WP(C) Nos. 16833-45/06 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION (C) NOS. 16833-16845 OF 2006 Reserved on: February 25, 2009 Date of Decision: May 29, 2009 PRIT PAL SINGH & OTHERS ………Appellants Through Mr. Ravinder Sethi, Sr. Advocate with Mr. Rajiv Kumar Ghawana, Advocate Versus UNION OF INDIA & ORS. ……Respondents Through : Mr. Sanjay Poddar, Advocate for LAC & Ms. Shobana Takiar, Advocate for DDA CORAM : HON’BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE SUDERSHAN KUMAR MISRA 1. Whether 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 SUDERSHAN KUMAR MISRA, J. 1. Thirteen petitioners have come before this Court praying that Notification No. F.11(25)/2005/L&B/LA/652 dated 25th April, 2006 issued under Section 4 of the Land Acquisition Act, 1894 and the Notification No. F.11(25)/2005/L&B/LA/9129 dated 7th September, 2006 issued under Section 6 of the Land Acquisition Act, 1894 in WP(C) Nos. 16833-45/06 Page 2 of 23 respect of the land of the petitioners, in all measuring 15 bighas 11 biswas situated in their revenue estate of village Sameypur, Delhi, be quashed and set aside on a number of grounds. 2. At the outset, Mr. Ravinder Sethi, learned Senior Counsel appearing for the petitioners has confined himself to the plea that the impugned Notification under Section 4 of the Land Acquisition Act published on 25th April, 2006 only envisages the construction of a road therefore, land in excess of what is legitimately required for that road could not have been notified. He does not seek to challenge the aforesaid Notification to the extent of the land actually required for the construction of the road in question or for any purpose related to that road. He says that the petitioners are ready to give up the land required for construction of the said road which, according to him, is the avowed purpose of the said Notification. 3. It is his case that although the impugned Notification under Section 4 of the Land Acquisition Act, 1894, refers to the purpose of acquisition as, “(for construction of road in Sector 16, Rohini)” and that the subsequent Notification under Section 6 of the Land Acquisition Act, 1894 also states the purpose specifically as, “(laying out road in Sector 16, Rohini)”, the respondents, however, have proceeded to notify larger areas of land which are admittedly not required for that road and which the respondents admittedly intend to put to some other use. He submits that the same constitutes a fraud on power being a colourable exercise and, therefore, the said actions are vitiated in law and deserve to be quashed. We are confining ourselves to this aspect alone. WP(C) Nos. 16833-45/06 Page 3 of 23 4. The relevant background of the matter is as follows:- To begin with, in the year 1984, land measuring 180 bighas 15 biswas situated in the village Sameypur was notified under Section 4 of the Land Acquisition Act, 1894, on 27th July, 1984, and under Section 6 thereof on 20th November, 1984, by respondent No. 2, (hereinafter referred to as the „1984 notifications‟). The land of the petitioners was also covered by those notifications. The purpose of acquisition stated in those notifications was, “planned development of Delhi”. 5. Amongst others, the petitioners also filed their objections to the proposed acquisition under the aforesaid 1984 notifications. Ultimately, after making appropriate inquiries, and after surveying the area, the respondents decided to release 55 bighas 1 biswa of land from the said acquisition. This included the land belonging to the petitioners which is the subject matter of these proceedings. According to the petitioners, their land was released from the aforesaid acquisition because their properties were fully built up. 6. The petitioners contend that their lands are properly developed and had been in continuous use for both commercial and industrial purposes before the aforesaid 1984 notifications. House tax is being levied thereon by the MCD and regular, proper electric connections have also been installed by the electricity company. The land in question is stated to be adjacent to the abadi of village Sameypur. Mr. Sethi also submits that in the year 1994-95, the question of acquiring the same land was again taken up by the respondents, but ultimately, no notification was issued. WP(C) Nos. 16833-45/06 Page 4 of 23 7. On 28th April, 2004, while disposing of another writ petition titled, „Vijay Kumar Vs. DDA‟, Writ Petition (C) No. 11301 of 2004 along with three other writ petitions, this Court directed the DDA to provide a road as envisaged in the approved lay out plan in Sector 16, Rohini, within nine months. 8. Thereafter, the impugned notifications under Sections 4 and 6 of the Land Acquisition Act came to be issued on 25th April, 2006 and 7th September, 2006. The notification under Section 4, insofar as the same is relevant for our purpose, is as follows: “Whereas it appears to the Lt. Governor of Delhi that land is likely to be needed for the Rohini Residential Scheme (for construction of Road in Sector 16, Rohini). It is hereby notified that the land in the locality described below is likely to be acquired for the said above purpose. This notification is made under the provision of Section 4 of the Land Acquisition Act, 1894 in respect of the land notified u/s 4 of the L.A. Act, 1894.” The relevant portion of the aforesaid notification under Section 6 reads as follows: “Whereas the Lt. Governor, Delhi is satisfied that land is required to be taken by Government at the public expense for a public purpose namely for Rohini Residential Scheme, (laying out road in Sector 16, Rohini) under Planned Development of Delhi.” Both the notifications specify the actual khasra numbers notified under Sections 4 and 6. Admittedly, the extent of land notified in this manner is much more than what is required for the construction of the road in question. WP(C) Nos. 16833-45/06 Page 5 of 23 9. The aforesaid notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, proposing to once again acquire the land of the petitioners in excess of what is required for the road are impugned before us on the ground that the proposal to acquire that portion of the petitioner‟s land, which has nothing to do with the road, all over again, is mala fide. It is submitted that once the said land was duly notified and thereafter excluded from acquisition earlier, the same cannot be permitted to be taken over under the garb of acquiring land for a road to implement the High Court‟s aforesaid judgment in Vijay Kumar’s case (supra). 10. They say that the respondents have not followed the established procedure whilst issuing the impugned notifications in respect of the land not required for the road. They contend that the actions of the respondents in including additional areas, not required for the road, are a colourable exercise of power based upon mala fide actions of the subordinate staff of the respondents. The petitioners also contend that ex facie, on a plain reading of the impugned notifications, it is obvious that land is sought to be acquired for a specific purpose limited to construction of a road in Sector 16, Rohini; and that despite this specifically stated purpose, the total area sought to be acquired is much more than what is legitimately required for that purpose. In fact, admittedly, the additional land is to be used for purposes other than the road in question and the respondents intend to carve out 60 and 90 meter plots for schools or parks or other common facilities from the additional land covered by the impugned notifications. WP(C) Nos. 16833-45/06 Page 6 of 23 11. In response, Mr. Poddar, Advocate, who appears for respondents 2 to 4, submits that a bare reading of the impugned notifications shows that the purpose of acquisition is not restricted to the construction of a road for the Rohini Residential Scheme and that the purpose of acquisition stated on the face of the notifications is the requirement of the land for, “the Rohini Residential Scheme” as a whole, of which the road in question only forms one part. According to him, the words of the impugned notification placed in parenthesis that state, “(for construction of road in Sector 16, Rohini)” are really irrelevant for determining the purpose of the notifications. He submits that, therefore, the acquisition of the land for the purposes of the road, as well as for carving out various plots, which are intended to be put to other uses, cannot be assailed. 12. He also contends that, “the Competent Authority was fully appraised of the fact that the land in question is required for road as well as other purposes and clearly reflected in the Aksh Shajra, before the approval of the Section 4 notification. Thus, there is clear intention of the competent authority to issue a direction for acquisition of the land for both the purposes.” At the same time, Mr. Poddar submits that mere mention of the requirement of, “planned development of Delhi”, has been repeatedly held to be a sufficient description of the public purpose for which the lands are required, in the notification. He submits that notifications couched in such language cannot be declared invalid on the ground of vagueness. For this purpose, he relies on a decision of Supreme Court in Aflatoon vs. Lt. Governor AIR 1974 SC 2077. He submits that since, “need of WP(C) Nos. 16833-45/06 Page 7 of 23 the land for Rohini Residential scheme is clearly mentioned in the notification”, therefore, in view of ratio of the said case, there is no infirmity with the impugned notifications. 13. It is also contended by the respondents that the purpose mentioned in the notifications must be read with the purpose mentioned in the master plan, the zonal plan, as well as the lay-out plan of the area, and since the lay out plan of the area shows that the land in question is required for the road, as well as other uses of the Rohini Residential Scheme, therefore, no fault can be found with the notifications in terms of the decision of the High Court in Lohia Developers (India) Pvt. Ltd. vs. Union of India in WP(C) No. 5569 of 2007 decided on 8th August, 2008 At the same time, it is also contended that it is open to the government to change the purpose in the midst of the acquisition and the same cannot be invalidated on that account alone as held by the Supreme Court in, Ravi Khullar and another vs. Union of India and others (2007) 5 Supreme Court Cases 231 where the land originally acquired for the DDA was thereafter utilized for the Airport Authority of India for expansion of the airport. 14. There are thus two main planks of the respondents‟ arguments. Firstly, that a bare reading of the impugned notifications shows that the purpose of acquisition is not confined merely to the construction of the road in question, and that if the notifications are read holistically, it would show that the lands are required for the Rohini Residential Scheme as a whole. Secondly, that it is settled law that if the land acquired was not used for the purpose for which it was WP(C) Nos. 16833-45/06 Page 8 of 23 acquired, the landowner does not get the right to ask for restoration of his land [See Northern India Glass Industries vs. Jaswant Singh and Ors. (2003) 1 SCC 335]. 15. As regards the factual circumstances in which the impugned notifications came about, it has been strongly stressed by the respondents that a scrutiny of the records would show that the Lt. Governor was fully satisfied that the land is required for construction of the road as well as for further development of the Rohini Residential Scheme. It has also been urged by the counsel for the DDA that the placing of certain words within parenthesis in the impugned notification is merely an irregularity and does not affect the substance of the notification and, therefore, the acquisition proceedings are not vitiated. 16. We might mention that on 28th February, 2007, this Court also directed the DDA to file an additional affidavit, “disclosing the manner in which the acquired land mentioned in the notification dated 7th September, 2006 is proposed to be used. In addition thereto, a copy of the site plan of the proposed road development will also be annexed.” Consequently, an affidavit of Mr. M.R.M.Rao, Director (LM), DDA was filed on 24th November, 2006. Paragraph 5 of this affidavit, insofar as the same is relevant, states as follows; “The land in question is required for the public purpose and construction of road in Sector – 16, Rohini. ………..The answering respondent auctioned residential plots in Sector 16. These residential plots showed a road running in front of them. As certain pockets were left un-acquired and not handed over to the answering respondent the road could not be constructed.” WP(C) Nos. 16833-45/06 Page 9 of 23 Paragraph 6 of the said affidavit states as follows: “Some of the auction purchasers, therefore, filed Writ Petitions before this Hon‟ble Court inter – alia seeking directions to provide amenities including construction of roads. This Hon‟ble Court vide judgment and order dated 24.8.04 allowed the Writ Petition directing: „Writ Petitions are accordingly disposed of issuing mandamus to DDA that the roads as per the approved layout plan in Sector 16, Rohini be laid within 9 months from today.‟ ” Paragraph 7 states as follows: “The answering respondent however, could not construct the roads as per the directions of this Hon‟ble Court as the land has not been placed at its disposal. The answering respondent made repeated request for acquisition of land prior to filing of the Writ Petition, after filing of the Writ Petition and after the disposal of the Writ Petition in order to comply with the directions.” The remaining paragraphs 8 and 9 of this affidavit are best reproduced in their entirety. They state as follows: “8. The road as directed by this Hon‟ble Court was not constructed a Contempt Petition was filed against the officers of respondent No. 5. Respondent NO. 5 brought to this notice of the remaining respondents seeking immediate action to acquire the land so that the orders of this Hon‟ble Court can be complied with. Senior officers of the respondents were called to be personally present in the court for not complying with the orders of the court. 9. Finally, in view of the immediate requirement and in order to fulfill the public obligations and in larger public interest, the notifications were issued seeking to acquire the petitioners land. It is respectfully submitted that the land is urgently required for public purpose of constructing roads and WP(C) Nos. 16833-45/06 Page 10 of 23 there is absolutely no merits in any of the contentions raised by the petitioners and the petition is liable to be dismissed with costs.” 17. Thereafter, again on 7th May, 2007, another additional affidavit was placed on the record by the DDA. It is sworn by Shri B.S.Jaglan, OSD (RL), DDA. This affidavit is also stated to be filed in compliance with the aforesaid orders of this Court. Paragraph 5 of this affidavit states as follows: “A perusal of the layout plan shows that the land acquired vide notification dated 7.9.06 is proposed to be used for carving out of plots under Sector 16 and under Sector 17. Part of the land is proposed to be used for High School, and common facilities. Most of the land acquired is being used for laying roads, service lanes etc.” Paragraphs 7, 8 and 9 of the said affidavit state as follows: “7. The acquired land falling in Sector 17 is earmarked under the layout plan for carving out 60 sq. mtrs. Plots, which is meant for allotment under the Rohini Residential Scheme. The rest of the land falls under proposed roads, service lanes, park and other community facilities. 8. It is respectfully submitted that the total area of the acquired land is 15 bigha 11 biswas (13,100 sq. mtrs. Approximately). The proposed usage of this land as per the layout plan is: Usage Area in Sq. Mtr. Roads 8389 Park 275 Other community facility 360 School 1800 90 sq. mtr. plots 495.15 60 sq. mtrs. Plots 1782.50 9. It is respectfully submitted that the entire acquired land is meant for public purpose. Planned development of area in question is not possible unless the land in question is acquired. It is respectfully submitted that there is absolutely no WP(C) Nos. 16833-45/06 Page 11 of 23 merit in the contention of the petitioner that as the Ld. Single Judge has directed construction of road, at the most only the land for construction of the road as directed by the Ld. Single Judge only could be acquired. Planned development of the area in question is not possible unless the entire land is acquired and developed in accordance with the layout plan that has been prepared when, most of the land in question was acquired for development. In anticipation of acquisition of land in question layout plan was drawn proposing the use of the land for different purposes as indicated above and the land is required for public purpose.” 18. This Court, therefore, has two affidavits filed by the DDA in response to its direction that an additional affidavit be filed disclosing the manner in which the acquired land mentioned in the impugned notification of 7th September, 2006 is proposed to be used, along with a site plan of the proposed road development. Whilst the first affidavit of 28th February, 2007 categorically states that the land is required to implement a direction of the High Court in another writ petition to construct the said road as per the approved lay-out plan in Sector 16, Rohini, and that the land is urgently required for constructing that road; however, the second affidavit of 7th May, 2007 takes a different stand. It now states that the notified land is proposed to be used for other purposes also. It goes on further to state that in fact the planned development of the area in question is not possible unless the land in question is acquired, and the petitioners‟ contention that since the High Court had directed the DDA to construct a road in Vijay Kumar’s case (supra), the impugned notification was issued only for that purpose, is without merit. 19. Since the claims of either side in this petition would turn on the circumstances that led to the issuance of the impugned WP(C) Nos. 16833-45/06 Page 12 of 23 notification, we have sent for the original records of respondent No. 2. From the record, we find that steps were initiated for impugned notifications, inter alia, by a letter of the Director, DDA on 7/8th April, 2005, whereby it was pointed out that whilst disposing of another writ petition bearing No. 11301/2004, titled „Vijay Kumar Vs. DDA‟, along with three other similar writ petitions, on 28th April, 2004, the Delhi High Court had directed the DDA to construct the road as per the approved lay out plan in Sector 16, Rohini within nine months. The letter pointed out that after scrutinizing the matter, the DDA has found that, “the land on which the road has to be laid as per the directions of the Hon‟ble Court has not been acquired at all”. It further goes on to state that, “hence, it has been decided to acquire the above mentioned land in order to lay the road in terms of the directions of the Hon‟ble High Court of Delhi.” He, therefore, requested the Principal Secretary, Land and Building Department of the Delhi Government to acquire the said land so that the High Court‟s directions could be complied with within the stipulated time. 20. Thereafter, we find a note prepared by the Deputy Secretary (LA) on 16th January, 2006, which refers to the aforesaid proposal of the Director, Delhi Development Authority, dated 8th April, 2005, indicating that matters have been taken up with a view to implementing the aforesaid directions of the Delhi High Court. In fact, with a view to emphasizing the urgency, the Deputy Secretary has also drawn attention to the aforesaid court orders and said that; “copy of court order is placed at 127/C wherein Court has directed the DDA that, the road as per the approved lay-out plan in Sector 16, Rohini, be laid WP(C) Nos. 16833-45/06 Page 13 of 23 within nine months from the date of the order i.e. 24th August, 2004.” It further goes on to state that, “in view of the requirement of land by DDA for Rohini Residential Scheme (laying out road in Sector 16, Rohini), Hon‟ble Lt. Governor may be requested to accord approval for issuance of notification under Section 4 of the Land Acquisition Act. Draft is placed opposite for approval please.” 21. We might also notice that it is in this background that the Deputy Secretary (LA), who initiated that note, has also chosen to frame the requirement in the following terms; “………for Rohini Residential Scheme (laying out road in Sector 16, Rohini)”. The same officer has also prepared the draft notification where he has expressed this requirement as follows; “Whereas it appears to the Lt. Governor, Delhi that land is likely to be required to be taken by Government at public purpose namely for Rohini Residential Scheme, (laying out road in Sector – 16, Rohini) under Planned Development of Delhi. It is hereby notified that the land in the locality described below is likely to be acquired for the above purpose.” 22. The aforesaid letter of the Director, DDA, dated 7th/8th April, 2005 initiating the matter, and the consequent note prepared thereon by the Deputy Secretary (LA) on 16th January, 2006 along with a draft notification proposed by him, leaves no doubt that the entire matter has been initiated with the intention of complying with directions of the High Court issued to the DDA for providing the WP(C) Nos. 16833-45/06 Page 14 of 23 required road in Sector 16, Rohini, and this is what he intended his proposed draft to mean. 23. On this, Additional Secretary (Land & Building) has also placed his own note which states as follows: “The land is required by the DDA for providing a road in the colony as per development plan. There is a court order also in this regard. May please request the Hon‟ble L.G. to approve the above proposal.” Clearly, the Additional Secretary (Land and Building) also understood the note alongwith the draft notification put up by the Deputy Secretary to mean that the DDA required the land to construct the road with a view to implementing the High Court‟s orders and endorsed the request to the Lt. Governor to approve the proposal. This was further endorsed by the Principal Secretary, Land and Building, who noted as follows; “May kindly approve notification under Section 4 of Land Acquisition Act.” 24. After this, the matter was put up to the Lt. Governor and the following endorsement was made on the file on 25th January, 2006; “L.G. has seen and desired that the lay-out plan of the road may be placed on file before a decision is taken.” Consequently, a request in this behalf was made to the DDA. 25. It is at this stage that the proposal for acquisition of land with a view to implementing the orders of the High Court of Delhi by constructing the road in question began to take on a life of its own. In response to the communication from the office of respondent No. 3 to WP(C) Nos. 16833-45/06 Page 15 of 23 the DDA requesting for lay-out plan of the road in question,