Delhi High Court
Kathuria Public School vs Union Of India on 9 November, 2011
Author: V.K. Jain
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 16.09.2011
Judgment Pronounced on: 09.11.2011
+ W.P.(C) No. 233/1997
Kathuria Public School ..... Petitioner
Through: Mr. N.K.Kaul, Sr. Advocate
with Mr. Gaurav Sarin, Advocate
With Ms. Charul Sarin & Mr. Ajay
Bouri, Advocates
versus
Union of India ..... Respondent
Through: Mr. Sanjay Poddar, Sr. Advocate with Mr. Sanjay Kr. Pathak & Mrs. Mahitrao Jadhav, Advocate for UOI & LAC Mr. Summet Batra, Advocate for D.Ed.
Mr. Sanjeev Sachdeva, Sr. Advocate with Ms. Roohi Kohli, Mr. P.P.Singh & Ms. Priyanjan Mehta, Advocates Mr. Ajay Verma with Mr. Amit Mehra, Advocate for DDA CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes in Digest?
V.K. JAIN, J
1. Land measuring 80 bighas 7 biswas comprised in W.P.(C) No. 233/1997 Page 1 of 48 Khasra Nos. 1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-
14), 1747 (4-16), 1748 (4-16), 1749 (4-16), 1750 (4-16), 1751 (4-16), 1752 (4-16), 1753 (3-5), 1754 (6-2), 1755 (4-
16), 1756/2 (3-4), 1757/2 (3-4), 1875 (4-16), 1876 (4-16) and 1877 (4-3) in village Rangpuri alias Malikpur Kohi (Vasant Kunj) Tehsil Mehrauli was notified under Sections 4 & 6 of the Land Acquisition Act vide notifications dated 23.1.1965 and 26.12.1965 respectively followed by an award passed in the year 1981. The case of the petitioner is that possession of the aforesaid land was not taken by the Government whereas the case of the respondents is that possession of the entire land except 9 biswas was taken on 31.3.1981 and was handed over to DDA vide notification dated 19.5.1981 issued under Section 22(1) of Delhi Development Act. The aforesaid land was purchased by petitioner No.3 Shri Ram Saroop Kathuria as karta of a HUF consisting of himself and his sons, vide sale deed dated 18 th April, 1967 executed by Smt. Saroopi Devi, Smt. Sarjo and Smt. Bartho in his favour.
2. The acquisition of land was challenged by the petitioners by filing Civil Writ Petition No. 586/1981. An interim order was passed by this Court on 24.3.1981, W.P.(C) No. 233/1997 Page 2 of 48 directing status quo with respect to possession of the land subject matter of the Writ Petition. The interim order, which is alleged to have been served on Land & Building Department of Government of NCT of Delhi on 31.03.1981, was confirmed on 10.4.1981.
3. Vide representation dated 17.8.1995 the petitioners sought release of the aforesaid land under Section 48 of Land Acquisition Act. The Writ Petition came to be dismissed in terms of Full Bench decision of this Court in Roshnara Begum‟s case dated 24.12.1995. The petitioner filed a Special Leave Petition in Supreme Court against the order of the Full Bench. The Special Leave Petition came to be dismissed by Supreme Court on 1.11.1996. During the course of hearing before the Supreme Court Mr. N.N.Goswami, Counsel for the respondent made a statement that the Government will consider each of the structures and take decision in that respect.
The petitioners, who claim to be running a school under the name and style of Kathuria Public School on the land in question since 1988 and allege to have constructed a school building along with staff quarters and boundary wall on it, vide another representation dated 01.01.1996, W.P.(C) No. 233/1997 Page 3 of 48 again sought release of the land from acquisition seeking parity with the case of Hamdard Public School land of which was de-notified by the Government. The petitioners submitted yet another representation dated 11.11.1986 seeking release of their land on the parity of the case of St. Xavier Society land of which was released from acquisition on 06.9.1996 as well as the case of Hamdard Public School. Since there was no response to the representations made by the petitioners, this writ petition came to be filed alleging selectivity by the respondents in de-notification of acquired land. The petitioners sought writs directing the respondents to decide their representations dated 17.8.1995, 01.1.1996 and 11.11.1986. They also sought directions to the respondent not to demolish any part of the building which they have constructed on land in question and not to take its physical possession from them.
4. In their counter-affidavit, respondent No. 2 Lieutenant Governor of Delhi and respondent No. 3(i) Government of National Capital Territory of Delhi, through Secretary, Land and Building Department, have alleged that petitioners have concealed facts from the Court since they did not disclose that land in question was purchased by W.P.(C) No. 233/1997 Page 4 of 48 petitioner No. 3 vide sale deed dated 18th April, 1967 after land in question had been notified for acquisition. It is also alleged that while taking possession, except in respect of 9 biswas of land comprised in Khasra No. 1877 where some built up structure was found, the respondents had allowed petitioner No. 3 to harvest the cultivation on Khasra Nos. 1726, 1727, 1728, 1729, 1747-1755, 1756/2, 1757/2 and the land stands vested in the Government free from all encumbrances. It is further alleged that petitioner No.3 purchased the land after notification under Section 4 of Land Acquisition Act and raised illegal construction during pendency of the earlier writ petition, without any sanction from the Competent Authority. It is stated that the representation of the petitioners was placed before the De- notification Committee, which, after deliberations, recommended its rejection. Explaining circumstances in which certain acquired land came to be de-notified under Section 48 of Land Acquisition Act, the respondents have contended that the petitioners cannot claim any legal right to seek de-notification of their land, particularly when they purchased it after issuance of notification under Section 4 of Land Acquisition Act. According to the respondents, the W.P.(C) No. 233/1997 Page 5 of 48 facts of the present case are altogether different from the facts of the cases in which the land was de-notified. It is also submitted that since possession of the land has been taken, it cannot be withdrawn from acquisition.
5. In his counter-affidavit, filed on behalf of respondent No. 4-DDA, Mr Shamim Ahmed, Director (Land Management), has stated that the Land Acquisition Collector took over the possession of the entire land except an area, measuring 9 biswas on 31.3.1981. The possession of 9 biswas of land comprised in Khasra No. 1877 could not be taken since a temporary structure existed on this piece of land. The land measuring 79 bighas and 18 biswas, according to DDA, was handed over to it by Land and Building Department on 31.3.1981 when the possession was taken by it. This was followed by notification dated 19.5.1981, issued under Section 22 of Delhi Development Act placing the aforesaid land at the disposal of DDA for its management and development in accordance with Master Plan. It is also alleged that the petitioners having encroached upon public land, their possession is that of trespassers and that the case of the petitioners is not similar to the case of Hamdard Public School and St. Xavier W.P.(C) No. 233/1997 Page 6 of 48 School.
6. The writ petition was amended so as to rely on the policy guidelines framed by the Government in November, 1998 for de-notification of acquired land and to claim that the petitioners were covered under the aforesaid policy. It was also alleged that the respondents had de-notified the land of Scindia Potteries, situated on Ring Road, vide notification dated 05.2.1999. The petitioners also sought to rely upon a noting dated 05.05.1999 by Mr U.P. Singh, OSD (Litigation), Land & Building Department in the file relating to land of the petitioners as well as the letter dated 26.5.1999, written by Mr Shamim Ahmed, Director (Land Management), DDA to the Deputy Secretary, Land & Building Department. The petitioners also referred to the de-notification of the land of Ramjas Foundation Society on 04.4.2002. They further contended that since the De- notification Committee, as constituted by Competent Authority, had not met on 27.1.1999, the recommendation made in the meeting held on that day was of no legal consequence. In the amended writ petition, the petitioners sought Writ of Mandamus, directing the respondents to release and de-notify their land under Section 48 of Land W.P.(C) No. 233/1997 Page 7 of 48 Acquisition Act, correct the alleged possession proceedings dated 31.03.1981 and Notification dated 19.05.1981 issued under Section 22 (1) of Delhi Development Act. They also sought direction to the defendants not to demolish any of their buildings.
In their additional affidavit, respondents No. 2 and 3(a) submitted that the internal notings made by a particular officer in the official file unless and until accepted by Competent Authority are not binding on the Government and do not confer any legal right on the petitioners to seek relief on the basis of such notings. It is also stated in the additional affidavit that the Competent Authority, after considering the representation made by the petitioners, had declined to release their land under Section 48 of Land Acquisition Act. It was also maintained that the cases of de- notification, referred in the writ petition, were different and there was no discrimination with the petitioners who are not similarly situated.
In the additional affidavit of its Director (Land Management), Mr Suresh P. Padhy, respondent-DDA maintained that possession of 79 bighas and 18 biswas of land was taken over way back on 31.3.1981 and the W.P.(C) No. 233/1997 Page 8 of 48 acquisition having become complete and absolute, the Government has no power to issue notification under Section 48 of Land Acquisition Act, to release the aforesaid land from acquisition.
Indian Spinal Injury Centre, to which land in question has since been allotted by DDA, has also been impleaded as a party to the petition.
7. The petitioners have vide CM No. 1931/2011 on 10.02.2011 sought permission to place an additional affidavit on record. In the additional affidavit, they have alleged that during pendency of this petition, the petitioners were, on 28.02.2000, handed over the rejection dated 27.01.1999, whereby their representations were rejected by the Lieutenant Governor of Delhi.
It would thus be seen that the representations made by the petitioners from time to time seeking de- notification of the acquired land have since been rejected. However, during the course of arguments before us, the prayer of the learned counsel for the petitioners was to direct the respondents to re-consider their representations on the premise that possession of the acquired land was not taken from them on 31.03.1981.
W.P.(C) No. 233/1997 Page 9 of 48
8. In support of his contention that actual physical possession of land measuring 79 bighas and 18 biswas was taken by the Government, from the land owners, the learned Senior Counsel for Govt. of NCT has relied upon the Possession Report dated 31.3.1981 which shows that on that day when the revenue officials went to the site, Kharag Bahadur, employee of Mr R.S. Kathuria was amongst the persons present on the spot at that time. It would be pertinent to note here that the petitioners themselves have filed a copy of this report and there is no averment by them that Mr Kharag Bahadur was not an employee of Mr R.S. Kathuria or that he was not present at the site on 31.03.1981. The report reads as under:
"As per order of L.A.C. I along with Sarup Singh Kanogo, L.A.; Shri Harpal Singh Patwari, L.A. & Shri Rajinder Singh Peon L.A. reached the spot in Village Rangpuri. Shri Raj Bahadur Naib Tehsildar, DDA, Shri Niranjan Singh Patwari, DDa; Sasrdar Bhagat Singh, Naib Tehsildar, Horticulture, DDA, Shri B.S. Aggarwal, Naib Tehsildar, Land & Building Department were also present with Shri Gopal Sharma & Prem Singh Servants of Ram Prasad and Kharag Bahadur, servant of Ram Sarup Kathuria and Ashok Kumar owner were present at the spot. The proceedings relating to possession were started.W.P.(C) No. 233/1997 Page 10 of 48
1279 (6-0), 1280 (3-12), 1281/1(3-8), 1281/2 (1-8), 1282 (4-16), 1295 (0-5), 1296 (4-11), 1297 (4-16), 1298/1 (0-160 1298/2 (2-00), 1299 (7-4), 1300 (5-8), 1301 (3-14), 1302/1 (1-16), 1302/2 (3-
00), 1303/1 (1-9), 1303/2 (0-17), 1303/3 (2-10), 1304/1 (4-8), 1304/2 (0-8), 1305 (4-16), 1307 (4-16). 1308/1 (2-9), 1308/2 (2-7), 1309 (4-16), 1310/1 (2-8), 1310/2 (2-8), 1311 (2-10), 1312 (6-10), 1313/1 (3-00), 1313/2 (1-16), 1314 (4-16), 1315 (6-18), 1316 (4-6). 1317 (4-16), 1318 (5-
16), 1319 (3-8), 1320 (4-16) , 1321 (5-9), 1322 (3-5), 1323 (4-6), 1324 (6-18), 1325 (6-2), 1327/1 (2-19), 1327/2 (1-19). 1331 (3-8), 1332 (5-11), 1333 (1-16), 1334 (2-
1), 1335 (1-1), 1336 (2-6), 1337 (5-13), 1338 (5-4), 1339 (4-16), 1340 (3-5). 1341 (6-7), 1342 (5-19), 1343 (4-8). 1344 (3-
12). 1345 (2-12), 1346 (6-8), 1347 (4-16), 1348 (4-16), 1349 (4-16), 1350 (4-16), 1351 (4-16), 1352 (4-16), 1353 (4-16), 1354 (4-16), 1355 (4-16), 1356 (4-16), 1357 (3-16), 1358 (2-16), 1359 (4-16), 1360 (4-16), 1361 (4-16), 1362 (4-16), 1363 (4-16), 1364 (4-16), 1365 (4-12), 1366 (2-8), 1367 (2-9), 1368 (4-16), 1369 (8-3), 1370 (4-16), 1371 (3-14), 1372/1 (5-15), 1372/2 (1-4), 1373 (4-16), 1374 (6-8), 1375 (3-12), 1376/1 (2-19), 1376/2 (0-17_, 1376/3 (1-5), 1377 (5-12), 1378 (0-10), 1379 (3-18), 1380 (4-16), 1381 (2-
16), 1382 (6-00), 1381/12 (2-0), 1383(4-
16), 1384 (3-4), 1385 (4-16), 1386 (4-16), 1512 (4-16), 1517 (2-16). 1518 (4-16), 1519 (3-10), 1520/1 (4-16), 1520/2 (1-
11), 1521 (4-16), 1522 (4-16), 1523 (3-
14) 1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-14), 1731 (2-5), 1732/1 (2-4), 1732/2 (2-12), 1733 (4-16), 1734 (4-2), 1735 (1-7), 1736 (4-13), 1737/1 (0-18), 1737/2 (0-12), 1738 (1-4), 1739 (0-1), 1741 (0-4), 1742/1 (2-7), 1744 (4-9), W.P.(C) No. 233/1997 Page 11 of 48 1745 (4-16), 1746 (4-16), 1747 (4-16), 1748 (4-16) 1749 (4-16), 1750 (4-16), 1751 (4-16), 1752 (4-16), 1753 (3-5), 1754 (6-2), 1755 (4-16), 1756/1 (1-12), 1756/2 (3-4), 1757/1 (1-12), 1757/2 (3-
4), 1758 (4-16), 1759 (4-16), 1760 (4-16), 1761 (4-16), 1762 (4-16), 1763 (4-16), 1767 (4-16), 1768/2 (2-9), 1769/1 (2-9), 1769/2 (2-7), 1875 (4-16), 1876 (4-16), 1877 (3-14), 1878 (7-00) measuring 633-
17 its physical possession is taken and given to Shri B.S. Aggarwal, Naib Tehsildar, L&B Deptt on all four Sides on the spot, pillar have been installed.
Possession of Khasra Nos. 1310/1 less than one biswa 1337 (1-0), 1338 (1-0), 1341 less than one biswa, 1342 less than one biswa, 1348 less than one biswa, 1358 (2-0), 1365 less than one biswa, 1379 (0-2), 1523 less than one biswa, 1736 less than one biswa, 1877 (0-9) Total Area 5-12 has not been taken being built up. Possession of Khasra No. 1742/2 (2-5), 1743 (4-15) total 7-0 bigha has not been taken due to stay from High Court.
There is crop in Khasra Nos. 1296, 1293 1294, 1304/1, 1303/1, 1372/2, 1380, 1379, 1522, 1521, 1726, 1727, 1728, 1729, 1747, 1748, 1749, 1750, 1751, 1752, 1753, 1754, 1755, 1756/2, 1757/2. The owners have been allowed to harvest the crop. L.A.C. is present at the spot. Notices under his signature have been issued to Ram Sarup Kathuria and Ram Prasad etc that they should vacate the built up area & service is affected in his presence. Munadi to this effect has also been done loudly by Ram Chand Patwari, LA & by beat of canister. No retaliation took place at the time of taking possession. The proceedings regarding W.P.(C) No. 233/1997 Page 12 of 48 possession are complete. Patwari halqua is not present at the spot so a copy of possession report will be sent to him through the Tehsildar Mehrauli, so that necessary entries are made in the revenue record.
31-3-81 Sd/- Sarup Singh Girdawar Sd/- Gopal Sharma servant of Ram Prashad Sd/- Naib Tehsildar Thumb impression of Prem Sharma Servant of Ram Prashad Sd/- Kharak Bahadur Sd/- Daya Nand Lambardar Sd/- Raj Bahadur Naib tehsildar DDA Sd/-Rajinder Singh Sd/- Naib Tehsildar, L&B Sd/- Hari Chand Patwari, DDA" (emphasis supplied) The contention of Mr Poddar was that actually physical possession of land in question, except a small piece where some built up structures were found, was taken over by the revenue officials in the presence of the representative of petitioner No. 3 R.S. Kathuria on 31.3.1981 and thereafter petitioner No. 3 was allowed to harvest the crop found cultivated on Khasra Nos. 1726, 1727, 1728, 1729, 1747-1755, 1756/2, 1757/2 so that there is no loss of crop to him. The contention of Mr Poddar was that had possession of the cultivated land not been taken, there would have been no occasion for the revenue officials to W.P.(C) No. 233/1997 Page 13 of 48 permit petitioner No. 3 to harvest the crop, since in that case possession remaining with him, no such permission would have been necessary. It was also submitted that the crop standing on the aforesaid land would in normal course have been harvested within a month or so of the Government taking possession of the cultivated land. This was also the contention of Mr. Poddar that land measuring 79 bighas and 18 biswas being unbuilt and unoccupied land, the revenue officials were not required to do anything more than what they actually did on 31.3.1981.
9. As against this, the learned Counsel for the petitioners contended that actual physical possession of land in question was not taken by the revenue officials on 31.1.1981 and it is the petitioners who continued to retain physical possession, as would be evident from the survey reports which the officials of the respondents prepared on inspection of the site and which confirmed that the buildings of the petitioners existed on the land in question. It was also contended that since this Court vide interim order dated 24.3.1981 passed in C.W.P. 586/1981 had directed status quo with respect to possession of land in question, the possession even if it is assumed to have been W.P.(C) No. 233/1997 Page 14 of 48 taken by the respondents on 31.3.1981 would be void ab initio and non est in law, which the Court is required to ignore from consideration. It was also submitted that when the Court passes such an order it not only directs but also presumes that the position which existed at the time of passing the order continues to exist and any other construction of law on the subject would be contrary to public interest and subvert the cause of justice. This however, was countered by Mr. Poddar, who submitted that the interim order dated 24.3.1981 was not served upon the revenue officials before they took possession on 31.3.1981. This, according to Mr Poddar, has been the consistent stand of the respondents and was accepted by this Court in FAO(OS) No. 313/2007 and 27/08. It was also submitted by Mr Poddar that in any case since the interim order passed by the Court in Civil Writ Petition No. 586/1981 which was confirmed on 10.4.1981, came to an end on dismissal of the Writ Petition, there being no impediment in the way of the respondents taking possession of the land in question, nothing more was required to be done by them to take physical possession of land in question, they having already possessed it on 31.03.1981. It was also submitted by Mr. W.P.(C) No. 233/1997 Page 15 of 48 Poddar that physical possession taken by the petitioners after 31.03.1981 would amount to trespass and being trespassers the petitioners have no right in law to maintain this petition. Mr. Poddar in support of his contention that the respondents had taken actual physical possession of the land measuring 79 bighas 18 biswas on 31.3.1981 heavily relied upon the decision of this Court in DDA v. R.S.Kathuria 2009(7) AD (Delhi) 265 which was a litigation inter se between the parties to this petition and the order passed by this Court in Review Petition No. 41/2009 in FAO (OS) No. 313/2007 and Review Petition No. 47/2009 in FAO (OS) No. 27/2008 which the petitioners had filed against that decision. Mr. Poddar drew our attention to the following view taken by the Division Bench of this Court in that case:
In the present case, the Award was passed on 30th March, 1981 and the possession was taken on 31st March, 1981 before the interim orders were communicated to the appellant. The continued possession of the respondent No.1 pursuant to the said orders of the Court cannot be treated as possession for the purpose of section 16 of the LA Act and on the dismissal of challenge of respondent No.1 to the acquisition proceedings; the said respondent no.1 has no longer any claim in respect of the same.W.P.(C) No. 233/1997 Page 16 of 48
x x x x In view of the facts of the present case, we feel that the learned Single Judge was not right in observing that the respondent No.1 is in possession as the said possession is pursuant to the interim orders of this Court. It is a matter of fact that the said interim order stands vacated on the dismissal of the SLP by the Supreme Court. The learned Single Judge wrongly observed that the appellants have not taken the actual physical possession or symbolic possession and therefore the suit is maintainable for determination of the same. The said finding of the learned Single Judge was contrary to the facts of the present case as the Award having been passed on 30 th March, 1981, the question of the appellants not taking the symbolic and physical possession does not arise as the authorities are free to take the actual possession on the vacation of the interim orders passed in the writ petition filed by respondent No.1.
Mr Poddar pointed out that while arguing the Review Petitions, the petitioners had contended that there was an error apparent on the face of the record in the Court observing in para 44 that "Award having been passed on 30.3.1981 the question of the appellants not taking the symbolic and physical possession does not arise as the authorities are free to take the actual possession on the vacation of the interim order passed in the writ petition filed by the respondent No.1". Mr Poddar also pointed out that W.P.(C) No. 233/1997 Page 17 of 48 the contention of the petitioners in the Review Petition was that the action of taking possession of land on 31.3.1981 cannot negate the legal sanctity of status quo order passed on 24.3.1981 and that the observations contained in the order dated 28.11.2008 to the effect that the possession of land which was taken on 31.3.1981 may come in the way of the applicants in seeking other remedies. The learned Counsel then drew our attention to the following observations made in the order:
x x x Considering in the backdrop that the writ petition filed by the respondent No.1 challenging the acquisition had been ultimately dismissed by this Court, which had the effect of vacating the interim order as well and further considering the judgment of this Court was upheld by the Supreme Court in the case of Murari & Ors. v. Union of India (UOI) & Ors. [(1997) 1 SCC 15]. View taken in the said judgment by the Apex Court, we are of the considered view that there is no error apparent on the face of record could be pointed out as to how this view is incorrect. Insofar as the judgment relied upon by the learned Counsel for the review petitioner is concerned, it is clear from the reading of the said judgment that it was given on its own facts in the context of the maintainability of petition under Section 48 of the Land Acquisition Act, there is no bearing insofar as the facts of the present case is concerned.
When we read the grounds of appeal preferred by the appellants, we are of the W.P.(C) No. 233/1997 Page 18 of 48 opinion that the appellants had taken categorical stand that the possession of the land was taken on 31.03.1981 before the service of the status quo order was passed on 24.03.1981. In fact, in para 5 of the memo of party, it is categorically averred that the LAC had passed the award on 30.03.1981 and possession of the land had been taken over before the order of status quo was implemented, the writ petition was dismissed by this Court on 14.12.1995. The respondent No.1 (now deceased) challenged the judgment and order before the Supreme Court and the SLP was also dismissed with the bath of petitions. The pleadings are to be read in totality and respondent No.1 cannot pick certain portions from there to suit its advantage. Going by all these considerations, the issue in question was decided in favour of the appellants and suit of the respondent is dismissed as not maintainable. Insofar as this finding is concerned, we are of the opinion that there is no error much less errors apparent on the fact of record.
The learned Counsel for the petitioners however submitted that the question as to whether possession of land in question was actually taken by the respondents on 31.3.1981 or not was not the matter in issue before the Division Bench and therefore the view taken therein is not binding on the petitioners. The learned Counsel for the petitioners also contended that the respondents were required to take physical possession on the site in terms of W.P.(C) No. 233/1997 Page 19 of 48 Order 21 Rules 35, 36, 95 & 96 CPC and mere symbolic possession by preparing a panchnama on the spot does not meet the requirement of Section 16 of Land Acquisition Act.
10. In support of his contention, the learned Counsel for the petitioners has relied upon National Thermal Power Corporation Ltd. v. Mahesh Dutta & Ors. (2009) 8 SCC 339, Banda Development Authority v. Moti Lal Agarwal & Ors. (2011) 5 SCC 394, Balwant Narayan Bhagde v. M.D.Bhagwat & Ors. (1976) 1 SCC 700, order of this Court in WP(C) No. 1907/1986 passed on 3.2.2010, order dated 25.2.2009 passed in WP(C) No. 1398/1994 and decision of this Court dated 4.3.2010 in WP(C) No. 2563-66/2005. He pointed out that in Banda Development Authority (supra), Supreme Court, after considering its earlier decision on the subject had culled out the following principles as regards the mode of taking possession of land acquired under the provisions of Land Acquisition Act:
i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will W.P.(C) No. 233/1997 Page 20 of 48 ordinarily be treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.
He also drew our attention to the following view W.P.(C) No. 233/1997 Page 21 of 48 taken in National Thermal Power Corporation Ltd. (supra):
".........The question as to whether actual physical possession had been taken in compliance of the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case.
27. When possession is to be taken over in respect of the fallow or patit land, a mere intention to do so may not be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr. Raju Ramachandran, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, it had not been stated that there were standing crops on the land on the date on which possession was taken. We may notice that delivery of possession in respect of immovable property should be taken in the manner laid down in Order XXI Rule 35 of the Code of civil Procedure."
Mr Poddar, however, submitted that though Land Acquisition Act is a self-contained Act, even the requirement laid down in Order XXI Rule 35 of CPC stood complied in this case since there was proper demarcation on the spot by W.P.(C) No. 233/1997 Page 22 of 48 installing pillars on all four sites and there was no resistance to the revenue officials taking possession on the site, as would be evident from the Possession Report dated 31.03.1981.
11. Mr. Poddar, while maintaining that actual possession of land measuring 79 bighas 18 biswas was taken on the site on 31.3.1981, and that too before service of status quo order dated 24.3.1981 on the respondents, contended that even a symbolic possession by preparing a panchnama would be sufficient compliance of the requirement of Section 16 of Land Acquisition Act, where the acquired land is unbuilt land. It was also submitted by him that in fact no resistance at all was offered by petitioner No.3 when possession was taken by the revenue officials on 31.3.1981. In support of his contention, Mr Poddar relied upon Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Govt. of N.C.T. Delhi and Ors. 2009 (10) SCC
501. In particular, Mr Poddar relied upon the following view taken by the Supreme Court:
"It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible W.P.(C) No. 233/1997 Page 23 of 48 for the Collector or the Revenue Official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government.
Mr. Gupta has, with great emphasis, pointed out that from the affidavit dated 30.07.1996 sworn by Mr. G.S. Meena, Under Secretary, Land and Building Department, it was clear that the appellant continued to remain in possession on account of the stay of dispossession granted by the High Court on 15.07.1981 in WP No. 2220/1981 and the confirmation of the said order on 16.09.1982 and as such the stand of the appellants that possession had been taken was not correct. We have, however, already observed that possession had been taken between 20.06.1980 and 24.06.1980 and the acquired land thus stood vested in the State free from all encumbrances under Section 16 of the Act. It is also relevant that the afore- referred writ petition was dismissed meaning thereby that the said order should automatically be vacated as well. Even assuming for a moment that the petitioner had re-possessed the acquired land at some stage would be of no consequence in view of the provisions of Section 16 ibidem.
In Narayan Bhagde's case (supra) one of the arguments raised by the land owner was that as per the communication of the W.P.(C) No. 233/1997 Page 24 of 48 Commissioner the land was still with the land owner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the land owner had re-entered the acquired land immediately after its possession had been taken by the government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under:
"29.....This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting.
To our mind, therefore, even assuming that the appellant had re-entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons, (1) that the suits/petitions were ultimately dismissed and (2) that the land once having vested in the Government by virtue of Section 16 of the Act, re-entry by the land owner would not obliterate the consequences of vesting."
12. During the course of arguments, the learned Counsel for the petitioners relied upon the notings dated 6.4.1999 and 5.5.1999 recorded by Shri U.P.Singh OSD (Litigation) in the relevant file of Land & Building department and the letter dated 26.5.1999 written by Shri W.P.(C) No. 233/1997 Page 25 of 48 Shamim Ahmed, Director (LM) HQ to DS (LA), Land & Building Department in support of his contention that possession was not taken from the petitioners on 31.3.1981. This however, was controverted by the learned Counsel for the respondents who submitted that the noting recorded by Shri U.P.Singh was the view of an individual, which was not accepted by the competent authority and therefore does not constitute the view of the Government or an admission on its part. It was also pointed out that other Officers who dealt with the file in Land & Building Department did not agree with the view taken by Shri U.P.Singh. Mr. Poddar in this regard drew our attention to the note dated 9.2.2000 recorded by Ms. Pratibha Karan, Principal Secretary (PWD/L&B) whereby the file was placed before the Lieutenant Governor and the recommendation of the De- notification Committee was approved by him on 10.2.2000.
In his note dated 6.4.1999 Mr. U.P.Singh opined that since the copy of status quo order dated 24.3.1981 had been served in Land & Building Department on 31.3.1981, a mistake was committed by LAC in possession proceedings dated 31.3.1981 by including disputed land along with the other land acquired by the Government. He also noted that W.P.(C) No. 233/1997 Page 26 of 48 from a perusal of page 2 of annexure P-V of the representation dated 24.2.1999, it appeared that inspection of the disputed land was carried out by the field staff and at that time it was found that a built up structure of senior secondary school was functioning on it and a building occupied by Oriental Bank of Commerce also existed on it. He was of the view that if the possession of the disputed land was taken on 31.3.1981 prior to service of status quo order, this should have been brought to the notice of the High Court and the status quo order should have been got vacated. He thus opined that the possession proceedings dated 31.3.1981 being in contravention of the status quo order dated 24.3.1981 were invalid and illegal and need to be corrected.
We also find from the notings on the file that De- notification Committee in its meeting held on 27.1.1991 recommended rejection of the representation made by the petitioners on the ground that possession of land in question was taken over on 31.3.1981 and the above referred noting by Mr. U.P.Singh was made thereafter, on the representation dated 24.2.1999 made by the petitioners.
We find that in the subsequent note dated W.P.(C) No. 233/1997 Page 27 of 48 2.12.2000 Mr. V.B.Pandey, Legal Advisor recorded that possession of the acquired land was taken by LAC on 31.3.1981 because the status quo order was not served on him. He also noted that DDA vide letters dated 7.1.2000 and 25.1.2000 had reiterated its stand that possession of the land was with them.
In her note dated 9.2.2000 Principal Secretary (PWD/L&B) noted that as the order of this Court dated 24.3.1981 directing maintaining of status quo was not served on the Land Acquisition Collector, the possession of land was taken over on 31.3.1981 and handed over to DDA. She also noted that though the contention of the petitioners was that the possession of the land had remained with them, the record showed otherwise and Additional Secretary (NCR) had confirmed that possession was with DDA. She also noted that latest communication from DDA also showed that physical possession of the land was transferred by LAC and Land & Building Department to DDA vide notifications under Section 22(1) of DDA Act.
It would thus be seen that the opinion of Mr. U.P.Singh was not accepted by his superiors and certainly not by the Lieutenant Governor who was the Competent W.P.(C) No. 233/1997 Page 28 of 48 Authority in the matter and before whom the entire file which included the notings recorded by Mr. U.P.Singh, was placed.
As regards the letter dated 26.5.1999 written by Mr. Shamim Ahmed we find that in this letter he was only referring to the opinion of Mr. U.P.Singh OSD (Litigation). He did say that the site was inspected by the field staff and it was found that an authorized building of senior secondary school existed there along with a nursery, playground, staff quarters and a building occupied by Oriental Bank of Commerce. However, he did not say that the inspection by the field staff was carried out on or before 31.3.1981. In fact, this is nobody‟s case before us that the inspection referred in the letter of Mr. Shamim Ahmed was carried out prior to 31.3.1981. No such inspection report has been filed by any of the parties to this petition. We find merit in the contention of Mr. Poddar that if possession of the land was taken over by revenue officials on 31.3.1981, trespass on that land by the petitioners at a later date and construction of buildings on it would be of no consequence and would not be recognized by the Court. Mr. Poddar also pointed out to us that it was Mr. Shamim Ahmed who filed counter W.P.(C) No. 233/1997 Page 29 of 48 affidavit in this behalf on behalf of DDA and stated on oath that possession of land in question was taken over on 31.3.1981 and the land was placed at the disposal of DDA.
The following observations made by Supreme Court in Shanti Sports Club (Supra) are pertinent with respect to notings/opinions recorded by the Government Officers/Ministers on the file:
A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government, unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
In Sethi Auto Service Station v. DDA (2009) 1 SCC 180 Supreme Court observed as under:W.P.(C) No. 233/1997 Page 30 of 48
It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.
Hence, we cannot conclude, merely on the basis of the noting of Mr U.P. Singh and/or the letter of Mr Shamim Ahmed that the possession of land in question was not taken on 31.03.1981.
13. Policy Guidelines dated 02.12.1998 for de-
notification of land acquired under the provisions of Land Acquisition Act, which the petitioners themselves have relied upon and placed on record, inter alia, read as under:-
"4.0 CASE WHICH MAY BE CONSIDERED FOR DENOTIFICATION Cases of the following nature may be considered for denotification:-
4.4 PROPERTIES BUILT-UP AFTER THE ISSUE OF NOTIFICATION U/S.4 OF THE LAND ACQUISITION ACT, 1894.W.P.(C) No. 233/1997 Page 31 of 48
(1) Land on which built-up structures have come up after issue of notification under Section 4 of the Land Acquisition Act, shall normally not be considered for denotification. However, if cluster of largely residential structures has come up over a long period of time and demolition of the structures shall cause immense hardship to a large number of inhabitants, the following procedures may be adopted:
(a) Where there is a recommendation from a technical department/committee of the Government, that the land is inappropriate/unsuitable.
(b) Where the feasibility studies if any, conducted show that the land is not suitable for the public purpose for which it is being acquired.
(c) Where the colony including the area in question has itself been regularized and services handed over to MCD, the land may be recommended for denotification.
(2) In all cases, a sub-committee comprising the Land Acquisition Collector, a representative of Land & Building Department (not below the rank of a Dy. Secretary) and a representative of DDA (not below the rank of a Dy.
Secretary), shall inspect the land and submit a detailed report outlining the number and nature of structures, the feasibility of taking over the land after demolition of the structures, and the specific recommendation on denotification of the land. The Denotification Committee shall consider the report of the sub-committee, the W.P.(C) No. 233/1997 Page 32 of 48 comments of the requisitioning department with specific reference to its need for land, and then make a recommendation to the Lt. Governor for considering or rejecting the proposal." It would thus be seen that the land on which structures have been raised after issuance of notification under Section 4 of Land Acquisition Act is not to be considered for notification, the exception being cluster of largely residential structures, demolition of which shall cause immense hardship to a large number of inhabitants. In the case before us, admittedly, notification under Section 4 of Land Acquisition Act was issued on 23.01.1965. It is an admitted case that this land was purchased by petitioner No. 3 vide Sale Deed dated 18.4.1967. The structures which presently exist on this land, therefore, must necessarily have come up only after 18.04.1967, which was more than two years after issuance of notification under Section 4 of the Act. This is not the case of the petitioners that residential structures exist on the land in question and demolition of which would cause hardship to those who are living in those residential structures. The case of the petitioners is that they are running a school on this land, though the Survey Report, referred in the notings in the file W.P.(C) No. 233/1997 Page 33 of 48 of Land & Building Department, shows that Oriental Bank of Commerce is also being run in one of the buildings. The built-up structures being used for running a school are not covered under the exception carved out in clause 4.4 (1) of the guidelines and, therefore, going by these guidelines, the Government/Lieutenant Governor cannot de-notify land in question. We would like to note here that the guidelines dated 02.12.1998 have not been challenged in this petition and have, in fact, been relied upon by them on the premise that their case is covered under them.
14. During the course of arguments, it was contended by the learned counsel for the petitioners that these guidelines having been issued after they had already represented to the Government for de-notification of their land, cannot be applied to their case. We, however, find no merit in this contention for two reasons. Firstly, the petitioners themselves having relied upon these guidelines and claiming to be covered under them, it is not open to them to say that the guidelines cannot be applied to their case. More importantly, the Government/Lieutenant Governor, while deciding the representation(s), seeking de- notification of acquired land, must necessarily be guided by W.P.(C) No. 233/1997 Page 34 of 48 the policy which is applicable on the date they take decision on such representations. It would not be open to the Government/Lieutenant Governor to ignore these guidelines and de-notify the acquired land even in those cases where such de-notification is not permissible.
As observed by Supreme Court in Home Secretary, UT of Chandigarh & Anr. v. Darshjit Singh Grewal & Ors. (1993) 4 SCC 25, the policy guidelines of general applications relatable to the executive power of the Government are binding on the Government and they are bound to adhere to it unless the policy itself is changed.
Assuming that in one or more cases, the government has de-notified acquired land even if it was purchased and construction on the land was raised after issue of notification under Section 4 of Land Acquisition Act, we cannot and ought not to perpetuate that illegality by directing the government to once again commit breach of the guidelines issued by it by de-notifying the land which the petitioners have purchased after issue of notification under Section 4 of the Land Acquisition Act. The court cannot be a party to such an illegality by giving directions sought by the petitioners. Having issued a policy, the W.P.(C) No. 233/1997 Page 35 of 48 Government is duty bound to rigidly follow the policy guidelines and therefore, all its actions in the matter of de- notification of acquired land need to strictly conform to those guidelines of general application.
15. We are in agreement with the learned counsel for the respondents, who contended that the petitioners having purchased land in question, after issuance of notification under Section 4 of Land Acquisition Act, have no legal right to seek de-notification of the acquired land purchased by them in this regard. We may, at this stage, refer to the decision of Supreme Court in Smt. Sneh Prabha etc. Vs. State of U.P. and Another: AIR 1996 Supreme Court 540. In that case, notification under Section 4 of Land Acquisition Act was issued on 16.07.1960. The appellant purchased land vide Sale Deeds dated 15.03.1967 and 27.03.1967. The State Government issued what was known as „land policy‟, to lease out areas to the persons from whom the land was acquired. The appellant applied for allotment of plot under the aforesaid policy. She also re-deposited the compensation which she had received from Land Acquisition Officer and sought allotment of land. The allotment was, however, denied to her on the ground that W.P.(C) No. 233/1997 Page 36 of 48 she had purchased the land after issuance of notification under Section 4 of the Act and, therefore, was not eligible for allotment. After issuance of policy, the State Government issued two G.Os. containing guidelines for implementation of the land policy. As per those guidelines, the persons who had purchased the land after publication of notification for its acquisition were not to be given any benefit under the land policy. It was contended on behalf of the appellant that it makes little difference if the subsequent purchaser steps into the shoes of the owner of lays claim for allotment. The contention was, however, rejected by Supreme Court which held that she was not entitled to benefit of the land policy. Dismissing the appeal, Supreme Court held as under:
"It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own peril. The object of publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings points out an impediment to anyone to encumber the land acquired thereunder. It authorises the designated officer to enter upon the land to do preliminaries etc. Therefore, any alienation of land after the publication of the notification under Section 4(1) does W.P.(C) No. 233/1997 Page 37 of 48 not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, titles and interests in land stand vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder. If any subsequent purchaser acquires land, his/her only right would be subject to the provisions of the Act and/or to receive compensation for the land. In a recent judgment, this Court in Union of India v. Shri Shivkumar Bhargava and Ors. (1995) 6 JT (SC) 274:
(1995) AIR SCW 595) considered the controversy and held that a person who purchases land subsequent to the notification is not entitled to alternative site. It is seen that the Land Policy expressly conferred that right only on that person whose land was acquired. In other words, the person must be the owner of the land on the date on which notification under Section 4(1) was published. By necessary implication, the subsequent purchaser was elbowed out from the policy and became disentitled to the benefit of the Land Policy.
It would be pertinent to note here that even in the case before Supreme Court, the policy guidelines came to be issued by the State Government much after the acquired land had been purchased by the appellant.
In Yadu Nandan Garg Vs. State of Rajasthan and Others: AIR 1996 Supreme Court 520, notification under Section 4(1) of Rajasthan Land Acquisition Act, 1953 was W.P.(C) No. 233/1997 Page 38 of 48 published on 17.10.1963. The appellant purchased land in question vide Sale Deed dated 15.07.1970 before issue of declaration under Section 6 of the Act on 07.01.1991. The appellant filed an application seeking exemption which was turned down. He then filed a writ petition in the High Court which was rejected by the learned Single Judge as well as by the Division Bench of the High Court. During appeal before Supreme Court, it was contended on behalf of the petitioner that Anand Nursery, which was adjacent to appellant‟s site was given exemption from acquisition, whereas the appellant‟s site used for residential purposes had not been exempted, which amounted to discrimination offending Article 14 of the Constitution. The contention was, however, rejected by Supreme Court. Dismissing the appeal, the Court, inter alia, held as under:
"It is seen that long after the notification under Section 4(1) was published in the Gazette, the appellant had purchased the property and constructed the house thereon. Therefore, as against the State his purchase was not lawful and it could not be used against the State to cloth it with a colour of title as against the State. It is in encumbrance against the State and when the acquisition was finalised and the possession is taken, the State under Section 16 is entitled to have the possession with absolute title free from W.P.(C) No. 233/1997 Page 39 of 48 all encumbrances. The appellant cannot get any title much less valid title to the property."
We are of the view that irrespective of the fact that land in question was purchased by the petitioner No. 3 before coming into force of Delhi Land (Restriction on Transfer) Act, 1973 which specifically prohibits such transfer, the purchase after issue of notifications under Section 4 of Land Acquisition Act would not clothe the petitioners with a right to seek de-notification of the acquired land purchased by them.
16. It was also contended by the learned Counsel for the petitioners that since the De-notification Committee which recommended rejection of the representation of the petitioners was not properly constituted, the recommendation made by it became vitiated in law and consequently the possession taken on the basis of such a recommendation becomes unsustainable. We however, find no merit in the contention. Para 22 of the guidelines clearly stipulates that the recommendations made by the De- notification Committee are not binding on the Lieutenant Governor, who may take a decision on each recommendation, at his discretion. Since the W.P.(C) No. 233/1997 Page 40 of 48 recommendations of the Committee are not binding on the Lieutenant Governor, any irregularity in constitution of the Committee becomes insignificant and does not vitiate the decision taken by the Lieutenant Governor, who had the benefit of having the whole of the file containing notings of various Officers as well as the correspondence, with him at the time of taking decision in the matter.
17. As regards alleged discrimination with the petitioners on the ground that the land belonging to Hamdard Public School, St. Xavier Society, Ramjas Foundation and Scindia Potteries, etc. had been de-notified while denying de-notification of the land of the petitioners, we find that the respondents have duly explained the circumstances in which the aforesaid lands were de- notified.
We also note that a similar contention citing the same instances of de-notification of land was examined by Supreme Court in Shanti Sports Club and Anr. Vs. Union of India (UOI) and Ors. 2009 (15) SCC 705. A perusal of the judgment would show that the appellants contended that the Government was duty bound to treat them at par with others like Hamdard Public School, St. Xavier School, W.P.(C) No. 233/1997 Page 41 of 48 Shahbad Estate Extension Welfare Association, Scindia Potteries, etc., whose land was released from acquisition despite the fact that constructions were made after issuance of a notification under Section 4(1) and declaration under Section 6 of the Act and in some cases even after the award was made. This was also their contention that in view of the observations contained in the last part of para 182 of the judgment of the Full Bench in Roshanara Begum v. Union of India: AIR 1996 Delhi 206 and the statement made by Shri N.N.Goswami, counsel for the State, which was recorded in para 21 of the judgment of the Supreme Court in Murari and Ors. Vs. Union of India (UOI) and Ors. AIR (1997) 1 SCC 15, the representations made by them for release of the land could not have been rejected on the ground that the construction had been raised after acquisition of land. Rejecting the contention of the appellants, Supreme Court, inter alia, observed as under:
"The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any W.P.(C) No. 233/1997 Page 42 of 48 illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities."
Supreme Court, while rejecting the plea of discrimination taken by the appellants, referred to the following observations made in Chandigarh Administration v. Jagjit Singh: (1995) 1 SCC 745:
"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one W.P.(C) No. 233/1997 Page 43 of 48 illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law -- indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law -- but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.
In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world."
With respect to the observations made by the Full W.P.(C) No. 233/1997 Page 44 of 48 Bench of this Court in Roshanara Begum (supra) and the statement made by Shri N.N. Goswami before Supreme Court in the Case of Murari and Ors. (supra), the Court observed as under:
"59. In our opinion, the Government's decision not to withdraw from the acquisition of land in question or de- notify the acquired land, does not suffer from the vice of discrimination or arbitrary exercise of power or non application of mind. With due deference to the Full Bench of the High Court which disposed of the batch of writ petitions and miscellaneous applications, the observations contained in the last part of paragraph 182 of the judgment suggesting that the petitioner/applicant can make representation for release of the land and the concerned authorities can examine whether the sports complex could serve the purpose of acquiring the land for the particular scheme or the scheme can be modified or amended in respect of the land in question were nothing more than pious hope and the Government rightly did not take them seriously because in the same paragraph the Full Bench unequivocally ruled that the land is required for residential scheme of Vasant Kunj and the sports complex built by the applicant was not in consonance with the public purpose for which the land was earmarked in the scheme.
The statement made by the counsel representing the State before this Court which finds mention in paragraph 21 of the judgment in Murari v. Union of India W.P.(C) No. 233/1997 Page 45 of 48 (supra) was neither here nor there. It did not amount to a commitment on behalf of the Government that representations made for release of land will receive favourable consideration. In any case, once this Court had made it clear in Murari v. Union of India (supra) that in a matter involving acquisition of thousands of acres of land, it would not be proper to leave out some small portions here and there over which some construction may have been made, the decision of the Government not to withdraw from the acquisition of the land in question cannot be faulted."
18. Dealing with the plea of discrimination in the matter of application of land policy, Supreme Court, in the case of Smt. Sneh Prabha (supra), inter alia, observed as under:-
"Even if a benefit is wrongly given in favour of one or two, it does not clothe with a right to perpetuate the wrong and the Court cannot give countenance to such actions though they are blameworthy and condemnable. Equality clause does not extend to perpetuate wrong nor can anyone equate a right to have the wrong repeated and benefit reaped thereunder."
In Yadu Nandan Garg (supra), the contention before Supreme Court was that one Anand Nursery was granted exemption while denying similar benefit to the appellant. Rejecting the plea of discrimination, Supreme W.P.(C) No. 233/1997 Page 46 of 48 Court, inter alia, observed as under:-
"It is true, for reasons best known to the authorities, that Anand Nursery had the benefit of the exemption. The wrong exemption under wrong action taken by the authorities will not cloth others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination."
We, therefore, find no substance in the plea of discrimination taken by the petitioners.
19. Even if we assume that actual physical possession of the acquired land was not taken by the Government on 31.03.1981, as is claimed by the petitioners, we are of the view that since land in question was acquired by them after issue of notification under Section 4 of Land Acquisition Act, their case is not covered under the guidelines issued by the Government on 02.12.1998 for de-notification of acquired land. We, therefore, find no ground to direct either de-notification of land in question from acquisition by issuing a notification under Section 48 of Land Acquisition Act or reconsideration of the representations made by the petitioners from time to time for de-notification of the aforesaid land.
W.P.(C) No. 233/1997 Page 47 of 48
CONCLUSION Since De-notification Guidelines issued by the Government do not permit de-notification of land in question, which the petitioners purchased after issuance of notification under Section 4 of Land Acquisition Act, we find no ground to direct the Government either to de-notify this land or to re-consider the representations of the petitioners. The writ petition being devoid of any merit is hereby dismissed. The interim orders passed in favour of the petitioners during pendency of the writ petition are vacated. The parties are left to bear their respective costs.
(V.K. JAIN) JUDGE (BADAR DURREZ AHMED) JUDGE NOVEMBER 09, 2011 BG/vn W.P.(C) No. 233/1997 Page 48 of 48