Delhi High Court
M/S. Paramount Foods Corporation vs Delhi Development Authority And Others on 8 July, 1994
Equivalent citations: AIR 1995 DELHI 75, (1994) 55 DLT 326 (1994) 2 RENCR 575, (1994) 2 RENCR 575
Author: D.P. Wadhwa
Bench: D.P. Wadhwa
ORDER
1. In this writ petition, the petitioners have sought the quashing of acquisition proceedings in respect of a plot of land comprised in Khasra No. 18/8 measuring 1 bigha and 4 biswas (1200 sq. yds. approx.), situated within the revenue estate of village Badli in Delhi. In the alternative, it is prayed that its possession be not disturbed till such time respondent No. 1 allots and deliver an alternate site of an equally sized industrial plot in a regular industrial area.
2. Through notification issued under S. 4 of the Land Acquisition Act on 24th October, (961, a very vast area was notified for being acquired by the Government at public expense for public purpose, namely, planned development of Delhi. It included the land in question also.
3. Collector, Land Acquisition of Delhi (Shahdara) on 30-3-1965 made his award. It is the petitioners' 'case' that a piece of land comprised in Khasra No. 18/8 measuring 1 bigha 4 biswas has been in their occupation as a tenant which was let out by its owner M/s. Badli Co-operative Multipurpose Society. At the time of letting out there already existed three rooms and a verandah but later on improvements were carried out by the petitioners and a boundary wall was also constructed after spending considerable amount. Plant and machinery were installed for carrying on its business of processing foodstuffs. It is further averred that after the Collector, Land Acquisition made his award, actual possession of the property acquired was not taken from the petitioners. Only symbolic possession was taken. The petitioners continued to remain in actual occupation of the plot of land and had been running the manufacturing activity on the disputed plot for which requisite permission was also accorded from time to time by respondent No. 1, In the year 1970, a request was made by the petitioners for allotting an alternate site for establishing the factory in view of the policy which had been formulated by the Central Government for resettlement of occupants of such lands who were affected by the planned development of Delhi. Without deciding the said application and without taking recourse to law, the subordinate staff of respondent No. 2 on 23-1-1993 came to the property in question without any notice and demolished the petitioners' property with the help of bull dozers as a result of which the petitioners suffered a huge loss to the tune of about Rs. 25 lakhs. The petitioners are still in occupation of the plot. In this background this writ petition has been filed.
4. In the counter-affidavit filed on behalf of respondent No. 1, it is claimed that the owner of the plot in question, namely, M/s. Badli Co-operative Multi-purpose Society, through one Net Ram Yadav preferred their claim for compensation who also took part in acquisition proceedings but did not claim any alternate site under the Scheme. The petitioners' status was that of a tenant under M/s. Badli Co-operative Multi-purpose Society and it had no right, title or interest over the land in question. Under the Scheme it had no right to claim any alternative site. In terms of the policy, only the claims of owners of the property are tenable. It is also claimed that after the possession of the property had been taken under the provisions of the Land Acquisition Act, the property was transferred to Municipal Corporation of Delhi on 29-10-1983 for Sanjay Gandhi Transport Nagar and on and from that date when the possession was taken, the property vested in the Government free from all encumbrances. Symbolic possession of the property was taken on 26th June, 1965. It is denied by respondent No. 1 that the petitioners in the year 1960 established a factory over the plot in question. As regards the averments made by the petitioner of making improvements and for grant of permission for running a factory, it is claimed that the petitioners' registration in the year 1965 was not on the plot in question but it was on D/-3/18, Model Town, Delhi. All correspondence was addressed to the petitioners on Model Town address. It is also claimed that the petitioners had been operating from Model Town, Delhi and not from the plot in question. Being tenant they could not lay any claim for alternate site because the owner under whom they claim to be tenant did not lay such a claim and there is no policy for allotment of alternate site for the tenants.
5. We have heard the learned counsel for the parties at length and gone through the affidavits.
6. Learned counsel for the petitioners has contended that since physical possession was not taken from them and only symbolic possession was taken, therefore, the particular plot of land in their occupation did not vest in Government under the provisions of the Land Acquisition Act and it continued to have rights over the plot in question. The acquisition proceedings as such have not concluded and the petitioner's right to claim alternate site under the terms of the policy still subsists. The action of respondent No. 2 in demolishing the structure standing on the plot was without any authority of law. The petitioners as such are entitled to the reliefs claimed.
7. Two questions arise for consideration from the submissions made by the learned counsel for the petitioners -- firstly as to whether the land vested in Government as per the award and secondly whether the petitioners are entitled to have an alternate plot in lieu of the plot in question.
8. It is not disputed that on 30-3-1965 award was made by the Collector, Land Acquisition, under the provisions of the Land Acquisition Act. Annexure P-8 is the copy of proceedings at the time of delivery of possession which were recorded by the officers of the Land Acquisition Department as well as of respondent No. 1. In the presence of number of officials and villagers possession of the property detailed therein was obtained. It is recorded that with respect of plot in Khasra No. 18/8 only symbolic possession had been handed over. Proceedings are of 26-6-1965 in pursuance to warrant of delivery of possession dated 24-6-1965. On 2-6-1970, Commissioner (Implementation), D.D.A. had also addressed a communication to the petitioners confirming that actual possession had not been taken so far and the petitioners could continue on the site till taking over of physical possession. It was also clarified that in the event of acquisition and taking over of physical possession, no claim for compensation for the additions or alternations that may be put up will be entertained.
9. Section 16 of the Land Acquisition Act empowers the Collector to take possession of the land after the ward made under S. 11. His only when possession is taken as envisaged under S. 16 of the Act that the land absolutely vests in the Government free from all encumbrances. In Balwant Narayan Bhagde v. M.D. Bhagwat, it was held that when Government proceeds to take possession of land under the Land Acquisition Act, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no symbolical possession in the sense understood by judicial decisions under the Code or Civil Procedure. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rules laying down that what act would be sufficient to constitute taking of possession of land. The presence of owner or occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of fact or legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time.
10. Since in the instant case the proceedings also suggest and it is also the case of the petitioners that it was in occupation of the plot in question with super-structure standing thereon, it cannot be disputed that it was only a symbolical possession which was taken by the respondents on 26th June, 1965. The award of the Collector would also show that in so far as the plot of land comprising Khasra No. 18/8 is concerned besides assessing the amount of compensation for the land, separate amount of compensation of Rs. 5,656/- was assessed for the structure standing thereupon. Thus, the Collector, Land Acquisition determined the amount of compensation payable for the land along with superstructure standing thereupon. It is the case of respondents that the owner of the property participated in the acquisition proceedings and claimed compensation for it. The owner is not a party to these proceedings. The owner has not disputed that the property has not vested in the Government or possession thereof was not taken by the authorities under the Land Acquisition Act. It is not the case of the petitioners that in the amount of compensation for the land or superstructure they claimed any apportionment or sought reference under S. 18 of the Act for enhancement of compensation. It is also not in dispute that owners have not accepted the amount of compensation determined. In these circumstances the mere use of word symbolic possession in the proceedings for taking possession will not change or affect the type of possession which had been taken by the officials of the Land Acquisition Department: and delivered to respondent No. 1 who in clear and categorical terms pointed out that in the year 1983 the entire property including plot was transferred to respondent No. 2 for the purpose of Sanjay Gandhi Transport Nagar. In case, on 26th June, 1965 respondent No. 1 had been put in possession of the property in terms of S. 16 of the Act the same will have the effect of absolute vesting of properly in the Government. Use or occupation of the plot by the petitioners thereafter at the most may be treated with implied consent of respondent No. I but that alone will not be sufficient to say that title of the owner has not vested in the Government or the petitioners are still the tenants over the plot more especially when owner has not disputed the position. Use of the property by the petitioners after 26th June, 1965, if any, cannot have the effect of divesting the title of the Government from the property. In Bhagde's case (supra) in similar situation it was observed by their Lordships that even if the appellant (herein entered upon the land and resumed possession (which was only symbolic) the very next moment after the land was actually taken possession of and became vested in the Government, such an act on the part of the appellant did not have the effect of obliterating the consequences of vesting.
11. Once the possession of the property had been taken, or the strength of S. 16 of the Act, the land stood vested in the Government. It is also not in dispute that presently no structure is standing upon the land. The question whether it was on 23-1-1993 when actually the factory was bull-dozed or not is a serious disputed question of fact which cannot be decided by us in writ jurisdiction. Writ petition was admittedly filed after the said dale and on the dale of the filing of the writ petition there was no structure standing on the plot of land. Only vacant land was there. The owner as observed above has not made any grievance that property has not vested in the Government. The owner has realised his claim of compensation and in the plot of land the petitioners have no independent right to remain. For the aforesaid demolition if any of the structure standing upon the land which stood vested in the Government, the petitioners have other remedies available in law such as claim for damages etc. but not a declaration that the acquisition proceedings are liable to be quashed.
12. In so far as the second submission of the learned counsel for the petitioners is concerned for a claim for alternate site, suffice it to say that we have been taken through the entire scheme which has been placed on record as annexure P-7 which is a communication dated 2-5-1961 from Deputy Secretary to the Government of India to the Chief Commissioner, Delhi on the subject Control on land values in the urban areas of Delhi acquisition development and disposal of land. Learned counsel for the petitioners was not in a position to pin point any part of the scheme which might enable a tenant independently in the absence of the owner to claim an alternate site of land in lieu of the acquired plot. In the instant case the owner has already claimed and accepted compensation for the acquired land, which is claimed to have been let out to the petitioners. It will not be permissible to make an allotment of an alternate site to the petitioners for running factory since the owner did not claim any alternate site. Had the owner claimed an alternate site, it might possibly be said that the tenant in that eventuality might claim tenancy over the land allotted in lieu of the acquired land but in a case where the owner does not claim for an alternate site the tenant cannot make such a claim, more especially when policy does not confer such a right.
13. In view of the above, we do not find any merit in the instant petition, which is dismissed. There will be no order as to costs.
14. Petition dismissed.