Delhi High Court
Meena Devi Jindal Medical Institute And ... vs Lt. Governor, Delhi Administration ... on 3 March, 2005
Author: Swatanter Kumar
Bench: Swatanter Kumar, Madan B. Lokur
JUDGMENT Swatanter Kumar, J.
1. Petitioner no.1 is a Society registered under the Societies Registration Act, 1860. It claims to have its registered office at 20, Alipur Road, New Delhi. Petitioners no. 2 to 4 are office bearers of the Society named Meena Devi Jindal Medical Institute and Research Centre. The petitioners filed this writ petition, being aggrieved from the notification issued by the appropriate Government on 19.3.1981 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). Vide this notification the land at 20, Alipur Road, measuring about 9.11 bighas, was sought to be acquired for a public purpose namely for 'Planned Development of Delhi'. Thereafter, on 21.9.1981 notification under Section 6 was issued by the Government acquiring the said land. The petitioners filed the present writ petition which came up for hearing before the Court on 20.5.1982 for the first time and vide order dated 25.6.1982 an interim order was granted in favor of the petitioners which reads as under:-
25.6.82 Present : Mr. A.K. Nag, Sr. Advocate, with Mrs. Nirmla Gupta for the petitioner.C.M. 2798/82
This is an application similar to C.M. 2201/82 for stay of further proceedings before the Land Acquisition Collector and a notice was ordered to be issued for 12th July, 1982. The petitioners have expressed their apprehension that the Land Acquisition Collector having already completed certain formalities may proceed to give an award and make this writ infructuous. In view of the affidavit filed today along with this petition the respondents are restrained from proceeding further in the meanwhile i.e. 12th July, 1982. dusty.
June 25, 1982. JUDGE.
2. The above order is in force till date. As per the facts averred in the petition, the property in question was originally owned by M/s. Lalla Mal Sangam Lal and subsequently, it fell in the share of Late Gajju Mal Seth on the basis of a partition in the year 1946. Again disputes arose between the legal heirs, and ultimately an award was passed on 31.10.1950 in terms whereof the property fell to the share of Smt. Kanso Devi. Smt. Kanso Devi having become an absolute owner of the property, entered into an agreement for collaboration with M/s. Rank Television Pvt. Ltd. dated 21.4.1979 for construction of Group Housing Scheme Complex on this plot. According to the petitioners, in the Master Plan, as it existed on 1.10.1962, the land could be put to the use for 'Institutional purposes'. It is further averred that Group Housing Scheme Complex could not be implemented and it was so stated by the Town Planner, Delhi Development Authority, in the letter annexed to the petition as Annexure P-II. However, in agreement to sell dated 21.5.1979 had been executed between M/s. Rank Television (P) Ltd. and Smt. Kanso Devi under the terms of which the said company came into possession of the property and thereafter, an agreement of lease dated 3.1.1981 was entered into between the petitioner and the said company as well as signed by Smt. Kanso Devi, vide which the property was rented out to the petitioners, on a monthly rent of Rs.2000/- per month. Since commencement of the lease agreement, the petitioner is running a charitable, free medical dispensary, as per the object and conditions of the Society, and the property is being put to an 'institutional/charitable purpose'. According to the petitioners, on an average 250 patients per day are availing free facilities, costing the society Rs.20,000 to 25,000/- per month and they have also invested large sums of money in improving the building and fixing of various equipments for carrying out the charitable/medical activities in the said premises. Names of the doctors who are working in the said hospital have also been stated in the petition.
3. The petitioners also filed objections under Section 5A of the Land Acquisition Act as an interested party, which objections were rejected by the authorities resulting in issuance of a notification under Section 6 of the Act. On these facts, the petitioners question the validity and correctness of the notifications issued under Section 4 and 6 of the Act respectively, on the ground that it is a colourable exercise of power by the respondents, the property is already being put to use for the prescribed purposes i.e. 'Institutional Purposes' and that the property is being used for the same purpose for which it is sought to be acquired, particularly keeping in mind the fact that it is acquisition of an individual property and not large pieces of land acquired for 'Planned Development of Delhi'. In this regard, the learned Counsel appearing for the petitioner heavily relied upon Ghaziabad Sheromani Sahkari Avas Samiti Ltd. and another etc. v. State of U.P. AIR 1990 Supreme Court 646 and National Fertilizers Employees Co-operative Housing Society Ltd. v. State of Haryana 1998 (3) Punjab Law Reporter 619.
4. The claim of the petitioner has been contested by the respondents. The detailed counter affidavit on behalf of the Delhi Development Authority has been placed on record. It is stated therein that notification has been issued by Delhi Administration and the subject matter of the present writ petition has been shown in the Master Plan and Zonal Development Plan as 'institutional'. In the counter affidavit filed on behalf of the Department of Land and Building Development, Delhi Administration, it has been stated that the property has been bonafidely acquired for a public purpose, namely 'Planned Development of Delhi'. It is specifically stated that Smt. Kanso Devi continues to be the owner of the property in question. The factum of lease having been executed in favor of the petitioner, has been specifically denied in reply to paragraph 11 (vii and viii). It is stated that objections filed by the petitioner under Section 5A were duly considered and rejected by the competent authority in exercise of the powers vested in it under the provisions of the Act. Finally, it is submitted that the writ petition should be dismissed.
5. As far as the first contention raised on behalf of the petitioners that the acquired land has been acquired for a purpose which is indefinite in terms and incapable of definite execution, as such there is no definite public purpose within the scope of the provisions of this Act, this contention requires to be noticed primarily to be rejected. Right from the case of Aflatoon and Ors. v. Lt. Governor of Delhi and Ors. . The principle has been settled that 'Planned Development of Delhi' is a public purpose and the land can validly be acquired for such a purpose under the provisions of Land Acquisition Act. This principle has been repeatedly accepted by the Courts in various cases. In the case of Rajasthan Housing Board and Ors. v. Shri Kishan and Ors. the Supreme Court clearly held that where on verification the Government finds acute scarcity of land and heavy pressure for construction of houses, invoking of emergent provisions would be fully justified.
The above principles are reiteration of the law stated by the Supreme Court in its earlier judgments with definite approval. In the case of State of U.P. Etc. v. Smt. Pista Devi and Ors. the Court held as under:-
The letters and the certificates submitted by the Collector and the Secretary of the Meerut Development Authority to the State Government before the issue of the notification under section 4(1) of the Act clearly demonstrated that at that time there as a great urgency felt by them regarding the provision of housing accommodation at Meerut. The State Government acted upon the said reports, certificates and other material which were before it. In the circumstances of the case, it cannot be said that the decision of the State Government in resorting to section 17(1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke section 17(1) of the Act and to dispense with the compliance with section 5 of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate etc. v. State of Maharashtra, (1977) (1) S.C.R. 768 related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under section 5A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not 'appear to demand such emergent action as to eliminate summary inquiries under section 5A of the Act.
6. The power of the Government to acquire a land and use the same for a purpose other than the purpose indicated in the Master Plan/Zonal Development Plan subject to permission/sanction of the competent authority under the provisions of the Delhi Development Authority Act, was accepted by the Supreme Court in the case of Bhagat Singh v. State of U.P. where the court held as under:-
As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquistion be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon case 9(1998) 6 SCC 1 it is clear that acquisition for a public purpose and obtaining permission from the competent authority under the Development Act concerned for change of land use are different from one another and the former is not dependent upon the latter.
7. In this view of the matter we have no hesitation in rejecting this submission of the petitioner.
8.The argument vehemently advanced on behalf of the petitioners before us was that the petitioners are using the property for running a charitable hospital and as such the land was being used for a public purpose which was squarely covered under the expression 'institutional user'. As the case related to acquisition of a single property, the general principle controlling the 'Planned Development of Delhi', thus, would not be applicable to the facts of the present case and the property should be de-notified from acquisition.
9. From the above narrated facts, it is clear that even as on date, the petitioners do not have any title in the property but claim to be lessees in terms of an agreement of lease dated 3.1.1981. To what extent a lessee can enforce his rights under the lease deed, is a question which has not been canvassed before us and as such we would proceed to discuss the merits of the case on the premises that the petitioner being a lessee of the premises still can invoke the jurisdiction of this Court under Article 226 of the Constitution of India. As per the respondents, Smt. Kanso Devi continues to be the owner of the property as per their records. According to the petitioners an agreement to sell-cum-collaboration agreement was entered into between Smt. Kans Devi and M/s. Rank Television Pvt. Ltd. for construction of Group Housing Scheme Complex on 21.3.1979. The terms of this agreement relevant for the present purposes can be usefully referred at this stage which reads as follows :-
AND WHEREAS the parties hereto have entered in to an Agreement for the construction of Group Housing Scheme Complex on the said Property No. 20, Alipur Road, Delhi.
AND WHEREAS on the Execution of the said Agreement between the parties executed on 21st May, 1969 the VENDOR herein shall be entitled to 6000 sq. ft. of the built (as and when construction is complete) areas in the said Group Housing Scheme Complex and the remaining built and unbuilt areas in the said project shall be the entitlement of Purchaser.
THEREFORE, IT IS HEREBY AGREED, DECLARED AND CONVENETED AND RECORDED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS :-
1. That the Vendor herein doth hereby agree to grant, convey and transfer all her rights, title and interest in her 600 sq. ft. (six thousand square feet) share of the total built area of the aforesaid Group Housing Scheme Complex in No.20, Alipur Road, Civil Lines, Delhi for total consideration of Rs. 9,00,000/- (rupees Nine lacs only)
10. There is nothing on record before us to show that this agreement of sale/collaboration was terminated and rights of the parties from this cease to exist. What is argued is that the DDA had informed the petitioner that it was not permissible to develop the property as a group housing. Copy of the letter from the Town Planner, DDA, dated 14.10.1977 was placed on record wherein the petitioner was informed that the property cannot be used for group housing. We are unable to see this expression in the aid letter, which reads as under:-
I am to refer to your representation addressed to the Chief Executive Councilor, Delhi, regarding the acquisition and use of property, known as 20, Alipur Road. This property is warmarked in the approved zonal development plan for institutional use. The zonal development plan is approved by the Central Government, Ministry of Works and Housing. The property is surrounded on either side by the institutional plots.
2. As far as the notification of the property under Section 4 of the Land Acquisition Act is concerned, the matter pertains to the Delhi Administration, Land and Building Department and no information is available with the Authority regarding this issue.
11. Though, the collaboration agreement was entered into on 21.4.1979, but this letter is dated 14.10.1977 and states nothing more than the fact that the property is earmarked in the approved zonal plan for 'institutional use' and the plan have been approved by the Government. What purposes the petitioners intended to use the property for, is hardly clear from the pleadings of the parties. As already noticed, no title in the property has yet been transferred in favor of the petitioners. Secondly, what is the interest of the parties, who had entered into the collaboration agreement in relation to the property for building of a group housing, is also not clear. Furthermore, now the petitioner wants to run a charitable hospital in the premises in question. In these state of circumstances, it would be difficult for the Court to conclude as to what is the real purpose for which the petitioners are using the property or even intend to use the property in future. Much less, whether such user or purpose would be a public purpose in an 'institutional area'.
12. Admittedly, Smt. Kanso Devi had filed objections under Section 5A of the Act. The emphasis of the objections filed was that the bungalow within the plot was constructed in view of the rules, regulations and building bye-laws and as such it could not be said that bungalow no.20 is an undeveloped land/pocket. It was stated that the bungalow was being used as a Medical Institute and Research Centre and therefore, the property should be exempted from acquisition. These objections were duly considered by the Collector and thereafter the declaration under Section 6 of the Act was made on 21.9.1981. The report submitted by the authorities were accepted by the competent authority in exercise of its powers and based on a subjective satisfaction. In fact, in the entire writ petition there is hardly any challenge to that report. The subjective satisfaction arrived at by the authorities can be subject matter of judicial review but within very specified limitations. It is for the appropriate authorities to decide as to whether they need the land sought to be acquired and if so, for what purposes? This Court, in exercise of its powers under Article 226 of the Constitution of India does not sit as a Court of Appeal over such subjective satisfaction recorded by the authorities. On behalf of the petitioners, considerable emphasis was placed upon the judgment of the Supreme Court in the case of Ghaziabad Sheromani Sahkari Avas Samiti Ltd. and another etc. (supra) to contend that the purpose of acquisition being 'institutional' and the petitioners already using the same for charitable medical centre, the direction should be issued to exclude the said area and denotify the same from the acquisition proceedings. In this regard, reference was made to paragraph 7 of the said judgment where the Supreme Court directed to denotify the land in favor of the Cooperative Societies. It is also contended on behalf of the petitioners that the judgment of the Supreme Court was further followed by the Bench of Haryana High Court in the case of National Fertilizers Employees Cooperative Societies v. State of Haryana 1998 (3) Punjab Law Reporter 619 where the Court held as under:-
Some other judgments have also been cited by the learned Counsel representing the petitioner but it is no necessary to mention the same as in my view the judgment of the Supreme Court in Ghaziabad Shenomani Sahkari Avas Samiti Ltd. v. State of U.P. is fully applicable to the facts of the present case. It is proved on the record of the case that most of members of the petitioner-society are low paid employees. It is a bona fide case of setting up a colony for the members of the petitioner-society.
As mentioned above not only that the entire land measuring about 53.5 acres came to be purchased by the petitioner-society before notification under Section 4 of the Land Acquisition Act was issued but with regard to 33 acres of land petitioner-society had been permitted to establish a colony for its members. It is further provided that remaining about 20 acres of land was purchased with a view to accommodate all the members of the society as also that unless the said piece of land was available to the petitioner-society, no meaningful colony could have been carved out. The facilities which are essentially required for the inhabitants of the colony could not be made if this piece of land measuring about 21 acre was to go of the hands of the petitioner-society. Further, it is after all a case where petitioner is endeavoring to achieve the same object as is contemplated by the government in issuing notification under section 4 and declaration under section 6 of the Land Acquisition Act. If the land of the petitioner-society are deprived of a house which shall then be made available to those who may be successful in draw of lot, residential area that may be developed by the government or the Haryana Development Authority.
13. At the very outset, we may notice here that facts of the present case and the facts of the cases relied upon by the petitioner, as afore-referred are quite distinguishable. In the present case, there is even doubt with regard to the interest of the petitioners in the land which is subject matter of the present writ petition. Furthermore, the purpose and object for which the land is to be used is also not clear and in any case, whether it would be a public purpose at all or not is a question of serous controversy. The expression 'institutional' is a generic expression and as such capable of being given a wide connotation. Its meaning cannot be restricted to a particular class of user specially when the expression is to be construed in conjunction with the expression 'Planned Development of Delhi'. Thus, 'institutional user' would have to be given a wider meaning so as to cover in its ambit use of the land which otherwise is permissible under the relevant laws. The purpose for which the land has been acquired is 'Planned Development of Delhi'. The planned development of Delhi, as already noticed, is an accepted public purpose. Even the authorities could change the user of the land with the permission and sanction of the appropriate forum and in terms of the provisions of the Delhi Development Act. This was unambiguously stated by the Supreme Court in the case of Bhagat Singh (supra). During the course of arguments, we were informed by the learned Counsel appearing for the respondents that the property is sought to be acquired for construction of a secondary school, as according to them in that area a school was badly needed for dispensation of education. It is not for this Court to decide whether the running of a charitable hospital by a lessee can be a better public purpose than construction and running of an educational school by the Government for the benefit of the public at large. This decision essentially must fall squarely within the domain of the administrative authorities. Administrative authorities must have applied their mind to various aspects and it is upon due consideration thereof that objections filed by the petitioners under Section 5A of the Act were not accepted and declaration under Section 6 of the Act was issue. The records produced before us showed that the hearing was granted to be objector during the period 24.6.1981 to 21.8.1981, when the report was submitted by the authorities. Merely because the petitioner or the owner of the property intends to put the property for a purpose, which according to them is a public purpose, per se, would not grant them the right to have their property denotified from the acquisition proceedings. This argument has been repeatedly rejected by different courts, more so, by Full Bench of this Court as well as the Supreme Court. Both these judgments are binding on us and we have no reason to take a different view particularly keeping in mind the facts and circumstances of the present case. A Full Bench of this Court in the case of Roshanara Begum v. Union of India and Ors. 61 (1996) Delhi Law Times 206 (FB) held as under:-
In case of Gandhi Grah Nirman Sahkari Samiti Ltd. (supra), one of the contentions raised was that the land sought to be acquired is already being used for public purpose and has been properly developed and thus the notifications issued for acquisition of such land for public purpose be quashed. The Supreme Court held that once it is clear that the acquisition is for public purpose, no fault can be found with the proceedings on the ground that land is already being used for some beneficial purpose. So, even if some land has been developed by the land owner according to his own notions and may be the construction raised by him on the said land is also serving some public purpose, still that cannot be a substitute for planned development of Delhi which object is visualised by the authorities. If the public object for which the land is sought to be acquired by the authorities is justified, it cannot be frustrated because the land owner has developed the land and is utilising the land for some other public purpose. So, this contention also does not survive in view of the law laid down by the Supreme Court.
14. Further, rejecting the plea of comparative utility of a public purpose taken by the petitioners, in the case of Gandhi Grah Nirman Sahkari Samiti Ltd. and Ors. v. State of Rajasthan and Ors. , the Court held as under:-
Mr. Jain then contended that the land subject-matter of acquisition includes a polo ground which is used for one of the major sports peculiar to Rajasthan. According to him the polo ground is serving a public purpose which is much more useful and important than the one for which the land is being acquired. We cannot go into the comparative utility of the public purposes. Once we are satisfied that the acquisition is for a public purpose, no fault can be found with the proceedings on the ground that the land is already being used for some beneficial purpose.
15. Applying the principle enunciated by the Supreme Court in the case of Gandhi Grah Nirman Sahkari Samiti Ltd. and Ors. (supra), another Division Bench of this Court in the case of Shanti Sports Club and Anr. v. Union of India and Ors. 2001 Delhi Reported Judgments 16 (DB) held as under:-
It was argued by the learned senior counsel for the petitioners that since the club is already serving a public purpose it should not be taken over and ought to have been released from acquisition and regularised in favor of the petitioners. We regret our inability to accept the aforesaid submission as otherwise it will amount to lending legitimacy to unauthorised occupation of land by the petitioners. It seems to us that the impugned order cannot be interfered with on the ground that the land is already being used for a beneficial purpose.
16. In this regard, we may also refer to another Division Bench judgment of this Court in the case of Raheja Hospital and Psychiatric Research Centre v. Land Acquisition Collector and Ors. .
17. On the simple analysis of the above enunciated principle of law it can hardly be disputed that a property would not be liable to denotification from acquisition proceedings merely on the ground that the property is being put to a use which is similar to the one for which the land has been acquired. This aspect would have various facets, which can be appropriately considered primarily by the authorities required to take such decisions in consonance with the provisions of the Land Acquisition Act and the Delhi Development Act. Normally, the Court would not substitute its opinion unless the powers exercised by the executive was patently without any material, was so arbitrary and was a colourable exercise of power to the extent as to apparently fail the test of judicial scrutiny within the specified limits. The expression 'public purpose' is capable of being given a wide meaning and so is the concept 'institutional user'. Comparative utility of public purpose would not squarely fall within the jurisdictional limits of the High Court under Article 226 of the Constitution of India. Primary education has been equated and declared to be a fundamental right by the Supreme Court. No doubt, it is a case of individual acquisition of property, but it is nobody's case that the acquired property cannot be put to any other institutional use and particularly of running a secondary school, as proposed by the respondents. Running of a secondary school would obviously be a purpose which is a public purpose, and uer which is permissible as 'institutional' within the meaning of the Zonal Plan.
18. Running of an educational institution by the Government for the benefit of the public at large can hardly be equated to running of a charitable hospital which can give benefit to a limited class of persons, that too for which no records have been produced before us. The decision of the authorities rejecting the objections filed by the objector, therefore, cannot be stated to be an arbitrary exercise of power so as to invite any kind of judicial castacism.
19. As a result of the above discussion, we vacate the interim order dated 25.6.1982, dismiss the writ petition, while leaving the parties to bear their own costs.