Delhi High Court
Gurpreet Singh vs Union Of India (Uoi) And Ors. [Along With ... on 14 October, 2004
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Petitioners state that their agricultural lands were acquired vide award dated 30.12.1988. They state that on said date, policy guidelines were framed by the Lieutenant Governor of Delhi in his capacity as administrator of the Union Territory of Delhi notified vide No.F.37(39)/1/87/LandB dated 14.7.1987. Petitioners claim that they are entitled to an alternative residential plot as per policy notified there under.
2. Petitioners' claim was rejected because the Land and Building Department, Government of NCT Delhi which had to scrutinize the applications rejected the same, indicating to the petitioners as under:-
Kindly refer to your application dated ____ on the above subject. Your request has been examined but it is recorded that you are not found to be eligible for allotment of an alternative plot because of the following reasons.
According to the policy followed by this Administration, alternative plot is to be allotted to only those people whose lands are acquired either for Planned Development of Delhi at any time or for any non-planned purpose after 14.7.1987. Since your land as been acquired for a non-planned purpose before 14.7.1987, you are not entitled for an alternative plot.
3. Office order dated 14.7.1987 relied upon by the petitioners reads as under:-
No.F.37(39)/1/87/LandB Dated the14thJuly,1987 ORDER The Administrator of Union Territory of Delhi is pleased to order:-
i) That in future all lands including lands acquired for Non-Plan purposes will be acquired through the D.D.A. The requisitioning Departments will submit their proposals to D.D.A. for the purposed acquisition;
ii) The DDA will then get the land acquired by following the existing procedure to acquire the land for plan development schemes.
iii) If the requisition department desires that the land be developed by DDA, the DDA will carry out development work and the cost will be borne by the acquired department. However, if the acquired department does not want the land to be developed the DDA will transfer undeveloped land to the department.
iv) Additional land for allotment of alternative plots to the affected farmers will also be acquired at the instance of the acquiring department and the cost for such acquisition will have to be borne by the department.
v) The acquiring department will also bear the cost of development of land which is earmarked for alternative plots.
vi) The DDA will allot alternative plots at the rate of acquisition plus interest which may be claregeable. This is subject to the revision from time to time.
vii)The land for allotment of alternative plots will as far as possible be adjacent to the land acquired for the project which is to be undertaken. In case the allottee wishes to take a plot in some other area, his request will be considered on merits provided he agreed to pay pre-determined rates.
viii) D.D.A. will allot alternative plots only on the recommendations of the Land and Building Department. Existing guidelines, norms, rules and procedure followed by the land and Building Department in cases of allotment of alternative plots for planned Schemes will apply mutates-mutants in these cases also.
ix) The Scheme for allotment of alternative plots in respect of such acquisition will be prospective and shall in any event be made retrospective.
x) Before allotment of alternative plots in such cases D.D.A. will ensure that a proper lay out for the areas prepared and provisions for basic amenities is made on payment of cost by the residents.
Sd/-
(GANGA DAS, J.)
14. 7.87 Commr. and Secretary (L and B)
4. As per the counter affidavit filed by the Land and Building Department, it is stated:-
a) Land of petitioner Gurpreet measuring 14 biswa in Village Malikpur Kohli and Rangpuri was acquired for settlement of persons displaced due to expansion and development of Indira Gandhi International Airport. This land was not acquired under any deveopment scheme of DDA and much less for the planned development of Delhi. It is stated that alternative plot could be allotted only when land is acquired for planned development of Delhi and is placed at the disposal of the DDA. It is also stated that since Section 4 Notification was issued on 5.3.1987, policy decision dated 14.7.1987 would even otherwise be inapplicable qua the petitioner Gurpreet Singh. It is stated that office order No.F.37(39)/1/82/LandB/Alt. dated 3.4.1986 would be attracted as perohich minimum holding acquired has to be one bigha.
b) Qua petitioner Sarvpreet Singh, similar defense has been raised.
c) Counter affidavit in the writ petition filed by Kirpal Singh has not been filed but counsel for the parties agree that his case would be similar to that of Gurpreet Singh and Sarvpreet Singh.
d) Qua Gurcharan Singh, defense is similar to the one taken qua Gurpreet Singh, Kirpal Singh and Sarvpreet Singh except on the issue of land, acquired land being more than one bigha, defense is not taken under office order dated 3.4.1986 in the context of the area of the holding acquired but it is stated that office order dated 3.4.1986 stipulated that the applicant should have purchased the land five years prior to the date of notification u/s 4.
5. Since while rejecting the case of the petitioners only defense taken was that eligibility for allotment was that land should be acquired for planned development of Delhi and land of the petitioners not being acquired for planned development of Delhi, they were dis-entitled to an alternate plot, it would be impermissible to permit the respondents to predicate a stand on a different ground. In Mohinder Singh Gill Vs.Election Commission, the Supreme Court held that an authority can defenits order on the reasons mentioned in the order and cannot sustain the order on any other reason.
6. Large scale acquisition policy was framed by the Government of India in the year 1961 notified vide office order dated F.37(16)/60-Delhi(1). Inter alia, policy stipulated as under:-
(8) As a general policy, disposal of developed land should be made by auction and the premium should be determined by the highest bid, except in the following cases, where land may be allotted at pre-determined rates, namely, the cost of acquisition and development plus the additional charge mentioned in sub-paragraph (7) above.
(i) to individual whose land had been acquired as a result of the Chief Commissioner's notification dated the 7th March,1957, the 3rd September, 1957, the 18th November,1959, the 10th November,1960 other such subsequent notifications provided that this concession will not be available in the case of individuals affected by the notifications dated 7th March,1957, and the 3rd September,1957. If acquisition proceedings have been completed and payment made or deposited in Court by the 1st January,1961, in these cases.
(a) If a residential plot is to be allotted, the size of such plot, subject to the ceilings prescribed may be determined by the Chief Commissioner, taking into consideration the area and the value of land acquired from the individual and the location and value of the plot to be allotted.
7. Large scale policy aforesaid was undoubtedly a beneficial policy. When lands are acquired, compensation is paid at the market value as on date of notification issued under Section 4 of the Land Acquisition Act, 1894. But for the policy, none would have a right to claim an alternative plot.
8. Delhi Development Act, 1957 was promulgated in the year 1957. Delhi Development Authority was constituted. As amended, power to acquire land required for planned development of Delhi is vested in the Central Government. Land acquired by the Central Government is placed at the disposal of DDA under Section 22 of the Act. This land is called Nazul land.
9. Section 56(2)(j) of the Act empowers the Central Government to make rules, inter alia, specifying the manner in which Nazul lands can be dealt with by the authority.
10. DDA (Disposal of Developed Nazul Land) Rules, 1981 were promulgated in the year 1981. These rules were framed by the Central Government. These rules would, therefore, be the mandate under which Central Government places land at the disposal of DDA under Section 22.
11. Rule 2(i) of the Nazul Rules define Nazul Land to mean the land placed at the disposal of the authority and developed by or under the control and supervision of the authority under Section 22 of the Act.
12. Rule 6 of the Nazul Land Rules reads as under:-
6. Allotment of nazul land at pre-determined rates.- Subject to the other provisions of these rules the Authority shall allot nazul land at the pre-determined rates in the following cases, namely-
(i) to individuals whose land has been acquired for planned development of Delhi after the 1st day of January, 1961, and which forms part of nazul land:provided that if an individual is to be allotted a residential plot, the size of such plot may be determined by the Administrator after taking into consideration the area and the value of the land acquired from him and the location and the value of the plot to be allotted:
(ii) to individuals in the low income group or the middle income group, other than specified in clause (i) -
(a) who are tenants in a building in any area, in respect of which a slum clearance order is made under the Slum Areas Act;
(b) who, in any slum area or the other congested area, own any plot of land measuring less than 67 square metres or own any building in any slum area or other congested area;
(iii) to individuals, other than those specified in clauses (i) and (ii), who are in the low income group or the middle income group, by draw of lots to be conducted under the supervision of the Land Allotment Advisory Committee.
(iv) to individuals belonging to Scheduled Castes and Scheduled Tribes or who are widows of defense personnel killed in action, or ex-servicemen, physically handicapped individuals subject to the provisions of rule 13;
(v) to industrialists or owners and occupiers of warehouses who are required to shift their industries and warehouses from non-conforming areas to conforming areas under the Master Plan, or whose land is acquired or is proposed to be acquired under the Act.
Provided that the size of such industrial plot shall be determined with reference to the requirement of the industry or warehouses set up or to be set up in accordance with the plants and such industrialists and owners of ware-houses have the capacity to establish and run such industries at pre-determined rates shall not, in any case, exceed the size of the land which has been, if any, acquired from such industrialist or owners and occupiers of warehouses and which form part of nazul land;
Provided further that in making such allotment, the Authority shall be advised by the Land Allotment Advisory Committee:
(vi) to co-operative group housing societies, co-operative housing societies, consumer co-operative societies and co-operative societies of industrialists on first come first served basis.
13. Effect of the rules on the large scale acquisition policy and the rights flowing there under was considered by a Full Bench of this court. Decision is reported as AIR 1994 (Delhi) 29 Ramanand Vs.UOI and Ors.
14. Two questions were posed to be answered by the Full Bench. One of the two was as under:-
1. Whether a person whose land has been acquired for planned development of Delhi has got a vested right to the allotment of alternative plot of land for residential purposes?
15. The Full Bench in para 6 and 7 noted that the Delhi Development Act, 1957 was passed by Parliament to provide for the development of Delhi. The authority was established under Section 3 of the Act and under Section 6 was empowered to acquire, hold and dispose of land. Section 15 envisaged acquisition of land for purposes of development of Delhi by the Central Government. Section 21 and 22 govern development and disposal of land by DDA. The Full Bench noted that in the year 1961, the large scale aquisition policy was framed whereunder certain rights were created in favor of persons, whose lands were acquired, to be allotted plots at pre-determined rates. Thereafter, the Full Bench considered the Nazul Land Rules. It observed as under:-
8.In 1981, in exercise of powers conferred by Section 56(2)(j) read with Section 22(3) of the Act, the Central Government made the Nazul Rules, providing for the manner of dealing with Nazul land developed by the DDA. Provision has been made in these Rules, for all matters that were earlier governed by the 1961 Scheme in so far as it concerned disposal of developed Nazul land by the DDA. Rule 3 stipulates that Nazul land may be allotted, inter alia, for residential purposes. Rule 4 specifies the categories of persons to whom Nazul land may be allotted. Provision has been made for regulating the method and manner of making such allotments and also for determination from time to time, of price or premium for allotment of Nazul land to different categeries of persons. Allotment of land to 'individuals' is regulated by the provisions made, inter alia, in Rules 6, 12, 13 and 24 of the Nazul Rules.
16. The Full Bench accordingly held that with the promulgation of Nazul Land Rules, the provisions of the Large Scale Acquisition Policy Scheme of 1961 stood impliedly repealed.
17. The Full Bench considered an alternative submission that the scheme could be read as a direction of the Central Government to the authority under Sub-Section 3 of Section 22 of the Delhi Development Act, 1957. Repelling the said contention, Full Bench held as under:-
17.The provisions made in the 1961 Scheme, in respect of the land developed by the DDA may well be taken, as asserted by learned counsel for the petitioner, as directions given by the Central Government in the exercise of power vested in the under sub-section (3) of Section 22. But, nothing would turn on it. The reason, why we say so, is that the Nazul Rules also were made by the Central Government, in the exercise of this very power under sub section (3) of Section 22, in addition to the rule making power conferred upon it under Section 56(2)(j), for regulating the manner of dealing with Nazul land developed by the DDA. In this way, the provisions earlier made in the 1961 Scheme stand impliedly repealed, by the more comprehensive and detailed provisions made later, on the same subject and in the same field, by the Nazul Rules in 1981. The provisions, therefore, need to further discussion.
18. Thereafter, in the context of premium to be charges and the effect of Clause 8 of the 1961 Scheme, Full Bench held as under:-
24.Rule 6, in reality, controls the rates of premium chargeable only in those cases where land is allotted to the persons mentioned therein. In other cases, the rules provide for sale of land at the market price determined by the highest bid on public auction of land. Thus, the principle expressed in the form of 'exception' in clause 8 of the 1961 scheme, which has already been discussed above, is embodied into the Nazul Rules. Where the DDA decides to allot Nazul land to the persons named in this reley, it is bound to charge premium from the allottees only at the predetermined rates. The right and corresponding duty contained in this rule is of a different kind than that sought to be invoked by the petitioner. The right or entitlement of any one tallotment of Nazul land is not regulated by this rule. It regulates only the rate at which premium shall be chargeable in certain cases, and it restricts the liability of allottees, in specified cases, to pay premium for allotment of Nazul land at there-determined rates, and no less and no more.
19. It is apparent that as per Nazul Land Rules 1981 alternative allotment can only be made where acquired land is placed at the disposal of DDA on acquisition by the Central Government. Even as per the policy of 1987, acquired land had to be placed at the disposal of DDA before right to an alternative plot could be claimed.
20. Purpose of the Nazul Rules and entitlement of an alternative plot is that when land is required for planned development of Delhi, D.D.A would consider how much land would be required for allotment to the persons affected and under the composite proposal, adequate land would be acquired, some after development to be allotted to the land owner and remaining utilized for planned development of Delhi. If land is not placed at the disposal of DDA, no right is intended to be vested for being allotted an alternative plot.
21. In the judgment , Jallandhar Improvementg Trust Vs. Sampuran Singh, it was held that where entitlement to a plot, post acquisition of land, is created under Rules, allotment has to be as per Rules. The Rules being considered created a right only in favor of a certain limited category of persons. It was held that none other than those who fell within the category could be allotted a plot on preferential basis.
22. Under the 1986 office order, less than 1 bigha of land, if acquired, would not entitle a person to alternative plot. There is rationale behind this policy. Raw land, on development results in less than 40% of the land being made available under plotted development. Rest goes under roads, parks, utilities etc. As noted above, 3 of the 4 petitioners had only 14 biswa of share in the acquired land.
23. Rule is discharged.
24. Writ petitions are dismissed.