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[Cites 10, Cited by 10]

Delhi High Court

Jagat Singh And Ors. vs Union Of India (Uoi) And Ors. on 9 April, 2008

Author: Siddharth Mridul

Bench: Siddharth Mridul

JUDGMENT

Acting C.J.

1. A large extent of land measuring nearly 16000 bighas situated in different parts of Delhi were notified for acquisition for the public purpose of planned development of Delhi in terms of a preliminary notification dated 24th November, 1961 issued under Section 4 of the Land Acquisition Act, 1894. This was followed by a declaration under Section 6 of the Act on 6th December, 1966 in respect of land situated in Village Haider Pur. Award No. 13/75-76 and 50/80-81 were made in due course determining the compensation payable to the land owners. From out of the land acquired in village Haider Pur, the respondent/DDA has developed what is known as Pritampura housing colony. The DDA appears to have allotted an area measuring 16.695 acres in terms of an allotment letter dated 11th February, 1983 to the Director of Education, Government of NCT of Delhi for running three different secondary schools one of which happens to be a school meant only for girls. Possession of the said area was also delivered to the Director. It is not in dispute that the Director of Education has utilized the land in question for construction of the institutions which are currently running from there.

2. The petitioner's case in the present writ petition is that while taking possession of 16.695 acres of land, the respondents tried to encroach upon an area measuring 4 bighas and 14 biswas situated in survey No. 834/2 of Village Haider Pur which according to the petitioners had not been acquired in terms of the notifications mentioned earlier nor any payment towards compensation was made for the same or any award made or published by the Collector. The petitioner's further case is that the school authorities constructed a boundary wall around the aforementioned extent of land in violation of their rights which forced them to file Suit No. 838/1988, which was disposed of finally by the Court of Civil Judge, Delhi on 6th September, 2002. The operative portion of the judgment delivered by the said Court is to the following effect:

Thus, suit of the plaintiff regarding the relief of forcibly dispossession and enjoyment of the suit land is concerned is decreed whereas the plaintiff's prayer regarding the direction to the defendant to remove the tin shed from the suit land is dismissed and further prayer of the plaintiff that defendants be directed not to close the passage at pt. D as shown in the site plan to approach the plaintiff to the suit land has further been decreed. Suit of the plaintiff is disposed of accordingly. There shall be no order as to costs. Decree sheet be prepared. File be consigned to record room.

3. Aggrieved by the decree aforementioned, the Directorate of Education filed an appeal to the Court of Additional District Judge who dismissed the same by order dated 25th April, 2007 holding that the appeal was barred by limitation. Execution proceedings were then instituted by the petitioner-decree holder in which the Court directed that the judgment debtor could carry out the demolition of the wall constructed by them around the suit property on their own failing which the decree-holder would be entitled to do so with police help. In the meantime, the Government appears to have been approached by the Directorate of Education and the DDA for initiation of fresh proceedings for acquisition of the suit property. Consequently, a notification dated 4th April, 2007 was issued by the Government under Section 4 of the Land Acquisition Act proposing to acquire the land in question for the public purpose of planned development of Delhi. By another notification dated 12th June, 2007, the Government also invoked the urgency provisions contained in Section 17(1) of the Land Acquisition Act authorizing the Collector, Land Acquisition to take possession of the land in question even in anticipation of the making of an award. It is noteworthy that the Government did not dispense with the holding of an inquiry under Section 5A of the Act for the hearing of the objections which the owners may have filed against the proposed acquisition. Aggrieved by the above notifications and taking over of possession by the respondents on 3rd July, 2007, the petitioners have filed the present writ petitions.

4. Appearing for the petitioners, Mr. Vashisht strenuously argued that the acquisition proceedings were in the background of the facts stated above mala fide in nature. He argued that since the respondents had suffered a decree in the suit filed by the petitioners and since their appeal against the said decree had also been dismissed, invocation of the provisions of the Land Acquisition Act for defeating the purpose of decree was legally impermissible. He contended that the proceedings under the Land Acquisition Act were available only in case the respondents had a bona fide public purpose in view and not with a view to frustrating the adjudication of a competent Civil Court as was the position in the instant case.

5. On behalf of the respondent it was, on the other hand, argued that there was a public purpose underlying the proposed acquisition and the mere fact that some litigation had ensued between the parties was no reason for dubbing the acquisition proceedings as mala fide. It was also contended that the acquisition proceedings in the instant case became necessary on account of the decree passed by the Civil Court and the very fact that the Civil Court had found that the land in question had not been properly acquired, was no reason to prevent the Government from acquiring it validly if it was otherwise permissible. Reliance was, in support of those submission placed by Mr. Poddar upon three decisions of the Supreme Court in State of UP and Anr. v. Keshav Prasad Singh , First Land Acquistion Collector and Ors. v. Nirodhi Prakash Gangoli and Anr. , State of A.P. v. Goverdhanlal Pitti .

6. We have given our careful consideration to the submissions made at the bar. The provocation for the issue of the impugned notification came from the decision rendered by the Civil Court holding that the land which the respondent-DDA had allotted to the Directorate of Education for use by the three institutions referred to earlier, included the land owned by the petitioners also and that the said land had not been validly acquired. That position is not disputed by the respondents before us. That land measuring 4 bighas 14 biswas, situated in survey No. 834/2 in Village Haider Pur, had not been validly acquired as on the date the same was occupied by the Directorate of Education pursuant to the letter of allotment issued by the DDA is admitted. Since, however, the land in question was meant to be utilized for the schools, once the directions of the Civil Court for removal of the boundary wall erected around the same was received the respondents had no option but to either vacate the area as directed or to validly acquire the same. Inasmuch as there was litigation between the parties in which the land was held to be in the ownership of the petitioners and not validly acquired by the respondents, the same did not mean that any attempt at acquiring the said land by following the procedure established by law would be mala fide. The fact that the land was needed for a public purpose is evident from the assertion made by the respondents that the land was not only allotted but utilized for the institutions established by the Directorate of Education. There is, in that view, no merit in the contention made by learned Counsel for the petitioners that merely because there was litigation between the parties prior to the issue of the impugned notifications, any attempt to acquire the property was vitiated or rendered mala fide. We are supported in that view by the three decisions relied upon by Mr. Poddar. In Keshav Prasad Singh's case (supra), the Supreme Court was also dealing with a similar situation. The land which the PWD had occupied for its office building and around which even a compound wall had been constructed to secure the said building was not found to have been validly acquired. The Civil Court had, as in the present case, issued a mandatory injunction, directing the demolition of the boundary wall and restoration of the possession of the land to the owner. Faced with that situation, the Government initiated fresh acquisition proceedings to validly acquire the land. Those proceedings were assailed by the land owners before the High Court who found favor with the contention that the acquisition proceedings were vitiated by mala fides and that the power to acquire private property for a public purpose had been exercised for an extraneous reason. The acquisition proceedings were accordingly quashed by the High Court. Reversing that decision, the Supreme Court observed that the State was entitled to exercise its power of eminent domain and justified in acquiring the land in question according to law. Even the invocation of the urgency Clause under Section 17(1) of the Act was held to be justified in the facts and circumstances of the case. The Court observed:

4. Having considered the respective contentions, we are of the considered view that the conclusion of the High Court was clearly illegal. It is seen that the land acquired was for a public purpose. Admittedly, the same land was acquired in the year 1963 for building a PWD office and after construction a compound wall was also constructed to protect the building. As found by the civil court, on adducing evidence in a suit that the Department had encroached upon the respondent's land which was directed to be demolished and delivery of possession to be given. It is seen that when that land was needed for a public purpose, i.e., as part of public office, the State is entitled to exercise its power of eminent domain and would be justified to acquire the land according to law. Section 4(1) was, therefore, correctly invoked to acquire the land in dispute. It is true that the State had not admitted that its officers had encroached upon the respondent's land and had carried the matter in appeal. The finding of the civil court was that the property belongs to the respondent. The factum of the action under the Act implied admission of the title of the respondent to the extent of land found by the civil court to be an encroachment. Though the State chose to file the appeal which was pending, better judgment appears to have prevailed on the State to resort to the power of eminent domain instead of taking a decision on merits from a Court of Law. In view of the fact that the PWD office building was already constructed and a compound wall was needed to make the building safe and secure and construction was already made, which is a public purpose, the exercise of power of eminent domain is perfectly warranted under law. It can neither be said to be colourable exercise of power nor an arbitrary exercise of power
5. The next question is whether the Government would be justified in exercising its power under Section 17(4) and dispense with the inquiry under Section 5-A of the Act. Mandatory injunction issued by the civil court to demolish the compound wall and to restitute possession to the respondent had to be complied with. There is thus urgency. The public purpose was obvious as the compound was required to be retained to protect he safety of the office. The object of Section 5-a enquiry was to show whether there was no pubic purpose or the land was not suitable or some other lands may be acquired. All these relevant and related facts are redundant due to the facts of the case.
6. So, on the facts and in the circumstances, the Government was justified in exercising their power under Section 17(4) invoking urgency clause and dispense with the inquiry under Section 5-A. By no stretch of imagination it could be said that there was not public purpose, for which inquiry under Section 5-A could be made and decision taken. In that view of the matter, the High Court was clearly in error in allowing the writ petition and committed a manifest error of law in quashing the notification under Section 4(1) and declaration under Section 6 of the Act.
7. To the same effect is the decision of Supreme Court in Nirodhi Prakash Gangoli and Another (Supra). There, too, the challenge to acquisition proceedings was founded on the plea that the said proceedings had been initiated after the parties had fought litigation and the Court had issued directions for delivery of physical possession of the land sought to be acquired. The High Court in the challenge to the said proceedings quashed the same on the ground that the exercise of the power vested in the State was mala fide. Rejecting that contention the Supreme Court observed that when a question regarding mala fide behind the acquisition of land is raised, what is necessary to be inquired into and found out is whether the purpose for which the acquisition is being made is the real purpose or a camouflage. By no stretch of imagination, observed this Court, could the exercise of power for acquisition be held to be mala fide so long as the purpose of acquisition continues to be a public purpose. The question of invoking urgency powers under Sections 17(1) and (4) of the Act was also held to be a matter of subjective satisfaction of the Government with which the Court would not ordinarily interfere unless it comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision taken by the appropriate authority was mala fide. The following observation made by their lordships in this regard are apposite:
5. The question of urgency of an acquisition under Sections 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Sections 17(1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the court unless the court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the authorities concerned. If an order invoking power under Section 17(4) is assailed, the courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post-notification delay subsequent to the decision of the State Government dispensing with an enquiry under Section 5-A by invoking powers under Section 17(1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the Government or its officers are alleged. Opinion of the State Government can be challenged in a court of law if it could be shown that the State Government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction under Section 17(4) is a subjective one and is not open to challenge before a court of law, except for the grounds already indicated, but the said satisfaction must be of the appropriate government and that the satisfaction must be, as to the existence of an urgency. The conclusion of the Government that there was urgency, even though cannot be conclusive, but is entitled to great weight, as has been held by this Court in Jage Ram v. State of Haryana1. Even a mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the court. The burden of establishing mala fides is very heavy on the person who alleges it. Bearing in mind the aforesaid principles, if the circumstances of the case in hand are examined it would appear that the premises in question were required for the students of National Medical College, Calcutta and the notification issued in December 1982 had been quashed by the Court and the subsequent notification issued on 25-2-1994 also had been quashed by the Court. It is only thereafter the notification was issued under Sections 4(1) and 17(4) of the Act on 29-11-1994, which came up for consideration before the High Court. Apart from the fact that there had already been considerable delay in acquiring the premises in question on account of the intervention by courts, the premises were badly needed for the occupation by the students of National Medical College, Calcutta. Thus, existence of urgency was writ large on the facts of the case and therefore, the said exercise of power in the case in hand, cannot be interfered with by a court of law on a conclusion that there did not exist any emergency. The conclusion of the Division Bench of the Calcutta High Court, therefore, is unsustainable.
6. It is indeed difficult for us to uphold the conclusion of the Division Bench that acquisition is mala fide on the mere fact that physical possession had not been delivered pursuant to the earlier directions of a learned Single Judge of the Calcutta High Court dated 25-8-1994. When the Court is called upon to examine the question as to whether the acquisition is mala fide or not, what is necessary to be inquired into and found out is, whether the purpose for which the acquisition is going to be made, is a real purpose or a camouflage. By no stretch of imagination, exercise of power for acquisition can be held to be mala fide, so long as the purpose of acquisition continues and as has already been stated, there existed emergency to acquire the premises in question. The premises which were under occupation of the students of National Medical College, Calcutta, were obviously badly needed for the College and the appropriate authority having failed in their attempt earlier twice, the orders having been quashed by the High Court, had taken the third attempt of issuing notification under Sections 4(1) and 17(4) of the Act, such acquisition cannot be held to be mala fide and, therefore, the conclusion of the Division Bench in the impugned judgment that the acquisition is mala fide, must be set aside and we accordingly set aside the same.
8. Reference may also be made to the decision of Supreme Court in Goverdhanlal Pittti's case referred to by Mr. Poddar where the question was whether the acquisition proceedings were vitiated by 'malice in fact' or 'malice in law'. The Court elaborated the meaning of the said two expressions and observed that legal malice should be understood to mean that the action of the State has not been taken bona fide or has been taken only to frustrate the favorable decisions obtained by the owner of property. Rejecting the contention that since the state had lost its case in the eviction proceedings and had given an undertaking to vacate the school building, sought to be acquired for a public purpose, the proceedings had become bad in law. The court held:
16. Relationship inter se of the State as tenant with the respondent as the owner-cum-landlord of the building is regulated by the rent control legislation. The rights and liabilities of the State as tenant are distinct from its "right of eminent domain" of all properties. The school was catering to the educational needs of the children residing in the heart of the city. It cannot be seriously disputed that the continuance of the school at the same location would serve the public purpose of fulfillling educational needs of children in the old city.
17. ...In our opinion, even if that be the situation that the State as tenant of the school building took no step to acquire the land before order of eviction and direction of the High Court, it cannot be held that when it decided to acquire the building, there existed no genuine public purpose. If only the possession of the property could be retained as a tenant, it was unnecessary to acquire the property. The order of eviction as well as the direction to vacate issued by the High Court only provide just, reasonable and proximate cause for resorting to acquisition under the Land Acquisition Act. Resort, therefore, to acquisition at a stage when there was no other alternative but to do so to serve a genuine public purpose which was being fulfillled from 1954 signifies more a reasonable and just exercise of statutory power. Such exercise of power cannot be condemned as one made in colourable or mala fide exercise of it.
9. The position in the instant case, as stated earlier, is near similar to the three cases referred to above and decided by the Supreme Court. The mere fact that the owners had won in a legal battle over the property sought to be acquired did not by itself vitiate the acquisition proceedings so long as the purpose for which the acquisition is being made remains a public purpose and so long as the exercise of the power of eminent domain is not vitiated by mala fides. There is, in the instant case, no doubt that the acquisition is being made for a public purpose. The land is being acquired for being used by the schools established by the Government of NCT of Delhi. As a matter of fact, the land in question had already been utilized by the school by erecting a boundary wall around it. The power of eminent domain is not being exercised for any purpose extraneous to the purpose disclosed in the notification.
10. Mr. Vashisht argued that the Directorate of Education did not actually require the land in question. He urged that the allotment made in favor of the Directorate was limited to 16.695 acre only. That land, according to the learned Counsel, was available to the schools and should be deemed to have satisfied their requirement. There was nothing on record, according to the learned Counsel, to show that after the allotment of the said extent of land in favor of the Directorate of Education any subsequent development had taken place which could have possibly raised the demand for the land higher so as to justify the acquisition of the adjoining land owned by the petitioners.
11. There is, in our view, no merit in that contention. We say so because the petitioners have not laid any foundation in the writ petition filed by them to the effect that the extent of 16.695 acres allotted in favor of the Directorate of Education did not include the parcel of land now being acquired from the ownership of the petitioners. It is not the case of the petitioners that the area now being acquired is in excess of area that was allotted to the schools. It is, therefore, difficult to appreciate how the petitioners can possibly make out a case on that basis without making a clear averment to that effect in the writ petition filed by them.
12. Mr. Vashisht next argued that the land in question was situated in a residential area and that the DDA had constructed residential flats on a major part of the land that has been earlier acquired in terms of the notification issued in the year 1961. Use of the land, now, sought to be acquired for a school was, therefore, contrary to the use of the land otherwise stipulated under the Master Plan. There are two reasons why that contention must also be rejected. Firstly, because the contention is unsupported by any averment in the writ petition to the effect that the land in question was reserved for residential use. Neither a copy of the Master Plan nor any other document has been placed on record to show that the acquisition of the land for being used as a part of the school would offend the land use determined in the same.
13. Secondly, because even assuming that the construction of a school or the use of the land as a play ground by the school would result in the breach of the Master Plan as alleged, the same may not by itself vitiate the acquisition proceedings. So long as the acquisition proceedings are for a public purpose and so long as the procedure established by law for acquisition has been followed by the respondents there would be no room for interference with the said proceedings.
14. It was lastly contended by Mr. Vashisht that the respondents had neither tendered 80% of the estimated amount of compensation nor was the said estimation made properly. Mr. Poddar, on the other hand, argued that since the petitioners were not willing to receive the payment tendered to them the amount in question has been deposited with the Registrar General of this Court in obedience to this Court's order dated 05.07.2007. It was also argued that the estimate of the amount of compensation is only an estimate and not the final amount to be determined by the Collector which may be higher than the amount initially estimated or even lesser, in which event the excess if any paid, has to be recovered from the owner. As to what is the market value of the land being acquired from the petitioners is, therefore, a matter which will be determined by the award made and published by the Collector. The Court cannot, argued the learned Counsel, sit as an appellate court over the estimate prepared by the Collector and declare the acquisition to be illegal simply because a higher amount ought to have been offered to the petitioners.
15. There is considerable merit in both the submissions made by Mr. Poddar. It is well settled that non-payment of the estimated amount of compensation does not by itself vitiate the acquisition proceedings. That aspect of the controversy is squarely covered by the decision of the Supreme Court in S.P. Jain and Ors. v. State of U.P. and Ors. . At any rate, upon the petitioners making a grievance that the amount has not been received by them, this Court has granted permission to the respondents to deposit the said amount with Registrar General of this Court. The fact that the amount has been deposited in obedience of the directions is not in dispute. We, therefore, see no failure of justice to have taken place to warrant interference with the acquisition proceedings in exercise of the powers of judicial review.
16. Similarly, the argument that the estimation of the amount of compensation by the Collector is not accurate, has not impressed us. The estimate made by the Collector for purposes of tendering 80% of the amount of compensation was at best an estimate. It can and is most likely to be on the lower side depending on the kind of material which forms the basis of the estimate. Whether or not a marginally higher estimate could have been prepared and consequently a marginally higher amount deposited or tendered to the petitioners, would not, therefore, make any material difference insofar as the validity of the acquisition proceedings is concerned.
17. In the result, there is no merit in this writ petition which fails and is hereby dismissed but in the circumstances without any order as to costs. The amount lying in deposit with the Registry shall be disbursed to the petitioners if an application to that effect is made to the Registrar General within six weeks from today failing which the amount shall be remitted back to the Collector, Land Acquisition, North-West for such action by him as may be considered necessary or proper under law.