Delhi High Court
P.P. Kapur, Kaushalya Devi And S. Kapur vs Delhi Development Authority on 14 August, 1987
Equivalent citations: 1987RLR614
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) This judgment will dispose of Civil Writ Petition Nos. 55 of 1971, 466 of 1973 and 573 of 1983 wherein common questions arise for consideration.
(2) The petitioners in these writ petitions are owners in various shares of 22 Bighas 8 Biswas of land in Khasra Nos. 371, 372, 373, 374 and 694/375 in village Kharera, Delhi.
(3) Initially by notification dated 15.3.56 issued u/s 4 of the Land Acquisition Act, there was a proposal to acquire 63 Bighas 10 Biswas of land in this village, including the land in question. This land was proposed to be acquired for the public purpose of construction of houses for South Delhi Cooperative House Building Society Limited. Subsequently this notification was withdrawn and the acquisition proceedings dropped.
(4) Sometime in the year 1957 the land in question was bought by the petitioners, who are all closely related to each other. It appears that the desire of the petitioners was to develop the land as a residential colony. Lay out plan; were prepared and the same were submitted with the Mcd prior to 24.10.61 for sanction The total area purchased by the petitioners and other relatives, in the said village, was about 40 Bighas 3 Biswas and the two colonies which were proposed to be established were to be known as Padmini Enclave and Kaushalya Park.
(5) On 24.10.61 another notification u/s - of the Act was issued wherein it was proposed to acquire about 16000 areas of land in Delhi including 40 Bighas 3 Biswas belonging to the petitioners and other relations in village Kharera. This notification, inter alia, excluded from its operation land in respect of which lay out plans and service plans had been sanctioned by the competent authority before 24.10 61.
(6) Lay out plans of the relatives of the petitioners in respect of the portion known as Padmini Enclave was regarded as having beer duly sanctioned and no action was taken to acquire the same because it was regarded by the respondents as being excluded from the operation of the said notification of 1961. The lay out plan of the petitioners, however, wa; not regarded as having been approved with the result that Civil Writ No. 211-D of 1962 was filed in the Circuit Bench of the Punjab High Court at Delhi challenging the said proposed acquisition. The contention of the petitioner were that lay out plans had been submitted to the Mcd for its approval and as the said plans were not rejected within the prescribed period they should be deemed to have been sanctioned and approved. By judgment dated 7.10.65 Mr. Justice P.D. Sharma upheld this contention and came to the conclusion that as the lay-out plans were deemed to have been sanctioned this became an approved colony and was no covered by the aforesaid notification of Oct. 1961.
(7) Letters Patent Appeals were filed by the Municipal Corporation of Delhi and the Chief Commissioner, Delhi against the said decision being L.P.A. Nos 143-D of 1965 and 138-Dofl965. By judgment dated 30.11.69 a Db of this Court dismissed the said appeals. The Division Bench agreed with the contention of the petitioners-herein that on a correct interpretation of the relevant provisions of the Delhi Mun. Corp. Act, the lay out plans which had been submitted for the proposed colony should be deemed to have been approved and, therefore, were exempted from acquisition by virtue of the provisions of the notification of 1961.
(8) A fresh round of battle started thereafter. On 47.70 another notification was issued u/s 4 of the Act in respect of 14 Bighas 18 Biswas of Khasra Nos. 373, 374 and 694/375 in village Kharera proposing to acquire the same for planned development of Delhi. Soon thereafter a corrigendum was issued by notification dated 25th July, 1970 wherein the aforesaid purpose of acquisition was substituted by new purpose which was "Housing Scheme of the DDA." A third notification was issued on 19.9.70 also u/s 4 of the said Act, in respect of 7 Bighas 10 Biswas of land in the same village comprising of field Nos. 371, 372 and it was stated therein that the land was required for housing scheme of the DDA.
(9) The aforesaid three notifications thus covered the total area of 22 Bighas 8 Biswas of land belonging to the petitioners in respect of which lay out plans for Kaushalya Park had already been submitted and were deemed to have been approved.
(10) The case of the petitioners is that despite the notifications u/s 4 of the Act having been issued, there was no publication of the same in the locality and the petitioners were not aware of the said notifications having been issued.
(11) Shri R.P. Kapur, the petitioner in C.W. 55/71 however, got knowledge of the issuance of the said notifications when, according to the petitioner, he happened to meet the Secretary, Land & Building of the Delhi Administration. He thereupon filed objections u/s 5A of the Land Acquisition Act. These objections were filed by him on own behalf & on behalf Smt Kaushalya Devi, Mrs. Shiela Kapur, Ashok Kumar, Lav Kapur and Kiran Kapur. It may here be stated that Mrs. S. Kapur is one of the petitioners in C.W. 573/83. The other petitioners did not file any objections because, as already noted, according to them they were not aware of the issuance of any of the three notifications u/s 4 of the Act in 1970. They have further stated that they did get to know about the issuance of the notifications but by the time they acquired the knowledge of the said notifications having been issued, the time within which objections could be filed u/s 5A of the Act had already expired.
(12) On 3.1.73 the respondents issued notification u/s 6 of the Act in which it was declared that the said land was being acquired at public expenses for a public purpose, namely, Housing Scheme of the DDA. After the issuance of the section 6 notification, the present writ petitions have been filed in which the notifications u/s 4 and 6 have been challenged.
(13) It was first submitted that in the present case the notifications issued u/s 4 of the Act are invalid because, prior to the issuance of the same, approval of the Lt. Governor had not been obtained. Elaborating this contention it has been urged that in respect of the Union Territory of Delhi it is only the Lt. Governor who is competent to decide and direct that land should be acquired and no notification u/s 4 or 6 of the Act can be issued without his prior approval. According to the petitioners though the impugned notifications purport to have been issued in the name of and under the authority of the Lt. Governor, in actual fact no such approval had been obtained prior to the issuance of the impugned notification u/s 4 of the Act. It is submitted that on this ground alone notifications u/s 4 of the Act should be quashed and the necessary corollary would be that the notification issued u/s 6 cannot also be allowed to survive.
(14) These petitions had earlier come up for hearing before Mr. Justice C. Talwar. During the course of arguments, two files of the Delhi Administration were produced before the Court. The files were examined in order to see whether the provisions of section 4 of the Act had been complied with and the approval of the Lt. Governor obtained. On that day, the following order was passed giving counsel for the respondents further opportunity to file an affidavit to substantiate the respondents' contention that the approval of the Lt. Governor had been obtained : "During the course of arguments Mr. Sabharwal appearing on behalf of the Delhi Administration in this petition has produced two files for my perusal. These files are F.9(19)70/Vol. Iv and N. P. 4(50)162 L & H Volume II. For the sake of convenience I would call them file No. 1 and file No. 2 respectively. In the first file by a note dated 12th May, 1970, Secretary of the Land & Building Department of the Delhi Administration had sought the following clarification from the Delhi Development Authority : "If it is decided that the entire land should be re-notified for acquisition, under a specific scheme, and not under the'planned' development of Delhi, then it may not be necessary 10 denotify these two Khasra numbers. Commissioner (implementation) D.D.A. may please let me know whether a specific scheme can be made out for this very attractive and valuable piece of land. It might also be necessary to get spot inspection made to determine whether or not the owners are proceeding with the approved layout plan".
(15) The file was marked to the said Commissioner of D.D.A. Mr. Jag Mohan who was the then Commissioner (Implementation) of the D.D.A. recommended that notification u/s 4 of the Land Acquisition Act be issued immediately by his note dated l5th May 1970. The file was dealt with again by the "Secretary, L & B, on 18th May, 1970. He recorded that since the D.D.A. has come forward with a specific scheme for the area of 22 Bighas and 8 Biswas in Hauzkhas, section 4 notification may issue immediately.
(16) Thereafter from this file it docs not appear whether the case was put up before the Lt. Governor for his approval prior to the issuance of notification u/s 4 of the Land Acquisition Act. In the second file also there is no indication that the matter was put up before the Lt. Governor before issuance of the impugned section 4 notification which was made on 25th July, 1970.
(17) To satisfy myself whether the mandatory provision of section 4 had been complied with, I asked Mr. Sabharwal to produce the file wherein prior approval of the Lt. Governor had been obtained. After receiving instructions from the officials of the respondents, who are present in Court, he submits that possibly there was another file which was sent to the Lt. Governor with all the nothings and the recommendations which are contained in file No. 1. He, however, is sure that the prior approval of the Lt. Governor was obtained, before issuance of notification u/s 4 of the Act.
(18) Mr. Kapur who is appearing in person points out that he had sought inspection of that very file but it was not shown to him. He has read the reply of the Delhi Administration to his application wherein it is stated that without correct number of the files inspection cannot be granted. At this stage, I am not deciding the question of inspection whether it was allowed as per the orders of the Court or not. As noticed above, I want to satisfy myself whether prior approval of the Lt. Governor was sought.
(19) I give an opportunity to Mr. Sabharwal to either produce the files in connection with the two notifications u/s 4 which are subject-matter of this petition and the connected petition bearing No. 466 of 1973. If, however, the files are not available, as is being urged by Mr. Sabharwal, who, as noticed "above, has been instructed to say so, the respondent No. 2 will file an affidavit to that effect within a week. A copy of the affidavit, if filed, be handed over to Mr. Kapur and Mr. Mathur, learned counsel for petitioner in C.W. 466 of 1973 who may file counter-affidavits, if they think it is necessary to do so, by the next date of hearing- Adjourned to 22nd January, 1985 for directions."
(20) On 14th March, 1985 affidavit of Shri S.C. Vajpayee, Secretary, Land & Building, Delhi Administration was filed. In this it was stated that the file which was put up before the Lt. Governor for his approval prior to the issuance of the notifications u/s 4 of the Act was not traceable. It was also stated therein that the said file was not traceable even at the time of the issuance of the notification u/s 6 of the Act. In this affidavit, names of the Departments/offices who were requested to trace out the file have been indicated. It was further averred that in view of the language of the notification, the Court must proceed on the basis that the approval of the Lt. Governor had been obtained.
(21) On 19th February, 1986 the counsel for the respondents filed a statement dated 30th January, 1986 in Court in which it was stated that the file which was put up before the Lt. Governor for his approval prior to the issuance of the notification u/s 4 of the Land Acquisition Act was not traceable and all efforts were being made to trace the same. It was, however, stated that there was another file which contained the approval of the Lt. Governor prior to the issuance of a declaration u/s 6 on 16th December, 1972.
(22) On 3rd August, 1987 when these petitions came up for hearing, no counsel appeared on behalf of the respondents. A notice was accordingly issued to the respondents to produce, on the next date of hearing, the two files which had been referred to by Mr. Justice Talwar in his order dated 10th January, 1985. Thereafter, during the course of hearing of these petitions I have had the assistance of counsel for the respondents who have produced the aforesaid files before me.
(23) It is not necessary to refer, in any great detail, to the various notes which exist on the aforesaid two files. It is, however, not in dispute that despite nothings by various officers there is no indication on any of these two files that approval of the Lt. Governor was ever sought for the issuance of any of the three notifications dated 4th July, 1970, 25th July 1970 and 19th September, 1970.
(24) It was vehemently argued on behalf of the respondents that the Court must presume that official acts have been done in accordance with the procedure established by law and reliance was sought to be placed on section 114 of the Evidence Act in this behalf. Now it is no doubt true that there is a presumption which is attached to the official acts which are done, but it is not denied that this presumption is not irrebuttable. When there is a serious challenge to the existence of a particular fact it is for the respondents to establish the existence thereof. In the present case it has been contended with some force, that prior approval of the Lt. Governor had not been obtained. According to the petitioners there have been occasions when notifications u/s 4 of the Land Acquisition Act have been issued without getting appropriate approval of the Lt. Governor and by presuming that the officers who authenticated the notifications had been empowered to take a decision in that respect. It is not necessary for me to go into this historical fact but it is important to note that in this particular case when serious challenge has been made, the respondents are duty bound to satisfy the Court that approval of the Lt. Governor had been obtained.
(25) It may happen that a relevant file may not be readily traceable. If the respondents are able to show that there was another file in existence which could have contained the signatures of the Lt. Governor and, further, that the said file was sent to the Lt. Governor for his signatures then even in the absence of such a file, the Court would be justified in presuming that the approval of the Lt. Governor had been obtained. In the present case, therefore, the respondents have to satisfy the Court that apart from the two files which have been produced so far, there was in existence another file containing a proposal for the issuance of S. 4 notification and, secondly, that the said file had been sent to the Lt. Governor for his signatures. Unfortunately for the respondents there is no averment any where, leave alone proof, about the existence of the illusive file. The notification contains a number F. 9(19)/70 L & B. A file bearing this number has been produced in Court but the same does not contain the signatures of the Lt. Governor. There is nothing to show that any other file was in existence which could have contained the proposal for the issuance of S. 4 notification. I am, therefore, unable to appreciate the contention of the respondents when they contend that the file containing the signatures of the Lt. Governor is missing. Unless the existence of a file is established, the question of examining whether the same is missing or not does not arise.
(26) During the course of arguments it was sought to be suggested, and in fact this is so stated in the affidavit of Shri Vajpayee of Mach, 1985, that the file containing the signatures of the Lt. Governor prior to the issuance of S. 4 notification had got misplaced even at the time when S. 6 notification was to be issued and, therefore, prior to the issuance of section 6 notification, the file had to be re-constructed. The respondents were given an opportunity to produce dispatch and receipt Register of Land & Building Department of Delhi Administration or of the Lt. Governor which may have indicated movement of file which may have contained therein a proposal for the issuance of S. 4 notification. Counsel for the respondents inform me that none of the two dispatch registers are available. If any of the two dispatch registers had been produced and if there was an indication that there was a movement of such a file from the Land & Building Deptt. or the D.D.A. to the Lt. Governor, I may still have been persuaded to accept (hat in all probabilities the Lt. Governor must have given his approval to the proposed action for acquisition of the land.
(27) In the absence of a file containing the signatures of the Lt. Governor and in the absence of any proof of the existence of any other file and further in the absence of any proof of the movement of such a file to the Lt. Governor for his approval, the only conclusion which one can arrive at is that the respondents have failed to show that the Lt. Governor had approved the issuance of notifications u/s 4 of the Act. This is not a case where only one notification u/s 4 was issued. As has been noted above, in the present case three notifications were issued dated 4.7.70, 25.7.70 & 19.9.70. In none of the cases are the signatures of the Lt. Governor or the movement register available or produced. The only conclusion which I can possible arrive at, in this state of the record, is that the approval of the Lt. Governor had not been obtained prior to the issuance of S. 4 notifications. This being so, the same have to be quashed and along with this the notification of 3.1.73 u/s 6 of the Act cannot also survive.
(28) Even though the writ petition can be disposed of on the ground that there is no proof of the Lt. Governor having accorded his approval to the issuance of S. 4 notifications, but as other contentions have been raised, 1 propose to deal with them.
(29) In C.W. 55/71 it has been contended by Shri R.P. Kapur that though objections had been filed by him u/s 5A, the same were not considered. The counsel for the respondents has placed before me file No. 9 (19) 70/L & B, Volume 4 in which approval has granted by the Lt. Governor on 20.12.72 to the issuance of the notification u/s 6 of the Act. There is a note dated 2/3rd August, 1972 in which it has been stated that the L.A. Collector had intimated that objections u/s 5A had been received and he had forwarded the same along with his comments to the Chief Secretary, Delhi Administration by his letter dated 27.1.71. Neither the objections nor this letter 27th January, 1971 of the L.A. Collector was available with the Department. The L.A. Collector was then asked to send copy of the objections u/s 5A. Vide letter dated 6.9.72 the L.A. Collector forwarded to the Delhi Administration a copy of the earlier letter dated 27.171 containing the recommendations of the L.A. Collector on the objections filed u/s 5A. It was, however, stated in this letter of 6.9.72 that copies of the objections and other enclosures had been sent along with the original of the aforesaid letter of Jan. 1971 and the same were not available with the LA. Collector in 1972. The perusal of the file clearly shows thatwhenon20.12.72 the then Lt. Governor accorded his approval to the issuance of the notification u/s 6 of the Land Acquisition Act, the objections which had been filed u/s 5A of the Act by Shri R P. Kapur were not available or traceable, it is clear, therefore, that the decision to issue the declaration u/s 6 was taken by the Lt. Governor without considering the objections which had admittedly been filed. It is no doubt true that in the note which was put up to the Lt. Governor, there is a reference to the pleas which are stated to have been taken by Shri R.P. Kapur in his objections but there is nothing to indicate in the file that the objections which had been filed by Shri R.P. Kapur had been traced and were placed before the Lt. Governor for his consideration.
(30) As regards the other petitioners, it has been categorically averred, and strongly urged by Mr. Mathur, that there was no publication u/s 4 of the Act notwithstanding the mandatory requirements of S. 4(1) of the Act. In the return to the petition, it has been contended as follows : "In reply to para 17 of the petition, it is submitted that notices u/s 4(1) to Jumla Malkan were issued on 15.10.1970 regarding notification No. F. 9 (19)/70- L& H dated 4.7.1970 (read with corrigendum notification No. F. 9 (19)/70-L & H dated 25.7.70) and notices under Section 4(1) Jumla Malkan regarding notification No. F. 9 (19)/70-L & B dated 19.9.1970 were issued on 3.12.70 and serviceeffectedon7.12.70. The allegations of the petitioners are, therefore, devoid of any merit." The aforesaid averment has been denied by the petitioners in their rejoinder.
(31) During the course of arguments, counsel for the respondents were asked by me to substantiate the averments made in paragraph 17 of the return. It may here be noticed that this counter-affidavit of Shri Krishna Pratap, Deputy Secretary, Land & Building Deptt., Delhi Administration has been verified as being true to his knowledge based on official record. Counsel for the respondents state that no record is available which can indicate the dispatch or issuance of the notices referred to in the said return. There is no proof available with the respondents that there was any publication of the notifications in the locality. The nothings in the file regarding the publication of the notices on 15.10.70 and 3.12.70 is no proof that the notices were in fact dispatched. In connection with this it cannot even be contended that the records are missing. In fact no such plea has been put forth. The affidavit of Mr. Krishna Pratap is based on the official record and the official record does not disclose even the dispatch of any notices or any other mode of publication of the notifications u/s 4 of the Act. It is not in dispute, and it is indeed well settled, that it is mandatory to comply with the provisions of S. 4(1) of the Act (see Narinderjit Singh v. Slate of U.P., : and Collector (D.M.) Allahabad v. Raja Rum, ). The non-compliance of these mandatory provisions has resulted in the petitioners being deprived of their very valuable right to file the objections, within the prescribed period, u/s 5-A of the Act. As the said provisions have not been complied with the notification dated 3.1.73 u/s 6 of the Act has to be quashed.
(32) As this stage one cannot help but reflect about the stale of affairs and the manner in which the respondents have functioned. The 1987 Rajdhani Law Reporter 626 notifications u/s 4 were issued in the year 1970, the last one being on 19th September, 1970. Shri R.P. Kapur filed C.W. 55 of 1971 on 4.1.71. Once there is a challenge in Court to the validity of notifications issued u/s 4 and it is also contended that there has been no valid publication of the said notifications in the locality, one would have expected the respondents to take care and preserve all the records which can be regarded as being relevant to the case. It is not as if the notifications u/s 4 have been challenged after a long lapse of time. If there had been a delay in the challenge to the section 4 notifications then one could have possibly, and readily, accepted the contention of the respondents that despite their best efforts the relevant record is not readily available. In the present case, however, the challenge to the impugned notifications has been made without any undue delay. If, therefore, no file is made available which can show the approval of the Lt. Governor to the issue of the notifications u/s 4 or show the publication of the notifications or notices in the locality, then the only fair conclusion which can be arrived at is the one which I have reached in this case, namely, there has been no approval of the Lt. Governor prior to the issuance of the notifications u/s 4 and, secondly, there has been no publication of the notifications u/s 4 in accordance with the provisions of S. 4(1) of the Act. It is difficult to accept that the respondents would be so inefficient as not to preserve or maintain the record which was vital to the case when challenge has been made even prior to the issuance of S. 6 notification.
(33) It was lastly contended that the acquisition in the present case is liable to be quashed because of the colourable exercise of power by the respondents. The submission of the petitioners in this regard is that the colony of the petitioners had been approved, as held by the D.B. in its judgment of 1969 and there has not been a single instance where an approved colony has ever been acquired under the provisions of the Land Acquisition Act. According to the petitioners the acquisition of land in question is for ulterior purposes or in any case for extraneous reasons.
(34) The provisions of the Land Acquisition Act do not and cannot prevent the authorities from acquiring a land even if the land in question is a residential land or forms part of a residential colony. In this case, however, the contention is that the respondents have deliberately chosen the land belonging to the petitioners because its earlier attempts to acquire this land had proved unsuccessful. There is, to my mind, considerable force in the contention of the petitioners that there is no discernible reason available from the files and the record which would show as to why there has been a deliberate departure from the normal policy which has been followed by the respondents with regard to the acquisition of land in Delhi. It has been accepted by the learned counsel for the respondents that in no case has land of an approved colony ever been acquired in Delhi. If this is so, there has to be a. good reason as to why departure is sought to be made in the instant case. It is not as if no other land was available in Delhi for housing schemes of the DDA. In fact the housing scheme for this area had not even been approved or sanctioned by an appropriate resolution of the Dda till 5.6.73 when resolution to this effect was passed by DDA. The first notification u/s 4, which has been impugned in the present case, was issued nearly 3 years earlier i.e. on 4.7.70. It is difficult for me to accept that the need in 1970 for the housing scheme was so great that a deliberate and conscious departure from the normal policy of the Delhi Administration had to be made so as to acquire land of an approved colony.