W.P.(C) No. 9647/2009 Page 1 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 9647/2009 & CM 7710/2009 Reserved on: 2nd September, 2009 Pronounced on: 8th September, 2009 # RAJINDER KISHAN GUPTA & ANR. ..... Petitioners ! Through: Mr. Maninder Singh, Sr. Advocate with Mr. Vivek Singh and Mr. Manish Kaushik, Advocates. Versus $ LT.GOVERNOR,GOVT. OF N.C.T. OF DELHI & ORS ..... Respondents ^ Through: Mr. V.K. Tandon for Forest Deptt. GNCT, Mr. Yatinder Chaudhary, Adv. for R- 2/UOI, Mr. Tarun Johri and Mr. Ankur Gupta, Advocates for DMRC, Mr. Pawan Mathur, Advocate for DDA, Mr. Sanjay Poddar, Advocate for LAC. CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE V.K. JAIN 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes W.P.(C) No. 9647/2009 Page 2 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. V.K.Jain, J. A Notification dated 24.10.1961 was issued under Section 4(1) of Land Acquisition Act, to acquire vast chunk of agricultural land in Delhi for planned development of Delhi. The notification covered land of the petitioners in Village Mehrauli. Declaration under Section 6 of Land Acquisition Act (hereinafter referred to as “the Act”) in respect of the aforesaid land was issued on 4th January, 1969. After filing objections and claims pursuant to the notice dated 26.4.83, issued under Section 9 of Land Acquisition Act, the petitioners filed Civil Writ Petition No. 1129 of 1983, challenging the validity of the acquisition proceedings. The Writ Petition filed by the petitioners having been dismissed by this court on 15th April, 2004, they filed Review Petition No. 253 of 2004 which also was dismissed by this court vide order dated 13th August, 2004. The petitioner preferred Civil Appeal No. 2418- 2419/2008 before the Hon‟ble Supreme Court and vide order dated 24.01.2005, the Hon‟ble Supreme Court granted status quo in respect of possession of land in question. 2. In October 2008, Delhi Metro Rail Corporation Limited (hereinafter referred to as “DMRC”), filed an application being I.A. No 1 and 2 of 2008 in Civil Appeal No. 2418 – 2419/2008, seeking impleadment in the appeal and vacation of stay orders dated W.P.(C) No. 9647/2009 Page 3 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. 24.1.2005 and 31.3.2008 on the ground that land admeasuring 26,187 Sq mtr was required urgently for construction of Chattarpur Metro Railway Station on Qutub Minar – Gurgaon Corridor of MRTS, which was scheduled to be commissioned in January 2010 and was held up on account of inability expressed by DDA to allot the said land to DMRC, due to stay orders passed by the Hon‟ble Supreme Court. It was further stated in the application that timely execution of the work being necessary on account of approaching Commonwealth Games 2010 in Delhi, the land was required by DMRC on an urgent basis. It was also stated in the application that DMRC proposes to construct Chattarpur Metro Railway Station including Running Section, Entry/Exit Area, road Modification and Staircase of Foot Bridge, Viaduct, Traction Sub Station on the aforesaid land. A copy of the map showing total area of land required for construction of Chattarpur Metro Railway Station was enclosed with the application as Annexure-A. It was also stated in the application that the route proposed for the construction of Phase-II of the Project between Qutub Minar – Gurgaon corridor had been thoroughly investigated and the same had been proved to be the most feasible route economically and for the purposes of the ridership etc etc. W.P.(C) No. 9647/2009 Page 4 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. 3. Vide order dated 17th November, 2008, the Hon‟ble Supreme Court directed as under: “Impleadment allowed. In the matters order of status quo has been running from 24th January, 2005. I.A. Nos. 3 and 4 have been preferred by Delhi Metro Rail Corporation Limited. From the I.A., it appears that Delhi Metro Rail Corporation Limited requires urgently an area admeasuring 2.6 hectares (approximately) for Chhatarpur Railway Station. Having heard learned counsel on both sides, we hereby clarify that the order of status quo passed by this court will not come in the way of Delhi Metro Rail Corporation Limited proceeding with fresh acquisition in accordance with law. I.A. accordingly stand disposed of. We make it clear that rights and contentions on both sides with regard to fresh acquisition are expressly kept open.” 4. An application dated 19th January 2009 was filed by respondents No. 2 and 3 before the Hon‟ble Supreme Court for modification of its order dated 17.11.2008. It was stated in Para 12 of the application that notification issued by Delhi Government W.P.(C) No. 9647/2009 Page 5 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. for acquisition of land in question had neither lapsed nor was it withdrawn by the Government and therefore another notification could not be issued afresh in respect of the same land. Respondents No. 2 and 3 felt aggrieved by the order dated 17.11.2008 to the extent it directed “fresh” acquisition. They sought deletion of the word “fresh” from the order dated 17th November, 2008. DMRC also filed an application stating therein that it required the land in question on an urgent basis for timely implementation of DMRC project which was required to be commissioned before Commonwealth Games 2010 and had no objection to the application of Respondents No. 2 and 3 for modification of the order dated 17.11.2008. 5. The applications were disposed of by the Hon‟ble Supreme Court vide order dated 23rd February, 2009 which reads as under: “Order dated 17th November, 2008 needs no clarification. It is expressly passed in the I.A. of Delhi Metro Rail Corporation. Applications for modification of Court‟s Order dated 17th November, 2008 are disposed of accordingly. WE clarify that the said Order was passed only because Delhi Metro Rail Corporation wanted to acquire a portion urgently on payment of compensation at the current rate. Hence, we used W.P.(C) No. 9647/2009 Page 6 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. the word “fresh” in the said Order. The said Order was passed not in the main matter and not in the I.A. Therefore, Order dated 17.11.2008 is not a direction. It does not affect the case of the parties in the Civil Appeal.” 6. On June 6, 2009, Respondent No. 3 published a notification dated June 2, 2009 under Section 48 of Land Acquisition Act, withdrawing its earlier notification for acquisition of land in question. A fresh notification dated June 4, 2009 was published on June 7, 2009 exercising powers under Section 4 read with Section 17(1) (4) of the Act seeking to acquire land of the petitioners. The notification dated 4.6.09 has been challenged in the present petition. 7. In his counter affidavit dated 2nd July, 2009, Respondent No. 5, LAC, has alleged that at the time of passing of orders dated 17.11.2008 and 23.2.2009, the Hon‟ble Supreme Court was fully appraised of the facts and the only issue which was required to be decided at that point of time was as to whether compensation as prevalent in the year 1961 was to be paid or current market price was to be paid to the petitioners and since the Hon‟ble Supreme Court declined the request for deletion of word “fresh” from the order passed by it, the only inference was that the petitioner was to be paid compensation as per the current market price. It has W.P.(C) No. 9647/2009 Page 7 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. been further alleged that the request of DMRC for acquisition of 28 Bighas 5 BIswa of land in Chhatarpur for Metro Station, to expand the line to Gurgaon before the Commonwealth Games, was considered in an urgent meeting held by the Chief Secretary on 5th March, 2009. The Lieutenant Governor vide his order dated 18.5.2009 was pleased to direct the issuance of Section 4 notification of the Act read with Section 17(1). Since the Lt. Governor was also satisfied that the land was urgently required by DMRC, the filing of objection under Section 5A was dispensed with. The Lt. Governor also granted approval for release of land in question under Section 48 of the Act, from the purview of the notification issued in the year 1961. Therefore, first notification was issued under Section 48 of the Act on 2.6.2009 whereby the land in question was released from acquisition initiated vide notification dated 24.10.1961. The second notification was issued on 4.6.2009 under Section 4 read with Section 17(1) of the Act seeking to acquire the land in question for public purpose namely for construction of Qutub-Minar – Gurgaon Corridor Delhi MRTS Project, Phase-II and both the notifications were duly published. It has also been stated in the reply that Government is paying current market price to the petitioners. It has been further stated that land in question is coming in the alignment of metro line and W.P.(C) No. 9647/2009 Page 8 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. it is not possible to shift the Metro Station and the competent authority was fully aware of this fact while granting the approval for invocation of urgency clause. It has been averred that there is no undue delay in undertaking commission as the file remained under active consideration of the Government and the notifications were issued after complying with all the formalities required under the law. 8. In its reply dated 13.6.2009, Respondent No. 6, DMRC alleged that it had earlier approached the Central Empowered Committee (CEC), constituted under the directions of the Hon‟ble Supreme Court, seeking permission to construct Chhattarpur Station and Electric Sub Station on DDA land. Since the DDA land was a notified Forest land, the CEC recommended for the shifting the location of the Electric Sub Station from forest land to the land of the petitioners, that being a non forest land. It has been alleged that each portion of the land of the petitioners is essential for the construction of the Chhattapur Station and the Electric Sub Station. It has been further stated that there is no provision in Metro Railway (Construction of Works) Act, 1978 for acquisition of the land on an urgent basis and therefore, resort to the provisions of the Section 17 of the Land Acquisition Act, is completely legal and valid. W.P.(C) No. 9647/2009 Page 9 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. 9. Respondents No. 1, 3 and 4 i.e. Lt. Governor, Govt.of NCT of Delhi and Land and Building Department, also filed a counter affidavit dated 1.7.09 taking pleas identical to the pleas contained in the counter affidavit of Respondent No. 5. It has been stated in the counter affidavit of Respondents No. 1, 3 and 4 that after meeting taken by him on 5.3.09, the Chief Secretary vide his note dated 28.4.09 sought approval for issuance of requisite notifications under the provisions of Land Acquisition Act. The Lt. Governor thereupon desired that the Government should first try to seek vacation of stay order from the Hon‟ble Supreme Court for early disposal of the case pending before it. However, looking into the urgency involved in the matter, the Chief Secretary vide his note dated 30.4.09, again requested the Lt. Governor for issuance of notification under the provisions of Land Acquisition Act. The Lt. Governor thereupon directed the issuance of notification under Section 4 read with Section 17(1) of the Act vide order dated 18.5.09 and since he was satisfied that the land was urgently required by DMRC, the right to file objection under Section 5A was also dispensed with. It has been further stated that DMRC has already deposited a sum of Rs. 3,28,56,687.49 with the Government being 80% of the estimated compensation as required under Section 17(3A) of the Act. It has been alleged that there W.P.(C) No. 9647/2009 Page 10 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. was no delay in issuance of notification as the file was to be processed at various levels and report from Government counsels appearing before the Hon‟ble Supreme Court was also to be sought before taking a decision on the request of DMRC dated 19.11.2008 for issuance of a fresh notification under the provisions of Land Acquisition Act. Since issuance of a fresh notification would have resulted in payment of additional compensation to the land owners, it was desired, in order to save public money, that an appropriate application be made to the Hon‟ble Supreme Court in the mean time. In the mean time, report was also sought from the Revenue Department. As the Hon‟ble Supreme Court declined to modify its order, steps to initiate fresh acquisition proceedings were taken and notifications were issued after detailed consultations and obtaining necessary approvals. It has also been alleged that land in question cannot be excluded from acquisition and Metro Station cannot be shifted to some other land. In its counter affidavit dated 28.7.09, respondent DDA has stated that DMRC had requisitioned for the requirement of 27584 sq. mtr. of land at Chhattarpur in connection with construction of Qutub Minoar – Gurgaon Corridor of Delhi MRTS project, Phase-II vide its letter dated 13.12.2007. It has been further alleged that between the land of DDA and the land allotted to DMRC, there is W.P.(C) No. 9647/2009 Page 11 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. another land, acquisition of which is under challenge before the Hon‟ble Supreme Court. It has been stated that though the land sought by DMRC was the land with respect to which acquisition proceedings were under challenge in Civil Appeal No. 2418-19 of 2008 and Civil Appeal No. 2729 of 2008, the DDA was of the view that land measuring 4331 sq. mtr was free from challenge to the acquisition and the same was therefore allotted to the DMRC vide letter dated 4.7.08. It later transpired, at the time of handing over of possession to DMRC that, in fact, the land allotted to DMRC was subject matter of the appeal pending before the Hon‟ble Supreme Court. After a meeting, chaired by Chief Secretary on 5.3.09 to consider the acquisition of land for DMRC, a joint survey of the land was carried out and pursuant thereto, a afresh notification was issued on 4.6.09. 10. Since there was dispute between the parties as to whether land of DDA available in the vicinity was forest land or not, Chief Conservator (Forest) and Director (Land Management-I) of DDA were directed to make spot inspection in the presence of officials of DMRC and the petitioners and affidavits were directed to be filed by Chief Conservator (Forest) and DDA. 11. An action taken report was filed by Conservator of Forests on 18th August, 2009 after carrying out joint inspection in terms of W.P.(C) No. 9647/2009 Page 12 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. our directions dated 11th August, 2009. The copies of Zonal Plan of Zone “J” of DDA and Total Station Method (TSM) Survey map of village Mehrauli was available to the officers who carried out the inspection. The petitioners were also present at the time of inspection. It has been reported in the Action Taken Report that the subject land, as mentioned in notification dated 4.6.09, is situated on the tri-junction of Aurobindo Marg, Mehrauli – Mahipalpur Road and Mehrauli-Gurgaon Road in village Mehrauli and a part of the Regional Park and Reserved Forest in South Central Ridge as per MPD 2021 and notification dated 24.5.94. It has been further stated that Central Empowered Committee also recommended use of 2.3 hectare of above subject land falling in Delhi Ridge area for construction purpose, which was accepted by the Hon‟ble Supreme Court vide its order dated 23.3.07. It has been alleged that 1.9 hectare of adjacent DDA land situated on Mehrauli – Gurgaon Road has been partly used by DMRC for construction of the Viaduct for the elevated metro line and casting yards. The land, presently, used as casting yard, has been earmarked for development of parking space for Chhatarpur Station, after the metro construction work is over. Government of India, on the recommendation made by Central Empowered Committee and the approval of Hon‟ble Supreme Court vide order W.P.(C) No. 9647/2009 Page 13 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. dated 23.3.07, has allowed DMRC to use this 1.9 hectare of land which is part of 5.56 hectare of notified Reserved Forest land in the Ridge under Section 2 of the Forest (Conservation) Act, 1980, for non-forestry use. The Central Empowered Committee has also recommended temporary non-forestry use of another 2.17 hectare of DDA land by DMRC, which is adjacent to the above said diverted land for a period of three years with the condition that no tree shall be removed from the said land, and after completion of the project, this part of the land shall be restored to its original condition. It has accordingly been reported by Conservator of Forest that the subject land as well as DDA land adjacent to it are situated within its boundary of Reserved Park as per MPD 2021 and the Reserved Forest in the South-Central Ridge as per the notification dated 24.5.94. The boundaries of the Reserved Forest as notified vide notification dated 24.5.94 and that of the Regional Park mentioned in MPD 2021 are the same. Being Government land situated within the boundary of Regional Park / Reserved Forest in South Central Ridge, the adjacent DDA land is, therefore, a forest land, part of which has already been utilised by Delhi Metro Rail Corporation for non-forestry use. 12. An affidavit was filed by Director – L.M.-H.Q., DDA on 19th August, 2009. In his affidavit, he stated that pursuant to W.P.(C) No. 9647/2009 Page 14 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. directions of this court, a joint inspection was carried out on 12.8.09 on the basis of Zonal Development Plan for Zone-„J‟ as well as plan of Forest Department, it was clarified that land in question before this court as well as land of DDA falls within the Regional Park and Reserved Forest in South-Central Ridge. The Aks Shajra of the area is filed as Annexure R7-A with the affidavit. It has been stated that the portion shown in red colour is the land in dispute whereas the portion shown in blue colour (4.64 acres) is allotted to DMRC, portion shown in green colour (4.06 acres), is DDA land, possession of which is with DDA. It has been further stated that the portion shown in yellow colour in the Annexure – R7-A is under litigation under SLP (C) No. 14047/05 and DDA has given an undertaking to the Supreme Court on 18.11.2005 that it still not deal with this land nor create any third party interest on it. The area shown in yellow colour measures 8.87 acres. 13. The acquisition has been assailed before us on the following grounds: (i) the orders of Hon‟ble Supreme Court dated 24.1.05 and 31.3.2008 envisaged acquisition of land in question by DMRC under Metro Railway (Construction of Works) Act, 1978 and therefore acquisition under the provisions of Land Acquisition Act was not permissible W.P.(C) No. 9647/2009 Page 15 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. (ii) De hors orders of the Hon‟ble Supreme Court, Land for the purpose of DMRC can be acquired only under Metro Railway (Construction of Works) Act, 1978; (iii) There was no ground to invoke urgency clause under Section 17 of Land Acquisition Act as the respondents were guilty of delay and did not take steps before October 2008 to obtain possession of land in question and even after fresh acquisition was allowed by the Hon‟ble Supreme Court, the respondents did not move expeditiously as the notification came to be issued more than three months after the order of Hon‟ble Supreme Court; (iv) There was no ground for dispensing with the issue of notice as envisaged under Section 5A of Land Acquisition Act as the respondents could have concluded the inquiry will in time had they acted with expedition; (v) Since land belonging to DDA is available in the vicinity and the project report approved by the Government of India for this Section of MRTS envisages use of Government land, the DDA land and not the land of the petitioners should be made available to DMRC. 14. A perusal of the application filed by DMRC before the Hon‟ble Supreme Court in Civil Appeal No. 2418-2419 of 2008 W.P.(C) No. 9647/2009 Page 16 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. would show that no request was made by it for permission to acquire land in question under the provisions of Metro Railway (Construction of Works) Act, 1978. The prayer made was to implead it as a party and vacate the status quo orders. The Hon‟ble Supreme Court vide order dated 17.11.2008 clarified that the order of status quo would not come in the way of DMRC proceeding with a „fresh‟ acquisition. Since no acquisition by DMRC under the provisions of Metro Railway (Construction of Works) Act, 1978, existed at that time there could be no question of its initiating a „fresh‟ acquisition. Acquisition by the Government under the provisions of Land Acquisition Act was, however, in force at the time of passing of this order. In these circumstances, use of the word „fresh acquisition‟ in our view, in the order of Hon‟ble Supreme Court dated 17.11.08 implied that DMRC could acquire the land through the Government, by way of a fresh acquisition, by the Government. 15. We have also perused the applications of Respondents No. 2 and 3 as well as the application of DMRC before the Hon‟ble Supreme Court for modification of the order dated 17.11.08. The plea of respondents No. 2 and 3 before the Hon‟ble Supreme Court was that since the notification already issued by the Government was still in force and had neither lapsed nor been quashed or W.P.(C) No. 9647/2009 Page 17 of 63 Rajinder Kishan Gupta & Anr. V Lt. Governor of Delhi & Ors. withdrawn, another notification in respect of the same land could not be issued afresh. They accordingly sought deletion of the word „fresh from the order passed by the Hon‟ble Supreme Court. There was no reference to any acquisition by DMRC under Metro Railway (Construction of Works) Act, 1978 in this application. It is thus obvious that respondents No. 2 and 3 also interpreted the order the Hon‟ble Supreme Court dated 17.11.08 to be an order for fresh acquisition by them under the provision of Land Acquisition Act. It its application for modification of order dated 17.11.2008, the DMRC informed the Hon‟ble Supreme Court that when it approached the land and building department of Government of NCT for issuance of a fresh notification with respect to land in question, it was informed that the department was unable to proceed further to issue fresh acquisition in this matter as previous notification was still operative and had not been quashed. The DMRC conveyed its no objection to the application filed by Respondents No. 2 and 3. Thus, the application of DMRC also did not contain any reference to acquisition under the Metro Railway (Construction of Works) Act, 1978. In fact, the application made it quite clear that it