categories of persons. Allotment of land to 'individuals' is regulated by the provisions made, inter alia, in Rules 6, 12, 13 and 24 of the Nazul Rules."
20. The Full Bench accordingly held that with the promulgation of the Nazul Land Rules, 1981 the provisions of the large scale acquisition policy scheme of 1961 stood impliedly repealed.
21. The Full Bench considered an alternative submission that the scheme could be read as a direction of the Central WP(C) No.2349/1988 Page No.14 of 20 Government to the authority under Sub-Section 3 of Section 22 of the Delhi Development Act, 1957. Repelling the said contention, Full Bench held as under:-
"17. The provisions made in the 1961 Scheme, in respect of the land developed by the DDA may well be taken, as asserted by learned counsel for the petitioner, as directions given by the Central Government in the exercise of power vested in the under sub-section (3) of Section 22. But, nothing would turn on it. The reason, why we say so, is that the Nazul Rules also were made by the Central Government, in the exercise of this very power under sub section (3) of Section 22, in addition to the rule making power conferred upon it under Section 56(2)(j), for regulating the manner of dealing with Nazul land developed by the DDA. In this way, 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 provisions, therefore, need no further discussion."
22. Thereafter, in the context of premium charges and the effect of Clause 8 of the 1961 Scheme, Full Bench held as under:-
"24. Rule 6, in reality, controls the rates of premium chargeable only in those cases where land is allotted to the persons mentioned therein. IN other cases, the rules provide for sale of land at the market price determined by the highest bid on public auction of land. Thus, 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. Where the DDA decides to allot Nazul land to the persons named in this rule, it is bound to charge premium from the allottees only at the predetermined rates. The right and corresponding duty contained in this rule is of a different kind than that sought to be invoked by the petitioner. The right or entitlement of any one to allotment of Nazul land is WP(C) No.2349/1988 Page No.15 of 20 not regulated by this rule. It regulates only the rate at which premium shall be chargeable in certain cases, and it restricts the liability of allottees, in specified cases, to pay premium for allotment of Nazul land at the pre-determined rates, and no less and no more."
23. In view of the aforesaid conclusive view expressed by a Full Bench of this Court, it has to be held that the petitioners cannot predicate a claim under the large scale acquisition policy of 1961. The rights have to be considered under the Nazul Land Rules, 1981. The reason thereof is that the petitioners submitted applications for allotment of alternative plots in the year 1986.
24. In the judgment reported as AIR 1999 SC 1347, Jallandhar Improvement Trust Vs. Sampuran Singh, it was held that where entitlement to a plot, post acquisition of land, is created under Rules, allotment has to be as per Rules. Since the Rules created a right only in favour of a certain limited category of persons. It was held that none other than those who fell within the category could be allotted a plot on preferential basis.
25. Nazul Land Rules, 1981 have a basis for providing entitlement to only those whose land is acquired for planned development of Delhi and handed over to Delhi Development Authority. It is this land alone which is placed at disposal of Delhi Development Authority. This land becomes Nazul Land.
26. We may note that in a short order reported as 1995 Supp. (4) SCC 615 Jage Ram & Ors. Vs. UOI & Ors., noting that WP(C) No.2349/1988 Page No.16 of 20 land acquired was for a defence purpose and not placed at the disposal of Delhi Development Authority, claim for allotment of an alternative site was rejected by the Hon'ble Supreme Court on the ground that entitlement to an alternative land has to flow from a policy or a rule and there being none, no mandamus could be issued to the respondents of said case to allot an alternative plot to Jage Ram and other co-petitioners. Similar view was expressed in the decision reported as 1997 (5) SCC 138 S.Gurdial Singh & Ors. Vs. Ludhiana Improvement Trust. Latest pronouncement on the subject by the Hon'ble Supreme Court is the decision reported as 2007 (5) SCC 231 Ravi Khullar & Anr. Vs. UOI & Ors. where claim for alternate site was repelled. In para 29 of the said decision in Ravi Khullar's case Hon'ble Supreme Court observed as under:-
"29. It then proceeded to consider the submission urged on behalf of the appellant that in any event it was entitled to the allotment of alternative land in lieu of the lands acquired. The High Court after noticing the Full Bench decision of the High Court in Ramanad v. Union of India and the judgment of this Court in New Reviera Coop. Housing Society v. Special Land Acquisition Officer observed that if there was a scheme promulgated by the State to provide alternative sites to persons whose lands had been acquired, the Court could give effect to the Scheme. However, it could not be argued as a matter of principle that in each and every case of acquisition the landowners must be given an alternative site because such a principle, if adopted, would result in the State being unable to acquire any land for public purpose. In the instant case the High Court dismissed the writ WP(C) No.2349/1988 Page No.17 of 20 petition in view of the fact that there was nothing on record to indicate that any application was made to the competent authority for allotting an alternative site within a reasonable period. Reliance placed on the decision of the learned Single Judge of the Delhi High Court in Daryao Singh v. Union of India was rightly rejected. That case related to a different award and the landowners concerned in that case gave up the challenge to the acquisition proceedings in view of the assurance given that an alternative plot under the scheme to be formulated shall be given to them. Those facts do not exist in the instant case. Moreover, the Government had agreed to allot the plots to the landowners and there was no question of recognising any right of the landowners to an allotment of alternative plots. In view of these findings the writ petition preferred by the appellant was rejected."
27. We may note that the Hon'ble Supreme Court has noted an inordinate delay in the submission of applications for allotment of an alternative site and found the same to be a justified cause to decline relief to the writ petitioners who had challenged the decision of a Division Bench of this Court in SLP (C) No. 8574/2001. Though, after noting the same, Hon'ble Supreme Court did not comment on the view taken by the Division Bench of this Court; what is relevant is that the said view has not been negated.
28. In the instant case, as noted by us above, the petitioners moved applications for allotment of alternative plots after 13 years of the award. The inordinate delay in filing applications for allotment of an alternative plot is also fatal to the enforcement of the claim by the petitioners.
WP(C) No.2349/1988 Page No.18 of 20
29. We smell a rat in 43 different persons arising from a slumber after 13 years. As noted above, in the year 1986, 43 applications were received for allotment of alternative plots. Some unknown persons stalking the corridors of the Land & Building Department of the then Delhi Administration appears to be a likely possibility.
30. On the plea of discrimination, suffice would it be to state that no material has been shown to us that any person whose land was acquired and not placed at the disposal of Delhi Development Authority and had filed a claim for allotment of an alternative plot after 1981 has been allotted an alternative residential plot. Since, with the promulgation of the Delhi Development Authority (Disposal of Developed Nazul Lands) Rules, 1981 the entitlement to an alternative plot flows from the Rules and the earlier policy ceases to exist, as held by the Full Bench of this Court in Ramanand's case (supra), applicants pre 1981 and post 1981 fall in different categories and no question of comparison between the 2 categories can be made. Even otherwise, it is settled law that nobody can claim equality or discrimination on a wrong action of the State.
31. We find no merit in the writ petition. The same is dismissed. The Rule is discharged.
32. We refrain from awarding any cost for the reason WP(C) No.2349/1988 Page No.19 of 20 when the writ petition was filed the questions raised in the writ petition had not been answered. It was only when decision in Ramanand's case (supra) was pronounced by the Full Bench of this Court the law was laid to rest with certainty.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
SEPTEMBER 04, 2008 vg WP(C) No.2349/1988 Page No.20 of 20