WP(C) 533/2010 Page 1 of 22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No.533/2010 % Reserved on : 2nd December, 2010 Pronounced on: 14th January, 2011 SEVEN STAR HOTEL & RESORTS PVT. LTD. ...... Petitioner Through: Mr. Ravinder Sethi, Sr. Adv. with Mr. Sumit Bansal and Mr. Ateev Mathur, Advocates. VERSUS UNION OF INDIA & ORS .... Respondents Through: Ms. Meera Bhatia & Mr. RoshanKr. Adv. for R-1/UOI. Mr. Sanjay Poddar, Adv. for R-2 to R-4 Mr. Sanjeev Sabharwal, Adv. for R-5/MCD. Mr. Ashok Bhasin, Sr. Adv. with Mr. Sumeet Pushkarna, Adv. for R- 6/DJB. CORAM: HON’BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE VALMIKI J.MEHTA 1. Whether the Reporters of local papers 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 WP(C) 533/2010 Page 2 of 22 VALMIKI J. MEHTA, J 1. The petitioner company, by means of the present writ petition under Article 226 of the Constitution of India, seeks reliefs for quashing the acquisition proceedings initiated under the Land Acquisition Act, 1894 (hereinafter referred to as the „said Act‟) and also alternatively for quashing the notification under Section 17(4) of the said Act exempting the grant of hearing under Section 5A of the said Act alleging that the provision of Section 17(4) has not been validly invoked. 2. The petitioner company is the owner of land measuring 14 biswas and 8 biswansi (approximately 720 sq. yds) situated in Khasra No. 27/18/2 in village Khampur, Delhi. A notification under Sections 4 and 17(1) read with Section 17(4) of the Act was issued with respect to the land on 13.2.2009. A declaration was thereafter issued under Section 6 on 26.10.2009. The land in question was required for a public purpose namely construction of sewage pumping station by Delhi Jal Board/ respondent no.6. The petitioner received a notice under Section 9 of the said Act dated 22.12.2009, and claims that accordingly, for the first time, it came to know of the acquisition proceedings. The petitioner, therefore filed the present writ petition seeking reliefs as already stated above. 3. Before this court, the learned senior counsel for the petitioner WP(C) 533/2010 Page 3 of 22 raised the following main arguments:- (i) The notification under Section 4 was bad because the land which was sought to be acquired was a small parcel of land belonging to the petitioner company only and therefore it was necessary to effect personal service on the petitioner company at its address and which has not been done. It was also argued that there was no notification under Section 4 which was affixed on the land in question and consequently, once the notification under Section 4 fails, the entire acquisition proceedings also have to go. (ii) In the facts of the present case, the authorities have erred in invoking the provisions of Sections 17(1) and 17(4) of the said Act by not granting hearing to the petitioner under Section 5A of the said Act as right to property was a valuable constitutional right under Article 300-A of the Constitution. It was urged that the subject land is part and parcel of a much larger land totaling to about approximately 4 acres being Khasra Nos. 27/18/2 (3-10), 16 (4-16), 17(4-11), 27/23/2 (2-5), 24(4-16), 25(4-16) and 26(0-5) and with respect to this land, plans for a motel were already sanctioned by MCD on 7.2.2007 which aspect has not been considered before issuing the acquisition notification. It is further urged that as per the Master Plan/Zonal Plan, the land in question was a part of green belt and is a no construction zone, being required for widening of the National Highway, and which WP(C) 533/2010 Page 4 of 22 aspects were not brought to the notice of the authorities and hence even after acquisition, this land cannot be put to use of a sewage pumping station. The authorities have failed to apply their mind in issuing the subject notifications which are therefore, liable to be quashed. (iii) The acquisition proceedings were malafide because in reality as per the survey report dated 11.1.2008 what was sought to be acquired was actually not the subject K.No. 27/18/2 belonging to the petitioner but the adjoining K.No. 27/13. It is argued that by creating confusion and in a malafide manner, the acquisition proceedings were got altered to the K.No. 27/18/2 belonging to the petitioner. 4. The counsel for the respondent Nos. 2 to 4 being the land acquiring authorities, and the learned senior counsel for respondent no.6/the beneficiary of acquisition, have strongly opposed the case of the petitioner. It was firstly argued in rebuttal that there exists valid cause for issuance of the notifications under Section 4 read with Sections 17(1) and 17(4) of the said Act because the sewage pumping station is part of a larger grid which is being constructed pursuant to the orders passed in various cases by the Supreme Court with respect to the cleaning of the river Yamuna. It was argued that quite clearly this is not only a valid public purpose but also that there were therefore adequate reasons for directing that hearing under the WP(C) 533/2010 Page 5 of 22 provision of Section 5A be exempted. It was argued that the applicability of the provisions of Sections 17(1) and 17(4) in the facts of the present case is fully justified and directly covered by the decision of the Supreme Court in a case involving nearly identical facts and reported as Jai Narain v. Union of India, (1996) 1 SCC 9. It was argued that in this decision of Jai Narain (supra), it has been held that the requirement of sewage plant/pumping station being part of a larger grid for implementation of the requirement of the cleaning of river Yamuna justified the invocation of the powers under Section 17(4) for holding that Section 5A should not apply. It was urged that construction of a sewage pumping station forming part of a larger grid of sewage cleaning system is without doubt an urgent public purpose. It was argued that the land in question is a miniscule part (being only 720 sq. yards) of the total land of approximately 19000 sq. yds belonging to the petitioner and further that the land in question was right in the corner of the total land of the petitioner and would therefore not in any manner affect the motel project of the petitioner. It was further argued that there is no question of malafides because the survey report dated 11.1.2008 unnecessarily created confusion inasmuch as right from 2007, the requirement was very much for the land of the petitioner comprised in K.No. 27/18/2 and which was pursuant to a project report of a consultant and actual inspection of WP(C) 533/2010 Page 6 of 22 site in terms of a map prepared for creation of the larger grid. The confusion which was created by revenue officials on 11.1.2008 was cleared on the basis of a subsequent fresh survey conducted on 20.6.2008 where once again the actual location was co-ordinated with the grid map showing the site location and it was once again reiterated that what was required was land comprised in K.No.27/18/2 and not the adjoining land comprised in K.No. 27/13. 5. So far as the issue with regard to the issuance of the notification under Section 17(4) exempting the application of Section 5A is concerned, for the construction of a sewage pumping station, the issue is no longer res integra and is fully covered by the decision of the Supreme Court in the case of Jai Narain (Supra). In the case of Jai Narain (supra), the Supreme Court has held that requirement of creation of a sewage pumping station/plant being part of the larger sewage grid required for the project for clearing the Yamuna river justifies the invocation of the powers under Section 17(4) of the said Act. The relevant paras of the judgment in the case of Jai Narain are paras 6 to 11 which read as under:- “6. The land in dispute is being acquired for the construction of STP. This Court in M.C. Mehta case, while directing the closure of the stone-crushers in the city of Delhi, on 15-5-1992 observed as under: (SCC p. 257, para 2) “We are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water WP(C) 533/2010 Page 7 of 22 and land to such an extent that it becomes a health hazard for the residents of the area. We are constrained to record that Delhi Development Authority, Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly remiss in the performance of their statutory duties and have failed to protect the environments and control air pollution in the Union Territory of Delhi. Utter disregard to environment has placed Delhi in an unenviable position of being the world‟s third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation. Needless to say that every citizen has a right to fresh air and to live in pollution-free environments.” While dealing with the construction of STPs in Delhi, this Court in Mehta case1 passed the following order on 22-4-1994: “The Delhi Development Authority has filed an affidavit through its Secretary, Mr V.N. Bansal. It is stated that the Authority is ready and willing to provide land to the MCD for setting up of the sewage treatment tanks. Keeping in view the urgency of the matter, we request Mr Subhash Sharma, Commissioner, MCD, Mr S.P. Jkhanwal, Vice-Chairman, DDA, Mr Ashok Kumar, Additional Commissioner, Water and Mr J.K. Mathur, Chief Engineer of the Delhi Water Supply and Sewage Disposal Undertaking to be present in Court on May 6, 1994. We are requesting the officers to be present in Court so that we can have their viewpoints for taking appropriate decisions on the spot. Needless to say that with the increase of population in Delhi, it is of utmost urgency to set up the sewage treatment plants within the time-bound schedule.” Thereafter, on 13-5-1994 this Court issued various directions regarding the transfer of land to the Delhi Water Supply and Sewage Disposal Undertaking (the Undertaking) for the STPs in Delhi and finally directed as under: “We direct the DDA through Mr S. Roy, Commissioner, Lands to hand over the possession of the vacant land available for setting up of the sewage treatment plants in various colonies within four weeks from today. We further direct the MCD to make payment in respect of these lands simultaneously. Mr S. Prakash, Engineer-in-Chief will be responsible for taking over the land and also for making payment to the DDA on behalf of the MCD. The work for setting up of sewage treatment plants shall be undertaken forthwith and shall be completed at war footing.” (emphasis supplied) WP(C) 533/2010 Page 8 of 22 7. Further directions were issued to the Delhi Administration on 14-12-1994 to take over the land from DDA and acquire where necessary for the STPs at various places in Delhi. 8. This Court has been issuing time-bound directions for the procurement of land for the STPs in various parts of Delhi. The impugned notifications regarding Keshopur STP were issued under the directions of this Court. On 23-1-1995 this Court passed the following order regarding the land in dispute: “Notification under Section 4 read with Section 17(1) of the Land Acquisition Act has been issued. The land in the notification has been identified by way of a plan indicating boundaries and not by the khasra numbers. To issue notification under Section 6, exact khasra numbers of the land in dispute are required . Mr Jaitley states that the DDA will give exact khasra number of the land within one week from today. The notification be issued within two weeks from today.” 9. In Mehta case, this Court on 24-3-1995 observed as under: “A very grim picture emerges regarding increase of pollution in the city of Delhi from the two affidavits filed by Shri D.S. Negi, Secretary (Environment), Government of Delhi. He has pointed out that the population of Delhi which was about 17 lakhs in 1951 has gone up to more than 94 lakhs as per the 1991 census. In fact, more than 4 lakh people are being added to the population of Delhi every year out of which about 3 lakhs are migrants. Delhi has been categorised as the fourth most polluted city in the world with respect to concentration of Suspended Particular Metal (SPM) in the ambient atmosphere as per World Health Organisation Report, 1989. From NEERI‟s annual report 1991 it is obvious that the major contributions, so far as air pollution is concerned, is of the vehicular traffic but the industries in the city are also contributing about 30% of the air pollution. So far as the discharge of effluent in Yamuna is concerned, the industries are the prime contributors apart from the MCD and NDMC which are also discharging sewage directly into the River Yamuna. We are dealing with the sewage problems in separate proceedings.” Thereafter, on 21-4-1995 this Court, regarding the construction of STPs observed as under: WP(C) 533/2010 Page 9 of 22 “Treatment of sewage is of utmost importance for health and for supply of pure water to the citizens of Delhi. Any delay in this respect is a health hazard and cannot be tolerated.” 10. Various orders and directions issued by this Court from time to time in Mehta case1 clearly show that the land in dispute — for Keshopur STP — is being acquired under the directions of this Court. Even the impugned notifications under Section 4 read with Section 17 and Section 6 of the Act have been issued under the directions of this Court. This Court repeatedly indicated in the orders/directions that there was urgency in taking over the possession of the land, under acquisition, for the construction of STP at Keshopur. The authorities were directed to take up the work of land acquisition and construction of STPs on war footing. „Likely‟ in the background of this Court‟s orders passed from time to time for a time-bound programme for setting up the STPs means, for purposes of this case, „certainly‟ and „urgently‟. 11. Delhi — the capital of India — one of the world‟s great and historic cities has come to be listed as third/fourth most polluted and grubbiest city in the world. Apart from air pollution, the waters of River Yamuna are wholly contaminated. It is a paradox that the Delhiites — despite River Yamuna being the primary source of water supply — are discharging almost totality of untreated sewage into the river. There are eighteen drains including Najafgarh drain which carry industrial and domestic waste including sewage to River Yamuna. Thirty-eight smaller drains fall into Najafgarh drain. The Najafgarh drain basin is the biggest polluter of River Yamuna. Eight of the drains including Najafgarh drain are untrapped, four fully trapped and remaining six are partially trapped. All these eighteen drains, by and large, carry untreated industrial and domestic wastes and fall into River Yamuna. The River Yamuna enters Delhi at Wazirabad in the North and leaves at the South after travelling a distance of about twenty-five kilometres. The water of River Yamuna till it enters Najafgarh is fit for drinking after treatment, but the confluence of Najafgarh drain and seventeen other drains makes the water heavily polluted. The water quality of Yamuna, in Delhi stretch, is neither fit for drinking nor for bathing. The Biochemical Oxygen Demand (BOD) level in the river has gone so high that no flora or fauna can survive. It is of utmost importance and urgency to complete the construction of the STPs in the city of Delhi. The project is of great public importance. It is indeed of national importance. WP(C) 533/2010 Page 10 of 22 We take judicial notice of the fact that there was utmost urgency to acquire the land in dispute and as such the emergency provisions of the Act were rightly invoked. We reject the first contention raised by the learned counsel.” (Emphasis added) 6. In view of the decision in the case of Jai Narain (supra) and that the acquisition of the land is for the requirement of construction of a sewage pumping station, the authorities were fully justified in invoking the provision of Section 17(4) of the said Act for exempting the application under Section 5A of the said Act on the ground that the land in question was required for an urgent public purpose viz urgency for creation of sewage pumping station which formed part of a larger grid and also that the acquisition is being made pursuant to the various judgments of the Supreme Court including “M.C.Mehta” cases. 7. It may also be noted that the land in question which is required by the petitioner is merely a very minor portion of the land of the petitioner being just 720 sq. yards and which parcel of land is right in the corner of the entire land of the petitioner and therefore the project of the petitioner of a Motel will not be affected by this acquisition. It is not correct for the petitioner to state that the requirement of the land is necessary for the construction of a Motel. It is an admitted case that no construction has to be made as per the sanctioned plan within the subject land of 720 sq. yds. Also it is logical that no construction will be made on this land because the same is right in the corner of the WP(C) 533/2010 Page 11 of 22 larger piece of land of the petitioner. 8. It was also vehemently argued that the authorities have mis- directed themselves and have not taken into consideration the fact that the land in question would be required for road widening for the purpose of National Highway and consequently, no construction can be made as per the zonal plan on the land in question and therefore the authorities have not applied their minds by seeking to acquire the subject land. Once again, this issue is fully covered by the decision in the case of Jai Narain in which it has been held that different use of land as provided in the Master Plan is not a ground for quashing of the acquisition proceedings. Para 12 of the judgment in Jai Narain’s case is relevant in this regard and which reads as under:- “12. So far as the second contention raised by Mr Vashisht, the same is mentioned to be rejected. Whatever may be the user of the land under the Master Plan and the Zonal Development Plan the State can always acquire the same for public purpose in accordance with the law of the land. In any case the object and purpose of constructing the STPs is to protect the environment, control pollution and in the process maintain and develop the agricultural green.” 9. In any case, we have also satisfied our judicial conscience that the land in question is not such that if a sewage pumping station is constructed on the same there would in any manner be any hindrance to the widening of the National Highway. Pursuant to the directions of this court, the revenue authorities have filed before us a rough sketch WP(C) 533/2010 Page 12 of 22 of the present site conditions/site location of the subject land qua the National Highway. This plan has been filed on 17.11.2010 and which shows that presently the National Highway comprises of approximately 109 feet in width. After the existing road there is still a width of 43 feet on which there exists an unmetalled road and there is thereafter another 25 ft. belt on which there is a drain. The land in question is situated only thereafter, meaning thereby, there is still about 70 ft. of space available for widening of the National Highway towards the side where the subject land is located. In any case, it is not as if, the sewage pumping station which is basically to comprise a sump and one room would be built right at the edge of the plot towards the boundary wall facing the National Highway. The authorities are well advised to avoid any future problem to make any construction in the subject plot which is sought to be acquired at a location which should be furtherest from the boundary of the plot facing the National Highway i.e, any construction be made right inside the plot. This, in our opinion, should take care of the argument raised on behalf of the petitioner that the land in question even if, acquired cannot be used for the public purpose. We, again, hasten to add that we have looked into this argument in addition although the same was not required in view of the decision of Jai Narain’s case which states that this aspect of land use need not be considered with respect to the acquisition of land for a WP(C) 533/2010 Page 13 of 22 public purpose. 10. So far as the issue of malafides is concerned, once again we find that this argument on behalf of the petitioner is devoid of substance. The fact of the matter is that right from the inception, land which was projected as being required was the land of the petitioner comprised in K.No.27/18/2. This is clear from the first letter in this regard of the Delhi Jal Board issued on 2.11.2007 and which itself was pursuant to the key plan indicating the location of the sewage pumping station prepared as per a report of the project consultant. This letter dated 2.11.2007 clearly mentions the requirement of the land comprising K.No.27/18/2. This letter has been further followed up by the letter dated 26.12.2007 which stated the requirement was of the land of the petitioner and on the basis of which a joint survey was fixed for 11.1.2008. On 11.1.2008, when the survey was conducted, it appeared as per the survey report that the requirement of the land for Delhi Jal Board in fact could be partly in the adjoining K.No.27/13 and partly in the land of the petitioner as per the site coordinates. Obviously, there was confusion in the minds of the revenue officials and the officials of the Jal Board because it was an issue of coordinating the location in the key plan being the grid plan and the sewage pumping station thereon with its actual positioning at the ground level. The officials seem to have found that the actual land required as per the key plan may be WP(C) 533/2010 Page 14 of 22 27/13 and part of the land of the petitioner in K.No. 27/18/2 and not the entire K.No. 27/18/2. Change of acquisition proceedings by seeking to acquire the land in K.No.27/13 would be fraught with grave consequences of enhancement of costs and delay and changing of the entire grid and four consequences were projected, and in our opinion rightly, for stopping the change of acquisition of land from the K.No.27/18/2 of the petitioner to part of this K.No. 27/18/2 and part of K.No. 27/13 belonging to someone else. These four consequences are stated as under:- “A. The entire sewerage scheme of all the three villages i.e. Hamidpur, Bakoli and Khampur has to be changed including topographical survey. B. The new consultant has to be appointed as the agreement with M/s Shah Technical Consultants [P] Ltd is closed. C. Land acquisition process has to be started again. D. In view of A,B and C above the project will be delayed by 2-3 years and the cost of project will be escalated accordingly.” Clearly, the consequences being drastic leading to delay in the project and considerable escalation of cost, it was decided to