Delhi High Court
Shri Yash Pal Singh vs Union Of India (Uoi) And Ors. [Along With ... on 9 November, 2006
Author: J.P. Singh
Bench: Mukul Mudgal, J.P. Singh
JUDGMENT J.P. Singh, J.
1. Both these writ petitions are being disposed of by this common judgment because the facts are similar. In these writ petitions under Article 226 & 227 of the Constitution of India, it is prayed that a writ of certiorari or any other writ or direction be issued for quashing notification No. F-1 (16)/80/L&B dated 5.11.1980 under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) and declaration No. F.9 (18) 85-L&B dated 21.5.1985 under Section 6 of the Act and also for quashing the award No. 13/87-88 in respect of the lands of the petitioners, comprised in khasra No. 228 measuring 8 bighas 6 biswas (CWP No. 1466/2003) and in khasra No. 227 measuring 2 bighas 13 biswas (CWP No. 1508/2003) in village Saidulajaib, New Delhi and for restraining the respondents from taking any action qua the above mentioned lands.
2. We have heard Mr. N.S. Vashist, Advocate learned Counsel for the petitioner and Mr. Sanjay Poddar, Advocate learned Counsel for the respondents.
3. It is contended on behalf of the petitioners that they purchased land in khasra No. 228 measuring 8 bighas 6 biswas (CWP No. 1466/2003) and in khasra No. 227 measuring 2 bighas 13 biswas (CWP No. 1508/2003) in village Saidulajaib and necessary entries are said to have been made in the khatoni (Revenue Record). However in para-3 in the petitions it is stated that the petitioners are the legal owner by virtue of inherited lands and are in peaceful possession of the same. It is averred that it was falsely stated in the above referred notifications that land was to be acquired at public expense for public purpose namely planned development of Delhi. The petitioners filed objections under Section 5-A of the Act before the Collector, the petitioners were given a notice for hearing and for giving evidence, if any, on the objections and another notice was promised for giving personal hearing but no effective and real opportunity of hearing was given and in fact the Collector was transferred before submitting the report to the Lt. Governor.
4. It is alleged that validity of the notification dated 25.11.1980 under Section 4 of the Act was challenged in several writ petitions which however were dismissed on 15.11.1983 (CW 426/1981 titled "Munni Lal and Ors. v. Lt. Governor and Ors.") holding that master plan could always be amended and that the purpose stated in notification dated 25.11.1980 was not vague and ambiguous.
5. It is pleaded that after expiry of three years [Sections 6(1) Proviso (i)] from the date of notification under Section 4 of the Act petitions were filed for quashing the notification under Section 4 of the Act alleging that the notification stood exhausted by limitation. Interim order was passed in the said petitions staying the dispossession. It is averred that the respondents in the said petitions contended that the stay orders passed in the original petitions were of general nature and not restricted to the petitioners only in those cases. The orders were in "rem" and not in "personem" and the said period shall be excluded for computing the statutory limitation of three years. It is alleged that on 4.6.1985 the Land Acquisition Collector had changed. The new Land Acquisition Collector had no justification to give a report on the objections of the petitioners under Section 5A of the Act, without affording a fresh opportunity and that the Lt. Governor acted mechanically on the said report and issued declaration under Section 6 of the Act. On these grounds the declaration under Section 6 of the Act is challenged to be illegal, void and without jurisdiction.
6. It is contended that the action of the respondents is only for freezing the land and it is not required for any public purpose or for planned development of Delhi and that the land in question still continues to be agricultural land and falls in the green belt. The action of the respondents is stated to be malafide.
7. Learned Counsel has, therefore, emphasized that the question whether the declaration under Section 6 issued beyond the statutory period of three years from the notification under Section 4 of the Act is valid, was referred to the full Bench of this Court. On 25.7.1987 the full Bench held that the period, during which a petitioners had obtained stay in respect of action or proceedings to be taken in pursuance of the notification issued under Section 4(1) of the Act, is to be excluded and after doing so the declaration under Section 6 dated 7.6.1985 was found to be within time. However the matter was remitted to the Division Bench and vide judgment dated 18.11.1988 the Division Bench quashed the entire acquisition proceedings in respect of 11 villages and those writ petitions were allowed.
8. It is argued that another batch of writ petitions dealing with same acquisition proceedings was disposed of vide judgment 16.5.1989 in CWP 51/89 titled "Balbir Singh v. UOI" and directions were given to hand over vacant possession of the land after obtaining refund of compensation with interest @ 12 % per annum. It is contended that the petitioners had never withdrawn the compensation pursuant to award No 13/87-88 (in question) and are in actual possession of the land.
9. It is submitted that the DDA preferred an appeal against Balbir Singh's judgment dated 16.5.1989. The Supreme Court dismissed the same referring to the Balak Ram Gupta's case but held that Balak Ram Gupta's case was confined to 12 villages only (73 petitioners). There is also reference to the judgment in Abhey Ram's case (1997) 5 SCC 421, wherein it was held that those land owners who had not filed objections under Section 5-A of the Act before the Land Acquisition Collector could not be allowed to contend that the Section 5-A inquiry was bad and that Section 6 declaration must be struck down and consequential Section 4 notification would lapse. If, however, no objections were filed under Section 5-A of the Act, then logically Section 6 declaration must be deemed to be in force so far as the said petitioners who did not file objections under Section 5-A are concerned and only those who had filed objections under Section 5A could contend that Section 6 declaration should be struck down.
10. It is further submitted that the respondents are visiting the land in question and are attempting to take possession. It is contended that the Additional Secretary (NCR) to Divisional Commissioner, New Delhi has informed that all cases of non petitioners where award has been made and land owners had obtained NOC to transfer the notified land under the provisions of Delhi Lands (Restriction on transfer) Act 1972 and where the transferees have got their names mutated in the revenue record, their mutation should be cancelled as being illegal as the land stands acquired in the absence of any court order in favor of the land owners.
11. As per order-sheets of these petitions, on 13.9.2006 apparently in view of the judgments that cover these two writ petitions and having filed a writ petition earlier (though in para 38 of these writ petitions it is categorically pleaded that no similar writ petition has been filed), the learned Counsel for the petitioners had sought time to seek instructions for withdrawal of the petitions but has now reiterated the contentions raised in the petitions and has pressed for a decision on merits.
12. The respondent No. 2 DDA has filed a short affidavit denying the factual pleas raised in these petitions. It is submitted that the judgments referred to on behalf of the petitioners are not attracted. The award No. 13/87-88 has become final and binding. It is submitted that the petitioners have not come to the court with clean hands and have concealed material facts. The answering respondent was handed over physical possession of the land in question on 17.7.1987 by the LAC/L&B Department. The "kabza karwai" showing taking possession of land in khasra No. 227 & 228 has been filed. The said "kabza karwai" is signed by 9 persons and thereafter the land has been handed over to the DDA. There is no rejoinder denying the "kabza Karwai".
13. The learned Counsel for the respondents emphasized that the petitioners have no case on any ground and has cited Ajit Singh v. UOI and Ors. . In this judgment after discussing several judgments it has been held as under:
In view of this settled position of law, we are of the considered view that this petition is liable to be dismissed on the ground that the land in dispute already stands vested in the Government in view of its possession having been taken over by the Government in pursuance of provisions of Section 16 of the Act. Since the question of Government having taken possession of the land is of paramount importance for purposes of preliminary objection, we have already referred to the various admissions on the part of the petitioners in the writ petition that the possession is with the respondents and one of the reliefs in the petition being that the respondents be directed to hand over possession of the lands to the petitioners. We would like to note here that the respondents in their counter affidavit have very clearly and categorically asserted that they are in possession of the lands in question. They have also relied on official records regarding taking over possession of the lands. There is no rebuttal or denial of this assertion. No attempt was made to file any rejoinder to controvert these assertions of the Government. Therefore, it is established beyond doubt that the Government had taken over possession of the lands after the award as per provisions of Section 16 of the Act. The lands stood vested in the Government. The owners like the petitioners were divested of their ownership of the lands.
14. Secondly the learned Counsel for the respondents has argued that the present petitions were highly belated and are covered by the judgments in CWP 3186/2000 titled Raghbir Singh v. UOI and Ors. decided on 19.5.2005 & CWP 809/92 titled Santosh Kumar v. UOI and Ors. decided on 26.5.2006.
15. In the Raghbir Singh's case also notifications were issued on 5.11.1980 under Section 4 of the Act and declaration was issued on 25.11.1985. Awards were made in 1987-88. Reliance was placed by the petitioners on Balak Ram Gupta's case and the connected 12 south Delhi villages. In the said matters also the petitioners had tried to explain the delay by stating that they believed that Balak Ram Gupta's case was applicable to all the villages because the respondents had neither challenged the said decision nor did they make any attempt to take possession. The respondents even issued no objections certificates to some persons for transfer of the said lands. Therefore the petitioners in the said cases were always under the impression that their lands stood denotified by implication. It is observed in the said judgment that the petitioners alleged that they realized in 1997 when the Supreme Court held in Abhey Ram v. UOI reported in (1995) 5 SCC 421 that Balak Ram Gupta judgment was applicable only to the 73 petitioners in that batch of petitions. It was pleaded that the said judgment gave a cause of action to the petitioners to challenge the notifications and further that physical possession had not yet been taken over by the respondents. Only in 1999-2000 attempts were made to dispossess them, when they approached the court.
16. It has been held in Raghbir Singh's case (supra) that there were two periods of delay. One from 1985-86 to 1987-88 between which the notifications were made and the award was passed and the second after 1997 when Abhey Ram's case was decided by the Supreme Court. After thoroughly discussing a large number of judgments the court found that the petitioners did not avail of the opportunity from 1985 till 1988 and again from 1997 to 1999 and dismissed a batch of writ petitions on the ground of delay and latches.
17. We have also gone through the judgment titled Santosh Kumar v. UOI and Ors. In the said writ petition also the notifications dated 25.11.1980 under Section 4 of the Act and the declaration dated 18.6.1985 under Section 6 of the Act and the consequential award were challenged. In the said matter also reliance was placed on the case titled Balak Ram Gupta & UOI and Ors. (Supra) and Balbir Singh (supra). Firstly the possession was sought to be restored and in 1992 the petitions were amended to add prayers for quashing the afore mentioned notifications and the award. The DB relied upon Abhey Ram's case (supra) and DDA v. Gurdip Singh Uban and Ors. . The main attack of the respondents was regarding the delay and latches between 1985 when the declaration under Section 6 of the Act was issued and 1988 when Balak Ram Gupta's judgment was delivered. The question in the said petition was as to whether the petitioners acquiesced in the proceedings of Land Acquisition Collector and allowed the same to be completed and consequently could not challenge the validity of notifications belatedly. In the said petitions also the petitioners had alleged that proper opportunity for hearing on the objections under Section 5A of the Act was not given. The DB relied upon several judgments and opined that if the petitioners were prejudiced or aggrieved by the non conduct of a proper inquiry under Section 5A of the Act and non examining of the report submitted to the Lt. Governor, the proper stage at which those grievances could and ought to have been made was immediately after the issuance of the declaration under Section 6 of the Act.
18. The DB also discussed judgments in which the Hon'ble Supreme Court had not approved of the High Court's interference with the acquisition proceedings after the possession of the land was taken over and the land stood vested in the government and finally held that there was no explanation for the delay in the following terms:
30. The legal position that emerges from all the above decisions is that while the High Courts have the discretion to entertain a petition under Article 226 of the Constitution, it would be sound exercise of that discretion if the Court refuses to interfere with land acquisition proceedings in cases where the land owners have allowed the authorities to complete the said proceedings and challenge the same at a belated stage. The land owners cannot allow the proceedings to go on, accepting by their silence, the validity of the notifications under Sections 4 & 6 of the Act and then turn around to challenge the same after the Collector has made his award or dispossessed the owners on the basis thereof. Even if the period post-Balak Ram Gupta's judgment is deemed to have been explained, there is no explanation for the pre-Balak Ram Gupta period of three years, which is sufficient to justify the dismissal of these petitions on the ground of delay and latches.
19. The above cited judgments are fully applicable to the present petitions. The present petitions were filed on 22.2.2003 i.e., after about 23 years from the date of notification dated 5.11.1980 under Section 4 of the Act. In our view these petitions cannot be entertained due to the inordinate delay and latches.
20. As regards objection under Section 5-A of the Act, we may mention that in the copy of the objections in CWP No. 1466/2003 (page 87 of the paper book) in fact there is hardly any objection because the objector is one Lal Singh (not the petitioner) and he has demanded copies of the "land use" plans for filing objections and in the alternative sought enhancement of compensation. In CWP No. 1508/2003 the copy of objections is interpolated in para 6 (page 95 of the paper book) by putting correction fluid on previous khasra Nos. and khasra No. 227 has been inserted in hand. This itself creates doubt and suspicion, about authenticity of the objections. The so-called objections under Section 5-A of the Act were really not the objections. The objector in CWP No. 1466/2003 was a different person seeking "land use" plans and in the alternative enhancement of compensation. There are interpolations in the so- called objection in CWP No. 1508/2003.
21. We, therefore, reaffirm the legal positions regarding objections under Section 5-A of the Act. On this aspect the relevant portion from the judgment titled Delhi Administration v. Gurdip Singh Uban is reproduced hereunder:
52. Now objections under Section 5A, if filed, can relate to the contention that (i) the purpose for which land is being acquired is not a public purpose (ii) that even if the purpose is a public purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land already proposed or some other land to which the objector may refer or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and objection (iii) is personal to the objector.
53. Now in the (ii) and (iii) type of objections, there is a personal element which has to be pleaded in the Section 5A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had "waived" all objections which were personal and which he could have raised. However, so far as objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose.
54. Learned Solicitor General Sri Salve rightly argued that in respect of each land owner whose land is acquired, the Section 4 notification if it is sought to be avoided on personal grounds as stated in (ii) and (iii) above, it is necessary that objection be filed to avoid a voidable notification. Otherwise, the notification which is not avoided on any personal grounds, remains operative and personal objections are deemed to be waived.
22. Learned Counsel for respondents has submitted that again a false statement has been made that the LAC who had heard the objections did not submit the report to the Lt. Governor and has drawn our attention to the judgment titled Balak Ram Gupta v. UOI (Supra), in which page 153 shows a chart submitted in the said petition by the petitioners, showing the name of the Collector who had heard the objections and the name of the Collector who had submitted the report under Section 5 of the Act to the Lt. Governor. This chart shows that as regards village Saidulajaib the objections were heard by Shri D.B. Kubba, LAC and the report was also submitted by Shri D.B. Kubba, LAC. This belies the allegations of the petitioners.
23. Considering all the facts, circumstances and the law, we are of the opinion that there is inordinate delay and latches of 23 years in filing the petitions; there is concealment of material facts (regarding earlier petition) and there are false averments regarding objections under Section 5A of the Act. The petitions are, therefore, dismissed with Rs. 20,000/- (Rupees Twenty Thousand) each, as cost which be deposited with Delhi High Court Mediation & Conciliation Cell within 8 weeks from today.
24. One copy of the judgment be sent to Delhi High Court Mediation & Conciliation Cell and be also placed on the file of CWP 1508/2003.