W.P.(C) No. 1426/2001 Page 1 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) no. 1426/2001 Reserved on: 18th August, 2009 Pronounced on: 27th August, 2009. # Mrs. MADHULIKA SRIVASTAVA & ANR. ..... Petitioners ! Through :Mr.Jayant Bhushan, Sr.Advocate with Mr.S.K.Rout and Mr.M.K. Pradhan and Mr.P. Verma, Advocates for the petitioner VERSUS $ UNION OF INDIA & ORS .....Respondents ^ Through Mr.Sanjay Poddar, Advocate for Respondent/LAC. Ms.Shobhana Takiar, Advocate for Respondent/DDA. 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. 1426/2001 Page 2 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. V.K.Jain, J. This is a Petition seeking quashing of Award No.6- B/Suppl./81-82, whereby land of the Petitioners, measuring 1bigha and 4 biswas, comprised in Khasra No.288 Min. of Village Jasola, was acquired. 2. It has been alleged in the Petition that the Petitioners purchased land in question from Ram Prasad, Mahesh Chand, Mehar Chand, Sat Pal and Satvir vide Registered Sale Deed, on the basis of a „No Objection Certificate‟ issued by Additional District Magistrate (LA) Delhi. It was stated in No Objection Certificate that Notification No.F-4(9)64/L&H dated 7.12.1966 issued under Section 6 of Land Acquisition Act, had lapsed. The Notification under Section 4 of the Act, in respect of land in question was issued on 6.4.1964 followed by the notification under Section 6 of the Act on 7.12.1966. It has been claimed in the Petition that since notifications under Section 4 and 6 had lapsed, it was not within the power of the respondents to acquire land in question and the award whereby his land was acquired is against the provisions of Section 11A of Land Acquisition Act, which provides a limitation for making the award. It has also been pleaded that the award is null, void and illegal in view of the W.P.(C) No. 1426/2001 Page 3 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. admission of the Respondents that the notification under Sections 4 and 6 had already lapsed. 3. In its counter affidavit respondent DDA has stated that Hari Ram and Ram Prasad, owners of land in question, filed Civil Writ Petition No. 812 of 1984, challenging acquisition of various pieces of land including the land in question. Vide an interim order dated 15th March, 1984, this court restrained the respondents from making award. In WP (C) No. 4677 of 1985, titled as M.C. Mehta v. Union of India and Ors., the Hon‟ble Supreme Court was concerned with the construction of sewage treatment plants in various colonies of Delhi. Various stay orders passed in respect of land in village Jasola, which was required for construction of Okhla Sewage Treatment Plant were brought to the notice of Hon‟ble Supreme Court. DDA, with the permission of Hon‟ble Supreme Court, published an advertisement, requiring the petitioners, in the petitions, in which the stay orders pertaining to land required for construction of Okhla Sewage Treatment Plant were passed, to appear before the Hon‟ble Supreme Court. Out of large tracts of land subject matter of CWP 812 of 1984, only land measuring 2 bighas and 14 biswa, in khasra No. 158 of village Jasola, was subject matter of the application of DDA before the Hon‟ble Supreme Court. Khasra No. as well as area of the land required in W.P.(C) No. 1426/2001 Page 4 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. village Jasola, for construction of Okhla Sewage Treatment Plant was specifically mentioned in the notice. The petition were transferred by the Hon‟ble Supreme Court to itself and the stay orders granted by the High Court were vacated, and Delhi Administration was directed to take over possession of land and handover the same to Delhi Water Supply and Sewage Disposal Undertaking. The Hon‟ble Supreme Court made it clear that possession of only those khasra number was to be taken which were mentioned in public notice. Consequently, stay granted by this court continued to operate in respect of remaining land subject matter of WP(C) No. 812 of 1984. WP (C) No. 812 of 1984 was decided by the Hon‟ble Supreme Court on 01.11.1996. Since there was stay operating till 01.11.1996, the award having been made on 31.10.1998 was well within the statutory period. 4. It has also been alleged in the counter affidavit that No Objection Certificate relied upon by the petitioner does not amount to requisite certificate under the provisions of Delhi Lands (Restrictions on Transfer) Act, 1972, the Rules framed under the Act prescribe a format for this purpose, and Competent Authority has not issued any No Objection Certificate for registration of Sale Deed in favour of the petitioner. It has also been stated in the counter affidavit that the sale deed executed in favour of the W.P.(C) No. 1426/2001 Page 5 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. petitioner contains false averments to the effect that the land had not been notified under Section 4 or 6 of Land Acquisition Act and the possession of the land had been handed over to the petitioner. 5. A perusal of the writ petition would show that the acquisition has been challenged only on the grounds that (i) the award was not made within the period of limitation prescribed in Section 11A of Land Acquisition (Amendment) Act, 1984 and (ii) „No Objection Certificate‟ was issued by the office of Additional District Magistrate (LA) on 10.10.1997, stating therein that notification under Section 6 of Land Acquisition Act had lapsed. 6. The first ground was not pressed before us during arguments in view of the decision dated 11.3.2008 in WP (C) No. 1830 of 1999; Gopi Chand and Ors v. Union of India, whereby this court held that in CWP No. 4677/85; M.C. Mehta and Ors. v. Union of India, the Hon‟ble Supreme Court had vacated the stay orders only in respect of those pieces of land which were required for construction of Okhla Sewage Treatment Plant. The same view was taken in W.P.(C) 13618-22/04, decided on 20.10.2008. Since, admittedly, the land subject matter of this petition was not included in the land required for construction of Okhla Sewage Treatment Plant, and the Writ Petition in which stay was granted by this court in respect of land in question was ultimately W.P.(C) No. 1426/2001 Page 6 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. dismissed only on 1.11.96, the award made on 31.10.1998 was will within the period prescribed for this purpose. 7. Coming to the second ground, though the case set up in the Writ Petition is that a „No Objection Certificate‟ was issued by Additional District Magistrate (LA) on 10.10.97, stating therein that the notification issued under Section 6 of Land Acquisition Act had lapsed and therefore the acquisition is liable to be quashed, the arguments advanced before us at the time of hearing was that the documents dated 10.10.97 was, in fact, a Status Report in respect of land in question and since this Status Report contained a statement to the effect that the notification issued under Section 6 of Land Acquisition Act had lapsed, and the petitioner had relied upon the representation made in the status report, by purchasing land in question, the respondents are now estopped from claiming that the declaration under Section 6 had not lapsed and therefore the acquisition is liable to be quashed on account of lapse of the declaration issued under Sec. 6 of the Act. The submission before us was that but for the representation made in the status report dated 10.10.97, to the effect that the declaration under Section 6 of the Act had lapsed, the petitioners would not have purchased the land in question and, in fact, would have purchased some other land utilising the money which they spent on the purchase of land W.P.(C) No. 1426/2001 Page 7 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. in question. Per contra, the learned counsel for the respondents contended that the plea of estoppel having not been set out in the petition, is not available to the petitioners. The contention is that unless pleaded, the plea of estoppel cannot be set up during arguments. According to learned counsel for the respondents, the plea of stoppel has been set up during arguments only when the petitioner found, on production of record relating to issue of documents dated 10.10.97, that this document was not issued with the approval of Additional District Magistrate (LA) who is the competent authority under Delhi Lands (Restrictions on Transfer) Act, 1972. 8. It would be appropriate, at this stage, to note that during the course of hearing of this case on February 19, 2004, it was urged on behalf of the petitioner that they had purchased the land after verifying that it was not the subject matter of acquisition and CERTIFICATE dated 10.10.97 has also been issued by Tehsildar (notification) from the office of Additional District Magistrate (LA) certifying that notification under Section 4 issued on 7.12.1967 had since lapsed. The learned counsel representing DDA at that time contended that Tehsildar issuing the certificate was not competent to issue such a No Objection Certificate under Delhi Lands (Restrictions on Transfer) Act, 1972 and the said W.P.(C) No. 1426/2001 Page 8 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. notification under Section 4 had been, in fact, not lapsed. This court thereupon directed the Tehsildar to appear in person along with relevant record. The record was ultimately produced before us at commencement of hearing and it transpired from the perusal of original record that on 9th April, 1997, Tehsildar (HQ) had passed the following order: “the report of the L.A. and revenue staff is in detail. Issue N.O.C.” Thus, no approval from the Additional District Magistrate (LA), who is the Competent Authority under Delhi Lands (Restrictions on Transfer) Act, 1972, was obtained before issuing the documents dated 10th October, 1997 and even the Tehsildar had referred to this document has „No Objection Certificate‟. The points sought to be made by learned counsel for the respondents was that when the petitioner found, on production of record in the court, that in fact document dated 10.10.97 had been issued by Tehsildar without obtaining approval of Additional District Magistrte (LA), the plea of stoppel was thereafter set up post- lunch during arguments, without its having been pleaded in the writ petition. W.P.(C) No. 1426/2001 Page 9 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. 9. Before we examine the plea of estoppel, we deem it appropriate to consider the decisions of Supreme Court in Meera Sahni v. Lieutenant Governor of Delhi & Ors. A perusal of the decision would show that in that case also the petitioners had relied upon documents identical to the documents relied upon by the petitioners in this case. Document identical to document dated 10th Oct., 1997 in this case was set up in that case as „permission‟ granted u/s 5 of Delhi Lands (Restriction on Transfer) Act, 1972. In para 31 of the judgment, the Hon‟ble Supreme Court observed as under: “What was placed by the appellants before us in support of their claim were two non- statutory formats. One of the formats was under the caption “Statement to be furnished to the Registering Officer for ensuring non- contravention of Section 8 of the Delhi Lands (Restrictions on Transfer) Act, 1972” and the other format, allegedly an order to be passed by the Tahsildar or an Additional District Magistrate. In order to properly appreciate, one of the letters/permissions is extracted hereinbelow: “OFFICE OF THE ADDITIONAL DISTRICT MAGISTRATE (LAND ACQUISITION), DELHI No. 4173 (The Notification) Dated 27-5-1992 To, The Sub-Registrar, Sub-District No.III Delhi/New Delhi. W.P.(C) No. 1426/2001 Page 10 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. Warning The report is being sent from acquisition point of view and this office has got no responsibility for any defective title of the land/ownership, etc. in the (sic). (i) As per records available in the office the property/land, the details of which are given in the statement, has been acquired under the provisions of the Land Acquisition Act, 1894. OR (ii) The property/land, the details of which are given in the statement stands notified under Section 6 of the Land Acquision Act, 1894 vide Notification No......................... and ......... OR (iii) The property/land bearing Mpl No.............. Khasra No......... (sic) ............ the details of which are given in the statement has not been notified so far under Section (sic) of the Land Acquisition Act, 1894. This information is valid for a period of 30 days from the date of issue. Sd/- 27-5-1992 For Tahsildar (Notification) For Additional District Magistrate (LA), Delhi.” (Clauses not applicable should be deleted.)” W.P.(C) No. 1426/2001 Page 11 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. The first document filed by the petitioner before us also purports to be a statement to be furnished to the Registering Officer for ensuring non-contravention of Section 8 of Delhi Lands (Restriction on Transfer) Act, 1972. This is the same document which is referred in para 13 of the judgment in Meera Sahni‟s case (supra). The format of the second document filed by the petitioners i.e. the document dated 10.10.97 issued by Tehsildar, (Notification) is identical to the document reproduced in para 31 of the judgment in Meera Sahni‟s case. In fact, a perusal of the original file in the case before us would show that the document dated 10.10.97 is printed on the back of the document which purports to be a statement to be furnished to the Registering Officer for ensuring non-contravention of Section 8 of Delhi Lands (Restriction on Transfer) Act, 1972. 10. In para 34 of the judgment, the Hon‟ble Supreme Court noted that neither the application as envisaged u/s 5(1) of Delhi Lands (Restriction on Transfer) Act, 1972 was filed, nor was any documentary proof placed on record to indicate that any enquiry was made as was required u/s 5(2) of the Act. The Hon‟ble Supreme Court held that such applications were not the applications required to be filed u/s 5 of Delhi Lands (Restriction on Transfer) Act, 1972 since they were not submitted in prescribed W.P.(C) No. 1426/2001 Page 12 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. form and there was nothing to show that they were produced and presented before the Competent Authority. In para 33 of the Judgment, the Hon‟ble Supreme Court noted that Tehsildar was also not authorised to act as a Competent Authority as envisaged u/s 5, 6 and 8 of Delhi Lands Act, since Additional District Magistrate was the competent authority as envisaged u/s 2 (b) of the Act. It was specifically held that no other Authority or anyone else subordinate to him was ever authorised to exercise the aforesaid power. Dismissing the appeal filed by Meera Sahni & Ors., the Hon‟ble Supreme Court stated as under:- “38. It is, thus, established from the record placed before us that neither any proper application was made either by the predecessors-in-interest of the appellants or by the appellants themselves, as envisaged under Sections 4 and 5 of the Delhi Lands Act, nor was any valid and legal permission granted to the appellants by the competent authority under the provisions of the aforesaid Act. The transfers made in favour of the appellants by the original landholders by execution of the sale deed, therefore, are illegal and without jurisdiction. We have no hesitation in our mind in holding that no title could be conveyed or could pass to the appellants on the basis of such transfer and also that consequential mutation in favour of the appellants for the above reasons is found and held to be without jurisdiction.” W.P.(C) No. 1426/2001 Page 13 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. 11. Emphasising that if the law requires an action to be taken in a particular manner, it has to be taken in that very manner, the Hon‟ble Supreme Court observed as under:- “It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection we may appropriately refer to the decision of this Court in Babu Verghese v. Bar Council of Kerala wherein it was held as under(SCC pp 432-33, paras 31-32) 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: „where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.‟ 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindh Pradesh and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad Case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.” W.P.(C) No. 1426/2001 Page 14 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. 12. Since no relief against acquisition of land was granted by the Hon‟ble Supreme Court in Meera Sahni‟s case (Supra) on the basis of documents identical to the documents filed by the petitioner in this case, it would not be appropriate for us to take a contrary view and grant relief to the petitioner. Since it was contended before us that no document like the document dated 10.10.97 was filed in the cases of Meera Sahni & Others, we have called for and perused the files of LPA 332/2002, LPA 302/2002 and LPA 263/2002 against which CA 6493/02, CA 6494/02 and CA 6496/02 were filed before the Hon‟ble Supreme Court and were dismissed along with the Appeal filed by Meera Sahni. The order passed by the Hon‟ble Supreme Court was common to a number of appeals including the above referred three appeals. We find that in all these matters the documents relied upon by the Petitioner were absolutely identical to the documents filed before us and in fact, in these three cases, the document purporting to have been issued for Additional District Magistrate (Land Acquisition) contained a positive statement that land in question had not been notified so far u/s 6 of the Land Acquisition Act. This statement was false as the declaration u/s 6 of Land Acquisition Act had actually been issued in respect of the land which was subject matter of these W.P.(C) No. 1426/2001 Page 15 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. writ petitions. In the case before us, the statement contained in the document dated 10.10.97 does not contain a positive statement that no declaration u/s 6 of Land Acquisition Act had been issued in respect of land in question. The statement is that the declaration issued u/s 6 of Land Acquisition Act lapsed. Therefore, the statement made in the document relied upon by the petitioners in CA 6493/02, CA 6494/02 and CA 6496/02, which were dismissed by the Hon‟ble Supreme Court, was much more damaging to the respondents, as compared to the statement made in the document dated 10.10.97 in the case before us. In fact, the claim of petitioners in the above referred Appeals before the Hon‟ble Supreme Court was much stronger than that of the petitioners before us, as it was represented to them that the land had not been notified at all. Despite that, the Hon‟ble Supreme Court declined to grant relief on the basis of documents relied upon in those appeals. 13. It was contended by the learned counsel for the petitioner that the order of the Hon‟ble Supreme Court in Meera Sahni‟s case is based upon the findings that the documents relied upon by the appellants before the Hon‟ble Supreme Court did not constitute the permission u/s 5 of of Delhi Lands (Restriction on Transfer) Act, 1972 and the question whether such a document W.P.(C) No. 1426/2001 Page 16 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. would constitute estoppel or not was not at all examined by the Hon‟ble Supreme Court and therefore it is open to this court to take a view that these documents constitute estoppel to the effect that the declaration made by the respondents u/s 6 of Land Acquisition Act had lapsed and consequently set aside the acquisition as being violative of Section 11A of Land Acquisition Act. We are unable to agree with the learned counsel for the petitioners. It would not be correct for us to take the view that had the appellants before the Hon‟ble Supreme Court set up a plea of estoppel, the decision of the Court would have been otherwise. The presumption is that while deciding a case the court takes into consideration all arguments which were or could have been advanced before it. Therefore, we cannot say that had estoppel been set up before the Hon‟ble Supreme Court, it would have taken a different view. 14. It was pointed out by the learned counsel for the petitioner that in the present case, the document dated 10.10.97 contains a statement that the notification issued u/s 6 of the Land Acquisition Act had lapsed whereas there is no such statement in the documents issued to the appellants before the Hon‟ble Supreme Court. Since we have found, from record, that the documents relied upon by the appellants before the Hon‟ble Supreme Court W.P.(C) No. 1426/2001 Page 17 of 43 Mrs. Madhulika Srivastava & Anr v. Union of India & Ors. contained a much more positive statement, and despite that no relief was granted in these cases, we will not be justified in granting relief on the basis of document dated 10.10.97. The learned counsel for the petitioner has referred to R.C. Sood & Co. Pvt. Ltd. Vs. Union of India, AIR 1971 Delhi 170. In that case, the land of the petitioners was acquired under Land Acquisition Act by issuing notification in the year 1959 and 1962 but the acquisition was later on set aside by the court. A fresh notification was issued by Delhi Administration u/s 4 of Land Acquisition Act, in respect of the land of the petitioner on November 21, 1966. On January 20, 1967, Land Acquisition (Amendment and Validation) Ordinance Number 1/1967 was issued and on April 12, 1967, Land Acquisition (Amendment and Validation) Act was enacted, repealing the Ordinance. Thereafter a fresh notification u/s 6 & 7 of the Act was issued on September 28, 1967. The notifications issued on November 21, 1966 and September 28, 1967 were cancelled on March 24, 1968. On issue of the Ordinance and Amendment Act, the notifications issued in 1959 and 1962 stood revived. It was held by this court that the action of the government in issuing a fresh notification on November 21, 1966 under Section 4 of the Land Acquisition Act, before promulgation of Ordinance and enactment of Amendment W.P.(C)