___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 26.02.2010 % Date of decision :26.03.2010 + WP (C) No.1692/2006 PAWAN SAGAR JAIN… … … … … … …PETITIONER Through : Mr. Sumit Bansal and Mr.Manish Paliwal, Advocates. - V E R S U S - UNION OF INDIA & ORS. … … ... … … … … … RESPONDENTS Through : Mr.Ajay Verma, Ms.Renuka Arora and Ms.Sangeeta Chandra, Advocates for the DDA. Mr. Sanjay Kumar Pathak, Advocate for Land & Building Department, Govt. of NCT of Delhi and LG of Delhi. Mr.Sanjay Poddar, Advocate for LAC. Ms.Rachna Shrivastava, Advocate for Govt. of NCT of Delhi. Mr.B.V.Niren, Mr.Atul Nanda, Ms.Rameeza Hakeem, Mr.Gaurav Gupta, Mr.Sumeer Sodhi, Ms.Malika Gahlot, Ms.Sugandha and Mr.Sanjay Bhardwaj, Advocates for UOI. And 27 connected matters being + WP (C) No.1667-68/2006 + WP (C) No.1693-94/2006 + WP (C) No.1696-97/2006 + WP (C) No.1710/2006 + WP (C) No.2087/2006 + WP (C) No.2160/2006 + WP (C) No.2161/2006 + WP (C) No.2300/2006 + WP (C) No.2301/2006 + WP (C) No.2306/2006 + WP (C) No.2582/2006 + WP (C) No.2604-2607/2006 ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 2 of 27 + WP (C) No.12094-95/2006 + WP (C) No.12105-06/2006 + WP (C) No.2140/2007 + WP (C) No.2143/2007 + WP (C) No.2449/2007 + WP (C) No.2450/2007 + WP (C) No.2457/2007 CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MS. JUSTICE VEENA BIRBAL 1. Whether the Reporters of local papers YES may be allowed to see the judgment? 2. To be referred to Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? SANJAY KISHAN KAUL, J. 1. The petitioners are recorded owners and bhumidars in possession of land comprised in different khasra numbers situated in Village Bamnauli, Tehsil Mehrauli, New Delhi. 2. The petitioners purchased a land through separate sale deeds and necessary mutations were effected in the land revenue records. 3. It is the case of the petitioners that farm houses have been built on the land after due sanction and even completion certificates have been issued in a number of cases, However, it is the stand of the petitioners in three of these cases that the farm houses were constructed as early as in 1967 when no such sanction was required. 4. A notification dated 04.01.2004 was issued under Section 4 of the Land Acquisition Act, 1894 („the said Act‟ for short) ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 3 of 27 for acquisition of land for public purpose namely Dwarka Phase-II under planned development of Delhi. The land of the petitioners was notified under the said notification. The land owners filed objections under Section 5A of the said Act. The primary grounds taken were: a) That there were sanctioned farm houses and the land was being used as per the Master Plan. b) The public purpose was stated to be imaginary and non- existent. c) The farm owners also claimed that the land had been de- notified under Section 12 of the Delhi Development Act, 1957. d) A professed policy of the respondents not to acquire built up construction and sanctioned farm houses was pleaded on the basis of a decision taken by the LG on 30.05.1996 in respect of the some other cases that unless a major policy decision was taken, the sanctioned farm houses and their land should not be acquired. e) In terms of the National Housing Policy declared by the Central Government, there was need for privatization of housing activity in Delhi and f) The green area is required to be maintained in the vicinity of the airport. 5. On the objections being considered and in pursuance to the decision of the LG a declaration was issued under Section 6 of the said Act at which stage these farm owners approached ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 4 of 27 this court seeking quashing of the notification under Section 4 and the declaration under Section 6 of the said Act. 6. Learned counsel for the petitioners sought to canvass the following propositions: i) Lack of proper consideration of objections and effective hearing under Section 5A of the said Act. ii) Lack of application of mind prior to the issuance of declaration under Section 6 of the said Act. iii) The stated requirement not being in conformity with the MPD-2021. iv) Discrimination qua the petitioners as land in respect of other farm houses, though not forming subject matter of the same notification, was not even notified under Section 4 of the said Act on account of policy of the Government not to acquire built up farm houses. 7. The petitioners submitted that right to property continues to be a constitutional right under Article 300-A of the Constitution of India though it may not be a fundamental right. It is a valuable right akin to a fundamental right and thus the consideration of the objections filed by the owners of the land as also the acceptance of recommendations must be proceeded by a proper application of mind on the part of the Government. The said Act being exproprietary legislation, the provisions of the said Act ought to be strictly construed as they seek to deprive a person of his land without his consent. It was canvassed before us on the basis of the records produced by the respondents and also ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 5 of 27 on the basis of the report of the LAC that a note sheet was prepared which also did not reflect the factual position and the LG only appended his signatures. It was thus pleaded to be a case of lack of formation of any proper opinion by the LG and non application of mind. Mere signatures were stated to be not sufficient to show application of mind. 8. It was submitted that the respondents at no stage examined the aspect of a proper sanction being available in the case of farm houses of the present cases in the context of the policy decision of the LG dated 30.05.1996. The LG while dealing with farm houses in other areas under different notifications opined that such farm houses and their land should not be acquired because they were duly sanctioned. This is apart from the fact that the green areas are lungs of the city. It was pleaded that in terms of MPD- 2021, one peripheral village is to be maintained as green and Bamnauli is a peripheral village. 9. In support of their plea, learned counsel for the petitioners referred to the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai & Ors.; (2005) 7 SCC 627 to canvass the proposition that there has to be application of mind both at the stage of consideration of objections filed by the owners of the land by the LAC as also at a second stage of the acceptance of recommendations made by the LAC by the competent authority. The action required to be taken by the State is distinct and different from the action required to be taken ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 6 of 27 by the Collector and when the ultimate order is in question, it is for the State to satisfy the Court about the validity thereof and mere satisfaction of the Collector cannot be held to be sufficient compliance with the requirement of law. It is in that context, it was observed as under: “19. Furthermore, the State is required to apply its mind not only on the objections filed by the owner of the land but also on the Report which is submitted by the Collector upon making other and further enquiries therefore as also the recommendations made by him in that behalf. The State Government may further inquire into the matter, if any case is made out therefore, for arriving at its own satisfaction that it is necessary to deprive a citizen of his right to property. It is in that situation production of records by the State is necessary.” 10. A reference was also made to the Division Bench judgment of this Court in Vasant Kunj Enclave Housing Welfre Society through its President and Ors. v. Union of India and Ors.; 2006 (89) DRJ 406 where it was held that the validity of an order for acquisition of land must be decided on the touchstone of the grounds stated in the order and by reference to the material available on the date when the order was passed. It was observed in para 26 as under: “26. I find it difficult to read in this note anything concerning the question whether or not an enquiry under Section 5-A of the Act qua the land belonging to the petitioners should be conducted. The note does not even address itself to that question leave alone propose to the Lt. Governor any particular course of action in regard thereto. All that the note proposes is the issue of a notification under Section 6 and 17(4) for Zone I and II, taking over of possession of area not covered ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 7 of 27 by court order in Zone I and II, issue of a corrigendum in respect of Zone III and affording the owners an opportunity for filing objections under Section 5-A of the Act. The note also seeks approval of instructions to the DDA to ensure that no further construction comes up in Zone III during the time the objections are heard. Significantly, Lt. Governor has approved the note which inter alias implies that those owning farm houses in Zone III may be given an opportunity of filing objections under Section 5-A. The order passed by the Lt. Governor however does not demonstrate application of mind leave alone record any reasons for dispensing with such an enquiry under Section 17(4) of the Act in regard to other area notified for acquisition. Just because the Lt. Governor agreed to afford an opportunity to the farm house owners for filing objections under Section 5-A, it cannot be said that a proper consideration of the question had taken place nor can it demonstrate application of mind by the competent authority. Any inference from these notes which are sketchy and which do not directly address the issue in the manner it ought to be, would be far-fetched and unsustainable. If the law requires, as it does in the instant case, that the authority passing the order should apply its mind properly, such application of mind cannot be readily inferred. That is especially so when the order passed by the authority affects valuable civil rights of the citizens. As a matter of fact, the greater the potential of mischief, the more careful and objective should the authority passing the order be. There is also no gainsaying that while acquisitions made for public purpose are at times inevitable, hardship is more often than not implicit for expropriated owners in any compulsory acquisition. Adherence to the requirements of law and the procedure established for the purpose must, therefore, be scrupulously ensured lest the procedural safeguards that the law provides to the owners against arbitrary acquisitions are reduced to bare rituals. I, thereforee, agree with the view expressed by brother Madan Lokur, J that there was no due and proper application of mind on the part of the Lt. Governor to the question of dispensing with the enquiry either before the issue of the notification under Section 17(4) or at any time thereafter.” ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 8 of 27 (emphasis supplied) 11. On the other hand, learned counsel for LAC submitted that 62 objectors filed their objections who were all given personal hearing and the objections pressed by them were all examined. One of the pleas raised by the objectors was in respect of there being sanctioned farm houses and in that behalf, the LAC observed that the Government may take a decision. Simultaneously, the LAC also recorded that there was no legal impediment to acquire the land as per the said Act. The report of the LAC along with its annexures, original objections filed, hearing proceedings, summary of LAC report and joint survey report were placed before the LG for consideration and necessary orders/approval regarding issuance of declaration under Section 6 of the said Act. A draft notification was also sent under Section 6 of the said Act. In that summary, prepared for the LG insofar as the aspect of farm houses is concerned, it has been stated that the LAC has reported that there is no impediment to acquire such land by citing a number of court cases on which acquisition has been upheld by the Hon‟ble Court. The note also stated that the LAC has not recommended release of any land in this category. We may observe at this stage that the note prepared, however, does not specifically refer to the fact of the LAC observing that the aspect of release of farm houses be decided by the Government. The LG after perusing and considering the material placed before him, gave an ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 9 of 27 approval for issuance of a declaration under Section 6 of the said Act by affixing his signatures. It is submitted that this is sufficient to establish a subjective satisfaction of the LG and implies that the decision on the farm houses to be left out, if any, was negated by the LG as no farm house was left out from the acquisition. 12. Learned counsel submitted that in any case any policy decision to leave out sanctioned farm houses or built up structures could not override the statutory law in view of what has been observed by the Division Bench of this Court in Rajesh Kumar Yadav v. Union of India & Ors.; 141 (2007) DLT 493. 13. Learned counsel submitted that the declaration under Section 6 of the said Act was issued on 31.10.2005 by the competent authority after following the due process of law for the entire land measuring 2100 bighas and 6 biswas and such a declaration is conclusive proof of the existence of a public purpose under Section 6(3) of the said Act. Notices were also issued under Sections 9 & 10 of the said Act to the interested persons and the award no.1/2007-2008 was announced on 06.08.2007 with prior approval of the competent authority for acquisition of the entire land. Learned counsel thus pleaded that this award had been challenged in a batch of writ petitions including writ petitions filed by some of the petitioners herein, but those writ petitions had been dismissed. Thereafter, reference petitions had been filed seeking enhancement of ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 10 of 27 compensation before the learned Addl.District Judge. Possession of approximately 1087 bighas is stated to have been already taken over. 14. Learned counsel also emphasized that two of the writ petitions bearing no.1715/2006 and 17582/2006 relating to the same acquisition proceedings after some arguments were dismissed as withdrawn with liberty to the petitioner to seek de-notification of the land under Section 48 of the said Act and same was the fate of some of the other objectors. 15. Learned counsel for the LAC pleaded that the satisfaction of the LG has been properly accorded and once the complete material before the LAC along with recommendation of the LAC and the summary report prepared in the office is before the LG, the appending of signatures by LG would suffice. In this behalf, learned counsel relied upon the judgment in P.S.Gill and Ors. v. Union of India & Ors; ILR (1979) I Delhi 601 where the plea of the LG laconically disposing of the petitions was rejected since all the material was before the LG and it was observed that a speaking order is not necessary in recording satisfaction under Section 6 of the said Act. What is required is to be seen whether there was substantial compliance with the requirement in the Act and the LG should satisfy himself with the acquisition of the land was necessary. It was observed as under: ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 11 of 27 “(66) The argument of Sri Dhamija is that the file has been put up to the Lieutenant Governor for two purposes. The first was for the rejection. of the objection that had been put forward under Section 5A. The second purpose was for orders regarding the issue of the declaration under Section 6. Sri Dhamija contends that the record shows that the L.G. approved of the first suggestion, namely, that the objections should be rejected but he did not apply his mind at all to the second suggestion that a declaration under Section 6 should issue. He submits thereforee that the satisfaction that the lands were required for a public purpose was not arrived at by the Lt. Governor and that he has not directed the issue of declaration under Section 6. (67) The argument is attractive but we do not think it can be accepted. The proceedings of the L.G., it seems to us, cannot be dissected in the manner suggested by Sri Dhamija. A notification under Section 4 had been issued in 1959. A good portion of the land had already been acquired. It was found that the chunk of land now proposed to be acquired was being misused and that it was necessary to acquire it as early as possible. The objections were considered to be not maintainable in view of the report of the Collector and in view of the analysis made of the various objections by the office note. In the light of these facts, a draft declaration was put up and the file was submitted to the L.G. with a proposal that the objections be rejected and draft proposed be approved. In other words, so far as this particular matter was concerned, The rejection of the objections by the L.G. also automatically meant that he was satisfied that the land was required for a public purpose. It is perhaps conceivable that cases may arise where, as pointed by Sri Dhamija, the rejection of objections might not necessarily lead to the issue of a declaration under Sec. 6 e.g. it may be that the objections raised are flimsy, irrelevant and so liable to be rejected ; but, at the same time there may be some facts or reasons set out in the report of the Collector which render the issue of declaration unnecessary or not possible. To give an illustration, it may be that an extent of land is sought to be acquired for purposes of a public school. The land owners may object on the ground that each of them is holding a small piece of land and that deprivation thereof would cause him enormous hardship. This may be found to be no ground for not acquiring the lands. But it is ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 12 of 27 quite possible that the Collector may report that, after the date of the notification under section 4, another big school had come into existence in the locality, and that, thereforee, the acquisition of these lands was no longer necessary. In such cases the rejection of the objections may not be followed by the L.G. with a direction to acquire the land. But such academic illustrations are not helpful in construing the section. What is required is to see whether there is a substantial compliance with the requirement in the Act that L.G. should satisfy himself that the acquisition of the land was necessary. In the present case, having regard to the whole tenor of the note put up to him and having regard to the fact that the L.G. has specifically rejected the objections, it must necessarily follow that he was satisfied that the lands were needed for a public purpose. If inspire of having rejected the objections, the L.G. had not been thus satisfied, he would have specifically directed that, though the objections were rejected, the declaration should not issue.” 16. Learned counsel for LAC emphasized that the plea of the petitioners that the land in question being built-up farm houses should not be acquired is misplaced as there was absence of any such policy notified by the Government not to acquire any built-up property or to exclude built-up farm houses from acquisition of land under the said Act. There could be no impediment for acquiring built-up properties under the said Act and the acquisition proceedings were carried out following due process of law. To support this plea, learned counsel referred to the Division Bench judgment of this Court in Sh.Bhagwan and Anr. v. Union of India & Ors.; 1991 (2) Delhi Lawyer 59 and Roshanara Begum v. Union of India and Ors.; AIR 1996 Delhi 206 (FB). Sh.Bhagwan and Anr. v. Union of India & Ors‟s case (supra) supports the plea that no policy decision can curb the jurisdiction of LG under Section 11 of the said Act and thus ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 13 of 27 statutory powers cannot be curtailed by administrative instructions except where principles of promissory estoppels come into play. The petitioners in that case relied upon a policy decision dated 18.08.1996 of the Delhi Administration to the effect that the land will not be acquired which had been built-up and only that vacant land will be acquired if it is 1 hectare or more. This plea was negated on the ground that the decision was an administrative decision and even assuming for the sake of argument that the said decision was with the concurrence of the LG, the administrative decision could also be altered, modified or abrogated by the competent authority. The impugned award had been announced after approval had been obtained from the LG and thus even if there was a policy decision of the LG, which was incorporated in the letter dated 18.08.1996, the same stood varied by the LG himself when soon after the policy decision he gave assent to the promulgation of the awards. The administrative policy decision was thus held not to vary or curb the jurisdiction of the LG under Section 11 of the said Act. This view is also fortified by the Full Bench of this Court in Roshanara Begum v. Union of India and Ors‟s case (supra). 17. Learned counsel for LAC thus submitted that in the present case there is not even a so-called policy decision unlike in Sh.Bhagwan and Anr. v. Union of India & Ors‟s case (supra). There was no circular issued and no promise held out to anyone. The note sheet of the LG is an internal document ___________________________________________________________________________________________ WPC 1692/2006 and other connected matters Page 14 of 27 in the file which could not create any promissory estoppels. The note only proposed that a policy decision be taken in this behalf, but ultimately no such policy was formulated. The approval of the award and of the declaration under Section 6 of the LG thus in any case impliedly superseded any thought process towards the formulation of such a policy. It was pleaded that there was sufficient material on record to support the decision of the LG to approve the acquisition proceedings and the declaration under Section 6 of the said Act was a conclusive proof of its public purpose. 18. Learned counsel emphasized that the land is being acquired for the development of a residential scheme to provide housing to general public and such larger public purpose must weigh as against the personal rights of the petitioners. Learned counsel emphasized that in case of acquisition of large area of land as in the present case, specifications of the purpose can only be with reference to the acquisition of the whole area, which is planned development of Delhi as observed in