Delhi High Court
Baldev Singh Dhillion And Ors. vs Union Of India (Uoi) And Ors. on 26 May, 2005
Equivalent citations: 121(2005)DLT606
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. In this batch of writ petitions relief claimed is the same. All the petitioners are impugning Notification dated 23rd June, 1989 issued under Section 4 of the Land Acquisition Act (in short 'the Act') and declaration dated 22nd June, 1990 issued under Section 6 of Act. There is some dispute about the dates of publication of these notifications which would be taken note of at appropriate stage. What needs to be noted at this stage is that all these petitions were heard earlier by a Division Bench of this court comprising of Mahinder Narain, J. and J.B. Goel, J. Lead case was Writ No. 2556/1990. After hearing the parties the two Judges differed with each other. In their separate pronouncements dated 11th September, 1996, while Mahinder Narain, J. Held that the impugned notifications were illegal and quashed the same, according to J.B. Goel, J., there was no infirmity in the two notifications, which were perfectly legal and valid and, therefore, writ petitions were required to be dismissed. In view of these divergent opinions, matter was referred to the third Judge. However, for some reason or the other the matter kept pending and ultimately entrusted to me in December, 2003. Mr. P.N. Lekhi, Senior Advocate, argued the matter for the petitioners and those arguments were adopted by other counsel appearing for the petitioners. Mr. S.N. Kumar, Senior Advocate also supplemented these submissions. On behalf of Union of India Ms. Gita Luthra made the submissions and Mr. J.M. Sabharwal, Senior Advocate, argued the matter for the DDA.
2. Before coming to the grounds of challenge to the two notifications, it would be appropriate to give some background which led to passing of these notifications and the subject-matter involved.
3. The land in question is large tract covering numerous villages, 15 villages to be precise, on the bank of river Yamuna. Total area of the land is 3500 hectares. Purpose of acquisition is "Planned Development of Delhi, viz. Channelization of Yamuna River". Notification dated 23rd June, 1989 under Section 4 of the Act was issued which, according to the respondents, was published in the Delhi Gazette on 23rd June, 1989, in 'Veer Arjun' (Hindi) on 21st July, 1989 and in 'The Times of India' (English on 22nd July, 1989 and was also notified in the locality on 17th July, 1989. Some of the persons, likely to be affected thereby had filed objection under Section 5A of the Act. These objections were considered by the Land Acquisition Collector, who submitted separate reports in respect of each village and after consideration thereof the Government issued declaration dated 22nd June, 1990 under Section 6 of the Act. According to the respondents, this declaration was duly published in the Delhi Gazette on 22nd June, 1990.
4. It may be noted at this stage that whereas in Section 4 notification, land was described by boundaries, declaration under Section 6 gave specifically the names of nine villages and also mentioned khasra numbers and area comprised in each khasra number which was to be acquired. Simultaneously with Section 6 declarations Government also issued notification dated 22nd June, 1990 under Section 17(1) of the Act.
5. When Writ Petition No. 2556/1990 came up for hearing on 10th August, 1990, while issuing show cause notice the Division Bench ordered status quo.
6. When the matter was earlier finally argued before the Division Bench which led to passing of two separate opinions dated 11th September, 1996, the petitioners pressed primarily three sets of challenges to the notification. These were: (a) notifications were in breach of the provisions of the Act; (b) no plans were prepared for development of the area covered by river Yamuna and without these plans area could not be acquired for particular purpose; and (c) manner and method postulated by the provision of the Act dealing with the notifications for acquisition had not been adhered to. It was also contended that a large number of notifications had been published in the purported exercise of powers under Sections 4 and 6 of the Act which were at variance with each other and thus, there was a fraud on the statute in the matter of publication date of the said notifications. This also affected the statutory rights of the petitioner under Section 5A of the Act.
7. JUDGMENT OF MAHINDER NARAIN, J.
Perusal of this judgment would show that after reproducing the two notifications and taking note of arguments attacking the legality and validity thereof, the learned Judge addressed himself with the basic question of as to what is channelization, which, according to the learned Judge, was a basic question as the land was sought to be acquired for 'Channelization of river Yamuna'. The learned Judge proceeded to observe that in view of what was stated in the notifications for acquisition and the Master plan Perspective 2001, three things had to be explained by the respondents.
"(i). How is river Yamuna to be made pollution free? (As this is stated in the Master Plan for Perspective 2001).
(ii) How is river Yamuna to be channelised? (This is the stated purpose of acquisition of land in the notification under Sections 4 and 6 read together).
(iii) Is it correct to say that river Thames in London and river Siene in Paris have been channelised? (It is slo asserted in the Master Plan Perspective 2001)."
8. However, noted the learned Judge, these questions were not answered by the respondents for fear of adverse effect on their case. Although, according to him, the answers were quite simple inasmuch as (i) River Yamuna is to be made pollution free by treatment of the drain waters discharged into it; (ii) River Yamuna is to be channelised by making plans, maps, alignments, depth of flow charts of its course through the Union Territory of Delhi, working drawings etc., all drawn to scale; and (c) River Thames has throughout centuries been navigable river. There is no need for deepening its channels. Observation was also made that these answers were found by the learned Judge himself from the information gathered by him. Thereafter there is erudite and scholarly exposition of what are the various methods of water treatment known all over the world; what constitutes river channelization and in the process delved into the discussion regarding canals, including Baaj Canals and Ship Canals. Since the Master Plan Perspective 2001, while envisioning channelization of Yamuna, referred to purported channelization of river Thames in London and river Siene in Paris, the learned Judge has made indepth study in this behalf and concluded that in view of what was found by him about river Thames (no information could be obtained with respect to river Siene) it was quite apparent that what is stated in the Master Plan regarding channelization of river Thames was absolutely incorrect. After addressing history of river thames, the learned Judge recorded the finding that river Thames was used for navigation since Saxon times. According to him, even river Siene was used for navigation purposes. Therefore, it was not possible to accept the claim of the DDA, as contained in the Master Plan, that channelization would result in "unlimited opportunities to develop the river fronts like Thames in London or Siene in Paris".
9. Judgment then proceeds to give the details, geographical and others, of river Yamuna, which has its beginning at Yamunotri at a height of 332 meters in Himalayas in U.P. and traverses a distance of 1400 kms. merging with river Ganges at Allahabad in U.P., in the process passing through Delhi as well. The manner in which it flows in different parts of the States of U.P., Haryana, Delhi and gets polluted in the process is also discussed. It is noted that as it flows through Delhi and places in Brinda Ban and Mathura, it has been converted into a large drain. The poor maintained waters are excluded from it by the two channels. The learned Judge expresses his concern over this sorry state of affairs and remarks that it would be far simpler to feed the channels of Haryana with waters from two rivers, Satluj and Vyaas through the Ganga Sagar by constructing the suitable linking canals. It is also commented that one way of improving the quality of water for Delhi would be to increase the supply of pure water in river Yamuna. Increased supply of water would automatically bring down the percentage of pollutants in the Yamuna waters. Primarily the drains that discharge water in Yamuna must have water treatment to eliminate the polluting water. Therefore according to the learned Judge, the remedy is to increase the discharge of pure water in the natural bed of river Yamuna at Tejawala. If necessary this be done by reducing the flow of water into the Eastern and Western Yamuna canals. Increasing the quantity of pure water would itself have the consequence of reducing the percentage of impurities in river Yamuna in Delhi. Extracting from Master Plan Perspective 2001, where it is emphasised that river Yamuna is to be made pollution free, the learned Judge held that till Yamuna was made pollution free it would be a folly to carry on any scheme of making "recreational areas" and urban development on the course of river. I may quote the exact observations in this behalf.
"Till Yamuna is made pollution free, it will be a folly to carry on any scheme of making "recreational area". Unless the river is made pollution free, instead of providing healthy environment, any development proposal will ensure disease, if not epidemic. Instead of providing "recreation" the polluted river will spread sickness, and death. Yamuna which is not pollution free, is only likely to be a source of misery rather than "recreation" for the citizens of Delhi.
The Master Plan 2001 refers to "channelisation" of river Yamuna in following terms:-
"River in the major metropolitan cities the world like Thames in London and Seine in Paris have been channelised providing unlimited opportunities to develop the river fronts. After the results of the model studies for the channelisation the river Yamuna become available, development of river front should be taken up. Considering all the ecological and scientific aspects, as a project of special significance for the city."
The above said observations make it clear that till the time of writing of the Master Plan Perspective 2001, the results of model studies on channelization for river Yamuna had not become available. The Master Plan itself postulates that till such studies are made available, river front development should not be taken up."
xxxxx As stated hereinabove, the quality of water in the river Yamnua is categorised as 'E'. This makes the water of river Yamuna unfit for even animal consumption. It appears to me that unless quality of water is improved to make it fit for human consumption, it is pointless to talk in terms of channelising. I see no useful purpose in channelising something which is mere drain without first ensuring that waters discharged by the drains are so effectively treated that the River waters of the drains which are discharging sewage waters into the river Yamuna, which come from various parts of city of Delhi, are properly treated there is no likelihood of water of river Yamuna being rendered free from dangers to the health of the citizens and visitors of Delhi.
10. In this context the learned Judge made following comments on the impugned notification issued under Section 4 :-
A reference to the notification under section 4 of the Act, reproduced hereabove, indicates that the plans for channelisation of the river Yamuna, have not been publicly disclosed in the notification dated 23.6.1989. The said notification stated that the land which is the subject matter of the acquisition, is needed for public purpose, namely, the 'Planned Development of Delhi.' This notification as one reads along, appears to say that what was to be acquired, was the land on which the river Yamuna lows throughout its length in the Union Territory of Delhi, as also lands which are its flood plains. This notification, inasmuch as it does not even mention channelisation, in our opinion, makes very strange reading, as the land under the river is expetd to be under water, and it appears to be very strange "Planned Development of Delhi" which planned development of River Yamuna is to be done by "carrying out of building, enginnering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment" on the water bed of River Yamuna, and beyond its normal water channel, on sand.
It also makes strange reading, because the rivers of India are natural resources of this country. All the natural resources of the country must exist, and continue to exist and must be preserved for the benefit of the citizens of India. It is not possible without valid legislation for that purpose, for the natural resource like River Yamuna, a perennial river to be exclusively appropriated to any authority, whether local body like the D.D.A., or the Delhi Administration."
11. To support this view discussion is embarked on various provisions of the Constitution of India, particularly on the various items in three lists of the Seventh Schedule. The judgment up till this stage, it would be clear from the aforesaid analysis, strikes at the basis of the notification and the idea of channelizing river Yamuna, which according to the learned Judge, was not even permissible or possible at this stage. After recording this finding the judgment then proceeds to discuss the legal aspects of the impugned notification and holds:
(i) notification under Section 4 of the Act recites that "may showing the boundaries of the land covered by this notification, is available for inspection in the office of the Collector of Delhi". It is observed that this map was not filed either with the petition or with reply and was produced only when the Court wanted to see the map mentioned in the notification. After perusing the said map the learned Judge was of the opinion that only those persons who are well conversant with the lands in Delhi and well conversant with the map drawing techniques and can read maps would be able to identify the land which was likely to be acquired. It would not be fair to expect that lay persons, specially those who are carrying on agricultural activities in the flood plains of river Yamuna, would be able to locate with any accuracy whether their own bed of land was covered by the notification under Section 4 of the Act or not and, thus, to that extent the impugned notification lacked any material particulars;
(ii) since model status of channelization of river Yamuna had not become available at the time of issuance of the impugned notification, condition precedent to the plan for channelization not having been fulfillled, notification under Section 4 of the Act sould not have been issued. In any case since Master Plan for Delhi postulated that before channelization is undertaken the waters of river Yamuna in the Union Territory of Delhi had to be made pollution free and as this pollution free Yamuna had not bee achieved notification under Section 4 of the Act could not be issued inasmuch as the public purpose stated in the notification under Section 4 of the Act was presently non-existent; and
(iii) procedure laid down by law was not followed, as there was no plan indicating line of flow of river Yamuna after "Channelization" or re-routing of river Yamuna and, therefore, declaration under Section 6 was a fraud on powers and violative of Article 300A of the Constitution.
(iv) The learned Judge also held that Section 6 notification was not published within two years of Section 4 notification which was vital to the acquisition proceedings and the notifications were liable to be struck down on that account as well. According to the learned Judge, there was no "publication" in law, the statutory requirement not having been satisfied. After referring to certain case law on the subject the learned Judge observed as follows:
"What is stated hereinabove, is relevant while considering the vague boundary description mentioned in notification under Section 4 of the Act, and the unintelligible map which was staged to be available in the office of the Collector-not even printed and published. The notification under section 6 had to be published within time limited by section 4 of the Act, i.e. within one year. There is adequate evidence in this case to show that section 6 notification was not available with the distributors for distribution within the period of one year stipulated by the Act, it cannot be said that the Section 6 notification has been published in the manner mandated by the Act. It appears to us that there has been no publication of notification and as such the acquisition proposed by the notification is liable to be quashed."
(v) The learned Judge also found fault and infirmity in the purported publication of the notification in the locality as required by Section 6 of the Act. The learned Judge also held that since there was no proper publication of Section 4 notification in the locality, the residents/affected persons were denied their right to give proper and effective representations/objections under Section 5A of the Act. Since there were no plans for channelization of river Yamuna in existence, which was pre-condition or acquisition, the impugned notifications could not be issued.
(vi) A canal could be built or channelization could be attempted only in accordance with the provisions of the Northern India Canal and Drainage Act 1873 and River Boards Act, 1956 and, therefore, DDA had no authority to undertake this act or do any river planning for an inter-State perennial river like river Yamuna. What was sought to be acquired for alleged planned development of Delhi was the river bed and the flood plains of the river Yamuna, which is an inter-State river, development whereof was within the exclusive jurisdiction of the Inter-State River Boards, which are to be created by the Central Government. Since the aforementioned two statures, the Northern India Canal and Drainage Act, 1873, and the River Boards Act, 1956, requires a thing to be done in a particular manner, it can only be done in that manner, or nor at all. All other methods are forbidden. The notifications suffer from this fatal defect that no plan of the channel/canal which is proposed to be made, has been prepared. This is despite the fact that the Poona Institute had published its report, and submitted as far back as 1993, and even in August, 1996 when hearing of the case was concluded, no statutory plan had been produced. The learned Judge also held that if any plans drawn to scale for channelisation of River Yamuna had been prepared at any time before the satisfaction of the Lt. Governor is recorded, in connection with such an acquisition, no such satisfaction could be arrived at. Without such plans the "satisfaction" is not good satisfaction in law. Such satisfaction is arbitrary, unreasonable and cannot be arrived at by any reasonable person. The acquisition being arbitrary, would have to be quashed.
12. Thus, while quashing the notifications on the aforesaid grounds the learned Judge directed as under:
"There is no substance in the plea of the respondents that it is not open to the petitioner to contend that Section 5A of the Act has not been complied with. Every constitutionally valid provision of a valid statute has to be complied with. Such a plea is always available unless that provisoin contains some words of limitation. There being no words in Section 5A that limits its applicability, there is ample justification in permitting pleas based on Section 5A to be raised. The above said view is supported by the observations in the Supreme Court judgment in Munshi Singh's case, reported as .
In this view of the matter, the writ petition succeeds, and for the reasons stated hereinablve, the notifications for acquisition of land for channelisation of the river Yamuna which had not been complied with the provisions of sections 4 and 6 of the Act are not valid in law, and are hereby quashed.
I give directions that the flood plains of the river Yamuna, as it flows through Delhi, should be clearly got demarcated with the help of the revenue records, which already contain sufficient material, to indicate which lands adjacent to the river Yamuna are flood prone, a they are located in the flood plains ("Sailab" lands), and inasmuch as it is dangerous to build on the flood plans without there being adequate flood control measures, I issue an injunction, restraining carrying of any construction activity of any nature or description in the flood plains of the river Yamuna, or in the river bed, except insofar as such construction activity is necessary or incidental to the construction of bridges, weirs, barrages on the river Yamuna. I also direct that in case the river Yamuna has to be channelistion, then the Union of India should act in accordance with law and constitute River Boards, if not already constituted, who would make plans for channelisation of the river Yamuna.
With the quashing of the notifications, the acquisition of the land which has been done, would have to be set aside. However, we are informed that some of the persons whose land has been acquired, have accepted compensation for the same. In case these persons have accepted the factum of acquisition, then on payment of the maket value thereof, as determined in accordance with law, these land would belong to the person who have paid out compensation therefore. If those persons whose land has been acquired, and have received compensation, wish to avail the benefit of quashing of the notifications, then they shall have to pay back the amount of compensation received along with interest due thereon at the rate of 15% per annum from the date of receipt of the payment till the repayment. Thereafter their land shall stand restored to them if they have been dispossessed there from."
13. JUDGMENT OF J.B. GOEL, J.
Judgment of J.B. Goel, J. opens with the reproduction of notification dated 23rd June 1989 issued under Section 4 of the Act and takes note of different notifications issued thereafter and the challenge in the writ petition.
14. The learned Judge then deals with the first contention of the petitioners, namely, Section 4 of the Act did not mention either "locality or the khasra number and the areas have not been specified and thus, the notification is vague". This contention is repelled by accepting the submission of the respondents that notification under Section 4 is intended to undertake preliminary inquiry to find out the suitability of the land for public purpose and at this stage, land is not to be particularised bits khasra number with area and only area of the "locality is required to be specified", which can be described by boundaries of the land as in the present case. In coming to this conclusion the learned Judge relied upon the judgment of the Supreme Court in Babu Barkya Thakur v. State of Bombay (now Maharashtra) and Ors. and The State of Madhya Pradesh and Ors. v. Vishnu Prashad Sharma and Ors., 1966 SC 1593. The judgment of the Full Bench of Madya Pradesh High Court in Haari v. The State of M.P. Bhopal and Ors AIR 1976 MP 1976 is also relied upon which held that omission to give particulars of land in a notification under Section 4(1) of the Act does not render the notification invalid and that specifying the localily in which the land is situate is sufficient compliance of the provisions. The learned Judge then spelt out the distinguishing features of the judgments cited by the petitioner. These judgments are:-
i. Hajari v. The State of M.P. Bhopal and Ors .
ii. Madhya Pradesh Housing Board v. Mohd. Shafi and Ors .
iii. Narenderajit Singh and Another v. State of U.P. and Anr (1970) 1 SCC 125.
15. According to the learned Judge, these judgments do not lay down that in the absence of name of the village or town where the land is situated, the notification would be bad and then summarised the legal position in the following manner:-
"In our view this only means that the particulars given about land and 'locality' should be sufficient so that the object of giving such notice is achieved. Whether particulars given in a case are sufficient or not would be a question of fact. Thus these two cases cannot be read to lay down that the land intended to be acquired under Section 4 should be specified with particulars like name of village/town and khasra number with area etc. Purpose of Section 4 notification is to carry out a preliminary investigation to find out suitability and adaptability and extent of land required for the purpose. Boundaries of land required could be known only after such investigation. At this stage it would be sufficient if the land specified is capable of identification with reference to its location or 'locality'. In Raj Kumar and Anr. v. The Union of India and Ors , a Division Bench of this Court has also held that appropriate Government need specify only the locality and need not particularise any land in that locality. We are bound by this authority."
16. Thereafter it is discussed as to what is the meaning of the word 'locality'. Pointing out that the word is not legally defined, for the definition of the word 'locality' Longman Dictionary of Contemporary English, Oxford English Dictionary 2nd Edn. Vol. VIII and New Webster's Dictionary and Thesaurus are quoted. From these definitions the conclusion drawn by the learned Judge is that the word 'locality' cannot be assigned any definite meaning. It would differ according to the situation and context. It relates to geographical division or area. According to the learned Judge contextual of the word 'locality' in Section 4 would be the geographical division of the place where a particular land may be located and it is not necessary that it should be identified either by its village or city name or by its khasra numbers. In the opinion of the learned Judge, in the present case where the area intended to be acquired is 3500 hectares which admittedly forms part 15 villages, the description of land by its boundaries where the land is mostly described by marginal bunds on both sides of river Yamuna and also by other identifiable description of places where it is bounded, would constitute sufficient identify of the land and cannot be treated as vague description of the land.
17. Second contention of the petitioner that the public purpose mentioned in Section 4 notification as "Planned Development of Delhi" is vague, indefinite and no purpose at all also did not impress the learned Judge. Referring to and relying upon the Constitution Bench judgment of the Supreme Court in the case of Aflatoon v. Lt. Governor and Ors , the learned Judge held that stating of planned development of Delhi for purpose for which the land is acquired was treated as proper compliance and could not be dubbed as vague. Reliance was also placed on the Division Bench judgment of this Court In Raj Kumar and Anr. v. The Union of India and Ors . It was also noted that objection about the invalidity of the notification in question on the ground of vagueness and uncertainties was specifically rejected. Stating of public purpose of "Planned Development of Delhi" in Section 4 notification was repeatedly held to be a definite purpose and not vaguer in subsequent judgments as well in view of the judgment in Aflatoon's case (supra) and these judgments are Delhi Administration v. Friends Housing Society AIR 1981 Delhi 30 and Munni Lal and Ors. v. Lt. Governor and Ors. . The learned Judge also discussed in detail the judgment of the Supreme Court in the case of Munshi Singh and Ors. v. Union of India , a case where State Government of UP had acquired land, and not only noted the factual aspects of that case but also pointed out that it was specifically considered in Aflatoon (supra) and distinction was drawn. It was primarily this. In "Munshi Singhs' s case (supra) the Court found that there was no prior history of planned development covered by the notification and the petitioner in that case was not aware of the scheme for which acquisition was to be made. However, in Aflatoon (supra) the Court found that there was a Master Plan and development in a planned manner was to be undertaken in accordance therewit The learned Judge noted this distinction in the following words:-
"Unlike Munsihi Singh's case, in this case already a scheme (Interim Master Plan) was in existence in Delhi and regular Master Plan was under process of being prepared by the Delhi Development Authority in pursuance of Delhi Development Act, 1957, for planned development of Delhi" and notification under Section 4 was issued on November 13, 1959 in order to implement that scheme in the case of Aflatoon's whereas there was no such prior scheme to the knowledge of the petitioners in Munshi Singh's case. The scheme mentioned in Aflatoon's case is the Interim General Plan which came into existence in September, 1956 and process of preparing Master Plan as required under Section 7 of the Delhi Development Act, 1957 had already started."
18. Likewise, the judgment of Madhya Pradesh Housing Board v. Mohd. Shafi and Ors found to be not applicable in the present case. This aspect is discussed in the following manner:-
"Also reliance was placed on behalf of the petitioner on Mohd. Shafi's case (supra) where it has been oberved that the notification under section 4 is required to give with sufficient clarity the "public purpose" to enable the "interested" persons to know as for what purpose the land is required and to enable them to take further steps under the Act by filing objections since it is open to such persons to convass non suitability of the land for the alleged public purpose. In this case in notification under section 4 besides the description of the land given being not sufficient to find out its location the 'public purpose' given as "residential" was also too vague. Relying on Munshi Singh's case it was held that owning to the vagueness and indefiniteness of public purpose stated in the notification, the acquisition proceedings were bad, there is no indication as to what type of residential accommodation was proposed or for whom or any other details. In the correspondence that took place suggesting acquisition it was stated that the land in question was found suitable for "construction of buildings and shops under the Self Financing Scheme" by the Chairman of the Housing Board. But there was no explanation or valid reason for not stating this specific purpose in notifications under sections 4 and 6. The notifications lacked material particulars about location of land an the public purpose which necessitated acquisition and so were quashed. This case is quite distinguishable on facts and is of no help.
On facts the ratio of this case (Mohd. Shafi's) has been held to be inapplicable in Rajirao T. Kote (decesased) by his L.R.s and Ors. v. State of Maharashtra and Ors. wherein validity of the notification under section 4 for acquiring the lands and a house for public trust "Saibaba Sansthan, Shirdi" has been upheld.
In Gandhi Grah Nirman Sahkari Samiti v. State of Rajasthan and Ors. Mohd. Shafi's case has been distinguished as the public purpose mentioned in the notification in that case as "residential" was found to be hopelessly vague and also that the total land to be acquired was of much large area than in Mohd. Shafi case."
19. The learned Judge then observed that as in the present case also the land notified was substantial inasmuch as it was 3500 hectares covering 15 villages and owned by a large number of owners, it would not have been possible to specify with precision what land is required for which particular purpose or use. According to the learned Judge, at this stage what could be stated was the purpose for which the entire land is intended to be used which was described as "Planned Development of Delhi", the expression which is well-known in Delhi where development is to be made as contemplated under the Master Plan and the Delhi Development Act, 1957.
20. The contention that there was no definite Master Plan or scheme of development in existence with the notification under Sections 4 and 6 were issued or even today was brushed aside by the learned Judge by placing reliance on Arnold Rockrick's v. State of Maharashtra and Aflatoon (surpa). Following observations from Arnold Rockrick's case (supra) were noted:-
"..........This is true that the government has not uptill now prepared any scheme for the utilization of the development sites. But the notification itself shows that the sites would be used as residential and industrial sites. There is no law that requires a scheme to be prepared before issuing a notification under Section 4 or s. 6 of the Act. We have, however, no doubt that the government will, before disposing of the sites, have a scheme for their disposal."
21. The quotation taken from Aflatoon's case (supra), in support of the conclusion, reads as under:-
"The Planned development of Delhi had been decided upon by the Government before 1959 viz. even before Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the master plan was ready." (See decision in Patna improvement Trust v. Smt. Lakshmi Devi
22. Contention of the petitioner that Master Plan 1962 came to an end in 1981 and new Master Plan had not been prepared and there had been no scheme in existence for channelization of river Yamuna also did not find favor with the learned Judge, who rejected this contention by observing:-
"No doubt the life of Master Plan 1962 came to an end by the end of 1981 but the work for planned development of Delhi was not to come to an end and with its expiry. The population of Delhi continued to swell and surpassed the estimated number long before 1981. Planned Development for Delhi was adopted as a regular phenomenon and was to be a continuous process. It is admitted in paragraph 51 of the writ petition that Delhi Development Authority had prepared and approved draft extension/amendment Master Plan for Delhi Perspective 2001 in its meeting on 30.6.1984 and this draft plan was published in the Gazette of India on April 6, `985 as notification No. 289(E). This was to invite objections and suggestions. This draft Master Plan must have been prepared after making several exercises, surveys and studies. In fact, it has also been noticed in P.S. Gill and Ors. v. Union of India and Ors. that activity for it was afoot since 1977. It appears from the final Master Plan 2001 that some further draft modifications were also published in Gazette of India vide SO No. 1154, dated 7.12.1988. After thus inviting objections and suggestions and considering the same the Central Government in exercise of its power under Section 11A of the Delhi Development Act finally approved and published this plan as "Master Plan for Delhi Perspective 2001" in Gazette of India on August 1, 1990 vide SO No. 606(E). Draft Master Plan proposed to make River Yamuna as pollution free and further provided development/improvement of the River front and channelisation of the River. Final Master Plan in this respect provided as under:-
"2. Ecological balance to be maintained. Delhi has two distinct natural features-The ride....................................... and the river Yamuna.
River Yamuna is to be made pollution free through various measures. On the big expense of its banks, large recreational areas to be developed and to be integrated with other urban developments so that the river is an integral part of the city-physically and visually .......... (P. 116)"
And at page 121 under the Main heading, DEVELOPMENT POLICIES PLANNING NORMS AND LAND USE PLAN, it is provided as under:
"CHANNELISATION OF RIVER YAMUNA Rivers in the major metropolitan cities of the world like Thames in London and Seine in Paris have been channelised providing unlimited opportunities to develop the river fronts. After the results of the model studies for the channelisation the river Yamuna become available, development of river front should be taken up. Considering all the ecological and scientific aspects, as a project of special significance for the city."
Before this plan came into force the Administrator of Delhi in exercise of the power of Central Government conferred by sub-section (1) of Section 12 of the Delhi Development Act vide notification No. F.16(2) 89/LandB, dated 29.3.1989 had declared 3,500 Hactares (which is the same area of land as covered by section 4 notification in the present case as Development Area No. 173 (per copy of Annexure X-7 on writ file) which declared the intention again that no development in the area is to take place without the approval and sanction of D.D.A. Obviously, this notification under section 12(1) was issued before notification under section 4 in question dated 23.6.1989 was issued. In the circumstances, it cannot be said that there was no scheme for planned development in existence or in contemplation when notifications under sections 4 and 6 of the Land Acquisition were issued. The principle laid down in Rodricks and Aflatoon noticed earlier squarely applies in this situation.".
23. The learned Judge also noted that there was a scheme or project for Yamuna channelisation in contemplation at the relevant time. The scheme of channelisation of river Yamuna had been cleared by the Central Water and Power Institute, Pune (hereinafter referred to as the 'Pune Institute'), which was a specialised body, capable and competent to undertake appropriate studies and to report and advise on the woking as well as viability of the project of channelisation of River Yamuna. The Government or DDA had not abandoned the project. The learned Judge noted the argument of the respondent that work on the project was help up because stay of dispossession had been granted by this Court and under the garb of interim orders huge unauthorised construction have cropped up in the area which had halted the progress.
24. The learned Judge also opined that though the heading of the scheme is "Channelisation of River Yamuna, but it necessarily does not mean only channelisation of the river; it also contemplates development of river front by various measures like development as recreational areas etc.
25. While rejecting the petitioner's contention that substance of the notification under Section 4 was not published in the locality and the reports in this behalf were forged and bogus, it has been observed by the learned Judge that the petitioners are neither residents of the locality nor they owned the land in question when Section 4 notification was issued. No affidavit of their predecessor-in-interest was filed to support of such a plea. Record also revealed that hundreds of objections were filed by the owners/interested persons against Section 4 notification and it was also admitted by the petitioner in rejoinder that number of objections were also filed by interested persons of the village Behlolpur where the land of the petitioner is situated.
The argument that no personal hearing was given to the objections filed by the petitioners predecessor-in-interest was overruled on the ground that there was no material on record to show that the predecessor-in-interest of the petitioners had filed any objections and their affidavits had also not been filed to support such a plea that they were denied opportunity of being heard. The petitioners came into picture after the objections were filed, heard and considered and report submitted to the Government by the Land Acquisition Collector. The learned Judge also found the contention of the petitioners as factually incorrect that the notifications under Sections 4 and 6 were not properly published. In this behalf it was noted:--
"Notification under section 4 was published in Delhi Gazette on 23.6.1989 (a photostat copy of which has been placed on record in the connected Writ Petition No. 2237/90 at page 125). This notification was last published in Times of India newspaper on 22.7.1989. (Copy available at page 141 of that connected case). Notification under section 6 was published in Delhi Gazette on 22.6.1990 as is apparent from its photostat copy available at pages 171 onwards in that case.
July 22, 1989 being the last date of publication in the newspaper of notification under section 4, that is the date of publication of that notification for computing the commencement of the period of limitation of one year provided in proviso (ii) to section 6(1) of the Act as amended by Amendment Act, 1984 and one year is to be counted till section 6 declaration is published in Official Gazette as held in Rambhai L. Bhakat v. State of Gujrat and Ors. and Krishi Utpadan Mandi Samiti and Anr. v. Makran Singh and Anr. . On that basis and even otherwise the declaration under section 6 published in the Official Gazette on 22.6.1990 was within one year of publication of section 4 notification and is within limitation prescribed under section 6(1) of the Act. Any error in the publication made through newspaper will not invalidate Section 4 or Section 6 notification.xxxxx Learned counsel for the respondents had shown us a communication dated 22.6.1990 available on the office files whereby this notification was sent for publication to the officer concerned. Under Section 81 of Evidence Act presumption of genuineness in respect of Official Gazette arises and this presumption will apply to its publication on the date it bore. xxxx Section 6 declaration dated 22.6.1990 was published in the Hindi Hindustan newspaper on 28.6.1990. But it was not correct copy/version of the notification actually published in the Official Gazette on 22.6.90. We were shown the office file of the Competent Authority wherefrom Section 6 declaration has emanated. There is nothing to show on record that a fresh notification under Section 4 read with Section 17(1) was intended or was approved by the Lt. Governor. On the other hand, what was approved is the order dated 12.6.1990 already reproduced above. This notification issued in official Gazette under section 6 and Section 17(1) also accord with this order dated 12.6.1990. And in the English newspaper Indian Express also the notifications published are what was gazetted. Evidently, mistake has occurred in sending incorrect copy of notification under section 6 for publication in Hindi Hindustan. The mistake has been corrected and the corrigendum of it was published in the same newspaper on 8.7.1990 as is stated in the Counter Affidavit of Shri U.P. Singh filed on behalf of the acquiring authority. This publication in the newspaper on 8.7.90 fulfillls the requirement of law about publication of declaration in one newspaper in the regional language. The mistake committed in publication of this declaration in the newspaper is immaterial and will not render Section 6 or section 4 notification in valid as held in Krishi Utpadan Mandi Samiti case (supra)."
26. The learned Judge did not find anything wrong with the exercising of power of urgency by issuing notification under Section 17(1) of the Act simultaneously with Section 6 declaration on 22nd June 1990. It was not a colourable exercise of power, according to the learned Judge inasmuch as he found: (a) from the records it was established that the land was required for the public purpose of planned development of Delhi, namely, channelisation of river Yamuna and development of river front as envisaged in the Master Plan for Delhi 2001 which was at final stage of finalisation at the time and came into force on 1st August 1990; (b) there was an urgency as land in question was likely to be built upon by unscrupulous persons who had started raising unauathorised constructions and thereby posing serious threat to the proposed development; (c) there was a threat to defeat and frustrate the very purpose of acquisition of land and thus, the Government was satisfied that on the basis of material placed before it of the paramount need to acquire the land on urgent basis.
27. Other material facts found established by the learned Judge were: (a) the petitioners were subsequent purchasers who had purchased the land vide sale deed registered on 22nd June 1990; (b) sale deeds were not produced which could show if there was any constructions and the extent of construction, if any in existence at that time. Thus, there was an attempt to conceal the real state of affairs; (c) most of the constructions were raised afterwards and after obtaining interim orders of status quo. There constructions were, therefore, illegal apart from being in violation of Delhi Municipal Corporation Act or Delhi Development Act.
28. The learned Judge thereafter dealt with other peripheral/incidental submissions but was not persuaded with them as well and concluded by observing as under:-
"In view of the circumstances as noticed earlier it cannot be said that the exercise of power is mala fide or that there was no material before the Competent Authority to form the requisite opinion or otherwise it acted arbitrarily. In the circumstances, no fault can be found with the opinion formed by the Lt. Governor and in issuing declarations under sections 6 and 17(1). It cannot be said that his action is without application of mind."
29. In the result he dismissed the writ petition as having no merit with costs assessed at Rs. 20,000/-.
30. ARGUMENTS:
In a matter like this when two Judges have differed with each other giving their own reasons the arguments of respective parties would be on predicable lines. Mr. Lekhi, learned senior counsel, who led the team of petitioners' counsel, argued that the opinion of Mahinder Narain, J. is correct in law and should be followed. He made his submissions justifying this opinion and in the process urged that the opinion of other Judge was erroneous and should not be followed. The attempt of Mr. J.M. Sabharwa, senior advocate appearing for the DDA and Ms. Geeta Luthra, learned advocate appearing for the Government, was just the opposite, justifying the view of J.B. Goel, J. and finding errors in the other opinion.
31. Mr. Lekhi submitted that land was sought to be acquired for "Channelisation of Yamuna river". However, if there was no evidence for this public purpose or if on record of the respondent there was complete absence of what was pleaded to be, the very foundation for the need of the land for channelisation of Yamuna river, the public purpose, was lost. It was not merely illusionary but absent "public purpose" as well, argued the counsel. His submission was that public purpose should be one which is for the benefit of public at large. In the present case, the project was purportedly on the basis of study by the Pune Institute, which was made the basis for decision to acquire the land and further that such a need was immediate. However, there as nothing on record to indicate any such report of the Pune Institute. By referring to the records of the case relating to the acquisition his submission was that repeatedly orders were passed by this Court directing the respondents to produce the report. However, the respondents had failed to produce the report. He referred to orders dated 18th march 1997 and 27th January 1998 in particular.
32. Argument of Mr. Lekhi may be paraphrased as under:-
1) It was on the purported report of Pune Institute that the Government decided to: (a) acquire the land; and (b) invoked urgency clause on the ground that there was immediate need to acquire the land. However, in the absence of such a report the entire proposal is to acquire the land and resultantly issuance of impugned notifications on that basis is vitiated and it amounted to fraud on power.
2) Alternatively, even otherwise without a scheme there could not have been a notification under Section 4 of the Act for acquisition of land. His submission was that "public purpose" was vague once the land was acquired for "channelisation of Yamuna river" there had to be a proper scheme in the place before land was acquired for the specified purpose. For this proposition he relied upon the following judgments:-
(i) State of T.N. and Anr. v. A. Mohd. Yousef and Ors .
(ii) Maharashtra Housing and Area Development Authority and Anr. v. Gangaram and Ors .
(iii) M.P. Housing Board v. Mohd. Shafi and Ors .
3) He also attacked the notifications issued without application of mind by the Competent Authority. Referring to noting dated 11th October 1989 at page 11/N of the respondent's records, he submitted that proposal for acquisition of land proceeded on the basis that there was some scheme of channelisation cleared by the Pune Institute. He pointed out that Survey Report of 13th February 1989 would indicate that entire exercise was done within a period of two days which would clearly indicate that it was here formality as such colossal exercise was not possible within this short span.
4) His next submission was that, in fact, no effective right was given to the objectors to file the objections under Section 5A of the Act and ritual was performed to complete the formality. He based this submission on two counts:- (a) Section 4 notification referred to in the map showing the area, which was proposed to be acquired, but no such map was produced and in the absence thereof the land owners could not file proper objections; and (b) He submitted that 961 objections were filed to the proposed acquisition on issuance of notification under Section 4 of the Act. However, all these objections were considered and rejected in one day's time which would signify that without even looking into these objections, these were rejected by the Lt. Governor and would, therefore, depict non-application of mind at this stage as well. Such an exercise was quashed by this Court in B.R. Gupta v. Union of India and Ors . He submitted that this would also prove that no effective and valid hearing was given to the objectors.
5) He further submitted that notification dated 23rd June 1989 lapsed on the issue of fresh notification under Section 4 read with Section 17 of the Act which is dated 22nd June 1990. However, this notification dated 22nd June 1990 was not validly published in the Gazette. Corrigendum dated 8th June 1990 to the notification dated 22nd June 1990 was also not validly published. Therefore, there was no valid notification in existence pursuant to which land could be acquired was his submission. His submission was that if the notification is published in the Gazette, the Gazette is to be made available and non-issue of the Gazette beyond the confines of the Government Printing Press for distribution cannot be said to be any "publication". He relied upon the discussion on this point by Mahinder Narain, J. in his judgment and the authority cited therein, including the following judgments:-
i. B.K. Srinivasan and Ors. v. State of Karnataka and Ors ii. I.T.C. Bhadrachalam Paperboards and Anr. v. Mandal Revenue Officer, A.P. and Ors .
iii. Collector of Central Excise v. New Tobacco Co. and Ors., .
iv.
33. These submissions are stated in brief and would be noted in detail while dealing with these submissions. Answer to these submissions given by Ms. Gita Luthra, Advocate, who appeared for the L and DO and Mr. J.M. Sabharwal, Senior Advocate, who argued the matter for DDA, shall also to be taken note of at that stage. I shall now proceed to discuss these submissions.
34. Re. Acquisition for Planned Development of Delhi, i.e. Channelisation of Yamuna River. As noted above, submission of the petitioners is that since the acquisition was for 'Channelisation of Yamuna river', it could commence only after the Pune Institute had completed these studies and after receipt of those studies, DDA had in accordance with law, accepted the studies for development purpose. That would have meant inviting public objections. However, in the instant case steps for acquisition of land were taken even before the study referred to in the Master Plan was completed. It was stated that even Master Plan of Delhi-2001 mentioned that channelisation of river Yamuna is to be done after the results of modal studies are finalised by Pune Institute. Therefore, the acquisition was premature.
35. Before dealing with this aspect we may take note of the relevant judgments of the Supreme Court dealing with land acquisition, particularly in Delhi. It is not in dispute that Section 4 notification dated 23rd June 1989 states that land is "required by the Government at the public expense, for public purpose, namely, for planned development of Delhi". Likewise, notification dated 22nd June 1990 specified that "land is likely to be required to be taken by the Government at public expense for public purpose, namely, for planned development of Delhi, viz. Channelisation of Yamuna River". The Constitution Bench of Supreme Court in the case of Aflatoon (supra) dealt with the question as to whether the acquisition of large tract of land for public purpose, viz. "planned development of Delhi" was vague and answered it in the negative holding that statement that land is required for the planned development of Delhi was sufficient public purpose. Likewise, in Leela Ram v. Union of India public purpose mentioned in the notification, namely, "for the execution of interim general plan for the greater Delhi" was held to be specific in the circumstances and did not suffer from any vagueness. These two and some other decision were considered by the Supreme Court again in Ramniklal N. Bhutta v. State of Maharashtra and Ors., and discussion from Ramniklal Bhutta (supra) would suffice the purpose:-
"35. The next question is whether the public purpose stated in the three notifications concerned is vague. It must be remembered that what is vague is a question of fact to be decided in each case having regard to the facts and circumstances of that case. By saying that the public purpose in the said notifications is vague what the respondents really mean is not that it is not a public purpose but that since the public purpose is expressed in vague terms and is not particularised with sufficient specificity, they are not in a position to make an effective representation against the proposed acquisition.
36. In Aflatoon , the Constitution Bench dealt with the question whether the acquisition of a large extent of land for a public purpose, viz., "the planned development of Delhi" was vague, Mathew, J., speaking for the Constitution Bench, stated that "according to the section....it is only necessary to state in the notification that the land is needed for a public purpose" and then added "The wording of Section 5A would make it further clear that all that is necessary to be specified in a notification under S. 4 is that the land is needed for a public purpose. One reason for specification of the particular public purpose in the notification is to enable the person whose land is sought to be acquired to file objection under S. 5. Unless a person is told about the specific purpose of the acquisition, it may not be possible for him to file a meaningful objection against the acquisition under S. 5A". The learned Judge then referred to the ratio of Munshi Singh (AIR 1973 SC 115) and held, "we think that the question whether the purpose specified in a notification under S. 4 is sufficient to enable an objection to be filed under S. 5A would depend upon the facts and circumstances of each case". The learned Judge also referred to the decision in Arnold Rodricks and held: "(1) the case of the acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area, . Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed,"
37. In Lila Ram v. Union of India , another Constitution Bench held that the public purpose mentioned in the notification concerned therein, viz., "for the execution of the Interim General Plan for the Greater Delhi", is specific in the circumstances and does not suffer from any vagueness. The Court again pointed out that the notification does not pertain to a small plot but a huge area covering thousands of acres and in such cases, it is difficult to insist upon greater precision for specifying the public purpose because it is quite possible that various plots covered by the notification may have to be utilized for different purposes set out in the Interim General Plan. Of course, that was a case where the Interim General Plan was prepared and published by the Government after approval by the Cabinet as a policy decision for development of Delhi as in interim measure till the master plan could be made ready.
38. The above decisions, and particularly the decision in Aflatoon do establish that whether the public purpose stated in the particular notification is vague or not is a question of fact to be decided in the facts and circumstances of each case and further that where a large extent of land is acquired, it would not be proper to insist upon the Government particularising the use to which each and every bid of the land so notified would be put. The three notifications concerned herein we are told, pertain to about 400 acres in all. The parties have not furnished copies of the notifications in their entirety. Only Sri Ashok Sen has supplied the full text of the notifications dated February 19, 1975. It shows that a total extent of ninety seven acres one cent was proposed to be acquired, affecting the holdings of about twenty five persons, some of them holding such small extents of O. 26 or O.25 acres.
39. So far as the decision of Munshi Singh (decided by the Bench comprising K.S. Hegde, A.N. Grover and D.G. Palekar, JJ.) is concerned, it does not contain certain observations supporting the petitioners' contentions but it must be remembered that this decision was referred to and explained in Aflatoon . In Aflatoon, it was stated that whether the public purpose stated in particular notification is vague or not is a question of fact to be decided in each case and canot be treated as a question of law. It was also emphasised that where large extents are sought to be possible to specify how each owner's bit would be utilised and for what purpose. We are of the respectful opinion that the decision in Munshi Singh should be read subject to the explanation and the holding that in Aflatoon which is a decision of a Constitution Bench. As pointed out hereinbefore, in a subsequent decision in Lila Ram , another Constitution Bench has also emphasised that Munshi Singh does not come to the rescue of the writ petitioners-respondents in these matter."
36. Mr. Lekhi tried to wriggle out of Aflatoon (supra) by contending that that was the case of acquisition of large tract of land, that too at a time when the land was required for planned development of Delhi immediately after the enactment of Delhi Development Act and preparation of Master Plan. Therefore, in that background since development of Delhi as per the Master Plan had yet to take place, it was treated as specific public purpose. His submission was that ground realities had drastically changed since then as most of the planning had taken place and if the land needs to be acquired today, specific and precise purpose needs to be stated. However, this argument overlooks the position that Aflatoon (supra) and Leela Ram (supra) are the judgments of the Constitution Benches of the Supreme Court, which have binding force and this Court cannot take a view contrary to the view expressed by the Supreme Court in the aforesaid cases wherein it was held that stated purpose "planned development of Delhi" would be a definite public purpose and not vague. It is the Apex Court only which can address itself on this issue if the so-called changed circumstances, as projected by Mr. Lekhi justify taking a different view. Therefore, the argument addressed is before the wrong forum. I may also add that not only the Supreme Court has reiterated this view in the subsequent judgments, including in Ramniklal Bhutta (supra), this Court has followed the aforesaid view in series of judgments, including the judgment in the cases of Roshanara Begum v. Union of India 1996 (1) AD (Delhi) 6 and Munni Lal (supra).
37. However, the notification mentions "public purpose" as "Channelisation of Yamuna River" as well. Therefore, further argument of Mr. Lekhi, in that context, needs consideration. It is not in dispute that project of river front development and channelisation was referred to Pune Institute and Pune Institute made studies. Argument of learned counsel for the petitioners, however, was that there was no final report of the Pune Institute on the basis of which development, namely, 'Channelisation of Yamuna' river was to take place and till that is done, the entire action of acquisition of land was premature. It may be noted at this stage that in the Conceptual Plan 2001 prepared by Delhi Urban Art Commission in the year 1988 it is stated that" here is a proposal to channelise Yamuna from Wazirabad to Okhla and reclaim the land on either side. The proposal was based on the presumption that sewerage facilities as well as treatment plants have to be augmented to cater for cent percent of the population before implementing this proposal. Once the river is channelised, discharge of raw sewerage, directly or indirectly, into the river will have to be banned".
38. Reading of the affidavit filed on behalf of the DDA makes it clear that the DDA has been considering the possibility of developing the river front area on both sides by channelising the river. The development of Yamuna river belt was visualised long ago. Master Plan Delhi-1962 contained the following proposals in this behalf:-
"MPD 1962-Proposal The entire area north and south of Wazirabad Barrage has been shown as floodable and has recommended development of District Parks, Play Grounds, open spaces on the Western Bank of RIER Yamuna in the area of South of Wazirabad Barrage. It further recommends shifting of existing Thermal Power Stations of Rajghat and Indraprasha after their machinery becomes obsolete and formulation of scheme for discontinuing sewage outflow into the River Yamuna."
39. Master Plan Delhi-2001 contained the provisions for development of Yamuna river belt in Delhi (which falls in Zones O and P). In accordance with the provisions of Master Plan Delhi-2001 land utilisation planning of 6081 hectares in Zone A was to be taken up. This area is contained between the two existing bunds in the East and West, Wazirabad barrage in the North and NCT boundary in the South. The Master Plan, namely MPD-1962 and MPD-2001 approved by the Government specifically deal with channelisation of river Yamuna, Water, Sewerage, Natural features, Visual integration-Harmonious treatment for major ecological feature, Safety and convenience, Ash filling in polluting Yamuna and Environment-River Yamuna.
40. The DDA has filed additional affidavit dated 19th February 1998 (at page 746 of the paper book) explaining the 'Scheme of Channelisation of river Yamuna'. This affidavit has been filed in compliance with the order dated 27th January 1998 directing the DDA to file an affidavit in respect of the scheme, if any, relating to acquisition of land for channelisation of river Yamuna. In this affidavit the project of "Channelisation of Yamuna River" has been explained. It is stated that the Master Plan for Delhi Perspective 2001 had been approved and notified in the Gazette of India dated 1st August 1990 and the said plan inter alia, provides for channelisation of the river yamuna. It would thus be seen that the development of the lands on the banks of the river yamuna and to make the river yamuna a pollution free zone together with the development on the banks of the river yamuna and providing recreational areas is a concept which is highlighted in the Master Plan of Delhi. The said Master Plan provides for taking up the development of the river banks by keeping under consideration ecological and scientific aspects as a project which may be specially significant for the city of Delhi. The land, the subject mater of acquisition, is to be developed primarily for the development of the river banks of the river yamuna. The said development is understood by the name of "Channelisation of the Yamuna". The acquisition is for developing the land as green and for other purposes and primarily for making the district parks, play grounds, open space for recreational purposes, river water ways . The project sought to be implemented by the acquisition under reference is necessary for maintaining the ecological balance of the city of Delhi which is said to be threatened and imbalanced by unauthorised activities of construction upon the river front. 'The channelisation of river Yamuna' is the name by which the said project is called. The channelisation of the river yamuna does not envisage only streamlining of the river but also envisages the development of its banks for maintaining ecological balance of the entire city of Delhi. The development of the banks of the river yamuna for maintaining the ecological balance of the city of Delhi is a part of in egrated plan of the city under Planned Development of Delhi and has to be achieved in right earnest and proper perspective.
41. In respect of the existence of scheme for channelisation of the river Yamuna, following averments are made in this affidavit:-
"A. The project of channelisation of the river Yamuna Along with removal of the pollution and enhancement of quality of life was initiated in the year 1977 when the Chief Engineer (IandF), Delhi Administration wrote to the Director, Central Water and Power Research Station, Puna to undertake a model studies for channelisation of the river Yamuna.
B. The project further got an impetus on 30.4.82 when the Executive Member (Floods and Drainage), again wrote to the Chief Secretary, Delhi Administration, on the project of channelisation of river Yamuna under the implementation of Prime Minister's 20 Point Programme.
C. That in 1983 the DDA while preparing the second master plan of Delhi emphasised the importance of the project and on the advice of the then Chief Consultant, a letter was written to Central Water and Power Research Station, Pune to conduct the model study of channelisation of the river yamuna.
D. Keeping into consideration the importance of the project, especially with regard to the control of pollution and implementation of projects on the banks of the river yamuna, the then Lt. Governor of Delhi on 5.9.1984 constituted a High Powered Committee under the Chairmanship of the Executive Councilor with members from Metropolitan Council, Delhi Development Authority, Municipal Corporation of Delhi. Drainage and Sewage Board, SDU and Central Board for Drainage and Control of Water Pollution. The Director (City Planning, Delhi Development Authority was Member Secretary of the Committee.
E. The said committee worked for one year and submitted its report in September, 1985 and it dealt with the removal of pollution as part of the project of the river yamuna.
In 1985, the Chief Engineer (IandF), Delhi Administration, was requested by the DDA to work out the economics of development of about 40 hectares of land for development of plots for institutions of national character like the 'Central Museum of Science and Technology', the Academy of Art and Culture and others. In response to this the Chief Engineer supplied details of the type of 'bundhs' to be constructed along with specifications.
F. The Ministry of Works and Housing (now the Ministry of Urban Affairs) in the year 1985 wrote to the DDA to draw a scheme on river yamuna bed area to be shown to the Prime Minister of the country who was concerned with the development of the river yamuna bed so as to maintain ecological balance of the entire city of Delhi.
G. In response to the request which has been made by the Delhi Development Authority, Water and Power Research Station, Pune conducted studies and submitted two interim reports on 5.10.1985 and 14.3.1986 respectively.
H. Due importance was given to the project and plan project report was submitted in 1986 for planning of the river bed including channelisation of the river bed including channelisation of the river and also to check pollution and quality of environment of other sites of the river site. This was the first basic report to deal with the project.
The above report was discussed in a meeting held under the Chairmanship of the Uniion Minister for Environment and Forests held on 302.1987 and the Lt. Governor Delhi, Chief Executive Councilor Central Government, Town and Country Planning Organisation, Ministry of Urban Development, Ministry of Environment and Forest, Central Pollution Control Board, Ganga Authority, Municipal Council, IandF Deptt. Delhi Administration and Planning Commission besides officers from the DDA and the then Minister for Environment and Forests decided that 50% of the total cost at the macro level of the project can be funded from the Central Government.
I. On 22.3.1986, the project was discussed in the meeting of the Advisory Council under the Chairmanship of the Lt. Governor and amogst others, the said meeting was attended by the Members of Parliament of both Lok Sabha and Rajya Sabha, Municipal Corporation of Delhi, Metropolitan Council, senior officers of the DESU, apart from Ministry of Transport, Town and Country Planning Organisation and DDA. The said Advisory Council recommended as under:-
"The council considered the agenda item pertaining to the problem of pollution in River Yamuna, the causes and extents thereof and the proposal of remedial action as suggested in the report prepared by the High Powered Committee appointed by the Lt. Governor, Delhi on 5th September, 1984. The Council took note of the scheme and adopted the report for the detailed consideration by the DDA."
J. Mater was then put up before DDA. The DDA by its resolution No. 27 in March 1987 took the following decision:-
"The authority took note of the proposal regarding pollution control in the river yamuna as details given in the agenda item of the resolution has an immediate objective necessary action be taken to improve the quality of water at the ghats and improve the existing services available at the ghats with a period of six months. It further resolved that the entire pollution control programme be taken up simultaneously for which action plan be drawn up. The project be handled by the DDA in collaboration and consultation with the Municipal Corporation of Delhi, the departments of Irrigation and Flood Control, Delhi as a part of the plan scheme of Delhi Administration. It further observed that the nodal agency for execution of the scheme shall be the secretary (LSG) in the Delhi Administration.
K. That in January 1987, ten meetings were held under the chairmanship of the then Chief Executive Councilor with senior officers of the various departments for improvement and clearing of the banks of the river yamuna.
L. The DDA conducted several socio economic surveys on the banks of the river yamuna and submitted a report.
M. The Inland Water Ways Authority of India submitted its report in January 1987 in respect of Navigational Feasibility of river yamuna.
N. The DDA submitted its interm report in respect of plan of river yamuna banks in the year 1987, inter alia, keeping into consideration, that most of the important cities of the world are situated along river banks; New York on theriver Hudzon, Washingtoin on Otamac, Montratl on Ottawa, Rio-De-Janerio on Amazon, Cairo on Nile, London on Thames, Paris on Seine, Frnakfurt on river Rhine, Karachi on Indus, Dhaka on river Padma, Allahabad, Patna on Ganga, Calcutta on Hugli and Delhi and Agra on River Yamuna.
The rivers are the main source of potable water, irrigation and power, recreational activities etc. In noted with concern that the river banks are sensitive to pollution. It noted that development of physical social and economic infrastructure of the river hed requires a lot of financial resources and that the river yamuna plan in development would make available 6200 hectares of area for recreational use, 438 hectares for public and semi public facilities, 2008 hectares for commercial use and this area for achieving the purposes to the improvement, quality and life of the people in the entire city of Delhi. It discussed and dealt with the subject under several aspects and submitted its report for development of the banks of the river yamuna. It too note of the reports submitted by the Pune Reseach Station and while upgrading its report, subsequently also took note of the new model study conducted by the Pune Research Station in the year 1989.
O. Central Water and Power Research Station, Pune erected a new model at site and further conducted a study in May, 1989 and submitted its fresh interim report.
P. The said Research Station, Pune submitted its first interim report in respect of channelisation of the river yamuna on 5.10.85 and the second report on 14.3.1987.
The May 1989 report has the following features:
The model indicated model proto type conformity with respect to the 1988 water levels. Under the existing conditions, the main channel along the reach between the Indraprasha barrage and Nizamuddin road bridge was flowing in the central portion. Slack zones have been observed on both the banks downstream of the Nizamuddin road bridge.
The proposed channelisation bundh alignment is governed by the water way of the existing structures and after the reproduction of the channelisation bundh it was found that the main channel was flowing more or less in the same path.
During the site inspection, it was observed that the present ground level near the guide bundh downstream of the Nizamuddin road bridge is high by 0.7 mt. than that of the 1986 survey and therefore there is a need to verify these areas by fresh surveys.
The proposed reclamation of areas between the yamuna barrage and the Okhla wire after the channelisation bundh would not affect the afflux and floor hydrograph.
Q. DDA by D.O. No. PS/C(h)/DDA 89/106 dated 20.8.1989 intimated the Delhi Administration that the Scheme of Channelisation of River Yamuna has been cleared by the Institute at Pune and it is therefore imperative to acquire the land for river bed immediately."
42. It is thus clear from the aforesaid sequence of events narrated by the DDA. Significantly no reply affidavit is filed to the aforesaid additional affidavit, which is even otherwise based on records. As per the averments noted above, following aspects become crystal clear:-
A) While contemplating the project of development of Yamuna river belt in Delhi, the scheme was given the nomenclature of "Channelisation of Yamuna". Thus, it was not only channelisation of river Yamuna which is to be understood by this project but also development of the river belt.
B) The project was envisioned even in the Master Plan-1962 and was initiated in the year 1977 when Chief Engineer, IandF, Delhi Administration, wrote to the Director of the Pune Institute to undertake a modal studies for channelisation of river Yamuna. This was followed up thereafter in 1982 under the implementation of Prime Minister's 20-Point Programme and also repeated in the Master Plan-2001, which was prepared in the year 1989 and accepted in 1990. During this period also various steps were taken. some of the concerns were flood control, removal of pollution, development of river Yamuna belt so as to maintain ecological balance of the entire city of Delhi.
C) The Pune Institute was requested to undertake the study and it submitted two interim reports on 5th October 1985 and 14th March 1986. These reports were discussed in various meetings which were held at various levels in Central Government, State Government as well as the DDA. Apart from these two reports several other surveys were conducted on the banks of river Yamuna and report submitted by the DDA, Inland Waterways Authority of India, Webcos etc. These reports were also discussed in various meetings.
D) On the basis of these reports and discussions thereon, Pune Institute conducted further studies and erected a new model at site and submitted fresh interim report in May 1989. On this basis of this report DDA wrote letter dated 28th August 1989 to the Delhi Administration stating that scheme of channelisation of river Yamuna had been cleared by the Pune Institute and it is, therefore, imperative to acquire the land in the river belt immediately.
43. In view of the aforesaid material on record I am unable to agree with the submission of learned counsel for the petitioners that there was no scheme before the Competent Authority before initiating action to acquire the land or that the proposal to acquire the land was premature. In so far as initiating the process of acquisition is concerned, it is clear that there was sufficient material before the appropriate authorities. The submission of the petitioner that unless there was a final report of the Pune Institute, action for acquisition of the land should not have been taken does not hold any water. Record clearly suggests that by the time decision was taken to acquire the land there was sufficient material on the project and decision of the authorities that land was needed for this project cannot be dubbed as premature.
44. I may add that it is not necessary that each and every detail of the plan must be on papers before action for acquisition of land is initiated. Contemplation of a project with the material on record which would indicate that the project has been firmed up and the decision that it would be feasible to go ahead with such a project would be sufficient at that stage. It is fallacious argument that decision to acquire the land should not be taken and the project be put on ice till the last details in the report are received. After all decision was taken when proposed project had taken shape and the planning was not at incipient stage. Final nuances and further details as to how the project would be given definite shape can be worked out even afterward. The leeway has to be given to the policy makers. This, in fact, happened in the present case. It is further explained in the additional affidavit dated 19th February 1998 that Webcos also submitted another report on 5th July 1991 which was followed by a draft final report submitted on 29th May 1991 by the Pune Institute. The action plan (1992-1997) was initiated to improve the quality of the banks of river Yamuna specially with reference to the land under bathing ghats and detail of financial and final reports in its entirety together with details of draft prepared, existing and proposed affluent treating plant, facilities required of the land under construction of the said plan. Thereafter the model studies for channelisation of river Yamuna was taken in May 1993. Pune Institute submitted its final report in 1993. Thus, as far as authorities are concerned, they acted in a planned manner. After the project took proper shape, steps were taken to acquire the land which was needed for this project by issuing necessary notification in the year 1990. Even further details were worked out as noted above and final reports from Pune Institute was also received in the year 1993. Had the land been at disposal of the authorities by that time, the respondent could have undertaken development project as per the plans. However, in the meantime, as spate of writ petitions came to be filed and stay orders against dispossession were granted, the entire project came to standstill. This aspect I shall comment upon at the relevant stage. At this stage the matter is discussed in the context of the submission of the petitioners' counsel that there was no scheme of channelisation of river Yamuna in the year 1989-90 and, therefore, land could not have been acquired. I do not find so.
45. In view of the aforesaid factual position, judgments cited by the petitioners in the cases of State of T.N. v. A. Mohd. Yousef (supra), Maharashtra Housing and Area Development Authority v. Gangaram (supra) and M.P. Housing Board v. Mohd. Shafi (supra) will have no application as those judgments were rendered in a different fact situation. For this, it would be feasible at this stage to take note of some more judgments on the point stating legal position wherein aforesaid judgments are specifically considered and discussed. In State of T.N. and Ors. v. L. Krishnan and Ors , the Supreme Court categorically held that non-specification of use with each and every bit of land so notified would be put to hold, does not invalidate the notification. In this case the Court took note of its earlier judgments in the case of State of T.N. v. A. Mohd. Yousef (supra) and explained that judgment in the following manner:-
33. For all the above reasons, we find it difficult to read the holding in Mohd. Yousef2 as saying that in no event can the land be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56. The said limitation applies only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter VII of the Tamil Nadu Housing Board Act. In other words, unless the notification under Section 4 of the Land Acquisition Act expressly states that land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of Mohd. Yousef is not attracted. Mere statement in the notification that land is required for the purpose of the Housing Board would not by itself attract the said principle and ratio. In the instant appeals, the notifications do not even state that the land proposed to be acquired is meant for the purpose of the Housing Board.
34. With respect to the other decision relied upon by the learned counsel for respondents, viz., Maharashtra Housing and Area Development Authority v. Gangaram, (to which one us, K. Ramaswamy, J. was a party), it may be said that it applies the ratio of Mohd. Yousef in the light of the scheme and provisions of the Maharashtra Housing and Area Development Act, 1976. For the purpose of these cases, it is not necessary to say more about the said decision, particularly because we have had no occasion to examine the provisions and the scheme of the Maharashtra Act.
46. Similarly, in Gandhi Grah Nirman Sahkari Samiti Ltd. and Ors. v. State of Rajasthan and Ors the Court held that non-specification with precision as to what land was required for which particular purpose in view of large area of land sought to be acquired, does not render the acquisition illegal. Mohd. Shafi (supra) was specifically considered and explained. Observation made by the Court in para 14 of the judgment would be useful for us and, therefore, I reproduce the same:-
"14. Mr. S.K. Jain, learned counsel appearing for one of the appellants has contended that the public purpose has not be specifically mentioned in the notices issued by the State Government under sub-section (1) of Section 52 of the Act. He relies upon the following observations of this Court in M.P. Housing Board v. Mohd. Shafi "Apart from the defect in the impugned notification, as noticed above, we find that even the 'public purpose' which has been mentioned in the schedule to the notification as 'residential' is hopelessly vague and conveys no idea about the purpose of acquisition rendering the notification as invalid in law. There is no indication as to what type of residential accommodation was proposed or for whom or any other details. The State cannot acquire the land of a citizen for building some residence for another, unless the same is in 'public interest' or for the benefit of the 'public' or an identifiable section thereof. In the absence of the details about the alleged 'public purpose' for which the land was sought to be acquired, no one could comprehend as to why the land was being acquired and therefore was prevented from taking any further steps in the matter."
The public purpose mentioned in the notification in Mohd. Shafi's case as "residential" was hopelessly vague as observed by this Court. But the notification in the preent case specifically provides that the land was being acquired for the purpose of "development plan and construction of residential, commercial and administrative buildings". Apart from that in Mohd. Shafi's case the total land acquired was 2.29 hectares whereas in the present case much larger area is being acquired. The division Bench of the High Court examined this question in the light of the observations of this Court in Aflatoon v. Lt. Governor of Delhi and rejected the argument on the following reasoning:
"It is true that these are all cases under the Land Acquisition Act and public purpose is required to be specified in the notification, but a contention has been advanced that the public purpose should be specified with particularity and the specification should not be vague. Such a contention was repelled. In Section 52(1), no doubt the requirement is that the notice should specify the particular purpose but having regard to the area of the land sought to be acquired, it was not possible to specify with precision, what land is required for which particular purpose. The total land acquired from village Bhojpura and Bhawani Shankerpura i.e. Rambagh area is 0322 Bighas 8 Biswas and the total area acquired from village Hathrohi, the residency area is 5 Bighas 16 Biswas. In view of the acquisition of the large areas, the notices fulfillled the requisite condition of specification of a particular purpose and in our opinion, it was sufficient to state in the notices that the lands are required for administrative, commercial and residential buildings."
We see no infirmity in the above quoted reasoning of the High Court."
47. The judgment in the case of M.P. Housing Board v. Mohd. Shafi (supra) was again distinguished by the Supreme Court recently in the case of Pratibha Nema and Ors. v. State of M.P. And Ors., .
48. One may also quote with advantage another judgment of the Supreme Court in the case of Pratap and Anr. v. State of Rajasthan and Ors. wherein the Apex Court again reiterated that framing of scheme is not condition precedent for accquisition of land under the Land Acquisition Act for a public purpose. To the same effect are the judgments of the Supreme Court in the cases of (i) State of T.N. and Anr. v. Mahalakshmi Ammal and Ors and (ii) Rajirao T. Kote (decesased) by his L.R.s and Ors. v. State of Maharashtra and Ors. , wherein it was held that satisfaction of the State Government in regard to public purpose is not open to judicial scrutiny.
49. It is thus primarily for the Government to decide whether there exists public purpose or not and it is not for the courts to evaluate the evidence and come to its own conclusion. No doubt, if there is no material on record worthy-name to indicate that the land is required for public purpose, courts may interfere in a given case on the ground that the exercise of power is arbitrary or caparacious or colourable. However, once it is found that there is some material which prompted the Government to take decision to acquire the land, the Court has to stay its hands and would not go into the sufficiency of the material or substitute its own decision/wisdom or say that there should be further material before taking a decision. It is stated at the cost of repetition that at the time when decision was taken and notifications issued there was material in abundance which could justify taking of administrative decision to acquire the land and this court cannot, in the circumstances, quash the notification merely because final report had not been received from the Pune Institute.
50. In view of the aforesaid discussion I am unable to persuade myself to agree with the view of Mahinder Narain, J. on this aspect. In my opinion, J.B. Goel, J. has to come to right conclusion on this aspect. The material on record clarifies that although the project was given the nomenclature 'Channelisation of River Yamuna', it was not confined to river channelisation alone as channelisation of the river is commonly understood. Entire discussion regarding meaning of channelisation and discussion about river Thames, London and river Seine, Paris in the judgment of Mahinder Narain, J. would, therefore, be of no avail. It may be that what is discussed is an erudite exposition of the concept of river channeliation and the suggestions as to what is required to improve the condition of river Yamuna, would be of immense value which policy makers may take into consideration at appropriate stage and occasion. But validity of notifications acquiring land cannot be examined from this angle. We are here concerned with the action of the Government in acquiring the land. Material on record suggests that the scheme in contemplation includes improvement of river belt on both sides although loosely described as "Channelisation of river Yamuna". What is relevant is the understanding of the scheme framers as discussed in various meetings, put on record and conceptualisation of the policy makers which led to the decision to acquire the land. If the Government is of the opinion that it needs land for such a project (and the project as envisaged and conceived) and the decision does not suffer from any vices known in the administrative law which may be ground for interfering with such administrative action, the Courts would not interfere with such an administrative action. Similarly it is not for the Court to give its own interpretation to the scheme by assigning literal meaning to the phrase "Channelisation of Yamuna River", more particularly when the respondents have explained with reference to the record as to what they understood by the project.
51. Re. Section 4 Notification:-
To appreciate the contention raised by the petitioners in this behalf, we may first take note of some of the material dates regarding the acquisition.
23.6.1989 Notification under Section 4 issued in the Official Gazette.
21.7.1989 Notification published in Hindi newspaper 'Veer Arjun'.
22.7.1989 Notification published in English newspaper 'Times of India' with regard to 15 villages. In this publication also it is stated that map showing the boundaries of land covered by the notification under Section 4 was available for inspection in the office of the Collector.
20.9.1989 DDA proposed for invocation of Section 17, i.e. urgency clause and the matter was referred to Lt. Governor for this purpose. It was stated that no objections under Section 5A were received in respect of 6 villages.
20.9.1989 This was intimated to the LandB Department by the Commissioner (Lands) and DDA vide his D.O. Letter No. PS/C(L) DDA/89/106 dated 20.9.1989.
31.5.1990 Land Acquisition Collector submitted his report under Section 5A of the Act stating that he had considered the objections in detail and not finding any substance therein recommended acquisition.
6-6-1990 Lt. Governor approved invocation of urgency clause after perusing clause after perusing the record and material and declared his satisfaction with regard to six villages.
Simultaneously proceedings of 9 villages measuring 3500 hectares with regard to acquisition of the River Yamuna bed were also under consideration in which objections under section 5A had been received.
In the meantime land and building department recommended with regard to these 9 villages that as the other six villages had already been approved for section 6 notices and as there was apprehension of further encroachment if land was not acquired urgently and in view of the request of Commissioner lands and DDA for early acquisition as the scheme had already been approved by Central Water and Research Institute, Pune the matter be referred to Lt. Governor for approval of the sections 6 and 17 notifications.
12-6-1990 Lt. Governor approved acquisition for valid public purpose, viz. planned development of Delhi and namely channelisation of river Yamuna and ordered notification under sections 6 and 17(1) to be issued.
20-6-1990 and 22-6-1990 Notification under sections 6 and 17 for the 6 and 9 villages respectively issued on 20-6-90 and 22-6-1990 in the official Gazette.
22.6.1990 28-6-1990 29-6-1990 Notification/declaration under section 6 read with section 7 was made on 22nd June 1990 and the same was published in newspapers in Hindi "Hindustan" and English Indian Express on 28th June 1990 and 29th June 1990 respectively and in Gazette on 22nd June 1990.
As per the respondent, by inadvertence, the notification dated 22nd June 1990 under section 6 which was published in Hindi version of Hindustan dated 28 June 1990 recited that the notification was being issued under section 4 of the Land Acquisition Act instead of section 6 as it should have been.
8-7-1990 The corrigendum correcting this mistake was published in the Hindi Edition of Hindustan 8th July 1990.
19-6-1992 Award made by the Land Acquisition Collector in respect of land measuring 14524 bigha 12 biswas situated in the villages of Delhi which was acquired out of the above land.
52. Aforesaid sequence of events would amply demonstrate that the contention of the petitioners that notification dated 23rd June 1990 lapsed after issuance of notification dated 22nd June 1990 is without any merit. This contention proceeds on the wrong supposition that notification dated 22nd June 1990 was under Section 6 which was published in Hindi version of Hindustan dated 28 June 1990 recited that the notification was being issued under section 4 read with Section 17 of the Act. That is not so. In fact, notification dated 22nd June 1990 was under Section 6 read with Section 17 of the Act. Mistake which occurred by mentioning Section 4 instead of Section 6 was corrected vide corrigendum dated 8th July 1990. This was an inadvertent mistake which stands established from the fact that it is not a case where Section 5A of the Act was dispensed with. Notification dated 23rd June 1989 under Section 4 of the Act was already issued, objections invited, objections considered, report of the Collector on Section 5A received and thereafter only the Lt. Governor approved the declaration under Section 6 and at that stage invoked Section 17 as well accepting the proposal of the DDA. There was no occasion to issue Section 4 notification again on 22nd June 1990. Moreover, in the Indian Express and the Gazette, notification is correctly issued under Section 6 read with Section 17. It is only in Hindustran (Hindi edition) Section 4 appears which is obviously a printing mistake and that was corrected soon thereafter vide Corrigendum dated 8th July 1990. The petitioners cannot be permitted to gloss over these facts.
53. The other challenge to Section 4 of the Act dated 23rd April 1989 was that it did not mention locality and the khasra numbers of the land sought to be acquired and, therefore, it was vague. However, admittedly, not only the land owners were given right to file objections, most of the land owners even filed their objections in respect of nine villages. No objections were filed by the land owners of six villages and it appears that they had no objections to the acquisition either. That is the reason that land owners of those villages did not file any writ petition challenging the acquisition and present writ petitions are filed only in respect of nine villages. Thus, the land owners while filing objections were aware that their land was proposed to be acquired.
54. The word "locality" has not been described under the Land Acquisition Act. Hence, the word "locality" cannot be assigned a definite meaning under the provisions of the Land Acquisition Act. In Raj Kumar v. Union of India , similar point was raised which was repelled by this Court holding that the appropriate government need specify only the locality and need not particularise any land in the locality. It is difficult to assign a meaning to the word "locality". It differs accordingly to situation and context.
55. Re. Violation of Section 5A of the Act:-
As noted above, submission of the petitioners in this behalf was that though the decision that land is required for public purpose is an administrative decision, the Act does not make that decision final and mandatory. Provision is made in the Act for an independent inquiry by the Collector under Section 5A of the Act. Section 5A, in fact, is a condition precedent for the acquisition of land and any violation of this condition precedent vitiates all acquisition proceedings. Therefore, strict compliance of Section 5A is necessary without which satisfaction recorded under Section 6 is a nullity. The submission, primarily, based on the premises that 961 objections were received and it was not possible for the Lt. Governor to dispose of these objections in one day and, therefore, no genuine exercise was to be undertaken to go through all these objections, which were rejected mechanically and without application of mind.
56. After considering the matter I am not inclined to accept this submission of the learned counsel for the petitioners that there was violation of Section 5A of the Act in the instant case. It is not in dispute that objections under Section 5A of the Act were invited with regard to 15 villages. It is not also in dispute that large number of land owners filed their objections under Section 5A of the Act. According to the petitioners themselves, 961 objections came to be filed. These objections, however, were from the residents of nine villages and no objections in respect of six villages were filed. The Land Acquisition Collector heard these objections on several dates and thereafter he submitted his report to the Lt. Governor for consideration. Report would reveal that all these objections were of same nature. There were five objections, all of general nature. Therefore, there may be 961 persons who objected. But they were all repetitive. Don't we do similar exercise even in judicial proceedings? In fact, present bath itself is an apt example where all petitions are heard together in view of similarity of their nature and arguments advanced by one/two counsel for the petitioners are adopted by all the other petitioners.
57. When such a report is placed before the Lt. Governor for consideration, it is not necessary for the Lt. Governor to physically look into each and every objection and verify the contents of each and every objection. The points raised in the objections were distilled in the report of the Land Acquisition Collector and nature whereof, enlisted above, would clearly indicate that the Lt. Governor after going through the same would be in a position to decide as to whether he is to accept such objections or not. This exercise, when almost all objections are identically worded, would not take much time. Therefore, argument of learned counsel for the petitioners that all these objections could not be disposed of in one day would have no force once the matter is looked into in the correct perspective indicate above. Thus, once I find that the authorities concerned with the acquisition have not acted arbitrarily and there is no violation of Section 5A of the Act, the judgments cited by the learned counsel for the petitioners on the proposition that an act which is arbitrary is to be struck down, will have no application in the facts of this case. Therefore, reliance of the learned counsel for the petitioners on S.C. Jaisinghani v. Unionof India and Ors. , State of Andhra Pradesh and Anr. v. Nalla Raja Reddy and Ors , Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay and R v Secretary of State for Wales 1996 (4) All England Reports 1 is clearly misplaced. This aspect is succinctly dealt with by J.B. Goel, J. at pages 52 and 53 of his judgment. Learned counsel has rightly pointed out that in his report dated 31st May 1990 the Collector has summarized the gist of the objection received broadly and before submitting his report he has also made inspection of the area and he did not find any valid reason for not recommending issuing declaration under Section 6 of the Act. He had also submitted the proceedings held and objection received to the Government. He was not a judicial or a quasi-judicial authority but an administrative authority while acting under Section 5A of the Act and, therefore, he was not required to elaborately deal with each of the objection for submitting has report (Sam Hiring Company v. A.R. Bhujbal and Ors., .
58. Mr. Lekhi, however, contended that J.B. Goel, J. while dealing with this argument on Section 5A of the Act proceeded on a wrong premise. The submission of the petitioners that they were not heard on the objections filed by their predecessors-in-interest was not accepted by J.B. Goel, J. by observing as under:-
"Annexure P-2 relied by the petitioners is the copy of the objections filed by Jagan Singh, Khem Chand, Hem Chand and Dallu Singh in respect of their lands situated in village Jasola. Neither it is alleged nor there is any material on record to show that the predecessors in interest of the petitioners had filed any such objections nor their affidavits have been filed to support such plea that they were denied such opportunity. The petitioners came into picture after the objections were filed, heard and considered and report submitted to the Government by the Land Acquisition Collector. In the circumstances, there was no occasion for giving any opportunity of being heard to the petitioners."
59. His submission was that this was not proper approach as once the legality of the order of the Lt. Governor is questioned on the ground that it is without application of mind and arbitrary, it is the duty of the Court to examine that question and this vital issue cannot be brushed aside on the ground that the petitioners had no capacity/locus to raise such an objection. Constitutionality of a particular act needs no pleading. Once it is brought to the notice of the Court, it is for the Court to determine this aspect on merits. He also submitted that even otherwise these observations were factually incorrect inasmuch as this plea was, in fact, taken in paras 28 to 31 of the writ petition.
60. I do not think that Mr. Lekhi is correct in his submission. Objections under Section 5A are filed by a particular person who may be aggrieved against proposed acquisition. Opportunity of hearing is to be given to that particular person. Nobody else can claim such an opportunity. Likewise, if no opportunity is given to the objector it is that objector who has the necessary locus to come to the Court and make grievance about non-affording of the opportunity. It could not be disputed that objection were filed by the predecessors-in-interest of the petitioners. Further even if it is taken as correct that predecessors-in-interest of the petitioners herein had also filed such objections, issue as to whether opportunity of hearing was granted to them or not could be raised by those objectors only. No affidavits of those persons are filed in support of the plea that they were denied such an opportunity. Learned Judge has, therefore, rightly pointed out that these petitioners came on the scene much after the objections were filed, heard, considered and report submitted to the Government by the Land Acquisition Collector. Therefore, in so far as the petitioners are concerned, there was no question of giving any opportunity to them. In so far as predecessors-in-interest of the petitioners are concerned, the plea that they were not given any such opportunity has not been substantiated by filing their affidavits.
61. That apart, this report of the Land Acquisition Collector states that 35 objections were received and personal hearing was afforded to the objectors on 25th May 1990 fixed for this purpose. This report would further show that at the time of personal hearing, objections, which were raised, are specifically noted. First five objections are of general nature and sixth objection is specifically in respect of Khasra Nos. 31, 56, 61 and 62 by Smt. Shanti Swasthy (since Smt. Shanti Swasthy has filed WP (C. No. 2237/90, which is dealt with separately, I am not considering that aspect in this judgment). After taking note of five objections, which were general objections raised by all the objector, the Land Acquisition Collector records that he had conducted a personal survey of the village and found that entire area being used for agricultural purpose, excepting a few parcels of land on which petrol pump, service station, godown of water tank and temple are situated and, therefore, he recommended acquisition of the land. It was not difficult to the Lt. Governor therefore, to apply his mind and take decision in one day's time. The alluded comments of the petitioners that the Lt. Governor signed on ditto lines and did not apply his mind would not hold any water. Therefore, even on merits I do not find any force in this contention.
61. It cannot be said that the notification dated 23rd June 1989 was issued after one year as no declaration under Section 6 was issued within one year. It may be noted that notification under Section 4 has been published by all the modes, namely, (a) publication in the Official Gazette; (b) publication in two daily newspapers circulated in the locality, one of which was in Hindi, i.e. 'Veer Arjun'; and (c) publication of notification at convenient place in the locality. The last of the dates of these publications is 22nd July 1989 when it was published in the 'Times of India'. As per the decision of the Supreme Court in State of Haryana and Anr. v. Rahubir Dayal , it is this last date which is to be taken into consideration for computation of one year. Section 6 declaration along with Section 17 was published in the Official Gazette on 20th June 1990 with regard to six villages and on 22nd June 1990 with regard to nine villages. Even when some mistake occurred in the latter notification, this was corrected on 8th July 1990, well before expiry of one year of the publication of Section 4 notification in the 'Times of India' on 22nd July 1989. Therefore, the contention of the petitioners that notification under Section 4 lapsed and to further steps could have been taken is also without substance.
62. Re. Subsequent developments and de-notification of some land:
It was also argued that because of subsequent developments, the channelisation of river Yamuna is not possible now. In this respect it was pointed out that on the advice of the DDA about 2000 bigha was de-notified. Some further land was also de-notified on 12th September 1998. Even the multi-lane Toll Bridge was constructed over this land which goes from several places from Delhi to Noida and with the construction of this Toll Bridge and the land covered by the said bridge, channelisation was not possible now. In the additional affidavit dated 27th November 1995 of the DDA it is explained that after the acquisition of land and passing of the awards, possession of only about 378.74 acres of land could be taken in December 1990 and October 1993. Possession of remaining land could not be taken as the matter got embroiled in these litigations and stay of dispossession was granted. In the meantime, various surveys were carried out and it was found that land measuring 1430 bigha and 10 biswa is permanently under water. This land is situated in four villages, namely, Behlolpur Khadar, Kilokri, Chack Chilla and Nagli Razapur. Thus, although compensation in respect of this land was deposited since it was found that this land remains permanently submerged in the water, was not required for the purposes of development and accordingly, decision was taken to de-notify this land measuring 1430 bigha 10 biswas and notification dated 25th January 1995 under Section 48 of the Act was issued.
63. Re. Respondents' Caveats:
Some of the submissions of the respondents challenging the bone fides of these petitions may be noted at this stage. It is contended by the respondents that these petitioners are the subsequent purchasers. The notification under Section 4 was issued on 23rd June 1989 and declarations dated 20th June 1990 and 22nd June 1990. The sale deeds filed by the petitioners are dated 26th June 1990 or afterwards. It is contended that there could not have been such sales after the notification dated 23rd June 1989 under Section 4 of the Act. It was also stated that in the documents of sale, land is described as agricultural land. In the sale deeds no construction is shown but at site rampant construction exists today and this would show that the construction as come up after the filing of the writ petitions by the petitioners. It is pointed out that stay of dispossession was initially granted on 10th August 1990. However, CM No. 4974/91 was filed seeking stay against demolition alleging that DDA was threatening to demolish the structures. Status quo was granted but vide order dated 26th June 1991 status quo of construction was also granted thereby directing that there should not be any further construction by the petitioners as well. It is also stated that all this construction is without the approval of the MCD, which was required as the land was declared urban under Section 507 of the Delhi Municipal Corporation Act. Furthermore, vide notification dated 29th March 1989 issued under Section 12 of the Delhi Development Act, area was notified as development area and, therefore, there could not have been any construction without DDA's approval. However, admittedly, no plans were submitted by the petitioners nor there is any sanction.
64. These objections of the respondents are not without force. It depicts unfortunate state of affairs. No doubt, when these petitions were filed and notices were issued, in order to protect the interest of the petitioners at that stage, stay of dispossession was granted. However, that did not mean that under the cover of such stay, the petitioners were entitled to raise the construction, that too illegal construction, i.e. without sanction of plan and that too when there was specific order that state uquo regarding construction is to be maintained. Complicity of the authorities is also writ large. The officials were supposed to keep an argus eye to protect this land but unfortunately both DDA and MCD allowed the petitioners to carry out such illegal construction and became privy to these acts as without their connivance it was not possible for the petitioners to raise illegal construction at a massive scale. Not for nothing that DDA has earned the sobriquet "Don't Do Anything". It is unfortunate state of affairs that in such illegal acts, under the garb of stay orders, officials also join hands. This is the reason that even when Delhi Development Act was passed in the year 1958 and first Master Plan came into existence in 1962 envisioning planned development of Delhi, construction has come up in a most unplanned manner. In many areas illegal/unauthorised colonies have come up and many of them on public land. Examples are galore where after acquisition of land and possession taken from the villagers, authorities have allowed part of such lands to be occupied by the unauthorised persons illegally and even allowing them to raise illegal construction thereon. Statistical data on this count is appalling. It is high time that officers of these public authorities, who are given this important task to save the Government land from encroachments (which will include land under acquisition) not to allow illegal construction and ensure that development takes place in accordance with the provisions contained in the Master Plan.
65. I am conscious of the fact that now the area is populated and uprooting the petitioners may create cataclysmic effect. But, then it is the result of rampant and brazen illegal construction and the petitioners are to blame themselves for creating this situation and they are getting their comeuppance. It is also clarified that in respect of the construction which has come up after the status quo orders, the land owners/petitioners shall not be entitled to any compensation for those structures.
66. Epilogue:
I have considered the matter up to this stage purely from legal angle. Challenges which are made to the acquisition of land in question are found to be unsustainable. However, before I close it would be necessary to say something about the planning of Yamuna river bed, although in the Master Plan and in the impugned notifications concept is described as "Channelisation of River Yamuna". I have already mentioned that from the records it appears that it was not only channelisation of river Yamuna which was conceptualised and the policy makers had (and still have) in mind the development of river bed, including channelisation of the river. The river Yamuna is one of the most important natural features of Delhi and supposed to be a major source of water supply to the city. River Yamuna in NCT of Delhi cuts through the city from the North to south for a length of merely 50 kms. The total of about 9700 hectares of land is situated in the designated river bed defined by the existing marginal bund on the Eastern and Western side. In a telling account of the present state of affair of river Yamuna, Mahinder Narain, J. has rightly brought out the sordid state of affair. That part of the river Yamuna which flows in Delhi can hardly be called a river. I is a big dirty drain today. Discharge of industrial affluents and other pollutants have caused havoc to this river. Delhi is practically without any natural source of water. With swelling population, which increases by at least half a million every year, there is serious water crisis. Need/Demand of water far exceeds the supply. For this limited supply also, Delhi has to depend on neighbouring Cities/States. It is a matter of common knowledge that the much hyped `Sonia Vihar Jal Yojana', the protect which started with fan-fare, is in a quandary only because we do not have water and neighbouring States have thus far expressed their inability to oblige Delhi in this regard. Therefore, it is high time that Yamuna is restored as a river with pure water - and "Krishna Teri Yamuna Maili" tag is removed. The suggestions which are made by Mahinder Narain, J. in his critique require serious consideration by the policy makers for cleansing Yamuna, though the said critique may be out of context in so far as legality of the issue at hand is concerned.
67. I may say at this stage that at the same time it is also necessary to develop the city also in a planned manner. With that end in view, if the DDA came out with bold plan for the development of river Yamuna and for this purpose land was required, action of the respondents in acquisition of this land cannot be said to be either mala fide or arbitrary. With the DDA as the sponsoring agency, the National Environmental Engineering Institute (NEERI) prepared "Planning of River Yamuna Bed" in the year 1994 on how 9300 hectares of land occupied by river Yamuna can be utilised for providing civic facilities for the city, as it was found that 7300 hectares out of above land remains dry during non-monsoon months. Major reasons enlisted in the said plan for better utilisation of this large asset for more meaningful and general uses are as under:-
"i. In Delhi, to wipe out the housing backlog, along with provisions of physical, social and economical infrastructure land is required at the rate of 2400 ha per year for the purpose of development of various urban spaces, of residential, commercial, recreational, public and semi-public buildings, government office, circulation and work places. Part of this large need can be met out of the reclaimed land from riverbed.
ii. Present availability of water supply in Delhi is only 480 mgd. The desired rate of supply for the year 2010 is estimated as 1760 mgd. At present there are only two sources of established and organized water supply, one from the river Ganga and the second from the Yamuna River. As such, water of river Yamuna has to be made potable by keeping it clean and pollution free, which is one of the most important component of the project of planning of river Yamuna.
iii. River Yamuna has become a polluted river, in the downstream of Wazirabad Barrage. Necessary steps should be taken to make it pollution free.
iv. Since ancient time, Yamnua has been a sacred river attracting thousands of pilgrims on occasions like Poornima, Amavasya, etc. But now, due to its polluted water, pilgrims are scared of taking bath, as it is not fit for even animal consumption. Since pollution of Yamnua water takes place primarily in the 25 km stretch of Delhi, this area should be well planned and developed with facilities and amenities of pilgrims and its sanctity restored.
v. Part of the reclaimed area of the riverbed, if required can be used for decongestion of the Walled City, due to its nearness and suitability.
vi. The project, if implemented after proper planning, will bring a balance in land use distribution, which has already become lopsided. Out of the reclaimed area, 6205 ha would be used for recreational purpose, which is enough to balance about 30,000 has of other uses like residential, commercial work places etc. vii. Part of the reclaimed area can be used for location of large institutions of national character, like the National Museum of Science and Technology, the Delhi Museum, the Academy of Arts and Culture, the Race Course, etc. viii. The entire complex can be a gift not only to Delhi but to Delhi Metropolitan Area and with the help of 3% for commercial use, the project can be made viable up to some extent."
68. The DDA has also prepared, with the help of NEERI, Plan for Rejuvenation of River Yamuna Booklet and the executive summary of this plan discloses that as per the Master Plan of Delhi, following two objectives were laid down for utilisation of the river bed which remains dry during non-monsoon months:-
To safeguard the entire riverbed of 7300 fa excluding the water portion against unauthorised constructions and encroachments To use the river for various beneficial purposes such as
a) narivational
b) pilgrimage
c) source of potable water
d) recreational
e) to avoid and check floods.
69. This plan also indicates that the DDA has proposed alternate land use models also. Two alternatives are suggested, namely, (a) the entire area to be developed as ground for recreational use; and (b) the entire area to be developed largely (85%) for green area for recreational use and balance (15%) for gainful purposes. The details of the two alternatives are given as under:-
"Alternative (i) a. Merits of the Strategy:
No large development activities except horticultural operations and provisions of green linkages with the adjoining and existing built-up area to maintain ecological balance and relief to the public.
Maintenance of the characteristics of the soil, water table and existing vegetation.
Control in generation of additional heavy traffic volumes on existing roads and bridges.
Heavy capital investments in avoided.
b. Demerits of the Strategy:
Considering pressures on the land for its prime location in the city map, the land in riverbed is precious. If not developed in a planned manner, it would be eventually encroached upon and built upon as already going on. Prevention and removal of encroachments is always difficult and time consuming.
It will result into less and under utilization of the precious land resource situated in the centre of the Delhi Metropolitan Area.
It will lead to urban sprawl since the housing and other activities for the growing population of Delhi is being spread out and located at the urban fringes.
The heavily built-up and congested area (e. Old City) will not have any opportunity for relief and decentralization of certain activities.
A large amount of water in the river is evaporated because of its low depth and wide spread, resulting in shortage of water, affecting ultimately the supply of potable water and irrigation.
Alternative (ii) The proposal is entirely based on the channelisation of the river to a width of 550m-600m with associated preconditions of installation of effective cross regulators at each of the drain meeting the river, reconstruction of Wazirabad and Old Railway bridge, reinforcing other bridges, increasing bund height by additional 2.5 to 3m etc. Further, in order to accommodate additional beneficial uses like navigation, water sports etc. the drain water must be treated and diluted by upstream fresh water in a equate quantity so that the river water quality remains acceptable for the designated uses.
The proposal includes 85% green for recreational purposes and partly (15) for gainful purposes such as residential, commercial,public and semi-public uses. Overriding advantages of this strategy over the fist one:
It will release about 7300 ha. of land for urban activities largely for recreational use and provide an opportunity to restructure the land use pattern.
This would integrate the two parts of Delhi each of metropolitan character with the river front on either side.
Trans-Yamuna area which is extremely deficient in recreational facilities and open spaces could be compensated by this scheme of development of recreational use in the river-bed.
The urban sprawl could be controlled without disturbing the green character of the area and needed for recreational use.
The controlled discharge of water will avoid evaporation to a great extent.
Efficient links and transportation system by roads and urban rail can be provided to integrate the two parts of Delhi on either side of the river.
In the Conceptual Plan 2001, prepared by the Delhi Art Commission, in 1988, it is stated that "there is a proposal to channelise the Yamuna from Wazirabad to Okhla and reclaim the land on either side. The proposal was based on the presumption that sewerage facilities as well as treatment plants have to be augmented to catyer for cent per cent of the population before implementing this proposal. Once the river is channelised, discharge of raw sewage into channels or directly into the river will have to be banned."
70. This plan also traces out the history of channelisation proposals on the assumption that two bunds each of a suitable height will be constructed on either side of the water channel in a span between 550 meters to 600 meters depending upon the model studies. On this basis, an area of 2400 hectares would be under the water channels, including two bunds which will act as major circulation roads and the balance of 7300 hectares will be reclaimed and proposed to put for various uses. It also records that Pune Institute was referred for model studies to examine the technical feasibility of the channelisation proposal. Accordingly, studies were carried out covering the river reach of about 50 kms. From Palla to Jaitpur. Major aspects on which model studies were addressed by Pune Institute are also highlighted. The plan thereafter discusses the consequences of channelisation, i.e. (i) effect of existing bridges and (ii) backflow in the city drains. Adverse impact of channelisation is also summarised.
71. Chapter II of this summary deals with proposed plan for regeneration of river Yamuna and the aspects dealt with are (i) improvement of river water quality, (ii) augmentation in city water supply, (iii) proposal of Central Groundwater Board on replenishable ground water availability. Chapter III deals with proposed plans for land use/development by dividing the area of river bed in eight sub-zones. The report concludes with delineating general guidelines for development of river bed. The proposed gidelines are:
"1. Silting of the riverbed has diminished its carrying capacity, storage capacity and groundwater recharge potential. The loss of water through evaporation is becoming significant more and more. Accordingly, regular dredging is recommended particularly in the upstream of Wazirabad Barrage. Priority should be given to increase pondage near upstreams of Wazirabad and Okhla Barrage. Large-scale sedimentation is evident from survey data at both these location. The silt should be taken out of the river bed.
2. It is recognised that the flood plain of the river has been narrowed down and modified in the past at several stretches like those between Old Railway Bridge and Indraprastha Barrage, upstream of Wazirabad Barrage and between Okhal Weir and Okhla Barrage. Unauthorised encroachments begins the unplanned development process which must be checked at any cost. Unless de-silting is carried out, serious flooding can occur due to natural process of slow sedimentation taking place all along the riverbed over a long period of time.
3. For any of the proposed developmental activities on the riverbed, large volume of construction materials from outside should not be permitted. The riverbed slope towards the water channel should be maintained. Unless dredging of water course and subsequent dressing of the river bed as proposed in this study is followed, no modification of topography (except minor leveling using soil from the riverbed itself) should be permitted.
4. Dense afforestation should not be developed in any stretch of the riverbed. Trees having high rates of transpiration like eucalyptus should be avoided.
5. Until the river water quality is improved to the designated standard, access/approach to the water channel may be discouraged.
6. No residential or industrial facilities requiring permanent structures should be provided on the riverbed.
7. Access roads should be created at the riverbed level so that these do not cause major obstruction to flood flows.
8. Modification of river bed topography and proposed dredging of water course should not be viewed in isolation. Topography may be modified as suggested in the report only after the dredging of water course of the river.
9. Direct passage of the opening between bridge to bridge in all the river stretches must not be blocked by any structure.
10. Effective Emergency Warning System and Evacuation Plan should be prepared for all modified land uses for each development.
11. Whatever development is carried out on the river bed, the authority responsible for such development must ensure proper solid and liquid waste management practices and in no case the waste shall be permitted to be discharged on the river bed."
72. It may be noted at this stage that in the affidavits filed by the DDA as well as LandB Department as recent as in 2001-2002 it is reiterated that the development plans are not abandoned and are still very much in contemplation. It may be that due to the passage of time there is further thinking on the project and some more alternatives are also mooted for development of the river as well as `channelisation of river Yamuna'. Importance of such a project hardly needs to be emphasised. It may achieve the chershed goal of beautification of the area, purification of water of river Yamuna, stoppage of pollutants being discharged into the river, availability of more water, including raising of ground water level and even "Channelisation" of the rive It is only hoped that the authorities, after they take possession of land in question, act with all sincerity and seriousness in seeing through the project.
73. It may, however, be observed that since two alternatives land use models are suggested and are in contemplation as per which, either entire area to be developed as green for recreational use or 85% of the area is to be used for recreational purpose and balance for gainful purposes. If second alternative is ultimately adopted as per which, 15% of the area is to be used for gainful purposes, such as residential, commercial, public and semi-public uses, the Government should consider allotting land that would be earmarked for residential and commercial purposes etc. to the petitioners and other land owners, who area going to be affected by this acquisition, on such terms as the respondents may deem fit. The respondents may consider preparing a suitable scheme in this behalf for the benefit of these persons.
74. Conclusion:
The upshot of the aforesaid discussion is that I agree with the conclusions contained in the judgment of J.B. Goel, J. and differ from the view taken by Mahinder Narain J. Therefore, in my view the petitions challenging the notifications are without merit and deserve to be dismissed.
75. These petitions are accordingly dismissed but with no orders as to costs.
WP (C) No. 2237/9076. In this petition filed by the petitioners there is two-pronged attack to the impugned notifications. One set of grounds is the same as in other petitions and has already been dealt above. No merit is found therein. However, there are some contentions specific to the land of the petitioners. Mr. Lekhi made elaborate submissions separately, pressing these specific grounds, peculiar to the petitioner's land. I, therefore, propose to deal with those contentions.
77. The petitioners are owners/Bhumidhars of land bearing Khasra No. 31/1 (3-5) situate in village Bahlolpur Khadar, Tehsil Mehrauli, Delhi. It was purchased by the petitioners vide sale deed registered on 16th May 1984. Therefore, as far as these petitioners are concerned, they became owners of the land in question much prior to Section 4 notification and are not the subsequent purchasers.
78. The petitioners have set up a petrol pump on the subject land which is in operation since April 1985. This petrol pump was set up after complying with all legal formalities and after obtaining no objection/permission from all concerned authorities, including NOC from DCP (Licencing); NOC from ADM (Land Acquisition); NOC from MCD; NOC from Chief Fire Officer; license of Explosives from Chief Controller (Explosives); permission from Ministry of Petroleum; letter from IBP; registration certificate from Commissioner of Industries, Delhi Administration; and factory license from MCD. The petitioners are assessed to income-tax and sales-tax. The property is also subject to house-tax.
79. These averments are not denied by the respondents in their replies filed to the petition. It is also stated in para 8 of the petition that a petrol pump is in the nature of public service for general public and the services rendered by the petitioners are very much necessary to cater to the demand of the public convenience. There is no petrol pump between the radius of 5 kms wherefrom the petitioners' petrol pump is situated at the land in question. In the petition also it is highlighted that various government authorities including the Land Acquisition Collector has given 'No Objection Certificate' in favor of the petitioners regarding the use of the land as petrol pump. It is also the submission of the petitioners that in compliance with the order dated 18th February 2000, the petitioner filed civil miscellaneous application, which was numbered as CM 11196/2002 and no reply to that CM is filed in spite of number of opportunities granted to the respondents by this Court and, therefore, averment made in the said CM also remain uncontroverter.
80. Following order was passed on 18th February 2000: "Mr. S.N. Kumar, Senior Advocate, appearing for the petitioner in CWP No. 2237/90, says that he will file detailed affidavit supported by documents to show that the petrol pump and motor gas station was sanctioned by the Central Government and thereafter a pipeline connection was given from Dehradoon to Delhi. Let him do so before the next date." In the affidavit filed with CM 11196/2002 the averments made are that the Supreme Court in the case of M.C. Mehta v. Union of India (Civil Writ No. 1309/86) etc. with Writ Petition (C) No. 939/96 reported as JT 98 (5) SC 211 decided on 28th July 1998 gave some directions, including the following three directions:-
1. 8 year old buses are not to ply except on CNG or other clean fuels.
2. Entire city bus fleet (DTC and private) to be steadily converted to single fuel mode on CNG.
3. GAIL to expedite and expand from 9 to 80 CNG supply outlets.
81. Pursuant to the aforesaid directions the Government of India directed GAIL to set up CNG filling stations in Delhi. GAIL approached four oil companies, including IBP Company Ltd. The petitioners' petrol pump, which is being run under the name and style of Rajokari Oil Company and changed to Savita Filling Station in 1992 was approached by IBP Company Ltd. for setting up one gas pressure and dispensing facility for CNG. In compliance with these instructions, the petitioners set up CNG station. Necessary authorisation and licenses were obtained from various authorities for this purpose. CNG pressure and dispensing facility started operating on 8th February 1996. This is the only on-line motor station of the IBP Company Ltd. in Delhi catering to both individual retail demand as well as bulk supply to any petrol pump, including any other oil company. There are only two other such stations set up by Indian Oil Company. Such stations are set up by Indian Oil Company and except these three stations here is no other on-line motor station in Delhi. By the expression "on-line" it is meant that the supply is made to the petitioners directly from pipeline laid by GAIL to Delhi. The cost of providing equipment and machinery set up by the petitioner' filling station by GAIL in the year 1995-96 is about Rs. 1 crore and the same was borne by GAIL.
82. In this affidavit it is also stated that it is the consistent acquisition policy of the Government of India and the Government of Delhi to exempt functioning petrol pumps from acquisition, the same being essential public utility service. It is also highlighted that whatever would be the nature of proposed development, on acquisitioning of the entire area, the facility of providing auto fuel is an essential service, which would be required in any case. If such a service is not available within a reasonable distance, the area cannot be considered as a developed area in the present times. The petitioners have also taken pains to point out that setting up of a petrol pump involves considerable cost and in this case on the preparation of site itself, huge cost was incurred because level of the land was to be raised by about 14-15 ft. over total area of 3300 sq. yards to bring it to the level of the Ring Road. It is also pointed out that as per letter dated 2nd March 2000 sent by Indraprastha Gas Ltd. IPB Company Ltd., CNG facility by the petitioners is to be further augmented in compliance with the directives of the Supreme Court and, therefore, it would be in public interest that the filling station is allowed to continue even if the acquisition notifications in respect of other lands are upheld.
83. Highlighting the aforesaid peculiar feature specific to this case, the learned counsel for the petitioners submitted that the area in question belonging to the petitioners should have been left out of the acquisition. His further submission was that specific objections were taken by the petitioners under Section 5A of the Land Acquisition Act. But while forwarding the report, the Land Acquisition Collector did not assign any reasons while disposing of these objections, although the same were noted in the order and, therefore, acquisition qua the petitioners is without application of mind and bad in law. Learned counsel referred to the Master Plan and submitted that the petrol pumps, as per the Master Plan, are permitted in "Uses Zones". He also pointed out that in the very area notified for acquisition, two CNG stations had been sanctioned in the year between 1996-1998; one in front of Matcalf House and other between Nizamuddin Bridge and Indraprastha Power House. This would show, according to learned counsel, that even after acquisition the Government is contemplating setting of CNG stations in the notified area and, therefore, there is no reason to dislodge the petitioners' service station with CNG facility. He also pointed out that even urging the arguments, counsel appearing for the Government of Delhi had stated that if the petrol pump of the petitioners is left out of acquisition, the same will not affect the plan of the Government. He also produced a copy of the notification dated 2th January 2004 issued by the Lt. Governor under sub-section (1) of Section 48 of the Act whereby area of one bigha six biswas in Khasra No. 275 of village Bahapur, which was required vide notification dated 27th September 1990 under Section 4 read with declaration dated 9th April 2001 under Sections 6 and 17(1) was de-notified because of following reasons:-
"On this land measuring 1-06 bigha a petrol pump is functioning since 1960 facing Mathura Road. The petrol pump also has a service station and there is no vacant space available today".
84. He also referred to notification dated 31st October 2003 issued by Delhi Development Authority under Section 57 of the Delhi Development Act, with the approval of the Administrator notifying the Regulations for petrol pumps in rural Delhi and regulation 1 clearly stipulates that petrol pumps would be permitted on Government/DDA/private lands in urban areas (including urban extension areas) and in the rural use zones/green belt. His submission was that with these regulations, petrol pumps were now permitted in rural use zones as well as in green belt. Therefore, even if the entire area was to be developed as green belt, the petrol pump could remain.
85. The aforesaid submissions of the petitioners could not be refuted satisfactorily by the respondents. Mr. Sabharwal, learned senior counsel for the DDA, only submitted that as per the sale deed itself, the land in question was agricultural land and, therefore, user thereof for petrol pump by the petitioners was impermissible. His further submission was that entire area, including the land of the petitioners was required for the development purposes and, therefore, the petitioners' case could not be singled out for different treatment. However, this argument does not satisfactorily answers the arguments of the petitioners. It may be that as per the sale deed, area in question is agricultural land. However, it falls in KU Zone and as per the Master Plan itself, petrol pumps are permissible in this area. It cannot also be lost sight of that petrol pump is an activity which can be undertaken only with specific permission of the particular oil company-IBP Company in the instant case. Hundreds of other permissions are required from various authorities. All these multiple permissions by number of different public authorities are given in the instant case. Numerous is that they felt satisfied not only about need of such a service station in this area but permissibility and feasibility of this service station in the particular area. It is also not a case where the petitioners are subsequent purchasers, namely, they purchased the land after the issuance of Section 4 notification. On the contrary much before issuance of the impugned notifications they became the owners of the land and set up a service station way back in 1985.
86. Following other factors which go in favor of the petitioners as highlighted by the learned counsel and noted above are:
(a) As already mentioned above, user of the area for service station/petrol pump is permitted even as per the Master Plan.
(b) Petrol pump is treated as essential service.
(c) It was set up after taking due permission from the Government and other Government authorities.
(d) There are cases where Government exempted running petrol pumps from acquisition and even at times when the land was acquired, in so far as petrol pumps are concerned, they are de-notified by issuing notification under Section 48(1) of the Act.
(e) In compliance with the directions of the Supreme Court in M.C. Mehta's case (supra), CNG station was also set up on the petitioners' petrol pump. It is the only on-line CNG filling station by IBP Company Ltd. and only one of the three such stations in Delhi (other two being set up by Indraprastha Gas Ltd.). The cost of providing the equipment and machinery for this purpose supplied by GAIL in the year 1995-96 was about Rs. 1 crore and for augmenting the supply of CNG at site GAIL has spent further amount of Rs. 50 lacs. Thus, not only the Government has financial stakes, the service station is catering to the public need and is required in public interest.
(f) In the area notified for acquisition itself, the Government has sanctioned CNG service stations recognising thereby that even with the proposed development such service stations would be required.
(g) Counsel for Government of Delhi also conceded that if the land of the petitioners is left out of acquisition, it will not affect the plan of the Government.
87. Having regard to these special features, i.e. when there is a need for service station/CNG station in the area; when such service station would be required even if the area is developed as proposed; when existence of this service station is not contrary to any provisions; when there is a substantial investment by the Government on this service station, there is no reason not to de-notify the area in question if in the process it ensures that the petitioners are not rendered jobless and without income No useful purpose would be served to uproot this service station now, build up another service station by incurring fresh cost at the same place or in the adjoining/nearby area. If such an action is taken, it would not only be at the cost of exchequer but foolish.
88. Therefore, while upholding the impugned notifications, I am of the view that it is a fit case where the Government should consider de-notifying the area of the petitioners under Section 48(1) of the Act. I, therefore, direct that the petitioners shall move appropriate application in this behalf to the Government within four weeks from today and on receiving this application the Government shall take decision thereon within six months thereof. In the meantime, status quo regarding possession of the area in question belonging to the petitioners shall be maintained. This petition is disposed of with aforesaid directions leaving the parties to bear their own costs.