_____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 09.03.2010 % Date of decision: 26.03.2010 + WP (C) No.23297 of 2005 MR. RAJINDER KUMAR AGGARWAL …PETITIONER Through: Mr. V.P. Singh, Sr. Advocate with Mr. S.K. Gupta & Mr. M. Chaudhary, Advocates. Versus LIEUTENANT GOVERNOR OF DELHI & ORS. ...RESPONDENTS Through: Mr. Sanjay Poddar, Adv. for R-1 & 3. Mr. Ajay Verma, Advocate for R-4. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MS. JUSTICE VEENA BIRBAL 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? SANJAY KISHAN KAUL, J. 1. The petitioner is the owner of land measuring 12 bighas and 10 biswas situated in khasra Nos.137 min (4-10), 138 min (4-3), 136 min (3-17) situated in the Revenue Estate of Village Mehrauli, New Delhi. The petitioner claims to have constructed a farmhouse on the said land after obtaining permission from the Municipal Corporation of Delhi on 19.4.1990 and the completion certificate was issued on 28.9.1993. _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 2 of 23 2. A notification was issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) notifying the intention of the State to acquire the land of the petitioner along with land of others. The avowed public purpose for the land was stated to be building of Vasant Kunj Residential Scheme. The said notification also specified that the Lieutenant Governor of Delhi was satisfied that a case was made out to invoke the emergency provisions and thus the provisions of sub-section (1) of Section 17 of the said Act were applicable to the land and the Lieutenant Governor was pleased to direct that the provision of Section 5A of the said Act would not apply. The total land notified as per the notification was 71 bighas and 13 biswas giving different khasra numbers and the areas as under: SPECIFICATION Village Total Area Khasra No. Area (Bigha-Biswa) (Bigha-Biswa) Mehrauli 71.13 125 5-08 128 1-04 129 4-14 130 7-09 131 7-06 132 3-09 133 2-08 134 4-00 135 min 8-13 136 5-17 137 5-10 138 8-13 139 5-08 140 1-14 3. The petitioner filed WP (C) No.244/2000 on 14.1.2000 aggrieved by the said notification. It is during the pendency of that petition a declaration was issued under Section 6 of the said Act on 29.9.2000. A status quo order was passed on the interim application of the petitioner on 4.9.2002 _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 3 of 23 by this Court though the interim application had been filed along with the writ petition. 4. The said writ petition along with other connected matters was disposed of by a common judgement on 3.2.2005 granting partial relief to the petitioner to the extent that notification under Section 4 of the said Act dated 11.11.1999 was quashed to the extent that it related to invoking provisions of Section 17 (4) of the said Act giving liberty to the petitioners to file their objections under Section 5A of the said Act before the competent authority within 30 days of the pronouncement of the judgement. The declaration under Section 6 of the said Act dated 29.9.2000, thus, naturally stood quashed. 5. The petitioner thereafter filed objections under Section 5A of the said Act on 4.3.2005. Objections were filed by other affected parties and opportunity of hearing was given by the LAC whereafter the records were placed before the Lieutenant Governor who on examination of the record issued a fresh declaration under Section 6 of the said Act on 9.11.2005. The present writ petition was thereafter filed on 6.12.2005 seeking quashing of the declaration under Section 6 and notification issued under Section 4 of the said Act. We may note that during the pendency of this writ petition the award dated 28.11.2007 bearing No.1/2007-2008 in respect of the complete land under acquisition including the land of the petitioner has been published. 6. The first plea urged by learned senior counsel for the petitioner was that the correct facts had not been brought to the notice of the Lieutenant Governor prior to the issuance of the declaration under Section 6 of the said Act. This plea is predicated on the fact that while the land of the petitioner had a farmhouse constructed after obtaining requisite _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 4 of 23 permission from the MCD for which the completion certificate had been issued, the Secretary (Land) Government of NCT of Delhi had placed a note dated 25.5.1999 to the Lieutenant Governor stating that all built up structures are unauthorized including the farmhouses. Learned counsel, however, could not seriously urge this plea because this noting is prior to the declaration made earlier on 29.9.2000 after invocation of the emergency powers and since invocation of the emergency powers was quashed and the declaration dated 29.9.2000 consequently set aside, the matter rested so far as the grievance is concerned at that stage. Thereafter objections were filed by the petitioner and other affected parties under Section 5A of the said Act which had been examined by the LAC, report submitted by the LAC, note prepared on that basis and it is thereafter that the declaration under Section 6 of the said Act was issued by the Lieutenant Governor. Thus, ex facie this plea has no substance. 7. The real question and if, one may say so, the only question urged by learned senior counsel for the petitioner relates to the plea that the declaration under Section 6 of the said Act was beyond time and thus no such declaration could have been issued in respect of the notification under Section 4 of the said Act dated 11.11.1999. Insofar as the computation of the period is concerned the same has to be governed by the first proviso to Section 6 of the said Act read with the explanation 1, which reads as under: “6. Declaration that land is required for a public purpose. - …. [Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1)- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 5 of 23 before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of one year from the date of the publication of the notification:] Provided further that] no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. [Explanation 1. - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4, sub-section (1), is stayed by an order of a Court shall be excluded.” 8. In view of the aforesaid position it is not in doubt that since notification under Section 4 of the said Act was issued after the Land Acquisition (Amendment) Act 1984 the declaration under Section 6 of the said Act has to be made within a period of one year from the date of publication of the notification under Section 4 of the said Act. In terms of explanation 1 the period during which any action or proceeding to be taken in pursuance of notification issued under Section 4 (1) is stayed by an order of the Court has to be excluded. It appears that interim orders in favour of other parties were granted at the initial stage of filing of the writ petitions, however, in the case of the petitioner though the petition was filed on 14.1.2000 interim orders were passed only on 4.9.2002 after two years and ten months of the notification under Section 4 of the said Act. The earlier declaration under Section 6 of the said Act dated 29.9.2000 though issued within the period of one year was quashed and the subsequent declaration under Section 6 of the said Act was published on 9.11.2005. If the period of stay is excluded in the _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 6 of 23 individual case of the petitioner then undisputedly the declaration under Section 6 of the said Act under challenge is beyond the period of one year. This is so since a status quo order in the case of the petitioner was granted after two years and 10 months in the earlier petition after notification under Section 4 of the said Act was issued in the earlier petition. 9. The respondents, however, seek to take benefit of the interim order granted in the connected matters challenging the same notification. If that date is taken into account, it is not in dispute that the declaration under Section 6 under challenge is within one year from the date of notification under Section 4 of the said Act. In fact, the other petitions have been dismissed and it is the case of the petitioner that his case is the single case in which this issue has been raised as unlike other cases there was no stay order operating in the case of the petitioner. 10. The moot point, thus, is whether the stay granted in respect of the same notification under Section 4 of the said Act in respect of other parties would entitle the respondents to exclude that period of stay in the case of the petitioner. 11. In order to support his plea learned senior counsel for the petitioner sought to rely upon the judgement of the Supreme Court in Oxford English School Vs. Government of Tamil Nadu & Ors. (1995) 5 SCC 206 where this very question is stated to have been examined. The Supreme Court observed as under: “10. The respondents further drew our attention to an order of stay dated 27-10-1987 granted by the Minister for Local Administration on a petition which was filed by the adjoining landowner before the Government. Such a stay, however, cannot be taken into account for the purposes of Explanation 1 since Explanation 1 requires that the order of stay should be passed by a court. In any event a stay in respect of proceedings pertaining _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 7 of 23 to an adjacent land cannot be availed of by the respondents in calculating the period of three years within which the declaration under Section 6 is required to be made in respect of the appellant‟s land.” (emphasis supplied) 12. Learned counsel submitted that no doubt in the facts of that case the stay order was granted by the Minister for Local Administration which was held to be not a stay order for purposes of explanation 1 which requires stay order to be passed by a court. However, learned counsel sought to draw strength from the subsequent sentence in the aforesaid para beginning with “In any event” to contend that the Supreme Court has also observed that a stay in respect of proceedings pertaining to an adjacent land could not be availed of by the respondents in calculating the period of three (3) years (which is now one year) within which declaration under Section 6 of the said Act is required to be made in respect of the land in question. Learned counsel submitted that there remains no doubt over this matter as the judgement in Oxford English School case (supra) was examined by the Constitution Bench of the Supreme Court in Padma Sundara Rao (Dead) & Ors. Vs. State of Tamil Nadu & Ors. (2002) 3 SCC 533 where the interpretation of the provisions of Section 6 of the said Act was the matter in issue. The Supreme Court came to the conclusion that where a declaration under Section 6 of the said Act is quashed by a court, a fresh declaration must be issued within the limitation period provided under the said Act and while expressing this view affirmed the views already expressed in Oxford English School case (supra). Learned counsel, thus, submitted that this aspect has escaped the attention of the subsequent judgements of the Supreme Court that the observations in Oxford English School _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 8 of 23 case (supra) has received the imprimatur of the Supreme Court in Padma Sundara Rao (Dead) & Ors. case (supra). 13. In Suleman Vs. Union of India & Ors. 123 (2005) DLT 206 (DB) it was held that explanation 1 in Section 6 of the said Act makes no distinction between first or subsequent declaration under Section 6 of the said Act and thus if the earlier declaration was quashed, a subsequent declaration had to be within a period of one year from the date of preliminary notification issued under Section 4 of the said Act. The same view has been followed in Shanti India (P) Ltd. Vs. Lt. Governor & Ors. 138 (2007) DLT 511 (DB). 14. The controversy involved before the Constitution Bench arose out of a reference made on account of cleavages being found in the views expressed in several decisions rendered by Benches of three learned Judges of the Supreme Court. The controversy involved lay in a narrow compass as to whether on quashing of notification under Section 6 of the said Act, a fresh period of one year is available to the State Government to issue another notification under Section 6 of the said Act. The Supreme Court found that if the legislature intended to give a new lease of life in those cases where the declaration under Section 6 of the said Act has quashed there is no reason why it could not have done so by specifically providing for it. The fact that legislature specifically provided for period covered by orders of stay or injunctions granted by court clearly show that no other period was intended to be excluded and that there was no scope for providing any other period of limitation. Before coming to this conclusion, while considering the conflict of view, the Constitution Bench took note of an unreported decision of the Supreme Court in SLP (C) No.11353-55/1988 titled A.S. Naidu Vs. _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 9 of 23 State of Tamil Nadu where it was held that once a declaration under Section 6 of the said Act had been quashed, fresh declaration under Section 6 of the said Act could not be issued beyond the period of notification under sub-section (1) of Section 4 of the said Act. The Bench went on to observe that there was another judgement of two learned Judges in Oxford English School case (supra) which took a similar view to that expressed in A.S. Naidu case (supra). In conclusion it was held that the views expressed in A.S. Naidu case (supra) and Oxford English School case (supra) were affirmed. 15. Learned counsel, thus, submitted that the reliance placed by the respondents on the Full Bench judgement of this Court in Balak Ram Gupta Vs. Union of India AIR 1987 Delhi 239 and Abhey Ram (Dead) through LRs & Ors. Vs. Union of India (1997) 5 SCC 421 is misplaced to the extent that they seek to lay down the proposition that the stay granted in other cases will apply to a case of a person in whose case there is no stay for purposes of calculating limitation under Section 6 of the said Act. Learned counsel further pleaded that even in Om Parkash Vs. Union of India & Ors. 2010 (2) SCALE 153 the Constitution Bench in Padma Sundara Rao (Dead) & Ors. case (supra) had not been examined and the law laid down in Padma Sundara Rao (Dead) & Ors. case (supra) must prevail especially since both in Balak Ram Gupta case (supra) and Abhey Ram (Dead) through LRs & Ors. case (supra) the question did not arise on account of any notification under Section 17 (4) of the said Act. 16. The respondents, however, sought to urge to the contrary by contending that there was a stay in operation in respect of land in khasra Nos.136, 137 & 138 in petitions filed by parties who had land adjoining to that of _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 10 of 23 the petitioner located in the same khasra numbers in WP (C) No.2654/2005 and the Government was entitled to exclude the period of limitation. In this behalf learned counsel relied upon the observations in Balak Ram Gupta case (supra) to the following effect: “26. Learned Counsel for the petitioners is to some extent right in his contention that broad as the above observations are, these cases are slightly different in that they all dealt with the effect of the operation of stay order only vis-a-vis one of the parties to the litigation in which the stay order is passed. But we are of opinion that these decisions are of guidance as to the proper approach to such a question. In the first place, they show that a stay of execution of a decree can be pleaded as ground for conclusion of the period of stay even by a judgment-debtor who did not seek the stay. To that extent, the insistence by the petitioners that the exclusion can operate only against the party who obtained the stay order would not be correct. Secondly, these decisions show that the prohibition on action need not be the direct effect of stay order of a Court. Thus, in the present cases, even if in terms the Court be held not to have stayed a declarations in other cases, such was the indirect effect of the stay order in these cases. Thirdly, they lay down that we should not interpret a provision of this type rigidly but should give it an interpretation that gives effect to the object of the Legislature. 27. We, therefore, think that, in proceeding to interpret the scope of the Explanation, we should keep in mind the nature of the proceedings under the Land Acquisition Act and the nature of the proceedings in which stay orders are obtained. So far as the first of these aspects is concerned, while it is possible for the Government to issue notification under Section 4 in respect of each plot of land sought to be acquired, it is not feasible or practicable to do so, particularly in the context of the purpose of many of the acquisitions at the present day. It is common knowledge that in Delhi, as well as many other capital cities, vast extents are being acquired for 'planned development' or public projects. The acquisition is generally part of an integrated scheme or plan and, though, technically speaking, there can be no objection to individual plots being processed under Sections 5A, 6, 9, 12, etc., particularly after the amendment of 1967, the purpose of acquisition demands that at least substantial blocks of land should be dealt with together at least up to the stage of the declaration under Section 6. To give an example, if a large extent of land is to be acquired for the excavation of a canal, the scheme itself cannot be put into operations unless the whole land can be eventually made available. If even one of the land owners anywhere along the line applies to Court and gets a stay of the operation of the notification under Section 4, in practical terms, the whole scheme of acquisition will fall through. It is of no consolation to say that there was no stay regarding other _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 11 of 23 lands covered by the scheme. To compel, the Government to proceed against the other lands (by refusing the benefit of the Explanation in such a case on the ground that there is no stay order in respect thereof) would only result in waste of public expenditure and energy. If, ultimately, the single owner succeeds in establishing a vitiating element in the Section 4 notification and in getting it quashed by the Supreme Court, the whole proceeding of acquisition will fail and the Government will have to retrace the steps they may have taken in respect of other lands (see Sheonoy v. Commercial Tax Officer [1985]155ITR178(SC) and Gauraya v. Thakur 1986CriLJ1074 . Assuming that where such final order is by a High Court the position is not free from difficulty, the debate as to whether, in law, the quashing of the order ensures only to the benefit of the party who filed the writ petition and obtained the order is futile, for the moment the Government seeks to enforce the acquisition against the other, they would come up with similar petitions which cannot but be allowed. In other words, in many of the present day notifications, the acquisition scheme is an integral one and the stay or quashing of any part thereof is a stay or quashing of the whole. This aspect should not be lost sight of. 28. It is true that the object of having contiguity of all plots sought to be acquired may fail for various reasons. For instance, there may be items of properties exempt from acquisition in between. Again, it may happen that a particular person may have been able to stave off acquisition of his land for one reason or other, particularly since dates of declarations under Section 6, awards and taking of possession may vary from plot to plot. Moreover, it is not in all cases that the object of acquisition needs a number of contiguous plots and may be workable even without some of the intervening lands. However, in considering a question of interpretation, one should not go only by one particular situation but must consider all eventualities to the extent possible. It is only on a broad perspective of the scheme of present-day acquisitions in large measure that we say that any hurdle in regard to any one plot of land can hold up an entire acquisition, all promptness and expedition on the part of the Government notwithstanding. 29. It was sought to be urged that the interpretation sought to be placed by the respondent would result in equating an interim order with a final judgment and the final judgment in a land acquisition case to a judgment in rem and in this context reference was made to Section 41, Evidence Act and to a Passage in Woodroffe on Evidence (14th Edition, Vol. 2) at page 1225. We do not think this analogy is correct. If the final order can operate to the benefit of all the parties, there is no reason why the interim order cannot also affect them. Moreover, we are considering the nature and effect of an injunction passed by the Court against one of the parties thereto who has to act in the same capacity not only in the acquisition of the plot of land the owner of which has obtained a stay order but in all _____________________________________________________________________________________________ WP (C)No.23297 of 2005 Page 12 of 23 proceedings consequent on or in pursuance of same notification that is challenged in that petition. 30. Secondly, the nature of proceedings in which stay orders are obtained are also very different from the old pattern of suits confined to parties in their scope and effect. Section 4 notifications are challenged in writ petitions and it is now settled law that in this type of proceedings, the principle of locus standi stands considerably diluted. Any public spirited person can challenge the validity of proceedings of acquisition on general grounds and when he does this