_____________________________________________________________________________________________ WPC 3823-25/2006 Page 1 of 38 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 11.11.2010 % Date of decision : 24.12.2010 + WP (C) No.3823-25/2006 PRITHI PAL SINGH & ORS. … … … PETITIONERS Through : Mr.Ravinder Sethi, Sr.Adv. with Rakesh Kumar Garg, Mr.Rajiv Kumar Ghawana and Mr.Puneet Sharma, Advocates. - V E R S U S - LIEUTENANT GOVERNOR & ORS.… … RESPONDENTS Through : Mr.Sanjay Poddar, Advocate for R-1 to R-3. Mr.Ajay Verma and Mr.Amit Mehra, Advocates for R-4/DDA. None for R-5. Ms.Saroj Bidawat and Mr.Hari Om Sharma, Advocates for R-6/MCD. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MS. JUSTICE VALMIKI J.MEHTA Whether the Reporters of local papers may be allowed to see the judgment? YES To be referred to Reporter or not? YES Whether the judgment should be YES reported in the Digest? SANJAY KISHAN KAUL, J. 1. The petitioners purchased land measuring 5 bighas and 2 biswas in khasra no.42/2 situated in the _____________________________________________________________________________________________ WPC 3823-25/2006 Page 2 of 38 Revenue Estate of Village Humayupur along with some built up structure vide a sale deed dated 19.10.1951. 2. It is the claim of the petitioners that they constructed a bunglow and an ice factory on their land and with the passage of time, an unauthorized colony known as Krishna Nagar Colony came up on the adjoining land. The petitioners claim that their land is also a part of the lay out plan of the said unauthorized colony which had been regularized by the respondents vide Resolution No. 62 dated 25.06.1981. A notification was issued under Section 4 of the Land Acquisition Act, 1894 („the said Act‟ for short) on 03.09.1957 which included the lands falling in Khasra no.42 of which the land of the petitioners being khasra no.42/2 was a part. 3. In the meantime, the DDA was constituted under the Delhi Development Act, 1957 and MPD-1962 came into force on 01.09.1962. A declaration under Section 6 of the said Act was issued on 20.02.1963 which included the land measuring 1 bigha and 2 biswas of the petitioners followed by an award no.1662 dated 15.01.1964 pertaining to the same and possession was also taken over. The second declaration under Section 6 of the said Act was, however, issued on 04.01.1969 which included the land measuring 5 bighas and 2 biswas situated in khasra no.42/2. The _____________________________________________________________________________________________ WPC 3823-25/2006 Page 3 of 38 petitioners claimed silence on the part of the authorities thereafter till the notices were issued under Sections 9 and 10 of the said Act on 26.12.1975. The petitioners laid a challenge to the acquisition proceedings by filing Civil Writ Petition No.641/1978 but the same was withdrawn on 29.08.1978 as the writ petition was belated. This resulted in an award bearing no.38/78-79 being passed on 23.01.1979 in respect of the suit land which assessed the compensation for the land and structure thereon. 4. A second endeavour was made by the petitioners by filing a Civil Suit No.82/1979 before the Sub-Judge Delhi seeking a declaration that the land acquisition proceedings culminating in the award dated 23.01.1979 were void, illegal and nullity on account of unreasonable delay. The petitioners were enjoying interim relief in the suit stated to be in pursuance to an order of the Appellate Court. 5. A representation dated 16.07.1998 was, however, filed to the LG during the pendency of the suit for de- notification of the land under Section 48 of the said Act. In pursuance to the representation, the Land and Building Department of the Govt. of NCT of Delhi sought some details from the SDM/LAC vide its letter dated 18.08.1998 including in respect of the _____________________________________________________________________________________________ WPC 3823-25/2006 Page 4 of 38 possession at site and built up structure on the land in question. The SDM/LAC vide its letter dated 25.09.1998 confirmed that the possession had not been handed over to the concerned Department and that the physical possession of the land in question was with the petitioner No.1. There was a residential house and factory like structure with a boundary wall stated to be constructed on the land in question and no compensation had been paid. The factum of suit no.82/1979 pending in the Court of Sub-Judge was also pointed out. This is also stated to have been confirmed by the Director (LM) vide letter dated 21.09.1998. 6. In view of the aforesaid facts, the case of the petitioners was put up before the De-notification Committee in its meeting held on 27.01.1999 when it was resolved that the land be inspected by a Sub Committee and a report be submitted. The Sub Committee inspected the land on 05.05.1999 and found that the land within boundary in physical possession of petitioner No.1 included khasra no.48/4 in addition to khasra no.42/2, possession of which was reported to be taken over by DDA but continued to be in unauthorized occupation of petitioner no.1. However, part portion of khasra no.42/2 fell outside the boundary wall and formed a part of the service _____________________________________________________________________________________________ WPC 3823-25/2006 Page 5 of 38 lane. The built up structure within the boundary wall was found to be 16 biswas. The Sub Committee in its report dated 13.05.1999 opined that some additional information be also sought. The relevant portion is quoted below: “1. To confirm from the MCD whether the land in question falls within the unauthorized regularized colony of the Krishna Nagar. 2. Whether after regularization of the unauthorized colony, DDA has any role for development of the vacant land falls in the said colony. 3. After regularization of the unauthroize colony whether DDA deletes that portion of land from their Master Plan/Development Area.” 7. The report of the Sub Committee is stated to have been considered by the De-Notification Committee in its meeting held on 04.06.1999 when it was decided to elicit views of the Planning Department of the DDA before recommending any de-notification. The Director (LM) of the DDA informed Commissioner (Planning) of the DDA vide letter dated 10.06.1999 that the physical possession of the land measuring 5 bighas and 2 biswas forming subject matter of the award had not been taken over and at the site there were structures known as Partap Ice Factory. The De- notification Committee was seized of the matter and information was sought whether the land was part of the approved lay out plan. _____________________________________________________________________________________________ WPC 3823-25/2006 Page 6 of 38 8. The Secretary (Land) of Govt. of NCT of Delhi sent a reminder to Commissioner (LM) DDA for requisite information on 25.06.1999. In the meantime, the Commissioner (Planning) vide its letter dated 05.07.1999 to Director (LM) of the DDA informed that the land bearing khasra no.42/2 was not part of Safderjung Enclave and was on the fringe/periphery of Krishna Nagar unauthorized regularized colony. It was further stated the land/area stood transferred to MCD and as such no current planning was being undertaken by the Planning Department of the DDA. 9. Secretary (Land) is thereafter stated to have re- commended the de-notification subject to the condition that the land of khasra no.42/2 which had already been utilized by the DDA in construction of road and by-lanes would be given up, land bearing khasra no.48/4 belonging to DDA would be parted with and court proceedings would be withdrawn. However, when the matter was considered by the LG/competent authority on 16.07.1999, a query was raised for ascertaining from MCD whether it required the land for providing the common facilities. The LG also wanted to know the exact land use as per the Zonal Plan. This note records that out of the aspects weighing for de- notification, the first one of a challenge being laid and a stay order being obtained from a civil court was not _____________________________________________________________________________________________ WPC 3823-25/2006 Page 7 of 38 tenable while the aforesaid information was required for the second aspect i.e. that the DDA had no use of land because the colony had been handed over to MCD. This resulted in a communication dated 16.08.1999 by the Secretary (Land) to the MCD to which a response was sent on 01.12.1999 by the Commissioner, MCD informing that the site was earmarked for group housing and the site was not required for any common facilities as there was no deficiency in that behalf. 10. In pursuance to the aforesaid developments, the Land and Building Department of Govt. of NCT of Delhi addressed a letter dated 24.02.2000 to the petitioners enquiring as to what project was being proposed by them on the land in case it is de-notified. This was responded to on 07.03.2000 stating that the owners were ready to abide by the requirements of the plan and accordingly use the land for group housing, the earmarked purpose. Thereafter, the matter was again put up to the LG on the earlier de-notification proposal of the Secretary (Land). The LG in terms of his note dated 06.04.2000 found that there were some inconsistencies since the Planning Department of DDA had opined vide its letter dated 05.07.1999 that the land was not part of Safderjung Enclave but was in fringe/periphery of Krishna Nagar unauthorized _____________________________________________________________________________________________ WPC 3823-25/2006 Page 8 of 38 regularized colony while Commissioner, MCD vide a DO letter dated 01.12.1999 had opined that the land in question forms part of the lay out plan of Safderjung Enclave and that was the basis for stating that the area was earmarked for group housing. However, no final picture in this behalf emerged and the original records produced show that the notings in this behalf came to an end in December, 2001 with the matter being never placed before the LG with full information to take a decision on the issue of de-notification one way or the other. The civil suit no.82/99 was ultimately dismissed on 18.08.2005. The petitioners moved a representation dated 06.09.2005 to the LG once again raising the issue of the pending representation for de- notification of land under Section 48 of the said Act. 11. It is the case of the petitioners that the respondents irked by the second representation exposing inaction of the administration, instead of passing an order in respect of the plea of de- notification, made an endeavour to take over possession of the land when only paper possession was taken over on 22.02.2006. The petitioners approached this Court by filing the present writ petition under Article 226 of the Constitution of India when the parties were directed to maintain status quo _____________________________________________________________________________________________ WPC 3823-25/2006 Page 9 of 38 with regard to the possession in terms of the order dated 10.03.2006. 12. The pleadings were completed but thereafter the petitioners amended the writ petition in the year 2010 in view of certain subsequent facts. The petitioners claim quashing of the notifications along with the plea to de-notify the land. Thereafter, even amended pleadings have been filed. 13. The respondents plead that a decision was taken on the representation of the petitioners under Section 48 of the said Act during the pendency of the petition which was duly communicated by the Deputy Secretary (LA) vide letter dated 20.04.2006 which reads as under: “I am directed to refer you representation dated 27.09.2005 on the subject cited above and to inform you that case for de-notification of subject land was considered. It has been observed that physical possession of the said land has been taken over by DDA on 22.02.2006. With this acquisition proceedings stands completed. As per provisions of the Land Acquisition Act, 1894, the acquired land cannot be denotified under Section 48 of the LA Act once the acquisition proceedings are completed. Hence, your request for denotification of the said land under section 48 cannot be considered at this stage.” 14. It is the submission of the respondents that since physical possession of the land has been taken over, _____________________________________________________________________________________________ WPC 3823-25/2006 Page 10 of 38 the acquired land cannot be de-notified under Section 48 of the said Act. 15. When the matter was taken up for hearing on 09.11.2010, learned senior counsel for the petitioners confined his submissions to a claim that since their application under Section 48 of the said Act was made as far back as 1998, comments were called for, and even De-notification Committee had recommended release of land, the proceedings for de-notification ought not to have been made infructuous by seeking to take possession in the year 2006 without deciding the application of the petitioners. 16. Learned counsel for the respondents, however, strenuously contended that the writ petition had no merit on various grounds as set out in their synopsis. It is their plea that the petitioners are only name- lenders as the writ petition has been filed through an attorney as would be apparent from the affidavit filed in support of the writ petition. Nothing was disclosed as to how this attorney got authority, person by the name of Sh.R.K.Aggarwal who was not related to the petitioners. The counter affidavit filed on behalf of R- 2 and R-3, in para 10, specifically raised this plea, but in rejoinder, nothing has been said in this behalf except to file a copy of the special power of attorney. The power of attorney does not appear to be _____________________________________________________________________________________________ WPC 3823-25/2006 Page 11 of 38 registered and is executed on 30.04.2004. The special power of attorney in favour of Sh.R.K.Aggarwal is very comprehensive including giving authority to transfer the property, take all legal steps, appoint arbitrator and to sign and file applications for de- notification/release of the land. It also authorizes engagement of pleaders or advocates and to appoint or remove further/general special power of attorneys. In the last para, being para 16, of the power of attorney it is in fact labeled as a General Power of Attorney. The stand of the said respondents thus is that the petitioners have clandestinely sold the land to the attorney or his nominee for consideration and have suppressed the other documents executed as they would show the transfer of land which was prohibited under the Delhi Lands (Restrictions on Transfer) Act, 1972. The allegation is of suppression of the material documents in respect of true nature of transaction. 17. It is the plea of the respondents that having failed in the challenge to the acquisition proceedings in the writ petition, the acquisition proceedings were challenged in a civil suit where interim orders were granted of status quo on 29.05.1979 which was vacated on 22.10.1980. However, in appeal, the interim orders were restored and were to continue _____________________________________________________________________________________________ WPC 3823-25/2006 Page 12 of 38 during the pendency of the suit which was finally dismissed on 18.08.2005. Learned counsel emphasized that a preliminary issue was framed about the maintainability of the suit in view of the provisions of the said Act and despite the pronouncements of the Supreme Court, in State of Bihar v. Dhirendra Kumar: AIR 1995 SC 1955, the petitioners continued to prosecute the suit till its dismissal on 18.08.2005 since they were enjoying interim orders. It is during the pendency of the suit that an application was filed on 16.07.1998 seeking de-notification of the land under Section 48 of the said Act. The possession of the land is stated to have been taken on 22.02.2006 on the repeated demands made by the DDA and was simultaneously handed over to the DDA. Demolition was also carried out of the unauthorized constructions raised by the petitioners on 10.03.2006 on which date the petitioners are alleged to have persuaded this Court to pass interim order of status quo by misleading the Court. It is under the garb of this order that the petitioners are alleged to have tried to regain possession resulting in police complaint dated 05.05.2006 being filed by DDA. The possession proceedings have been annexed to the counter affidavit of the DDA. The absence of any notings in the file post 2001 is stated to be on account of the fact _____________________________________________________________________________________________ WPC 3823-25/2006 Page 13 of 38 that as the civil suit was still pending in which interim orders granted on 29.05.1979 were enuring for the benefit of the petitioners, the file was not processed further in respect of the application of the petitioners under Section 48 of the said Act. It is only on dismissal of the suit on 18.08.2005 that possession proceedings were taken out on 22.02.2006. Learned counsel sought to draw strength from the observations made by the Division Bench of this Court in Ramjas Foundation & Anr. versus UOI & Ors.; 110 (2004) DLT 10. In that case, a representation was made in 1995 but was rejected in the year 2002 while in the meantime, the possession was taken over during the pendency of the representation. The Division Bench did not interfere and the SLP (Civil) No.7026/2004 directed against that order was dismissed as withdrawn on 21.04.2008. It is, however, admitted that no decision was taken on the application of the petitioners under Section 48 of the said Act, but the plea is that the Government had never de-notified the land and thus the petitioners cannot claim any interest or equity. 18. Insofar as the notings are concerned, learned counsel for the respondents sought to rely upon the observations of the LG on 16.07.1999 when out of the two proposed grounds for release, the LG disagreed _____________________________________________________________________________________________ WPC 3823-25/2006 Page 14 of 38 with the first ground i.e. the interim stay and insofar as the second ground was concerned, asked the Department to obtain clarifications from MCD and DDA. Thus, nothing positive in favour of the petitioners was indicated by the LG in the note. Even in the subsequent note of the LG dated 23.03.2000, the file was returned on account of certain contradictions with the remark “please speak”. The clarifications were sought up to 2001 though they were not forthcoming and the file again started moving in the year 2005 on the request of the petitioners. The meeting was convened by the LG which was attended by the officials of the DDA and MCD and finally the LG vide note dated 04.04.2006 approved the view as resolved by the committee on 23.03.2006 and the decision was duly communicated to the petitioners on 20.04.2006. The subsequent representation made through an attorney was also rejected. Learned counsel seeks to emphasize by reference to the judgment in Shanti Sports Club v. UOI and Ors; 2009 (15) SCC 705 that even where one Union Minister had taken a favourable decision which was revoked by the other, the subsequent decision was upheld by observing that the only mode of release of land was by way of notification under Section 48 of the said Act. No such decision had been _____________________________________________________________________________________________ WPC 3823-25/2006 Page 15 of 38 taken in the present case. Even on the aspect of release of other lands being made examples, the same were rejected by the Supreme Court. 19. In order to appreciate the aforesaid rival contentions, it is also necessary to record how the file moved in 2005 after the hiatus period from 2001- 2005. The first note dated 26.04.2005 suggests that the file appears to have been misplaced and that immediate steps must be taken to send a reminder to the Director (LM) of the DDA to send his comments. Thus, the story of the comments not forthcoming began once again. In the meantime, the representation filed on behalf of the petitioners after dismissal of the suit was also received. A detailed note on 03.11.2005 records the history and the factum of report not being sent by Director (LM) till that date and thus the file has to be placed before the LG. Once again, reminders were sought to be sent to the DDA before putting up the file before the LG but no reply was received and thus it has been recorded that a meeting ought to be called between the Commissioner (Lands), DDA and Commissioner, MCD to clarify its position to be placed before the LG. A meeting was fixed for 06.03.2006 but did not mature due to pre-occupation of the Secretary(Land and Building) and the Additional Commissioner MCD (Land _____________________________________________________________________________________________ WPC 3823-25/2006 Page 16 of 38 and Building) in some other matter as noted in the note dated 10.03.2006. It was also noted in the same note that the LG wants to know about the status of the case. The meeting was re-scheduled for 16.03.2006 when the only fact noticed is that though no information was forthcoming from MCD and DDA, the possession of land having been taken, there was no force in the representation of the petitioners for de- notification of the land which was then approved by the LG. 20. The sum and substance thus is that the information sought by the LG was not forthcoming from the MCD and DDA for almost seven years for different reasons, but at the fag end since possession was taken over it was stated that the exercise to obtain information would be a futile one. 21. The question of taking over possession is seriously disputed by the petitioners. Annexure R-2 is the only document annexed to the counter affidavit of DDA on the basis of which it is claimed that possession was taken over on 22.02.2006. There is nothing else in the original records produced in the Court. The possession report shows that at site the respondents went around the wall containing the structure and the vacant land and took over the possession. There is not even a recorded note of opening the gate, _____________________________________________________________________________________________ WPC 3823-25/2006 Page 17 of 38 entering into the property or physically taking over possession thereafter. All that is written is that the possession proceedings are thereafter complete and the words used are “actual possession”. The possession report mentions the land area as eight biswas and that there was no resistance to the possession. 22. In the rejoinder affidavit, the petitioners pleaded that the respondent-authority seems to have prepared the report while sitting in their office. There was a generator room, tube well and one dry well of which there is no mention in the possession report. The demarcation report carried out by the officials of the respondents on 05.05.1999 had referred to the existing construction to be shown of 16 biswas while the possession report dated 22.02.2006 mentions it as eight biswas. The persons deputed by the petitioners were stated to be residing in the property and there was an electricity meter of which last reading was recorded on 07.03.2006. The persons occupying the property on behalf of the petitioner being Sh.Dalip Singh and Sh.Ram Bhadur have also filed affidavits about their being at site on 22.02.2006 when no one came to the site. It has been pointed out that the possession report does not bear the signatures of any Panch or independent witness. There is also no _____________________________________________________________________________________________ WPC 3823-25/2006 Page 18 of 38 mention of the two gates in the boundary wall for ingress or egress. It is not the case of the respondents that they had sought any police protection at the time of taking over possession while after the alleged date of taking over possession when they wanted to carry out demolition, police protection was sought. The possession report is thus referred to be unbelievable and a fabrication. Most importantly there was no Halka Patwari present and it has not even been indicated as to when the date for taking over possession was fixed and if the DDA informed to come to the site. 23. It is thus pleaded that these records have only been created to plead that the LG need not apply his mind to the application of the petitioners under Section 48 of the said Act. 24. The last aspect which learned counsel for the petitioners seeks to emphasize is that there has been considerable pick and choose on the aspect of release of land under Section 48 of the said Act and pleaded there were two glaring examples of the same. The first one is in the case of