Chandu vs Lt. Governor of Delhi and Others

B.C. Patel, C.J.—Petitioner has filed this petition seeking direction to quash the notification, Annexure-B to the petition which was issued on 31.12.1981, u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act for short) and to restrain the respondent from taking further acquisition proceedings, and, to declare that the action of the respondent is in violation of the fundamental rights and constitutional rights guaranteed to the petitioner under the Constitution of India. In the petition, it is averred in para 1 that the questions which have been raised in the petition are identical with the one raised in CWP 1203/82 titled as Budh Vihar Welfare Society and others v UOI and others. It is specifically averred that the petition was admitted and rule was issued in 1982. It is also averred that on 26.5.1982 the Division Bench protected the petitioner of that petition. In para 2 of the petition, it is also pointed out that in three other petitions Rule came to be issued. The Court issued show cause notice returnable on 28.5.85 as to why the petition be not admitted limited to the question whether notification u/s 4 of the Act dated 31.12.1981, filed as Annexure-B with the writ petition, was duly published or not ? On 23rd August, 2002, while hearing the matter, the Division Bench referred to the earlier order, which we have referred to above, and issued notice to the Collector, Land Acquisition (District North) D.C. Office Kanjhwala, to produce the relevant record. Thereafter the Collector remained present with the relevant record on 19.9.2002.

The land in question is situated within the revenue estate of village Rithala for which notification u/s 4 of the Act was issued. Sub-Section (1) of Section 4 of the said Act reads as under:

Publication of preliminary notification and powers of officers thereupon - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification.

It is required to be noted that after issuance of notification, as averred in para 7 of the petition itself, the petitioner filed objections u/s 5A of the Act within the stipulated time. He has specifically referred in the said para about the issuance of the notification dated 31.12.1981 calling upon the persons to file objections within a period of 30 days. He has also specifically stated that the petitioner came to know about the acquisition proceedings from the newspaper reports that such a notification had been issued. His case is specific that public notice was not given but at the same time he has admitted that on reading the newspaper he came to know about acquisition proceedings and filed objections within the period of thirty days. Not only that, but he has fairly stated that the interested persons, including the petitioner, appeared before the Land Acquisition Collector for hearing u/s 5A(2) of the Act. However, he has made a grievance that on point of law, the Acquisition Collector stated that he has received no instructions on the legal issues and the same will be considered by the higher authorities. He has made a grievance that it cannot be said that it was "hearing".

The petitioner has come out with the case that there was no specific scheme or utilization of the land which has been notified for acquisition. Therefore, he was unable to file any specified objections in relation to the same. In para 21 of the petition, he has averred that notification for "planned development of Delhi" has to be in accordance with the approved plan for planned development of Delhi i.e. as per the Master Plan and Zonal Development Plan prepared under the provisions of Delhi Development Act, 1957. Petitioner has further contended that the notification does not give the details of the properties as to which properties are to be acquired and therefore, the notification is required to be quashed.

It is required to be noted that on behalf of the DDA-respondent No. 3 it is pointed out that the petition relates to notification dated 31.12.1981 for the land falling in Sector 10, Pocket 1, Rohini. It was also pointed out that the same is required immediately for the construction of a city centre in Rohini Residential Scheme. It is also contended that the land is already acquired vide Award No. 16/85-86. Under the provisions of the Master Plan, a plan of Rohini Residential Scheme is drawn. It was also pointed out that in view of the operation of the stay order, development of the area has been adversely effected. After making award by the Land Acquisition Collector, the petitioner has no right, title or interest and it was submitted that the petitioner''s right is limited to the extent that he can claim compensation. It was also pointed out that the connected matters - CWP 1507/84, 3984/82 and 831/83 - have already been dismissed by the Court and therefore, the petition is required to be dismissed. It was also pointed out that in view of the decision of this Court in Roshanara Begum Vs. Union of India, notification issued in this case is valid.

Thus, the contention raised by the petitioner that the notification was not published in the manner as required u/s 4 of the Act and as the notification was not giving the property number of the petitioner, the notification is required to be quashed.

Learned Counsel for the petitioner submitted that in view of the decision in the case of Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others, This Court must come to the conclusion that there is non-application of mind, as there are no details of public purpose for the intended acquisition. In that case, in the notification detail of public purpose was shown as "residential". The Apex Court held that the public purpose which has been mentioned in the schedule to the notification as "residential" is hopelessly vague rendering the notification as invalid in law. There was no indication as to what type of residential accommodation was proposed and for whom or any other details. It is in this view of the matter, learned Counsel submitted that in the instant case, public purpose, which is shown as "for planned development of Delhi" is vague.

Learned Counsel for the petitioner submitted that in view of the decision of the Apex Court in Khub Chand and Others Vs. State of Rajasthan and Others, , in the instant case, notification u/s 4 was not published in accordance with law, therefore, it must be held to be void and acquisition proceedings should be quashed. In that case, the provisions contained in Rajasthan Land Acquisition Act (No. 24) of 1953 were considered by the Apex Court. The Court referred to the amendment subsequently made. Earlier there was no Section in the Land Acquisition Act, 1894 (Central Act corresponding to Section 5(2) of the Act. Sub-Section (2) of Section 5 of the Act was omitted by Act No. 15 of 1960 and Section 5A was suitably amended to bring the Section in conformity with the Central Act of 1894. The Court has not expressed opinion with regard to subsequent amendment. In the instant case, the provisions are different. We may not advert to the facts of that case and this case does not help the petitioner. Learned Counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of State of Tamil Nadu and others etc. Vs. L. Krishnan and others etc., . In the instant case, notification u/s 4 was published in the year 1981. Notification u/s 6 was published in 1984 and this petition was filed in 1985. Not only that, even the award was also made in the year 1985-86. Thus, after delayed period the petitioner approached the Court. Not only that, in this case, on behalf of the respondent copy of the order made by the Lt. Governor has been placed in the file. It is very clear that objections filed u/s 5A in original were received and no substance was found in any of the objections. The Lt. Governor made an order for issuance of notification u/s 6 of the Act. This was done on 12.04.1984. It is also placed on record that the lands have been acquired by award No. 16/85-86 and thus the petitioner has approached the Court after delayed period. It is in this background that the decision cited by the counsel in the case of State of Tamil Nadu (supra) is required to be considered. In that case, writ petition was not filed at proper time. The Court pointed out that in such a situation, if it was found to be true and acceptable, opportunity could have been given by the government to comply with the said requirement. Having kept quite for a number of years, the petitioner cannot raise this contention in the writ petition filed at a stage when award was about to be made. In view of the decision of the Apex Court, it is very clear that a notification u/s 4 or 6 of the Act is required to be challenged, it must be challenged immediately after issuance of notification or within a reasonable period, but, in the instant case, after filing objections and waiting for further proceedings and when the matter had come to an end, the petitioner approached the Court and, therefore, in such a case, in our opinion, it would be inappropriate to interfere with the acquisition proceedings. In a matter of land acquisition or a matter invoking public interest at large what Apex Court has pointed out in para 10 in the case of Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, must be borne in mind:-

Before parting with this case, we think I necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognized on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay, It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a Civil Suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even by open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts while dealing with challenges to acquisition proceedings.

The Apex Court while considering the question of public purpose stated in the notification is vague, examined the said contention in para 35 onwards of the judgment. The Court observed.

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.

In Aflatoon and Others Vs. Lt. Governor of Delhi and Others, 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. 5A. 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 and Others Vs. Union of India (UOI), ) 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 Another Vs. State of Maharashtra and Others, and held: "(I)n 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.

(Emphasis added)

In Pt. Lila Ram Vs. The Union of India and Others, 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 form 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 utilised 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.

The above decisions, and particularly the decision in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, 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 bit of the land so notified would be put to. 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 notification 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 0.26 or 0.25 acres.

So far as the decision in Munshi Singh and Others Vs. Union of India (UOI), (decided by the Bench comprising K.S. Hegde, A.N. Grover and D.G. Palekar, JJ.) is concerned, it does contain certain observations supporting the petitioners'' contentions but it must be remembered that this decision was referred to and explained in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, 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 cannot be treated as a question of law. It was also emphasized that where large extents are sought to be acquired for development or similar purposes, it would not 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 in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, which is a decision of a Constitution Bench. As pointed out hereinbefore, in a subsequent decision in Pt. Lila Ram Vs. The Union of India and Others, , another Constitution Bench has also emphasised the very same aspect. We are, therefore, of the opinion that Munshi Singh and Others Vs. Union of India (UOI), does not come to the rescue of the writ petitioners-respondents in these maters.

The Court further pointed out in para 40 as under:

There is yet another and a very strong militating against the writ petitioners. Not only did they fail to file objections in the enquiries held u/s 5-A, they also failed to act soon after the declarations under Sections 6 were made. As stated above, the declarations under Sections 6 were made in the year 1978 and the present writ petitions were filed only sometime in the year 1982-83 when the awards were about to be passed. It has been pointed out in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, that laches of this nature are fatal. Having held that the public purpose specified in the notification concerned therein is not vague, Mathew, J, Made the following observations (At pp. 2080-81):

Assuming for the moment that the public purpose was not sufficiently specified in the notification, did the appellants make a grievance of it at the appropriate time ? If the appellant had really been prejudiced by the non-specification or the public purpose for which the plots in which they were interested were needed, they should have taken steps to have the notification quashed on that ground within a responsible time. They did not move in the matter even the declaration under S. 6 was published in 1966. They approached in High Court with their writ petition only in 1970 when the notices under S. 9 were issued to them.....

Nor do we think that the petitioners in the writ petition should be allowed to raise this plea in view of their conduct in not challenging the validity of the notification even after the publication of the declaration under S. 6 in 1966. Of the two writ petitions, one is filled by on behalf of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A validity notification under S. 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under S. 4 and declaration under S. 6 were valid and then to attack the notification on grounds which were available to them at the time when the notifications was published would be time when the notifications was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, and Rabindranath Bose and Others Vs. The Union of India (UOI) and Others,

From the counter affidavit field on behalf of the Government, it is clear that the Government have allotted a large portion of the land after the acquisition proceedings were finalised to Cooperative housing societies. To quash the notification at this stage would disturb the writs of the third party who are not before the Court.

In the case before the Apex Court no objections were filed u/s 5A of the Act. In the instant case, objections have been filed u/s 5A and have been considered.

Learned Counsel submitted that in the case of State of Haryana and Another Vs. Raghubir Dayal, the Apex Court has held that the word "shall" as used, is mandatory in Section 4(1) and therefore the notification must be published in the manner in which it is laid down. With regard to time gap, the Apex Court pointed out that the gap between the publication of the notification u/s 4(1) in the State Gazette and of publication of substance of the notification in the locality, the delay by itself does not render the notification published in the State Gazette invalid. The Apex Court pointed out that the notification u/s 6, though it is in pari materia with Section 4(1). Issuance of notification u/s 4(1) should not be invalidated for non-compliance of the notification u/s 6. The Apex Court in para 8 pointed out that "since there is an opportunity already given to the owner of the land or persons having interest in the land to raise their objections during the enquiry u/s 5A, or otherwise in case of dispensing with enquiry u/s 5A unless they show any grave prejudice caused to them in non-compliance with the substance of the declaration u/s 6(1), the omission to publish the substance of the declaration u/s 6(1) in the locality would not render the declaration u/s 6 invalid". It may be noted that the language used in Section 4(1) and 6(2) is almost identical. Reading this part of the judgment, it is clear that on the contrary, it helps the authority, acquiring the land as after hearing the petitioner and considering the objections u/s 5A, declaration is made u/s 6 of the Act.

Learned Counsel submitted that in view of the decision of the Apex Court in Urban Improvement Trust, Udaipur Vs. Bheru Lal and Others, the notification u/s 4 must be quashed. Learned Counsel submitted that there is no doubt that there was declaration in the official gazette, however, from the admission made in the petition, it is very clear that the petitioner came to know about the acquisition only from the newspaper reports and filed his objections. His grievance is that the notification was not received by the petitioner nor the substance was published. In the instant case, it is very clear that within a period of 30 days from the publication of the notification in the official gazette on 31.12.1981 the petitioner filed objections u/s 5A of the Act (para 7 of the petition) and, therefore, in the instant case, no prejudice has been caused to the petitioner. That apart, in the case of Urban Development Trust (supra) the Court pointed out that the substance u/s 4 was published in the local papers on 17.5.93/19.5.93 and on 17.5.94 declaration u/s 6 was made. The Court pointed out that Section 6(1) does not required that such declaration could not be published in the official gazette after expiry of one year of the publication of the notification u/s 4(1). The Court pointed out that on the ground of delay and laches in filing the writ petition the Court ought to have dismissed the same. The writ petitions were filed virtually after two years. The Court pointed out that in case where the land is needed for public purposes and for scheme of development, the Court ought to have taken care in not entertaining the same as delay is likely to cause serious prejudice to the persons for whose benefit the housing scheme is framed under Urban Development Act and also having planned development of the area. Law on this point is well settled. (Reliance was placed on Reliance Petroleum Ltd. Vs. Zaver Chand Popatlal Sumaria and Others, and Hari Singh and Others Vs. State of U.P. and Others,

This Court is of the opinion that in the instant case after publication of the notification in the official gazette, the petitioner himself filed objections u/s 5A of the Act within the stipulated period of 30 days, the objections have been taken into consideration after hearing the petitioner by the competent authority and thereafter declaration has been made u/s 6 of the Act no prejudice has been caused to the petitioner. Not only that, the award was made and the petitioner has approached the Court much after declaration made u/s 6 of the Act, the petition is required to be rejected.

The Apex Court in the case of M/s. Larsen and Toubro Ltd. Vs. State of Gujarat and Others, with regard to delay pointed out in para 21 which reads as under:

This Court has repeatedly held that writ petition challenging the notifications issued under Sections 4 and 6 of the Act is liable to be dismissed on the ground of delay and laches if challenge is not made within a reasonable time. This Court has said that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification u/s 4 and the declaration u/s 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise it would be putting a premium on dilatory tactics. Writ petition (SCA No. 5149 of 1989) is thus barred by laches as well.

Learned Counsel submitted that in the instant case as the area has not been indicated, the notification must be quashed. He has placed reliance on the Apex Court decision in Madhya Pradesh Housing Board (supra). In para 9 of the judgment, the Court has pointed out that the only description given of the land is 2.29 hectares of land proposed to be acquired and that the same is situated in the district of Mandsaur, Tehsil Mandsaur village Mandsaur and in the column of ''public purpose'' is indicated as ''residential''. From the facts, it is clear that Mandsaur is not a big city. As pointed out in the judgment, it is divided in 35 municipal wards having a population of 1,80,000 and is spread over 25 sq kilometres. The absence of details of the land or locality, where the same is situated, vitiated the notification for non-compliance with the provisions of the Act. In the instant case, reading the notification, it is clear that lands situated in the revenue estate of village Rithala, were to be acquired, except the government land or the land already notified either u/s 4 or 6 of the Act or the land in respect of which lay out plan/building plans were sanctioned by the MCD before 30.11.1981. Thus, the lands covered in the exception clauses, namely a, b and c were not to be acquired and rest of the land within the revenue estate of village Rithala, was to be acquired. Therefore, it cannot be said that it is vague.

Learned Counsel submitted that there is no Master Plan and therefore the land cannot be acquired. In the case of Bhagat Singh Vs. State of U.P. and Others, the Court after referring to the case of Aflatoon (supra) in para 20 considered:-

It was there argued that inasmuch as there was no Master Plan and Zonal Development Plan in existence on the date of notification, the acquisition was bad.

and the Court rejected the objections raised by the owners and therefore there is no merit in the submission. The Apex Court considered the decision in the case of Patna Improvement Trust Vs. Smt. Lakshmi Devi and Others, which was followed by Allahabad High Court in the case of Kendriya Karamachari Evam Mura Sahkari Avas Samiti v. State of U.P. 1988 UPLBEC 645, and pointed out as under in para 22:

As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Om Prakash and Another Vs. State of U.P. and Others, it is clear that acquisition of a public purpose and obtaining permission form the competent authority under the Development Act concerned for change of land use are different from one another and the former is not dependent upon the latter.

Learned Counsel, Mr. Sanjay Poddar appearing for the respondent submitted that the notification cannot be said to be vague and for that purpose he invited our attention to paras 3, 7 and 9 of the Apex Court judgment in the case of Aflatoon and Others Vs. Lt. Governor of Delhi and Others, he also invited our attention to paras 35 to 40 of the Apex Court decision in the case of State of Tamil Nadu v L. Krishnan (supra).

It is required to be noted that the land situated in the revenue estate of village Rithala were to be acquired. Proceedings with regard to other matters wherein acquisition of the land situated in this very village under the same notification was subject matter of writ petition before the High Court and those petitions have been dismissed and DDA has taken steps in the area and therefore the Court would not like to entertain this petition after delay.

Considering the facts of this case, it is clear that after issuance of the notification, the petitioner filed objections which were considered before issuance of declaration u/s 6 of the Act and the matter reached the stage of award and thus after delayed period the petitioner approached the Court, it is very clear that no prejudice whatsoever has been caused to the petitioner and therefore the petitioner has no case. Learned Counsel for the respondent, for this purpose, relied upon a decision of the Apex Court in Urban Improvement Trust Udaipur (supra) and the State of Haryana v. Raghubar Dayal (supra). He submitted that acquisition is not bad if the Master Plan provided for a different use of the land. Considering the facts of this case and law laid down by the Apex Court, it is clear that the petitioner has no case. Petition is required to be dismissed. It is dismissed with costs quantified at Rs. 5000/-.