w w w . L a w y e r S e r v i c e s . i n



Birla Cotton Spinning and Weaving Mills Limited v/s U.O.I. and Others

    Civil Writ No. 205 of 1974

    Decided On, 09 July 1990

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE P.K. BAHRI

    For the Appearing Parties : Shamla Pappu, B.R. Sabharwal, Sanjeev Sushant, Y.D. Nagar, Vipin Sanghi, Advocates.



Judgment Text

P.K. BAHRI. J.


The challenge in this writ petition is to the acquisition proceeding pertaining to 11 Biswas of land in Khasra No. 56 and 819 Biswas of land in Khasra No. 57 located in Rajpura Chawni.


2. A Notification dated November 13, 1959 was issued under Section 4 of the Land Acquisition Act indicating the intention of the Government to acquire land measuring 34, 070 acres as shown in the map attached to the Notification as Annexure 'I' comprised in Blocks A to T and X for public purpose namely the planned development of Delhi. It was made clear in the Notification that the Map could also be inspected by the persons concerned in the various offices mentioned therein. Subsequently, a Notification under Section 6 of the Act dated December 30, 1968 was issued and it refers to 56 bighas and 6 Biswas of land of Rajpura Chawni comprising various field numbers enumerated therein including field Nos. 56 and 57. Thereafter on September 7, 1973, a notice under Section 9 was issued to the petitioner company wherein reference has been made to land comprising Khasra No. 56. Petitioner company had filed an application, copy of which is Annexure 'A' with the Land Acquisition Collector in order to verify whether the aforesaid notice issued under Section 9 pertains to only land comprised in Khasra No. 56 or not on which the Collector gave the clarification that the aforesaid notice related to the land comprised in Khasra No. 56 as in evident from the notice itself. This writ petition was filed on January 31, 1974 but thereafter with a view to urge additional grounds, the writ petition was amended and amended writ petition was filed on January 27, 1977.


3. In the amended writ petition it is pleaded by the petitioner that petitioner is the owner of land measuring 2 Bighas and 10 Biswas in Kham Khewat No. 56 (11 Biswas) 57 (8.019 Biswas), 59 (15 Biswas) 76, (1.3 Biswas). 77 (10.8. Biswas). 58 (14 Biswas of Khata Nos. 30/41, 42/43, 30/44, 40/58, 59, 60 with shamlat rights situated at Mauza Rajpura Chhaoni Band Stand Road, Delhi and this land was purchased by the petitioner along with evicting houses and constructions vide Sale Deed dated July 28, 1947 and thereafter the petitioner had constructed residential quarters for it workers in addition to the building and construction already existing on the aforesaid land. It was averred that petitioner company had purchased the aforesaid land for the purpose of providing residential quarters to its workers and had already constructed the quarters befo

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re the Notification was issued and hundreds of its workmen stand housed in the said quarters and the said locality is now known as Khilone Wala Bagh.


4. Before I refer to various pleas urged before me by the learned counsel for the petitioner, it must be clarified that during the course of arguments, learned counsel for the respondents Mr. Sanghi produced before me a photo copy of the Khasra Girdavari of Khasra No. 56 and 57 of the period Kharif 1955 to Rabi 1959 which indicate that 11 Biswas of land in Khasra No. 56 at all the relevant time was recorded as vacant whereas in Khasra No. 57 there existed a Kothi in area 4.9 Biswas and the other land was shown as cultivated with various crops being raised as mentioned in the said Khasra Girdavari but since Khariff 1958 the whole of the area 8.19 Biswas is recorded as comprising of quarters. So, it is not disputed before me by the learned counsel for the parties was that at the time the Notification under Section 4 was issued at least Khasra No. 57 was wholly built up while Khasra No. 56 was lying vacant.


5. The first contention raised by the learned counsel for the petitioner in challenging the said acquisition proceedings is that the Notification issued under Section 4 is illegal in as much as it did not particularise the land to be acquired in any definite manner and as the mandatory requirement of Section 4 has not been complied with , the Notification issued under Section 4 is liable to be struck down qua the land in question. The reliance has been placed by the learned counsel for the petitioner on Narendrajit v. State of U.P. 1971 AIR(SC) 306, 1970 (1) SCC 125, 1970 (3) SCR 278, 1970 UJ 196, 1970 All(LJ) 70, Narendrajit v. State of U.P. 1973 AIR(SC) 552, and Khub Chand v. State of Rajasthan; 1967 AIR(SC) 1074, 1967 (1) SCR 120. However, I do not find any merit in this contention inasmuch as if we peruse the Notification issued under Section 4 as read with the Map published along with the Notification, there appears no vagueness with the Notification with regard to the whole of the land sought to be acquired vide that Notification. Section 4 Notification as already mentioned by me above pertains to land measuring 34070 acres of land as indicated in Blocks A to T and X, as enumerated in the Map and those Blocks give the boundaries of the land proposed to be acquired and it cannot be thus said that mandatory provisions of Section 4 have not been complied with while issuing the Notification under Section 4 of the Act.


6. This very Notification was challenged by filing numerous writ petitions and the matter came up to the Supreme Court in Alfatoon v. Lt. Governor, Delhi, 1974 AIR(SC) 2077, 1975 (4) SCC 285, 1975 (1) SCR 802, 1974 UJ 765 and the validity of this Notification was upheld.


7. The learned counsel for the petitioner has contended that the public purpose mentioned in the Notification regarding the planned development of Delhi is quite vague and he has placed reliance in support of her contention on Munshi Singh v. Union of India; 1973 AIR(SC) 1150, 1973 (2) SCC 337, 1973 (1) SCR 973. In the case of Alfatoon (supra) the judgment given in Munshi Singh was referred to and it was held that the question whether the purpose specified in a Notification under Section 4 is sufficient to enable an objection to be filed under Section 5A would depend upon the facts and circumstances of each case. The Constitution Bench then made reference to Armold Rodricks v. State of Mahararhtra; 1966 AIR(SC) 1788, 1966 (3) SCR 885, 1967 MahLJ 1, 1967 MhLJ 1 where a Notification issued under Section 4 giving the public purpose as development and utilization of the land as in industrial and residential area was held to be sufficient specification. The Constitution Bench held that in the case of an acquisition of a large area of land comprising seven blocks belonging to different persons the specification of the purpose could 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 composes in the area is needed. So, in view of the law laid down in the case of Alfatoon (supra), in my opinion, it is not open to the petitioner to challenge the aforesaid Notification under Section 4 giving the public purpose a planned development of Delhi on the ground that the same is vague. It is to be remembered that since 1955 the planned development of Delhi has been taken into hand and the interim Master Plan his been prepared and given due publicity which clearly indicates as to how the various pieces of land and various areas in Delhi are to be utilised for development of Delhi So, it cannot be said that in the present case the public purpose mentioned in the Notification under Section 4 is in any manner vague.


8. The learned counsel for the petitioner has tried to distinguish the judgment given in the case of Alfatoon (supra) by pointing out that the Supreme Court had not allowed this point to be raised inasmuch as the said point was not raised before the High Court. I am afraid that the judgment given in the case of Alfatoon (supra) cannot be brushed aside on such a plea. It is true that the judgment has also recorded this fact that such a point was not raised before the High Court and it would not allow it to be raised before the Supreme Court but still the Constitution Bench has expressed its view on merit with regard to the public purpose mentioned in the said Notification and thus the same is binding on this Court. It has been argued that Section 4 Notification itself exempts the area of abadi land of Rajpura village and thus the land in question located in Rajpur Chawni should be considered as exempted from acquisition. It is not shown by any plea taken in the writ petition that Rajpura Chaoni and Rajpura village mean one and the same thing. Unless and until a specific plea has been taken that Rajpura Chaoni and Rajpura village mean same thing, it is not possible to hold that village abadi of Rajpura village which has been exempted also includes the land in question of Rajpura Chaoni. At any rate the perusal of Khasra Girdavari clearly indicates that the land comprised in Khasra No. 56 and Khasra No. 57 is not located in village abadi land. Hence, it cannot be said that land comprised in the aforesaid Khasras stood exempted from acquisition.


9. It has been urged by the learned counsel for the petitioner that Notification issued under Section 4 has not been displayed in the locality or given any publicity which was the mandatory requirement of the provisions of the Land Acquisition Act. In the counter-affidavit, it has been pleaded that necessary publications in the locality had been given in respect of the Notification issued under Section 4 and the petitioner had filed objections under Section 5A of the Act pertaining to another land located in the vicinity and thus petitioner was very much aware of this Notification. No. 2 rejoinder has been filed by the petitioner to controvert this fact. So, it is to be inferred that proper publication of this Notification had been given in the locality. If the petitioner could file objections in respect of some other land in the vicinity, subject-matter of the same Notification, there is no reason why petitioner could not have filed objections in respect of the land in question at that time.


10. It has been then urged that in Notification issued under Section 6, the Government has not recorded its satisfaction that the land mentioned in declaration issued under Section 6 is needed for acquisition for any public purpose. It is true that amended Section 6 of the Act 13 of 1967 requires an appropriate Government to be satisfied that any particular land is needed for public purpose after considering the report made under Section 5A(2). Learned counsel for the petitioner has placed reliance on Shaugin Singh v. Desa Singh 1970 AIR(SC) 672, 1970 (3) SCC 881, 1970 UJ 281 wherein it has been held that satisfaction under Section 24(2) of the Act is a jurisdictional fact on the existence of which alone the power can be exercised. However, it is not necessary that the appropriate Government should have indicated in so many wards in the Notification issued under Section 6 regarding the satisfaction arrived at by the Government with regard to the need of the particular land for purposes of public purpose if from the record it could be shown that such satisfaction has been reached by the authority concerned then the Notification issued under Section 6 has to be upheld.


11. In Narendra Bahadur Singh And Anr. v. State of U.P., 1977 AIR(SC) 660, 1977 (1) SCC 216, 1977 (2) SCR 226, provisions of Section 7 of the U.P. Land Acquisition Act came up for consideration which requires the Government to decide as to whether a particular land is to be acquired or not. In the Notification issued under Section 7 such decision was not recorded. It was held that the fact that the word "decided" has not been used in the Notification would not prove fatal when the entire tenor of the Notification reveals the decision of the State Government to acquire the land and is consistent only with the hypothesis of such a decision having been arrived at. The Supreme Court held that the Court should be averse to strike down a Notification for acquisition of land on fanciful grounds based on hyper technicality. What is needed is substantial compliance with law. So, it cannot be said that mere omission of the authority to use the words as required by Section 6 in issuing Notification under Section 6 would result in making the Notification bad. The whole tenor of the Notification has to be seen whether the appropriate Government has satisfied itself regarding the need to acquire the particular land for public purpose Reading the Notification as such, in my opinion, would not result in any inference that no such satisfaction has been reached by the appropriate Government. So, there is no merit in this contention as well.


12. The learned counsel for the respondent has vehemently argued that this writ petition is liable to be dismissed on the ground of laches and delay. It was pointed out that Notification under Section 4 was issued in 1959 and under Section 6 was issued in 1968 whereas this writ petition came to be filed in 1974. He has placed reliance on Indrapuri Griha Nirman Sahkari Samity Ltd. v. The State of Rajasthan And Ors.; 1974 AIR(SC) 2085, 1975 (4) SCC 296, 1975 (2) SCR 68, 1974 UJ 589, 1974 AIR(Raj) 116. In the said case the writ petition was filed after nine years from the date of declaration under Section 6 and the writ petition was dismissed on the ground of delay. This writ petition would have been dismissed on the ground of delay and laches on the part of the petitioner but it appears that a fresh cause of action had accrued to the petitioner in challenging the acquisition proceedings in question on account of a decision taken by the Administrator with regard to the priorities to be adhered to for acquiring the land. This decision has been taken in 1986 during the pendency of this writ petition. So, if the said decision is to cover the case of the petitioner, obviously the petition cannot be dismissed on account of delay and laches as this cause of action had accrued to the petitioner during the pendency of the writ petition. Before I deal with this point, I may refer to another contention raised before me by the learned counsel for the petitioner with regard to the delay made in issuing the Notification under Section 6 of the Act. The learned counsel for the petitioner has pointed out that Notification under Section 4 was issued in 1959 and there has taken place undue delay in issuing the Notification under Section 6 in 1968. In the case Alfatoon (supra) the Supreme Court had held that the delay was explainable inasmuch as a large number of objections had been filed in challenging the aforesaid Notification issued under Section 4 of the Act which required to be processed which obviously took considerable time.


13. It is evident that the declaration under Section 6 had been issued within two years from the date on which amended Act 1967 came into force while dealing with such a point in State of Gujarat And Anr. v. Punjabhai Nathubhai And Ors. ; 1988 (1) JT 471, 1988 (1) Scale 335, 1988 (2) SCC 478, 1988 (1) UJ 473 it was held that declaration under Section 6 issued within two years of the commencement of the amended Act of 1967 was to be deemed to be in time. In view of the ratio laid down in this judgment, it is not necessary to refer to various judgments cited by the learned counsel for the petitioner of different High Courts taking different view. There is thus no merit in this contention.


14. So, the only point which now remains to be decided in the present case is whether the land acquisition proceeding pertaining to the land in question are liable to be struck down or not on account of the policy decision taken by the Lt. Governor of Delhi communicated to the Deputy Commissioner by Shri Ganga Dass, copy of which is Annexure 'J' which I re-produce for the sake of facility:


"GANGA DASS P.O. No. F. 9(1)/86


L and B/LA/LA/6482


Delhi Administration,


P.W.D. and I.S.G. Deptt.,


Vikas Bhavan, New Delhi.


Dear Shri Satish Chandra,


Kindly refer to the discussions held in the L.G.'s meeting held today regarding priorities for land acquisition. As decided therein I am to convey the following priorities:


(i) Land lying vacant and or having some minor structures be acquired on top priority basis.


(ii) Vacant land of a hectare or above in the built up areas was also to be acquired within stipulated time on priority basis.


(iii) The land for D.D.A.'s special projects measuring over 800 acres falling within Lal Dora, and the lands allotted under 20 Point Programme in this regard the DDA through its Commissioner (Lands) has been asked to re-examine and re-cast its priorities with a view to avoid as far as possible the built up areas with Kh. Nos. which are not to be acquired.


The above priorities are subject to the stipulation that the areas falling within Lal Dora, built up area is that the extended Lal Dora and areas allotted under 20 Point Programme, should not be acquired at all. Besides the areas which are built up to the extent of 90 to 100% and/or the areas which are particularly built up but there is no vacant pocket bigger than one hectare available need not be acquired as they cannot be put to effectiveness.


The above guidelines are also subject to modification at your discretion wherever deemed necessary due.


Yours sincerely,


Sd/-


(GANGA DASS)


Shri Satish Chandra,


Deputy Commissioner,


Delhi.


Please ensure that notified land is acquired as per the above guidelines and a day to day report is given.


Sd/-


(Satish Chandra)


DEPUTY COMMISSIONER


AIM (LA)"


20.8.1986


15. It is not disputed that according to the aforesaid decision, the land in question cannot be acquired inasmuch as there is no vacant land available in the land in dispute bigger than one hectare and admittedly 90% of the land in dispute already stand built up with construction of quarters meant for the labour force of the petitioner company.


16. The learned counsel for the respondent has, however vehemently argued that by virtue of this letter only priority have been fixed for purposes of making future acquisitions of land and these priorities have no legal force and are not binding and more important if they are to be considered to be binding, they would be effective prospectively from the date of issuance of this letter i.e. August 20, 1986. He has argued that acquisition proceedings in respect of the land in question have been completed by virtue of issuance of notice under Sections 4 and 6 and Sections 9 and 10 of the Act and thus the land in question cannot be now allowed to be deleted from the aforesaid notification on the strength of the guidelines given in this particular letter. It is pertinent to mention that despite various opportunities being provided to the respondent to file an affidavit for taking pleas with regard to this particular letter, unfortunately, no such affidavit has been filed and in reply given to the application, a plea has been taken vaguely that particulars of the said letter be given in order to enable the respondents to take proper plea in respect of these new grounds. However, the copy of the aforesaid letter has been duly supplied to the respondents and necessary particulars have been mentioned in the copy of the letter and respondents ought to have filed some counter-affidavit in respect of this letter. Be it as it may, the contents of this letter show that a decision has been taken at the level of the Lt. Governor and under the Delhi Administration Act, the Lt. Governor is the Administrator of the Union Territory of Delhi and the executive power pertaining to the affairs of Delhi Administration duly stand conferred on the Lt. Governor and if any decision taken by the Lt. Governor, the same has to be considered binding and it cannot be ignored on the plea that only priorities have been fixed and it is for the authorities to decide whether particular priorities fixed in the said letter should be adhered to or not. In the present case no affidavit has been filed by the respondents taking any plea that as to why the decision takes in the said letter is not to be made applicable to the land in question.


17. Learned counsel for the respondents has placed reliance on Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd. And Anr. v. The New Okhla industrial Development Authority And Ors., 1988 AIR(SC) 1, 1987 (4) JT 194, 1987 (2) Scale 856, 1988 (1) SCC 63, 1988 (1) SCR 662 in support of his contention that such a letter fixing the priorities cannot be legally enforced. I have gone through this judgment and find that in the said case the G.O. dated 9th April 1980 has been issued which merely stated that the lands of the cooperative house building societies are not to be acquired as far as may be. Keeping in view the words "as far as may be" appearing in the said letter, the Supreme Court held that the State Government order cannot be considered to be mandatory but would be deemed to be directory inasmuch as it merely says that the lands of cooperative house building societies should not be acquired "as far as may be". Moreover, the Supreme Court opined that the said order was not a statutory one being not issued under any statutory provisions and at best the same is administrative instruction. In the present case the Department has not taken any plea as to why the guidelines given in the said order are not being complied with vis-a-vis the land in question. So, in the absence of any plea taken in this regard by the respondents, it must be held that the guidelines given in this letter are meant to be applicable to the land in question as well. The contention of the learned counsel for the respondent that these guidelines would be effective only prospectively and not to the land in respect of which Notifications had been issued earlier, is not tenable inasmuch as the land acquisition proceedings in respect of the land in question are still not finalised as the Court had already stayed the giving of any award in the matter. So, as long as the land acquisition proceedings in respect of a particular land had not been finalised, the guidelines given in the aforesaid letter would become applicable to such land also.


18. The learned counsel for the petitioner has pointed out that the object of acquiring the present land is for constructing some residential houses and the said object of acquisition stands duly fulfilled in the present case inasmuch as the staff quarters for housing the labourers of petitioner company already stand constructed. Thus the land in question should not be allowed to be acquired and she has cited the case of Hukam Chand v. Union of India; 1988 AIR(SC) 408, 1988 (1) CCC 988, 1987 (2) Scale 1459, 1988 (S) SCC 464, 1988 (1) UJ 384, 1988 (1) PunjLR 620, 1988 SSCC 464 and Ghaziabad Sheromani Sahkari Avas Samiti Ltd. And Anr. v. State of U.P. And Ors. 1990 AIR(SC) 645, 1990 (1) CCC 436, 1990 (1) JT 128, 1990 (1) Scale 151, 1990 (1) SCC 583, 1990 (1) SCR 203, 1990 (1) UJ 444, 1990 ALR 414, 1990 BBCJ 48. In the crse of Hukam Chand (supra) certain land in the village was allocated by the Panchayat for construction of houses for the weaker sections of the Society. The Delhi Administration had laid down the criteria for allotment of the said land and one of the conditions was that the land can be allotted only to the residents of the concerned village. The question which arose for decision was that, could such a land be allotted to resident of another village but covered by the same Panchayat? The Supreme Court held that small adjustments particularly for providing accommodation to the homeless in the economically backward classes has to be permitted so that the purpose may be fulfilled and the objective is achieved and the Court has held that acquisition proceedings initiated in respect of such land are liable to be quashed because the purpose of acquisition stood fulfilled by allotting the said land to the members of the society belonging to economically backward classes. In the other case also the acquisition proceedings were quashed when it was found that the land was being utilised by a society of which members were Government servants coming from lower income group. In the present case the counsel for the petitioner has given a solemn undertaking in Court on behalf of the petitioner that land in question on which the quarters have been constructed meant for residence of the weaker sections of the society i.e. the labour class would be kept as such for all times and thus she has prayed that the land in question should not be allowed to be acquired as the object for which the land was to be acquired stands duly fulfilled. Be it as it may, in the present case I come to the conclusion that land in question cannot be acquired in view of the decision taken in the aforesaid letter by the Lt. Governor and thus the acquisition proceedings are liable to the quashed.


19. I allow the writ petition and make the rule absolute and quash the acquisition proceedings in respect of the land in question. However, I leave the parties to bear their own costs
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