Case: Delhi Administration &amp; Another Vs. Kidarnath Mohindernath &amp; Another

2. M/s. Kidarnath Mohindernath filed Writ Petition (C) No. 2019/1986 in the High Court with respect to land bearing Khasra Nos.1619, 1620, 1615/2 and 1616/2 situated in revenue estate of village Chhatarpur, Tehsil Mehrauli, Delhi. It was averred by the petitioner in the said writ petition that he had purchased the land and that theof the petitioner had submitted a building plan to the Municipal Corporation of Delhi for the construction of a farm house on the aforesaid agricultural land vide file No.34/A/HQ/74 dated 30.03.1974 which was sanctioned by the Municipal Corporation of Delhi (hereinafter referred to as MCD) on 16.07.1974.3. The Delhi Administration issued a Notification under Section 4 of the Act which carved out certain exceptions with respect to the following lands :A) Government lands;B) Land earlier notified either under Section 4 or under Section 6 of the Act;C) Land in respect of which lay out plans/building plans were sanctioned by MCD before 05.11.1980.4. Thus, Respondent No.1 herein claimed that the land was exempted from the acquisition as per the Notification issued under Section 4 and ought not to have been included in declaration under Section 6 of the Act. Since, the land of the petitioner had been exempted; it was not necessary to file objections under Sectionof the Act, as such petitioner did not file any objection. However, land had been illegally included in the declaration issued under Section 6 of the Act for the purpose of Planned development of Delhi.5. It was also averred that it was necessary to issue Notification under Section 4, which was not issued with respect to the petitioners land, as such declaration under Section 6 could not have been issued. The declaration issued under Section 6 was beyond the time, as prescribed in proviso contained under Section 6(1) of the Act.6. The Writ Petition was not resisted by Delhi Administration by filing a reply for the reasons best known to Delhi Administration, neither reply was filed to the writ application before the High Court nor the decisions rendered by this Court in same acquisition were cited.7. The High Court had opined that since exceptions were carved out in the Notification issued under Section 4 of the Act, as such declaration issued under Section 6 of the Act did not include the land of the petitioner and it had allowed the Writ Petition without quashing the declaration issued under Section 6 of the Act, though, land had been included in declaration issued under Section 6 of the Act. Aggrieved thereby, the Delhi Administration and Land Acquisition Collector had preferred the appeal.

Reasoning:
11. After hearing learned counsel for the parties, we are of the considered opinion that notification issued under Section 4 of the Act was with respect to the large chunk of area, comprised in several villages, approximately 50,000 bighas was proposed to be acquired. Though, it is true that notification issued under Section 4 of the Act intended to exempt the land, with respect to which building plans, had been sanctioned before 05.11.1980. The notification under Section 4 was with respect to the entire area in villages, it was necessary to claim exemption and there was no other mechanism available with respect to the ascertainment of the sanction of the building plan before 05.11.1980, with respect to the particular piece of land, it was to be claimed by filing objections under Section 5 A of the Act.12. In the instant case, inquiry under Sectionhad been held and the lands in question were proposed to be acquired and certain other lands were to be excluded as per notification. The Report under Sectionhad been accepted by appropriate Government and thereafter declaration under Section 6 had been issued. According to the report under Sectionthe land of Respondent No.1 came to be included in the acquisition by virtue of the final declaration issued under Section 6.13. Admittedly, Respondent No.1 did not file any objection under Sectionto seek exemption from acquisition on the basis of the aforesaid sanction. It was incumbent upon Respondent No.1 to have claimed such an exemption from acquisition, otherwise the land of the entire village was notified under Section 4 for the purpose of acquisition. Having failed to do so, it is apparent that he has waived his rights on the basis of so called sanction as it was not made the basis for claiming exemption and in the circumstances when the claim had not been raised for exemption of land, inquiry under Sectioncannot be termed as illegal and consequently declaration under Section 6. Otherwise several complications and piquant situations may arise if it is held that it was not necessary to participate in inquiry to claim exemption then it would not be possible to give finality to declaration under Section 6 and it would have to be quashed time and again on such claims for exemptions not set forth at the stage of inquiry under Sectionof the Act.14. The only purpose of the inquiry is to ascertain which land is to be excluded from acquisition. In such circumstances, when the land was so to be excluded from acquisition on the basis of exceptions mentioned in the Notification under Section 4, it had to be claimed. It would not follow automatically, such exceptions as reflected in Notification under Section 4 find place in other schemes also. However, such exemptions have to be claimed either on the basis of scheme or on the basis of notification in the course of inquiry. Having failed to do so, the final declaration under Section 6 of the Act which had been issued could not be termed illegal.15. In view of the aforesaid decision, it is clear that the decision of the High Court is not correct and impugned order passed by the High Court can not be sustained. Though, aforesaid binding decision was available but it was not placed before the High Court.Thus submission is liable to be rejected. Apart from that we find that this objection had not been pressed rightly, in view of the aforesaid decision, before the High Court. We are of the opinion that no case for interference is made out on this groundare not inclined to accept the submission raised by the learned counsel for Respondent No.1, firstly, for the reason that there is no concept of negative equality, secondly, apart from that, this Court has already decided the matter in the decisions mentioned above which were binding and not brought into the notice of the High Court. Thus, illegal order cannot be permitted to survive.