W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 1 of 28 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 30th October 2018 Decided on: 26th November 2018 + W.P. (C) 7964/2016 & CMs 33043/2016 and 13530/2018 VIMAL JAIN .....Petitioner Through: Mr. Ravinder Sethi, Sr. Advocate and Mr. Sandeep Srivastava, Advocate. versus GOVT. OF NCT OF DELHI & ORS. ....Respondents Through: Mr Ankur Chibber and Mr Bhanu Gupta, Advocates. + W.P. (C) 6461/2000 & CMs 45667/2016 and 13529/2018 KHUSHIRAM .....Petitioner Through: Mr. Ravinder Sethi, Sr. Advocate and Mr. Sandeep Srivastava, Advocate. versus GOVT. OF NCT OF DELHI & ORS. ....Respondents Through: Mr. Sanjay Poddar, Senior Advocate with Mr. Yeeshu Jain, Standing Counsel and Ms. Jyoti Tyagi, Advocate for L&B/LAC. Mr. Parvinder Chauhan, Advocate for DUSIB. W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 2 of 28 CORAM: JUSTICE S. MURALIDHAR JUSTICE SANJEEV NARULA JUDGMENT Dr. S. Muralidhar, J.: 1. There is a long history to these cases which concerns the acquisition proceedings pertaining to the land comprised in Khasra Nos. 426 (0-10), 435 (4-16), 401 (4-16), 576 (3-16), 577 (2-8), 587 (6-14), and 589 (4-16) totally admeasuring 27 bigha 16 biswa situated in the revenue estate of village Bhalaswa, Jahangirpur, Delhi (hereinafter referred to as „the land in question‟). Proceedings in W.P. (C) 6461/2000 2. W.P. (C) 6461/2000 was initially filed by one Mr. Khushiram stating that he was the owner of the land in question and was in possession of the same. The petition assailed Notification No. F.11(24)/98/L&B/LA/8895 dated 15th September 2000 issued under Sections 4 and 17 (1) & (4) of the Land Acquisition Act 1894 („LAA‟) and prayed for direction that the Respondents not interfere with his possession of the land in question. Reference was made to certain other writ petitions pending before this Court at the time concerning the acquisition of land in the same village and for the said purported public purpose, i.e. rehabilitation of jhuggi-jhopri clusters („JJ clusters‟). 3. The said writ petition was heard first on 24th October 2000 where notice was issued and it was directed that status quo as to the possession be W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 3 of 28 maintained. It was further directed that “Petitioner shall also not make any additional construction”. The main ground of challenge was that the Petitioner was deprived of an opportunity of being heard as the invocation of Section 17 of the LAA would deprive them of the opportunity to raise objections under Section 5A of the LAA. 4. The said writ petition was heard along with a batch of petitions and a common judgment was passed on 12th December 2002. It was held by the learned Single Judge that the questions that arose in the cases were fully covered by the judgment of this Court dated 31st May 2002 in Praveen Jain v. Union of India 99 (2002) DLT 646 where, in similar circumstances, the notifications were quashed. It was held that the Government ought not to have invoked Section 17 of the LAA and dispensed with the requirement of Section 5A of the LAA. It was contended before the learned Single Judge on behalf of the Respondents/Land Acquisition Collector (LAC) that the Division Bench in Praveen Jain (supra) had failed to correctly apply the principles laid down by the Supreme Court in Jai Narain v. Union of India AIR 1996 SC 697 and, therefore, the judgment in Praveen Jain (supra) was „per incuriam‟. The learned Single Judge observed that he was bound to follow the decision of the Division Bench in Praveen Jain (supra) and it would be for the Supreme Court to decide whether the decision in Jai Narain (supra) had been correctly applied by the Division Bench of this Court in Praveen Jain (supra). Accordingly, all the petitions, including W.P. (C) 6461/2000 filed by Mr. Khushiram, were allowed and the land acquisition notifications were quashed. W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 4 of 28 5. It appears that while W.P. (C) 6461/2000 was pending, an application being CM No. 2833/2002 was filed by Mr. Khushiram himself in which, inter alia, he admitted to having been offered compensation and, therefore, he did not wish to pursue the said writ petition. The prayer in the said application was to allow the Petitioner to withdraw the challenge to the impugned notifications in respect of Khasra Nos. 426 (0-10), 435 (4-16), 401 (4-16), 577 (2-8), 587 (6-14), 589 (4-16), and further, to allow the Petitioner to pursue the petition with respect to half share of 576 (3-16) which had a built up area over it. 6. The order sheets show that the said application was simply kept pending and the attention of the learned Single Judge was not drawn to it, although the affidavit in support of the application was sworn on 10th January 2002. This application being CM 2833/2002 was shown in the order sheets dated 28th August 2002 onwards. Therefore, it was certainly on the file of the Court when the final judgment dated 12th December 2002 was passed. No specific order was passed vis-à-vis the said application at any point in time. 7. In the meanwhile, even before the judgment was pronounced by this Court in that petition, Award No.6/2002-2003 was pronounced on 12th April 2002 in respect of the entire land in question and compensation was paid on 27th May 2002 to Mr. Khushiram‟s sons, namely Mr. Sheo Raj and Mr. Surender. 8. It appears that a Special Leave Petition („SLP‟) was preferred by the LAC before the Supreme Court against the judgment dated 12th December 2002. While said SLP was pending before the Supreme Court, on 4th March 2003, W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 5 of 28 a second notification under Section 4 of the LAA was issued in respect of the land in question. In view of this development, the SLP was dismissed as withdrawn. 9. By a letter dated 31st March 2003, the Slum and JJ Department intimated the Deputy Secretary, L&B Department, Government of NCT of Delhi that the fresh notification issued on 4th March 2003 was required to be rectified since the lands admeasuring 423 bighas 16 biswas, including those belonging to Mr. Khushiram, had already been acquired and compensation had already been duly paid to the beneficiaries. Mr. Vimal Jain, the Petitioner in the accompanying writ petition, being W.P. (C) 7964/2016, has placed on record a copy of an additional affidavit dated 8th September 2017 sworn by the LAC referring to the aforementioned letter dated 31st March 2003 in which it was pointed out that the notification dated 4th March 2003 under Section 4 of the LAA, which was published in the newspaper on 7th March 2003, was “legally and technically incorrect”. 10. It further appears that on the basis of said letter, a further note was prepared by the Joint Secretary, L&B on 27th August 2003 in which a reference was made to the aforementioned letter. On 10th December 2003, a recommendation was made to exclude the said land from the notification. This was apparently accepted and it led to a fresh notification under Section 6 of the LAA dated 4th November 2004. Circumstances leading to the filing of W.P. (C) 7964/2016 11. Mr. Vimal Jain (hereinafter referred to as „the Petitioner‟), who has preferred W.P.(C) 7964/2016, states that he had acquired the land in W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 6 of 28 question from Mr. Khushiram on 10th May 2004 by virtue of a duly executed agreement to sell, power of attorney, Will, receipt, and other documents. According to him, the land in question stood excluded from the notification under Section 6 of the LAA dated 4th November 2004, and therefore from the notification dated 4th March 2003 under Section 4 of the LAA. Thus, it is his submission that the land in question, as on the date of its purchase, was free from acquisition. According to him, all the legal heirs of Mr. Khushiram also gave a „no objection‟ to the land being mutated in his favour. Further according to the Petitioner, the entire acquisition proceedings qua the land in question stood lapsed in terms of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act 2013 („the LAA 2013‟). According to the Petitioner, the purported public purpose, i.e. rehabilitation of slums and JJ clusters, “has not only lost its sanctity but also the relevance and usage”. 12. On 24th September 2015, the Petitioner submitted a representation to the LAC (North) seeking, inter alia: (i) that the LAC (North) mutate the land in question in his name; and (ii) that the LAC (North) accept the refund of compensation paid pursuant to the notification sated 15th September 2000 and Award No.6/2002-03 dated 12th April 2002 which stands quashed. Pursuant to the above representation, the Respondents purportedly wrote letters to other similarly situated persons on 16th November 2016 and 12th May 2016, offering to return the possession of the lands on refund of the compensation received for the acquisition. On 24th May 2016, the LAC issued a notice of the proceedings originating from the representation dated 24th September 2015 of the Petitioner. W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 7 of 28 13. According to the Petitioner, the Respondents, which included the Delhi Urban Slum Improvement Board („DUSIB‟) [the successor-in-interest of the Slum & JJ Wing, the original beneficiary under the land acquisition proceedings concerning the land in question), entered appearance before the LAC on 12th May 2016. On 3rd June 2016, the LAC allowed the Petitioner‟s representation and directed him to refund to the LAC the entire amount of compensation. A further letter was issued to them on 24th June 2016 asking him to refund the entire amount of land compensation paid in terms of Award No.6/2002-03 along with 9% and 15% interest as mentioned in the aforementioned letter totalling to Rs.3,26,30,694/-. 14. Thereafter, the Petitioner submitted demand drafts dated 24th and 28th June 2016 for a total sum of Rs.3,26,30,694/- to the LAC along with a request to mutate the land in question in his favour. According to the Petitioner, by a letter dated 5th July 2016, the LAC (North West) intimated the Sub Divisional Magistrate („SDM‟), Model Town of his compliance with the order dated 3rd June 2016 and requested that necessary action be taken in terms of the said order. According to the Petitioner, the demand drafts were duly encashed and by a letter dated 19th July 2016, the LAC directed the Deputy Controller of Accounts (L&B) to submit the receipt to DUSIB (Respondent No.4). The Petitioner submits that, thereafter, his name was duly mutated against the above khasra numbers in the revenue records, without any objections from the legal heirs of the late Mr. Khushiram. 15. The Petitioner states that he was “shocked” to receive a copy of the impugned letter dated 3rd August 2016 addressed to the Deputy Controller of W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 8 of 28 Accounts (L&B) intimating that two-member committee had been constituted on 22nd July 2016 to inspect the relevant papers and records in connection with “the handing over of 27 bighas 16 biswas of land in village Bhalaswa, Jahangirpur”. Furthermore, the Deputy Controller of Accounts (L&B) was directed to return the cheq ue dated 19th July 2016 for a sum of Rs.3,26,30,694/- in favour of the Secretary, L&B. It was further stated in that letter that the order passed by the LAC (North) on 3rd June 2016 was without approval from the Competent Authority and the steps taken consequent to that order stood suspended till completion of the inquiry. 16. The Petitioner also received a cheque for the aforementioned amount in his name along with a letter dated 3rd August 2016 addressed to the SDM, Model Town wherein it was stated that the representation of the Petitioner was to be reconsidered. The Petitioner declined to accept the cheque and returned it by a letter dated 22nd August 2016. According to the Petitioner, on 23rd August 2016, DUSIB officials attempted to plant their board on a vacant portion of the property. According to the Petitioner, this was an illegal trespass. He sent a legal notice dated 24th August 2016 to DUSIB asking them to desist from taking over the possession of the land in question. He also filed a complaint with the police. On 30th August 2016, he filed W.P.(C) 7964/2016 in which, on 9th September 2016, while directing notices to be issued, a status quo order was passed by this Court. Application for recall of earlier judgment and restitution of proceedings 17. DUSIB filed CM 45667/2016 in W.P.(C) 6461/2000 seeking recall of the judgment and order dated 12th December 2002. Therein, DUSIB set out W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 9 of 28 the circumstances leading to the filing of the application and, in sum, submitted that the judgment dated 12th December 2002 was a nullity as it had been obtained by perpetrating a fraud on the Court. It was contended that with Mr. Khushiram having sought to withdraw the writ petition, having acknowledged receipt of compensation, he could not have continued to pursue the petition thereafter. Accompanying this application were CM 45668/2016 (for impleadment of the Petitioner in place of the late Mr. Khushiram who was the original petitioner) and 45669/2016 (for stay of the operation of judgment dated 12th December 2002). By the order dated 21st December 2017, CM 45668/2016 was allowed. It was noted by this Court that the subsequent purchaser, viz. the Petitioner, was already appearing in the matter. 18. A common order dated 28th February 2018 was passed in CM 33043/2016 (application by the Petitioner for ad interim stay of the operation of the letter dated 3rd August 2016 pending disposal of the petition) in W.P.(C) 7964/2016 and CM 45667/2016 in W.P.(C) 6461/2000. The said order reads as under: “1. A common order is being passed in both the writ petitions. 2. By the present writ petitions, the petitioners seek a writ of mandamus directing the respondent to handover possession of the land belonging to the petitioners post passing of orders dated 03.06.2016 by the LAC on a representation made by the petitioners, a writ of certiorari is also sought to quash and set aside the letter dated 03.08.2016 by which the aforesaid order has been kept in abeyance. 3. We are informed by Mr. Chauhan, counsel for the DUSIB that an appeal has been filed before the Financial Commissioner W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 10 of 28 assailing the order dated 03 .06.2016, which would have a direct impact on the final decision in these writ petitions. 4. Mr. Sethi, learned Senior Counsel appearing for the petitioners submits that the appeal is not maintainable and the same is liable to be dismissed on this ground alone besides on the merits of the matter. 5. We have heard learned counsel for the parties and are of the considered view that before these two writ petitions are decided, the Financial Commissioner should be directed to decide the appeal which has been filed by the DUSIB. We are informed that the next date fixed in the matter is 24.04.2018. 6. With the consent of the parties, we cancel the date of 24.04.2018 and direct the parties to appear before the Financial Commissioner on 08.03.2018 at 2:30 PM to enable him to fix a date within one week thereafter for hearing the appeal. We are informed that the pleadings are already complete. The hearing would be concluded within two weeks and a final decision would be taken within four weeks thereafter. Parties undertake to cooperate with the Financial Commissioner and not to seek any adjournment. All legal objections of the parties including objections with regard to maintainability of the appeal is kept open. We make it clear that the Financial Commissioner shall decide the appeal unaffected by any observations made by this Court. 7. The Financial Commissioner shall forward copy of the order to this Court. 8. List for further hearing on 03.05.2018. 9. Dasti.” 19. The Court is informed that the proceedings before the Financial Commissioner („FC‟) are still pending. In any event, in view of the reasons W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 11 of 28 hereafter explained, that need not hold up the decision in the present proceedings. 20. This Court has heard the submissions of Mr. Ravinder Sethi, learned Senior Counsel, and Mr. Sandeep Srivastava, learned counsel, both appearing for the Petitioner. The Court has also heard the submissions of Mr. Sanjay Poddar, learned Senior Counsel appearing for the LAC and Mr. Parvinder Chauhan, learned counsel appearing for DUSIB. Detailed written arguments have also been filed by Mr. Sandeep Srivastava. It must be noted that initially orders were reserved Submissions on behalf of the LAC and DUSIB 21. Mr. Poddar, learned Senior Counsel appearing for the Respondent LAC, began his submissions by asserting that once the compensation amount was accepted, Mr. Khushiram could not have continued to challenge the acquisition proceedings. He relied in the decision in Shyam Telelink Ltd. v. Union of India (2010) 10 SCC 165 and submitted that Mr. Khushiram could not approbate and reprobate. Since he had himself lost any title over the land in question after accepting compensation, he could not have conveyed any title, much less any valid title, to the Petitioner. 22. Secondly, it is submitted that Mr. Khushiram had himself committed a fraud upon the Respondents by not disclosing, prior to the final disposal of his writ petition by the judgment dated 12th December 2002, that he had accepted the compensation in May 2002 itself. Although he had filed CM 2833/2002, he never drew the attention of the learned Single Judge to its pendency at the time of the final disposal of the main writ petition. The mere W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 12 of 28 fact that the SLP filed against the said judgment was subsequently withdrawn, would not take away from the fact that a fraud was in fact perpetrated on the Court by concealing a relevant fact. Reliance is placed on the decision in A.V. Papayya Sastry v. Government of Andhra Pradesh (2007) 4 SCC 221. 23. It was further submitted by Mr. Poddar that the judgment in Delhi Development Authority v. Sudan Singh (1997) 5 SCC 430, which is sought to be relied upon by the Petitioner in support of his submissions, is not good law in view of the subsequent decision in Abhey Ram v. Union of India (1997) 5 SCC 421. It is contended that the mere filing of the application for withdrawal by Mr. Khushiram was in itself a clear admission that he had no right, title, or interest left in the land in question since he was prepared to accept compensation. Even a formal order by the Court accepting the said application was not necessary. Reliance is placed on the decision in Shiv Prasad v. Durga Prasad (1975) 1 SCC 405. Reliance is also placed on the decision of the Bombay High Court in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council AIR 2003 Bom 238 which followed the aforementioned decision in Shiv Prasad (supra). 24. Mr. Poddar submitted that the possession of the land still remains with the Respondents and this is acknowledged by the Petitioner himself in view of the prayer made by him in his writ petition. 25. Mr. Chauhan for the DUSIB supplemented the above submissions. He pointed out that DUSIB was the beneficiary having stepped into the shoes of the Slum and JJ Wing and, therefore, had the locus standi to maintain the W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 13 of 28 applications. He urged that the applications be allowed and the judgment dated 12th December 2002 recalled. He prayed for dismissal of both writ petitions with exemplary costs. Submissions on behalf of the Petitioner 26. On behalf of the Petitioner, Mr. Ravinder Sethi, learned Senior Advocate and Mr. Sandeep Srivastava, learned counsel, has submitted as under: (i) With the SLP filed by the LAC against the judgment dated 12th December 2002 having been dismissed as withdrawn and with no review having been filed by the LAC itself, the review petition filed by DUSIB being CM 45667/2016 in W.P.(C) 6461/2000 was not maintainable at the instance of DUSIB, which is not even a party to the main judgment. Relying on the decision in Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383, it is submitted that the filing of the review application after dismissal of the SLP amounts to an abuse of the process of the Court. (ii) Secondly, it is submitted that the review petition itself is highly belated as, way back on 31st March 2003, the LAC was aware that fresh acquisition proceedings in respect of the land of Mr. Khushiram was not tenable and they excluded the same from the subsequent notification under Section 6. Even the proceedings before the LAC, who issued notice on the representation of the Petitioner on 25th April 2016, revealed that the Respondents had knowledge of the subsequent transaction. A bald statement in the application for delay that a fraud had been detected and that they were not aware of it is, W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 14 of 28 therefore, not correct. In fact, no delay application was filed in the present case and that also was another ground for rejecting the review application which was filed only on 8th October 2016, much after the Petitioner‟s petition was filed and much after an appeal was filed by the Petitioner before the FC in September 2016 against the order of the LAC dated 3rd June 2016. Reliance is placed on the decision in Ragho Singh v. Mohan Singh (2001) 9 SCC 717. (iii) On merits, it is submitted that the acceptance of compensation by Mr. Khushiram was inconsequential once the notification under Section 4 of the LAA stood quashed by this Court, which in turn stood affirmed by withdrawal of the subsequent SLP before the Supreme Court. The right to challenge an acquisition would survive notwithstanding that the land owner accepted the compensation. Reliance is placed on the decision in H.M.T. House Building Cooperative Society v. Syed Khader (1995) 2 SCC 677. Reliance is also placed on the decision in Sudan Singh (supra) where the Supreme Court affirmed the decision of the High Court giving direction to the land owners to return the compensation to have their land free from acquisition when the land acquisition notification was quashed. It is further submitted that this Court is bound by the earlier decision of the co-ordinate Bench in Praveen Jain (supra) which had held that the public purpose of rehabilitation of slums and JJ clusters was not a public purpose and therefore, the urgency clause was wrongly invoked. Therefore, even qua the LRs of the late Mr. Khushiram, this Court could have proceeded to quash the notification. Reliance is also placed upon the decisions in Greater W.P. (C) 7964/2016 & W.P. (C) 6461/2000 Page 15 of 28 Noida Industrial Development Authority v. Devendra Kumar (2011) 12 SCC 375; Competent Authority v. Barangore Jute Factory (2005) 13 SCC 477; and Kedarnath Yadav v State of West Bengal (2017) 11 SCC 601. (iv) The application for withdrawal filed by Mr. Khushiram, i.e. CM 2833/2002 was an application for conditional withdrawal and it was duly disclosed that he had accepted compensation for most of the khasras except one. There was no concealment of fact of the intention to withdraw the compensation. Moreover, said application was duly served upon the Respondents, including the Slum and JJ Department, the predecessor in interest of DUSIB. Consequently, it could not be said that fraud was perpetrated by Mr. Khushiram. The fact of withdrawal of the SLP, despite knowing the above