WRIT PETITION (CIVIL) 13376/2009 Page 1 of 34 * IN THE HIGH COURT OF DELHI AT NEW DELHI % (WRIT PETITION (CIVIL) 13376/2009) Judgment Reserved on: December 20, 2010 Judgment Delivered on: January 14, 2011 DARSHAN LAL NAGPAL & ORS. . . . PETITIONERS Through : Mr. Dhruv Mehta, Sr. Advocate with Mr. Ashish Wad, Mr. Chirag Dave, Advocates. VERSUS GOVT. OF NATIONAL CAPITAL TERRITORY . . .RESPONDENTS OF DELHI & ORS. Through: Mr. Sanjay Poddar, Standing Counsel for LAC. Mr. N.Waziri, Advocate for Govt. of NCT of Delhi Mr. Ajay Verma, Advocate for DDA. CORAM :- HON’BLE MR. JUSTICE A.K. SIKRI HON’BLE MR. JUSTICE SURESH KAIT 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The land of the petitioners herein comprising of Khasra Nos. 5/21,22/2,6/21, 23/1 (min), 23/2 (min), 5/24, 25,24 (min), 23, 5/9/1 alongwith other chunk of land has been acquired by the respondent no.1 for the public purpose i.e. for the development of 400 X 220 KV Grid Stations in village Mandoli. The total area which is acquired is 80 bigha and 15 biswa area belonging to various persons of the said village. Out of this, land of the petitioners covered by the aforesaid Khasra nos.is WRIT PETITION (CIVIL) 13376/2009 Page 2 of 34 approximately 150 bighas. For the purpose of acquisition of the aforesaid land, Notification dated 13th October, 2009 was issued under Section 4 (1) of the Land Acquisition Act (hereinafter referred to as the „Act‟) stating that land described herein i.e. land in question was likely to be acquired for public purpose namely for establishment of 400 X 220 KV sub-station at village Mandoli. This Notification further stated that the Lt. Governor, Govt. of NCT of Delhi (Respondent no.2) was satisfied that provisions of sub Section (1) of Section 17 of the Act are applicable to this land. He was further pleased to pass an order under sub-Section (4) of Section 17 of the Act directing that all provisions of Section 5A of the Act shall not apply. Consequent Notifications dated 9th November, 2009 were issued under Section 6 as well Section 17 (1) of the Act. 2. The petitioners have filed the instant petition under Article 226 & 227 of the Constitution of India, challenging the aforesaid Notifications dated 13th October, 2009 and 9th November, 2009. The primary grievance of the petitioners is to the invocation of provisions of Section 17 (4) of the Act whereby inquiry under Section 5A of the Act has been dispensed with. The basic contention in this behalf is that there was no such urgency in the matter to pass the order under Section 17(4) of the Act by the respondent no.2 thereby denying the valuable right of the petitioners to file their objections to the proposed acquisition of their land. 3. We may state at the outset that it is not disputed by the petitioners that the land required for setting up of the electric sub-station is a public purpose. Therefore, it is not in dispute that the Government is in need of land for the aforesaid purpose and there is a need for setting up of the electric sub- station as well. However, as mentioned above, the anguish of the petitioners is that they are divested of their valuable right granted WRIT PETITION (CIVIL) 13376/2009 Page 3 of 34 by the Legislature under Section 5A of the Act and had the petitioners been given an opportunity to avail this right, they would have demonstrated that neither the extent and quantum of land acquired for the purpose is needed, as the aforesaid purpose could be served by acquiring my lesser land, nor the land in question is feasible for setting up of such electric sub-station. 4. Before we take note of this detailed arguments made by the petitioners in this behalf, it would be necessary to give certain factual background leading to the issues of the impugned Notifications. 5. The respondent no.3 namely Delhi Transco Ltd. (DTL) is primarily concerned with the generation and distribution of the electricity in Delhi. Concededly, the demand of electricity in Delhi is much more than the supply available. It is for this reason, that in order to augment the supply in East Delhi region, necessity was felt for establishing a sub-station at East of Loni Road. For this purpose, in and around 2005, DTL addressed communication dated 6th December, 2005 requesting Delhi Development Authority (DDA)/respondent no.4 for allotment of lands at two locations in and around East of Loni Road for setting up of the sub stations. The DDA, however, refused to oblige the DTL on the ground that the land which was desired by the DTL had already been earmarked for different purposes then the purpose for which it was being sought by the DTL. After a slumber of nearly two years, DTL sent another request dated 7th March, 2008 on same lines. This prompted a meeting between DTL and Vice-Chairman, DDA. DTL was informed that land proposed to be acquired under the special zone, E-18 is earmarked (for agricultural/Green Belt) as per MPD-2010. In these circumstances, DTL requested DDA vide letter dated 28th July, 2008 to change the land used and acquired the WRIT PETITION (CIVIL) 13376/2009 Page 4 of 34 same by invoking the provisions of Section 17 of the Act. In this communication it was also mentioned that though earlier it was proposed to construct a out-door 400 X 220 KV Grid Station, but keeping in view the passage and availability of land, the DLT had now proposed to establish a GIS Indoor type sub-station which could be accommodated in a space of about 200-125 mtrs. On this request, the Joint Director (Power), Govt. of NCT of Delhi vide letter dated 9th September, 2008 directed the Land and Building Department to initiate land acquisition proceedings. It further directed the respondent no.1 to invoke the provisions of Section 17 of the Act. Thereafter, the Chief managing Director of DTL wrote a letter dated 22nd September, 2008 requesting for a meeting with the officials of respondent no.1 for acquisition of the land as in the view of DTL the setting up of the electric sub-station was necessary to strengthen the transmission for Delhi for the ensuing Common Wealth Games. It was also impressed that the matter was getting critical in view of the remaining time for getting to execute the projects. Few days thereafter i.e. on 30th September, 2008 Land and Building Department forwarded copy of letter dated 9th September,2008 received from Joint Secretary (Power) to the ADM, Land Acquisition Collector, (NE) for sending the following information/documents:- 1. Draft notification u/s 4,6, and 17 alongwith the copy of Aks Sizra, field book etc. 2. Report after conducting Joint Survey. 3. 80% estimated compensation amount with Calculation Sheet. 6. As the information was not sent, reminder dated 28th November 2008 followed. Another reminder dated 15th January, 2009 also followed and it is thereafter only that the LAC vide letter dated 31st January, 2009 WRIT PETITION (CIVIL) 13376/2009 Page 5 of 34 sent the required draft Notification under Section 4 & 6 of the Land Acquisition Act. He also sent the computation of 80% compensation amount. Some discrepancies were found in the information sent by the LAC and this led to issuance of another letter dated 2nd March, 2009 by respondent no.1 requesting for Tatimma Field Book, Revenue records of the land sought to be acquired. It was also mentioned in this letter that Power Department had sent proposal of 200-125 sq. mtrs but the draft received was 80 bigha and 15 biswa. Since the copy of this letter was sent to DTL as well, the DTL responded vide letter dated 6th March, 2009 clarifying the need for 15C 20 Sq. mtr of land instead of 200x125 sq.mtr proposed earlier in the following words:- “As have already been clarified vide our above mentioned letter dated 04-12-2008 that for establishment of this ESS a plot size measuring 250 X 200 Sq. Mtrs with approach road is required as per site requirements & to accommodate proposed three voltage level equipments i.e. 400KV, 220KV & 66 KV as per the scheme instead of 200 X 125 Sq. Mtrs size earlier communicate. Therefore, it is requested to arrange to acquire the 80 Bigha 15 Biswa land as finalized in joint site visit dated 12-01-2009.This may kindly be treated on Top Priority being a time bound project.” 7. By this time, the petitioners got the air of contemplated move of the respondents for acquisition of land including theirs. they made representation to the Member of Legislative Assembly of their area wherein it was impressed that only 29.6 bigha of land was to be acquired for installation of station as per the Master Plan of Delhi-2021 and also pleaded that the surrounding barren land could be acquired for this purpose leaving the land of the petitioners untouched. The MLA, in turn, forwarded that representation to respondent no.1 vide his letter dated 28th April, 2009 which was further forwarded to the DLT. While this was WRIT PETITION (CIVIL) 13376/2009 Page 6 of 34 going on the one hand, on the other hand, the following steps were taking for acquisition of the land:- 16th April,2009 :Response from respondent no.1 to DDA requiring the DDA to send formal NOC which was required for acquisition of the land. 18th May, 2009 :DDA proposed a joint inspection of site before issuing a formal NOC. 8th July, 2009 :DDA requested DTL to fix time for joint inspection of the site. 7th September, 2009 : DDA to provide the required NOC. 9th September 2009 :Respondent no.1 submitted request to Lt. Governor (respondent no.2 ) requesting him to issue Notification under Section 4 read with 17 (4) and Section 6 alongwith 17(1) of the Act. 26th September, 2009: respondent no.2 directed the publication of Notification under Section 4 of the Act. 30th October, 2009 :Notification under Section 4 of the Act was issued. 9th November, 2011 :Two notifications under Section 6 and 17 (1) of the Act were issued respectively. 8. Based upon the aforesaid events, the first and foremost submission of Mr. Dhruv Mehta, learned Sr. Counsel, for the petitioners was that these events would amply demonstrate that there was laxity and delayed action on the part of respondent no.1 at every stage. He emphasized that a proposal which was mooted in the year 2005 for acquisition of land for the purpose of establishing the sub-station could be fructified only by the end of year 2009. He also emphasized that the respondents were wrong in their stand that the acquisition proceedings were initiated only in the year 2008. According to him, as early as on 4th December 2007 Chief Engineer, CEA wrote to GM (Planning), DTL that they would have to take up the issue urgently with the Government of NCT of Delhi for allocating suitable site and in spite of this urgency shown, way back in the year 2007 by the Central Electricity Authority (CEA), the process was retarded. WRIT PETITION (CIVIL) 13376/2009 Page 7 of 34 Mr. Mehta took pains to read various communications, taken note of above, and pointed out that at each stage follow up action was procrastinates and according to him this would militate against the plea of urgency. He argued that the correspondence on record, inter se between the respondents clearly reveals that there had been an undue lethargy in taking up acquisition proceedings after receiving a proposal from DTL. He submitted that where the authorities have dragged their feet, prior to the issuance of the notifications under Section 4 and/or 6, the issuance of notification and simultaneously invocation of the urgency provision under Section 17 (1) and dispensing with the enquiry under Section 17 (4) would be an arbitrary exercise of power, without application of mind. This pre-notification delay would itself void the acquisition. 9. His next submission was that there was absence of material for invocation of Section 17 (1) and dispensing with the enquiry under Section 5(A). In this behalf it was submitted that there has been non application of mind on the part of the acquiring authority inasmuch, as it is settled in law that there has to be an independent application of mind as well as material to support invocation of the urgency provision under Section 17 (1) and dispensing with the valuable right of hearing under Section 5(A) of the Act. He put a passionate plea that the right to file objections under Section 5A of the Act is a very valuable right and cannot be lightly interdicted at the whims of the authorities. Drawing sustenance from the decision in the case of Hindustan Petroleum Vs. Darius Shapur Chennai and Ors (2005) 7 SCC 627 he argues that the right is protected under Article 300A of the Constitution. It was further submitted that the notings on the file which had been annexed with the WRIT PETITION (CIVIL) 13376/2009 Page 8 of 34 writ petition did not disclose application of mind as required by law laid down in the decisions of the Supreme Court. In fact, the notings which led to the final passing of order by the Lt. Governor of NCT (respondent No.2) suggested, that the acquisition was urgent as it was related to the Common Wealth Games. The said noting is as follows:- “As the matter is urgent and related to Common Wealth Games, if approved, Hon‟ble LG may be requested to kindly approve acquisition of land measuring 80 bhigas 15 biswa as per the draft notification placed opposite for acquisition of land for establishment of 400x220 KV Sub Station in Village Mandoli and issuance of notification under Section 4 read with Section 17 (4) and Section 6 alongwith Section 17 (1) of Land Acquisition Act, 1894.” It was, thus, submitted that as the Common Wealth Games had been concluded, there was no urgency for acquisition. 10. Further, the material and documents filed by the Counsel for DTL, alongwith the additional affidavit filed on 28th September, 2010 and 11th November, 2010 did not reflect in the notings which were placed before the Lt. Governor. Hence, an adverse inference should be drawn that the said documents filed subsequently by DTL, did not form part of the file which was put before the Lt. Governor, for his consideration before passing an order under Section 17 (4). The petitioners relied upon the following decision in support of the above propositions:- 1. State of Punjab Vs. Gurdial Singh, (1980) 2 SCC 471, 2. Om Prakash and Anr. Vs. State of U.P. and Anr. (1998) 6 SCC 1. 3. Union of India Vs. Mukesh Hans, (2004) 8 SCC 14 4. Baburam and Anr. Vs. State of Haryana and Anr, (2009) 10 SCC 115. WRIT PETITION (CIVIL) 13376/2009 Page 9 of 34 11. Mr. Poddar and Mr. Waziri, learned counsel appearing for the respondents, forcefully countered and refuted the aforesaid submissions of the petitioners. It was argued that once the petitioners accepted that the land is required for public purpose and it is also accepted that there is a dire need for this electric sub-station, the petitioners in the facts of the present case was not permitted to challenge the Notifications on the ground that there was no urgency. The learned counsels tried to explain that the time which was taken was necessary, in order to meet the procedural formalities and for in depth examination of the proposal. Otherwise, the respondents would have been blamed for taking a decision in haste. It was also argued that there was no unnecessary delay as was sought to be projected by the petitioners and the various steps taken by the respondents, which consumed some time, were high-lighted by the counsels giving it a different hue. In any case, was the submission of learned counsels, the time consumed in the instant case would not vitiate the Notification invoking urgency clause for a project of this kind and various judgments were relied upon in support of this submission. 12. After considering the respective submissions, we do not find any merit in this contention. It is explained in the counter affidavits filed by the respondents, and that is not disputed that in order to provide power to the city of Delhi, 1500 MW gas based power plant at Bawana is being constructed by the Pragati Power Corporation Ltd. In fact, one of the units has already been commissioned. In order to evacuate and utilize the power so generated from this plant for the benefit of Delhi, a study was conducted by the Central Electricity Authority which recommended establishment of a sub-station in East Delhi. No doubt, this recommendation was made in the year, 2007. However, land was to be WRIT PETITION (CIVIL) 13376/2009 Page 10 of 34 identified for this purpose and some time was be consumed in undertaking the study in this behalf and to find the land which would be suitable for the establishment of sub-station. After identifying the land for this purpose, the Power Department of the Government of NCT of Delhi vide their letter dated 9th September, 2008 requested the respondent to acquire the land on urgent basis as the same was required for completion of the project in a time-bound manner. No doubt, from the date of receipt of this request till the date of issuance of Notifications, there is a time lag. That is, however, satisfactorily. Time was taken for the studying various aspects and considering the nuances of the project in detail, which rather shows application of mind by all the authorities concerned. 13. It would be necessary to high light in this behalf, that on receipt of this request vide letter dated 30th September, 2008 the answering respondent asked the LAC to conduct a joint survey, prepare a draft notification and also to make calculation of the 80% of the estimated compensation. Since there was urgency in the matter, another letter was received from the Secretary (Power) asking to expedite the acquisition proceedings. Vide letter dated 22nd September, 2008 the LAC was again asked to forward the draft notification alongwith the other documents. The LAC, after conducting a joint survey on 12th January, 2009 and preparing all the other documents, including the draft notification, sent the same on 31st January, 2009. The draft notification was examined by the answering respondent. As there were some discrepancies, vide letter dated 2nd March, 2009, a clarification was sought from the LAC and also from the Power Department. The Power Department sent the clarification on 6th March, 2009, whereas the LAC forwarded the same on 17th March, 2009. Since no objection was required from the DDA, the Power WRIT PETITION (CIVIL) 13376/2009 Page 11 of 34 Department was requested to obtain the same. The DDA in its 8th Technical Committee Meeting held on 1st August, 2009 gave its no objection, subject to certain conditions. The Power Department also gave its justification for the acquisition of the land in question. After verifying the same, the respondent vide note dated 9th September, 2009 put up the file before the Lt. Governor for appropriate approval for issuance of the notification in question, while dispensing with the enquiry under Section 5A of the Act, in exercise of powers under Section 17 (4) of the Act. The Lt. Governor, after considering the record of the case and the requirement of the DTL, recorded its satisfaction and also passed a specific order, whereby dispensing with the inquiry under Section 5A of the Act. Pursuant to the approval granted by the Lt. Governor, notifications under Section 4 read with Section 17 (1) of the Act were issued on 13th October, 2009 and the same was published in all the three modes of publication i.e. newspapers (Hindustan and Navbharat Times) on 24th October, 2009, the Gazette Notification and also in the locality on 27th October, 2009. Pursuant thereto, the beneficiary also deposited a sum of Rs. 9,27,11,840.00 towards the 80% of the estimated compensation, which is required to be paid at the time of taking over of possession. Thereafter, a declaration under Section 6 of the Act was issued on 9th November, 2009 and was also published in all the three modes as required under the law. 14. The respondents produced the original files wherein the proposal was processed and ultimately the Lt. Governor as the Competent Authority recorded his satisfaction that land was urgently required. We have perused the said records. The project in question is required to be completed in a time bound manner and is needed for the larger public WRIT PETITION (CIVIL) 13376/2009 Page 12 of 34 interest. It is submitted that in order to meet the power requirement of the city of Delhi, a Transmission Grid is urgently needed for which the land is sought to be acquired. After the power is generated, the same is required to be evacuated and for this purpose, a sub-station is imperative. For this reason, after taking into consideration the overall situation of the nature, the competent authority recorded its satisfaction in the order. Thus, there is a proper application of mind by the Competent Authority while according the approval and recording his satisfaction. 15. Law on the subject is well established by series of judgments. It is not a case of the petitioners that with the passage of time, the purpose for which the land was sought to require has ceased to exist. The only argument made was that urgency was because of ensuing Common Wealth Games and since those have already concluded, the urgency as seized to exist. This is myopic view of the requirement for such a project. No doubt, endeavour was to establish the sub-station before the Common Wealth Games, 2010 but that was not the only reason for urgency. The primary reason for urgency was, and continuous to be, that the sub- station in East Delhi is needed to evacuate and utilize the power generated from 1500 MW Gas based Plant at Bawana which is being constructed. The urgency was, and continuous to exist, i.e. the need for adequate power supply to the residents of this city. This is an urgent need keeping in view the wide gap between the demand and supply. No doubt, the plans were to commission it before Common Wealth Games. That has not happened also because of the reason that stay was granted in these proceedings. Be as it may, it cannot be argued that merely because Common Wealth Games are over, the respondent authorities can now set up the sub-station leisurely. These are the aspects which are to WRIT PETITION (CIVIL) 13376/2009 Page 13 of 34 be gone into by the Competent Authority while exercising Powers under Section 17 (4) of the Act. Once it is seen that all relevant factors were taken into consideration and the Competent Authority was not influenced by any irrelevant consideration or the power exercised was not the result of malafide, the subjective satisfaction of the Competent Authority, based on those objective considerations namely the purpose of invocation of urgency clause to acquire continued to exist the Court would be loathe to interfere with such discretion exercised by the Competent Authority dispensing with the enquiry under Section 5A of the Act. 16. In the case of First Land Acquisition Collector and Others Vs. Nirodhi Prakash Ganguli and another, 2002 (4) SCC 160 (Para 5). This aspect was high-lighted in the following manner:- “The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied