Madan B. Lokur, J.
1. In this batch of 25 writ petitions, the principal challenge is to two Notifications issued under the provisions of the Land Acquisition Act, 1894 (for short the Act). These Notifications are:-
(i) Notification dated 27th June, 1996 bearing No. F. 9(12)/95/L and B/LA/9743 issued under Section 4 read with Section 17(1) and 17(4) of the Act in respect of 1337 bighas and 4 bids was of land required for a public purpose, namely, for development of Vasant Kunj Phase - IV under the planned development of Delhi.
(ii) Notification dated 10th January, 1997 bearing No. F.9(12)/95/L and B/LA/1046 issued under Section 6 of the Act declaring that 1337 bighas and 4 bids was of land is required for the development of Vasant Kunj Phase - IV under the planned development of Delhi.
2. There is also a challenge to a Notification bearing No. F.9(12)/95/LandB/LA/9739 dated 27th June, 1996 issued under the provisions of Section 4 read with Section 17(1) and 17(4) of the Act in respect of 130 bighas and 15 bids was of land for a public purpose, namely, construction of staff quarters for Government of NCT of Delhi under the planned development of Delhi. A declaration in this respect was issued under Section 6 of the Act by a Notification dated 3rd March, 1997 bearing No. F.9(12)/95/L and B/LA/105. Since a challenge to these two Notifications has been separately raised in another batch of 11 writ petitions (Gig Raj Patodia vs. Union of India - CW No. 2605 of 1997) we propose to deal with the validity of these two Notifications in that batch of cases. Of course, the judgment in Gig Raj Patodia will also cover such of those cases in the present batch which raise a challenge to the two Notifications concerning the acquisition of 130 bighas and 15 bids was of land because all these cases were heard cotemporaneously.
3. Yet another Notification has been challenged by the Petitioners, issued under Section 4 of the Act on 27th June, 1996 bearing No. F.9(12)/95/L and B/LA/9741 in respect of 369 bighas 1 bids was of land required for a public purpose, namely, the development of Vasant Kunj Phase - IV under the planned development of Delhi. The validity of this Notification has been dealt with in Radiance Fincap Pvt. Ltd. vs. Union of India - CWP 3762/99 consisting of a batch of 14 cases.
4. The challenge to the two Notifications relating to 1337 bighas and 4 bids was of land is based on admitted dates and is on five principal grounds.
5. Before we actually deal with the arguments raised by learned counsels for the parties, it may be stated by way of additional facts that on 1st June, 1995 the Respondents had issued a Notification under Section 4 read with Section 17(1) and 17(4) of the Act bearing No. F.9(12)/95/L and B/LA/ 8474 in respect of 3284 bighas and 0 biswa of land required for a public purpose, that is, development of Vasant Kunj Phase IV under the planned development of Delhi. By a subsequent Notification titled as a corrigendum dated 1st December, 1995 the Respondents notified that the provisions of Section 17(1) of the Act will not be applied in respect of land covered by this Notification except with respect to khasra No. 1497 and 1498. Objections were, thereforee, invited within 30 days against the proposed acquisition.
6. A large number of persons filed their objections to the Notification dated 1st June, 1995 read with the corrigendum dated 1st December, 1995. After giving a hearing to the objectors, the Land Acquisition Collector submitted his report dated 18th March, 1996 under Section 5A of the Act rejecting all the objections. This report was put up for consideration by the Lt. Governor on 30th May, 1996. The Lt. Governor decided on 31st May, 1996 that in view of certain facts and supervening events, a fresh proposal for acquisition of land for the Vasant Kunj project may be submitted after consulting the Delhi Development Authority (DDA). In other words, the Notification dated 1st June, 1995 was allowed to lapse. It is only thereafter that fresh Notifications under Section 4 of the Act were issued on 27th June, 1996.
7. We heard learned counsels for the parties on 6th, 7th, 10th, 11th and 12th January, 2005 when judgment was reserved.
Ground No. 1:-
On 1st June, 1995 a Notification bearing No. F.9(12)/95/L and B/LA/8474 in respect of 3284 bighas and 0 bids was of land was issued for a public purpose, namely, development of Vasant Kunj Phase - IV under the planned development of Delhi. A corrigendum was issued in respect of this Notification on 1st December, 1995 when it was notified that the provisions of Section 17(1) of the Act would not be applied in respect of the land proposed to be acquired except in respect of khasra No. 1497 and 1498. Thereafter a hearing was given to the Petitioners pursuant to the corrigendum dated 1st December, 1995. It was submitted that the validity of the Notification under Section 4 of the Act would, thereforee, commence from 1st December, 1995 and its life would be till 10th November, 1996. The submission was that the Notification dated 27th June, 1996 issued before the expiry of a period of one year was not valid because two Notifications under Section 4 of the Act cannot co-exist in respect of the same land. There was non-application of mind to this aspect by the Lt. Governor in as much as he was not told about this while he was considering issuance of the Notification dated 27th June, 1996. In other words, he was not aware that an earlier Notification in respect of he same land was subsisting with effect from 1st December, 1995.
Ground No. 2:-
On 27th June, 1996, three Notifications were issued under Section 4 of the Act. Two of them were in respect of Vasant Kunj Phase IV. Out of these two Notifications, in one of them, that is, the Notification pertaining to 1337 bighas and 4 bids was of land, the provisions of Section 17(1) and Section 17(4) of the Act were invoked but as regards the other Notification in respect of 369 bighas and 01 bids was of land for the very same public purpose, the provisions of Section 17(1) and Section 17(4) of the At were not invoked. thereforee, the Petitioners who are concerned with the acquisition of 1337 bighas and 4 bids was of land were treated in a discriminatory manner because they were denied the right of filing objections under Section 5A of the Act while others, who were similarly placed, were allowed to avail that right.
Ground No. 3:-
When the Notification dated 1st June, 1995 was issued under Section 4 of the Act, the Respondents had proposed to acquire about 3284 bighas of land for the development of Vasant Kunj Phase IV. However, when the two Notifications dated 27th June, 1996 were issued about 1447 bighas of this land was left out of consideration, even though it was earlier sought to be acquired as per the 1st June, 1995 Notification. Out of these 1447 bighas of land, about 1100 bighas was required for development of a forest on terms of a direction given by the Supreme Court, but there was no Explanationn why about 347 bighas of land was not acquired. The so called Explanationn sought to be given by the Respondents for not acquiring 347 bighas of land was that sanctioned farm houses have been built or other constructions have been made as per plans approved by the Delhi Municipal Corporation on that land. This Explanationn was said to be specious because the real intention of the Respondents was to favor the owners of 347 bigha of land, who were influential persons.
Ground No. 4:-
When the impugned Section 6 Notification was issued in respect of 1337 bighas and 04 bids was of land, the Lt. Governor was not made aware of the fact that the acquisition would be contrary to the Master Plan of Delhi.
Ground No. 5:-
There was no reason for invoking the provisions of Section 17(1) and Section 17(4) of the Act in respect of the acquisition of 1337 bighas and 04 bids was of land thereby denying to the Petitioners a valuable right of filing objections under Section 5A of the Act followed by a hearing that was required to be given. Alternatively, even if there was some urgency and the Respondents rightly invoked Section 17(1) of the Act, there was no application of mind at all to the provisions of Section 17(4) of the At, which enabled the Respondents to dispense with the provisions of Section 5A of the Act. In view of the decisions of this Court, which were upheld by the Supreme Court, there should have been a specific application of mind by the Lt. Governor to the provisions of 17(4) of the Act.
8. We are of the view that the first four grounds raised by the Petitioners do not require any detailed discussion but the fifth ground raised by them certainly merits a serious consideration.
Ground No. 1:
9. The factual foundation for the contention urged by learned counsels for the Petitioners in respect of this ground need not be repeated. We are of the view that on the facts already indicated, the contention is misconceived. There is nothing to show (and indeed no such serious attempt was made by learned counsels) that the corrigendum dated 1st December, 1995 restoring the right of the Petitioners under Section 5A of the Act results in the Notification dated 1st June, 1995 issued under Section 4 of the Act taking on a new avatar on 1st December, 1995. The Notification dated 1st June, 1995 continued to subsist, subject to the corrigendum, and it would have lapsed (which it did) by efflux of time on 31st May, 1996 in terms of the Act. In the absence of anything being shown to the contrary by the Petitioners, we are not prepared to accept the contention that the Notification dated 1st June, 1995 and the subsequent Section 4 Notification dated 27th June, 1996 existed simultaneously. We are of the view that the 1st June, 1995 Notification lapsed on 31st May, 1996 and it is only thereafter that the Notification dated 27th June, 1996 was issued.
10. Assuming, we are incorrect in our view, even then the case law cited before us would not support the contention of learned counsels for the Petitioners. The case law made available to us suggests clearly that in a situation such as the present, the second Notification under Section 4 of the Act would supersede the first such Notification.
11. In Bhutnath Chatterjee v. State of West Bengal and Ors., : (1969)3SCC675 , the Supreme Court noted that in a situation like the present, what has to be seen is whether the intention of the Government was to supersede the previous notification. It was held that if the Government does not choose to explain the reasons which persuaded it to issue a second notification, the Court might be justified in inferring that it was intended to supersede an earlier notification by a later notification. (Para 6 of the Report).
12. Similarly, in Raghunath and Ors. v. State of Maharashtra and Ors., : [1988]3SCR441 , where some common fields were covered by two notifications issued under Section 4 of the Act, the Supreme Court made it clear that in respect of land covered by the first notification, further proceedings regarding acquisition should be taken in accordance with law only in pursuance of the second notification and the proceedings initiated in respect of those lands by the first notification should be taken to have been superseded. (Para 9 of the Report). It may be mentioned, however, that subsequently in Hindustan Oil Mills Ltd. and Anr. v. Special Deputy Collector (Land Acquisition), : AIR1990SC731 , the Supreme Court made it clear that the decision rendered in Raghunath rested on its own facts and cannot be treated as an authority for the general proposition that where subsequent notifications are in the nature of amendments to an earlier one, the subsequent amendment should be treated as the only effective one. (Para 9 of the Report). This decision, in any case, does not necessarily lead to the conclusion that the corrigendum dated 1st December, 1995 would be the only effective Notification under Section 4 of the Act.
13. A Division Bench of this Court in Mandir Sita Ramji alias Sita Ram Bhandar v. Land Acquisition Collector and Ors., : 108(2003)DLT305 considered a similar situation and held, in paragraph 6 of the Report, as follows: -
It is always open to the Government not to proceed under a particular notification and to issue subsequent notification according to the facts and circumstances of the case. On the contrary, there would be no prejudice caused to the Petitioner but it would be against the interest of the State as the State would require to pay the price as prevailing on the date of subsequent notification. In the instant case, the earlier notification under Section 4 was published on 13th November, 1959 and later one on 13th March, 1975 and, thereforee, the State will require to pay the market price as prevailing on 13th March, 1975.
14. In view of the settled law on this issue, we do not find any merit in this submission and the same is rejected.
15. Even otherwise, learned counsel for the Respondents has placed before us the relevant departmental file bearing No. F.9(12)/95/L and B/LA relating to the issuance of the impugned Notifications. We find from a perusal of the file that in his note dated 30th May, 1996 the Lt. Governor had applied his mind to the report of the Land Acquisition Collector (LAC) given after hearing objections under Section 5A of the Act. While doing so, the Lt. Governor decided to leave out 22 farm houses from the acquisition process initiated on 1st June, 1995 and go ahead with the acquisition in respect of other lands.
16. However, the next day, that is on 31st May, 1996, the Lt. Governor called a meeting of officers including the Chief Secretary of the Delhi Government. In this meeting, he changed his view earlier expressed and decided that a Notification under Section 6 of the Act ought not to be issued and that a fresh proposal for acquisition of land for the Vasant Kunj project may be submitted after consultation with the DDA.
17. A fresh consideration of the acquisition process resulted in the Respondents deciding to issue three separate Notifications under Section 4 of the Act. These three Notifications have already been referred to above. In the background note dated 21st June, 1996 concerning these three Notifications, a reference was made to the antecedent facts and earlier nothings on the subject. For the present purposes, it is not necessary to reproduce the entire note since the opening paragraph thereof shows that the Lt. Governor was made aware of the relevant facts, which he approved subject to a slight modification on 24th June, 1996. The relevant portion of the note dated 21st June, 1996 reads as under: -
LG may kindly see the detailed note of the Under Secretary (LA) from pre-page regarding acquisition of land in village Rangpuri for Vasantkunj Phase-IV. DDA had earlier sent a proposal for acquisition of 3285, 14 bighas of land for the project, some of which included the Ridge Area, approved and unapproved farm houses, and some unauthorized built-up areas. This notification was allowed to lapse since it was felt that the report under Section 5A submitted by the Land Acquisition Collector was incomplete and there was a spate of representations from owners of land and approved and unapproved farm house owners, which had not been examined in depth and disposed of by the LAC.
18. On the basis of the note dated 21st June, 1996 (a part of which is extracted above) we are satisfied that there was due application of mind to the relevant facts by the Lt. Governor, including the fact that an earlier Notification dated 1st June, 1995 had been issued under Section 4 of the Act covering the land sought to be acquired. Notwithstanding this, the Lt. Governor decided to go ahead and issue the impugned Notifications, which he was entitled to do. We find no merit in the first ground urge by learned counsels for the Petitioners.
Ground No.2
19. The reason for treating the acquisition of about 1337 bighas in a manner different from the acquisition of 369 bighas has been explained in the official file by the Under Secretary (L and B) in a note dated 20th June, 1996. The relevant part of the note reads as follows:
The draft notification along with the map prepared by LAC was discussed with Secretary (L and B). As already decided we have to leave out area covered by approved farm houses and the area covered by the farm houses who applied before date of declaration of development area. The cases in which MCD approved the building plans but where completion certificate were not issued can be covered under this category. Some area is also covered under the roads in these farm houses. As desired the aforesaid areas as not been included in the draft notifications and following draft notifications have been prepared on the basis of the information supplied by LAC's draft notification:-
i. Notification for the vacant land with unauthorised structures on few khasras for land measuring 1337 bigha 3 biswa.
ii. Notification for area covered by unapproved farm houses and land of Gaon Sabha measuring 369 bigha 1 biswa.
iii. Notification for land measuring 130 bigha 15 biswa for construction of staff quarters for Govt. of Delhi adjacent to land earlier notified as most of the land earlier notified has gone to Forest Department being Ridge.
The total area for which DDA had sent proposal for acquisition was for 3285 bigha 14 biswa. Out of this 1101 bigha 4 biswa has been transferred to Forest Department being Ridge area, 268 bigha 14 biswa is covered under the approved farm houses, 63 bigha 6 biswa is covered under the farm houses in which building plans were sanctioned but completion certificate not issued, and 15 bigha 10 biswa covered by the roads in the farmhouse area. The total of this land which is not being notified is 1448 bigha 14 biswa. The remaining land measuring 1837 bigha is covered under the three draft notification prepared as stated above.
In the area which is covered under the unapproved farm houses for which draft notification has been prepared includes following areas:-
i. Small pockets of unapproved area within the area of approved farm houses.
ii. Area covered by one boundary wall which was found under construction at the time of survey and which has been shown as in the double blue lines in the map. This area is vacant except four structures/ houses.
iii. Area which is covered in the shape of unapproved farm houses, pakka structures and boundary walls which has been shown outside the double blue lines and the Ridge area. As per MCD this area belong to M/s. Rajiv Agro Pvt. Ltd., M/S. P.D. Metal Industries, Smt. Rita Marwah, M/s. Marvellous Exports, M/s. Megnum Promoters, Shri Dora Singh and Shri Daler Singh, M/s. G.R. Estate Pvt. Ltd., M/s. Sristy Impex Pvt. Ltd. etc.
iv. Land measuring 30 bigha 11 biswa covered by Gaon Sabha Nala and three plots of Gaon Sabha measuring 11 bigha 10 biswa.
Delhi Development Authority has already explained the urgency of the acquisition of the land in its proposal that there is a shortage of about four lakhs housing units in Delhi and there is incremental shortage of 80,000 dwelling units every year. thereforee, DDA wants to take up projects on a war footing so that sufficient dwelling units are built up by the DDA. thereforee, DDA has requested for invocation of urgency clause. Likewise, PWD has intimated that there is acute shortage of staff quarters for employees of Govt. of Delhi. Against more than one lakh employees, there is only 6537 houses. The normal waiting period for allotment of a house is about 20-25 years. In respect of judicial officers Supreme Court have ordered the State Government to provide staff quarter of their entitlement to all judicial officers.
We have also to take a decision in respect of the following:-
i. Whether the left out unapproved pockets within the approved farm house area is to be included in the notification (In fact included in the draft notification).
ii. Whether the farm houses which have been approved by MCD but completion certificates have not been issued is to be excluded from the notification. (Excluded from the draft notification)
As desired three draft notifications placed opposite for land measuring 1337 bigha 4 biswa for DDA, 369 bigha 1 biswa covering unapproved farm houses/area for DDA and 130 bigha 15 biswa for Delhi Government staff quarters are submitted for approval of Lt. Governor for issue of notifications u/s. 4, 6 and 17 of LA Act. After taking decision on the above said points i and ii in the preceding para the notifications will be suitable amended.
Submitted please.
20. It is quite clear from a reading of the above that the basic difference in procedure for acquiring these two parcels of land was necessitated by the apparently greater amount of construction that had taken place on the parcel comprising about 369 bigh as of land. There is, thereforee, a clear distinction between the two parcels of land and the Respondents were entitled to treat these two parcels in a different manner. In any case, it is not possible for us, under Article 226 of the Constitution, to interfere in this decision of the Respondents, when they also find a comparatively greater urgency in acquiring one parcel of land as against the other, as long as there is some basis for the differential treatment.
21. More specifically, as regards the urgency that has been shown in respect of the acquisition of about 1337 bighas of land, the reason for this is also to be found in the note dated 21st June, 1996 prepared by the Commissioner and Secretary (L and B/PWD). It is stated in the note as under:
4. Keeping in view the fact that a substantial portion of the area earlier notified has now been declared part of the Ridge and a number of farm houses had also been included, it is suggested that the land may be acquired now, excluding these areas. The land to be acquired is proposed to be notified under 3 different proposals in the following manner:-
(i) 1337 bighas 4 bids was vacant area (bounded by green lines in the map) which may be notified for Vasantkunj phase-IV u/s 4, 6 and 17(1) of the Land Acquisition Act, keeping in view the urgent requirement of the DDA.
(ii) 130 bighas 15 bids was of vacant land for construction of staff quarters for Delhi Government employees, keeping in view the acute shortage of houses for the Government employees. For this also urgency clause may be invoked.
(iii) 369 bighas 1 biswa covering the area of totally unapproved farm houses, although some buildings are available at site. The area covered by farm houses which have been approved by the MCD and have obtained completion certificates, and also those where plans have been approved but no completion certificates have been obtained, have been excluded from the proposal. There are small patches of gaon sabha land and private vacant land between the farm houses which has been included in this proposal. For this area we may issue section 4 notification without invoking urgency clause to enable the owners to file their objections before the Land Acquisition Collector, who could give them a proper hearing before finalizing the proceedings. 3 draft notifications are placed on file for consideration/approval of L.G.
22. A perusal of the above noting again suggests that it is because of the construction that had taken place on the parcel of land measuring about 369 bighas that it was decided that those land owners be allowed to file their objections under Section 5A of the Act, while the land comprising about 1337 bighas was not built upon except in respect of a few khasras. The need to acquire both parcels of land was urgent as explained by the DDA, but apparently there was greater urgency for acquiring about 1337 bighas of land first.
23. The Lt. Governor accepted the aforesaid proposals on 24th June, 1996 and it is only thereafter that the impugned Notifications under the Act were issued. There was, thereforee, some relevant material before the Lt. Governor for arriving at a decision.
Whether we agree with his decision or his reasons cannot be an issue before us because we are not sitting as a court of appeal to decide the correctness or otherwise of a decision to acquire land. As regards his satisfaction of dispensing with an inquiry by invoking Section 17(4) of the Act is concerned, this is admittedly a matter of his subjective satisfaction. It is, thereforee, not open to judicial review except on very limited grounds. This has been so held in several cases, some of which will be adverted to while considering Ground No. 5.
24. The two factors that appear to have been taken into consideration by the Respondents are that there was not much construction in the parcel of land measuring about 1337 bighas unlike the other parcel measuring about 369 bighas which was constructed upon. The other factor which seems to have weighed with the Respondents in this regard is that while both the parcels of land may have been urgently required, there was a greater urgency in respect of the land measuring about 1337 bighas which warranted dispensing with a hearing under Section 5A of the Act.
25. The official file shows the existence of some reason and it is not possible for us to substitute our view for that of the Lt. Governor. On the basis of the reasons revealed, we do not find any discrimination in invoking the urgency clause in respect of one parcel of land while not doing so in respect of another parcel of land. Urgency is primarily for the Respondents to decide and the Court cannot step into their shoes in this regard. We, thereforee, do not find any merit in the contention urged be learned counsels for the Petitioners and reject Ground No. 2.
Ground No. 3
26. The reason for leaving out huge tracts of land from the acquisition as it was initially postulated in May-June, 1995 has been explained in a note dated 20th June, 1996 of the Under Secretary (L and B), which has already been extracted above. It has been explained in the note that about 1101 bighas was required to be transferred to the Forest Department being a Ridge area. It appears that about 1100 bighas of forest land was left out of acquisition because of orders of the Supreme Court in a writ petition being WP (C) No. 4677/1985 (M.C. Mehta vs. UOI). This also finds mention in an earlier note dated 31st May, 1996 of the Commissioner and Secretary (L and B/PWD). (extracted later)
27. As regards the remaining area of about 347 bighas of land which was not acquired, the Under Secretary (L and B) in his note dated 20th June, 1996 has stated that about 268 bighas is covered by approved farm houses, 63 bighas is covered by farm houses in which building plans were sanctioned but completion certificate was not issued and about 15 bighas of land was covered by roads in the farm house area. It is for this reason that this land was not acquired. This appears to be in consonance with an earlier decision of the Lt. Governor referred to in a note dated 30th May, 1996 that the land on which approved farm houses were constructed ought not to be acquired. This is also reflected in the note dated 21st June, 1996 of the Commissioner and Secretary (and B/PWD) drawing reference to the decision of the Lt. Governor that farm houses approved before declaration of the area as a development area may be left out of acquisition.
28. We may add that there is nothing to suggest, and indeed no specific allegation was made by learned counsels for the Petitioners, that the owners of these farm houses were given any special treatment because they were influential persons. This argument, even otherwise, cannot be countenanced because these influential persons have not been made parties to these petitions and, thereforee, cannot even defend themselves against the bald allegations having been made of favoritism.
29. A perusal of the official record also indicates that the Respondents have taken a conscious decision to acquire only some parcels of land and not to acquire other parcels of land. It is not for this Court to compel the Respondents to acquire land which they do not need or to acquire land contrary to their policy or to release land which they need only because some other land is not to be acquired. This is certainly not within the scope of our jurisdiction under Article 226 of the Constitution and its for this reason also that we reject Ground No. 3 urged by learned counsels for the Petitioners.
Ground No. 4
30. This ground was not seriously pressed by learned counsels for the Petitioners, perhaps because the law in this regard is well settled through various decisions of the Supreme Court such as State of Maharashtra vs. Mahadeo Deoman Rai and Ors., : [1990]2SCR533 , Union of India and Ors. vs. Jaswant Rai Kochhar, : [1996]3SCR206 , Municipal Corporation of Greater Bombay vs. Industrial Development Investment Co. Pvt. Ltd. and Ors., : AIR1997SC482 and Bhagat Sinh vs. State of U.P. and Ors., : AIR1999SC436 that land, which is acquired for a particular purpose, can in law, be diverted for use in respect of some other public purpose. Similarly, there can be no dispute and indeed no such dispute was raised by learned counsels for the Petitioners that the Master Plan for Delhi can always be amended for the planned development of Vasant Kunj Phase-IV. If acquisition of land was in anticipation of this proposal of planned development, no fault can be found in the action taken by the Respondents. Ground No. 4 urged by learned counsel for the Petitioners is, thereforee, rejected.
Ground No. 5
31. The heart of the matter really is with regard to whether the Lt. Governor has applied his mind to the provisions of Section 17(4) of the Act for dispensing with an inquiry under the provisions of Section 5A of the Act.
32. A few more background facts are necessary in this regard. By a letter 4th April, 1995, DDA requested the Delhi Government to acquire 763.61 acres of land in the revenue estate of Rangpuri for the planned development of Delhi. While concluding the letter, it was stated as follows:-
There is a shortage of about 4 lakhs housing units in Delhi. There is an incremental shortage of 80,000 dwelling units every year. thereforee, DDA has to take up projects on a war footing so that sufficient dwelling units are built up by the DDA. In he above circumstances, emergency clause has to be invoked for acquisition of the above land.
33. On the basis of the requisition made by DDA, the Delhi Government processed the file for acquiring 763.61 acres of land for the planned development of Delhi.
34. On 17th April, 1995, the Under Secretary (LA), while processing the file, observed as follows:-
In view of the above, it is for orders whether we may request Hon. L.G. to accord his approval for issue of notifications under Sec.4, 6, and 17(1) of L.A. Act as per the requisition sent by DDA without waiting for Joint Survey Report and draft notification from Land Acquisition Collector.
35. It appears that separately another proposal for acquiring about 306 bighas and 2 biswa of land in the same revenue estate of Rangpuri was mooted by the Public Works Department (PWD) for staff quarters for Delhi Government employees. This was linked up with the DDA proposal and processed in the same file in early May, 1995.
36. Thereafter, both proposals (that is of DDA and PWD) were put up for consideration of the Lt. Governor by the Secretary (L and B). Due to passage of time, the noting portion in the original file has been partially damaged but whatever is available conveys the requirement of both proposals. The relevant note dated 4th May, 1995 of the Secretary (L and B) reads as follows:-
May kindly see note of JS from pre page 4/N and approve issue of notification u/s 4, 6 and 17(i) of the LA Act, for acquiring the area measuring 306 bighas and 02 bids was in Rangpuri Village, for developing residential accommodation for Delhi government of icials. The matter has been discussed with VC ... ... (destroyed) ... ... with the proposed development of the area by DDA.
37. On 15th May, 1995 the Lt. Governor approved both proposals, but with some minor modifications. Taking into consideration the suggestions given by the Lt. Governor, draft Notifications under the Act were prepared and submitted to the Lt. Governor for his approval. In this regard, the relevant portion of the note dated 19th May, 1995 prepared by the Under Secretary (LA) which was put up before the Lt. Governor reads as follows:-
Facts of the case are available at page 31/N (sic) onwards. Urgency of acquisition for PWD has been explained at page 3/N and urgency for DDA is explained in its proposal at page 28/C and 29/C.
As per the Sajra placed below ... ... the amount of compensation (omitted as not relevant).
In view of the necessity and urgency explained by DDA and PWD, Delhi, we may request Hon'ble L.G. to accord his approval to issue notifications u/s 4, 6, 17(1) of L.A. Act for land as per requirements of DDA and PWD.
38. The Lt. Governor considered the file on 23rd May, 1995 and remarked as follows:-
Approved as proposed.
39. At this stage, I may mention that page 56/C of the file contains an undated note which has been signed by the Lt. Governor (a signed copy is also available on page 55/C of the file). The note reads as follows:-
NOTE TO BE RECORDED ON THE NOTING PORTION BY THE LT. GOVERNOR I have gone through the records and requirements of the Public Works Department of Govt. of NCT of Delhi. I am fully satisfied that the land in question is urgently required for a valid public purpose viz. Planned Development of Delhi. I Order that in view of the urgency of the scheme, notifications under section 4, 6 and 17(i) of the Land Acquisition Act, 1894, be issued immediately.
40. On the basis of the above approval granted by the Lt. Governor, three Notifications were issued on 1st June, 1995 for the acquisition of 75.05 bighas, 306.02 bighas and 3284.00 bighas of land in the revenue estate of Rangpuri. In all the three Notifications, it was mentioned as follows:-
The Lt. Governor, Delhi being of the opinion that provisions of sub-section (1) of section 17 of the said act are applicable to this land, is further pleased under sub-section 4 of the said section to direct that the provisions of section 5A shall no apply.
41. It was contended by learned counsels for the Petitioners that the above nothings show that there was in fact no application of mind by the Lt. Governor to the issue of invoking Section 17(4) of the Act thereby dispensing with an inquiry under Section 5A of the Act. The application of mind was only with regard to Section 17(1) of the Act and not with regard to Section 17(4) of the Act.
42. I am of the opinion that, on facts, the nothings given above speak for themselves inasmuch as there is not even a whisper about Section 17(4) of the Act, and so and the contention raised by learned counsels for the Petitioners is fully justified. The case law that has developed in this regard also supports their point of view.
43. In this respect, the following propositions of law appear to be quite well settled:
(i) The right of hearing under Section 5A of the Act is a substantial right. (See Nandeshwar Prasad and Ors. vs. U.P. Government and Ors., : [1964]3SCR425 ). It is not empty formality but is a substantive right. (See Union of India and Ors. v. Mukesh Hans, : AIR2004SC4307 .
(ii) The right under Section 5A can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. (See Union of India and Ors. vs. Mukesh Hans, : AIR2004SC4307 . But, the right under Section 5A cannot be taken away as if by a side-wind. (See Nandeshwar Prasad and Ors. vs. U.P. Government and Ors., : [1964]3SCR425 ).
(iii) It is not necessary even where the Government makes a direction under Section 17(1) of the Act that it should also make a direction under Section 17(4) of the Act. In other words, it is only when the Government also makes a declaration under Section 17(4) of the Act that it becomes unnecessary to take action under Section 5A thereof and make a report there under. (See Nandeshwar Prasad and Ors. vs. U.P. Government and Ors., : [1964]3SCR425 ).
(iv) The mere existence of urgency under Section 17(1) or Section 17(2) of the Act would not by itself be sufficient for dispensing with an inquiry under Section 5A of the Act. Dispensing with an inquiry under Section 5A of the Act requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency, there is also a need for dispensing with a Section 5A inquiry. [See Union of India and Ors. vs. Mukesh Hans, : AIR2004SC4307 ]. The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5A which has to be considered. [See Narayan Govind Gavate and Ors. vs. State of Maharashtra and Ors., : [1977]1SCR763 ]
(v) Once the appropriate Government comes to a conclusion that there is an urgency or unforeseen emergency, dispensing with an inquiry under Section 5A of the Act does not become automatic. A composite order cannot dispense with such an inquiry, meaning hereby that there is a need for the appropriate Government to separately apply its mind for dispensing with such an inquiry. (See Union of India and Ors. vs. Mukesh Hans, : AIR2004SC4307 .
(vi) The satisfaction recorded under Section 17(4) of the Act is the subjective satisfaction of the Government based on the material on record. The High Court is not a court of appeal over the subjective satisfaction and the opinion of the Government is entitled to great weight. (See Raja Anand Brahma Shah vs. State of Uttar Pradesh and Ors., : [1967]1SCR373 and Union of India and Ors. vs. Ghanshyam Kedia and Ors., : (1996)2SCC285 .
(vii) The subjective satisfaction of the Government recorded under Section 17(1) and Section 17(4) of the Act can be challenged as ultra virus if it is shown that the appropriate Government never applied its mind to the matter, or the appropriate authority has not applied its mind to the relevant factors, or the decision taken by the appropriate authority is mala fide. However, a mere allegation that power was exercised mala fide would not be enough, and in support of such an allegation, specific material should be placed before the court. The burden of establishing mala fides is very heavy on the person who alleges it. (See Raja Anand Brahma Shah vs. State of Uttar Pradesh and Ors., : [1967]1SCR373 and First Land Acquisition Collector and Ors. vs. Nirodhi Prakash Gangoli and Anr., : [2002]2SCR326 .
The above principles of law have been followed by this Court in M/s Sri Ballabh Marbles and Ors. vs. Kawaljeet Singh and Anr., W.P. (C) Nos. 4933 and 5255 of 1999 decided on 17th December, 2004 and Deepak Bhardwaj and Ors. vs. Union of India and Ors., 92 (2001) DLT 891.
44. On 1st December, 1995, the Respondents issued a corrigendum notification amending the Notification dated 1st June, 1995 bearing No. F.9(12)/95/L and B/LA/8474 in respect of 3284 bighas and 0 biswa of land for the development of Vasant Kunj Phase-IV. By the corrigendum, it was notified that other than khasra numbers 1497 and 1498, the Lt. Governor has been pleased to order that any interested person who may have any objection to the acquisition of land covered by that Notification may file the same in writing within 30 days of publication of the corrigendum notification.
45. It is necessary to mention here (quite significantly) that the corrigendum stated that The Lt. Governor of Delhi is pleased to order that section 17 sub-section (1) of Land Acquisition Act, 1894 will not be applied to the land ... ... notified under or the said notification. There is no mention about the provisions of Section 17(4) of the Act. This fortifies the view of learned counsels for the Petitioners that the belief of the Respondents was that the necessary consequence of invoking the urgency clause under Section 17(1) of the Act automatically meant that hearing under Section 5A of the Act was dispensed with in terms of Section 17(4) of the Act. As already mentioned above, this is not the correct position in law and the Petitioners must succeed on this ground alone.
46. But, be that as it may, objections were invited in terms of the corrigendum dated 1st December, 1995 and 177 objections were received and heard by the concerned LAC, who prepared his report dated 18th March, 1996 after considering the objections received.
47. In the meanwhile, on 25th January, 1996 and 13th March, 1996, the Supreme Court passed orders in is No. 18 and 22 in WP (C) No. 4677/1985 (M.C. Mehta vs. UOI and Ors.). The orders passed by the Supreme Court pertain to land in the Ridge area, and apparently form a part of forest land. As a result of orders passed by the Supreme Court, the Deputy Commissioner, Delhi issued a Notification dated 2nd April, 1996 under Section 154 of the Delhi Land Reforms Act, 1954 placing a considerable tract of land at the disposal of the Forest Department of the Delhi Government.
48. The report of the LAC was considered by the Under Secretary (LA) in his note dated 20th May, 1996. He noted that the LAC was of the view that objections under Section 5A of the Act deserved to be rejected except in respect of land falling under the category of approved farm houses. On this basis, the Under Secretary (LA) prepared two proposals which are mentioned in his note dated 20th May, 1996. These proposals are as follows:-
Therefore, in view of the requirement of DDA, for a valid public purpose, Hon'ble L.G. May kindly like to consider for setting aside the objections filed by the land owners u/s 5(a) and accord his approval on the following:-
1. Excluding an area of 1101 bigha 4 biswa from the notification u/s 6 which has been transferred by the Dy. Commissioner to the Forest Deptt. in view of the orders of the Supreme Court in the case of M.C. Mehta Vs Union of India and Ors.
2. May like to consider for setting aside the objections u/s 5(a) and accord his approval for issuance of notification u/s 6 of L.A. Act for the entire land for which notification u/s 4 was issued on 1.6.95 except the land mentioned in point-1.
The notification proposed to be issued u/s 6 of LA Act is placed apposite khasra wise as land acquisition Collector has not sent the draft notification Along with the report u/s section 5(a). Objections filed by the land owners in original are also placed apposite. The notification is going to be lapsed on 31.5.96.
49. The matter was then considered by the Commissioner and Secretary (L and B/PWD) on 30th May, 1996. In her note, it has been mentioned that the report given by the LAC is somewhat sketchy and, thereforee, further details were called for. The details were then received, which indicated that what the LAC intended to exempt from acquisition was land under 22 approved farm houses in which the parties had filed sale deeds, approved plans and completion certificates as well as other relevant documentary proof. Consequently, the Commissioner and Secretary (L and B/PWD) made the following proposals in her note dated 30th May, 1996: -
Hence the alternatives open to us are:-
(1) The objections of these 22 parties may be considered and the area covered by them excluded from the section 6 notification. The technical difficulty, however, is that the portions of several khasra nos. are included in one farm house, hence we may have to leave out the unbuilt area in these khasra numbers also.
(2) Alternatively, the notification under section 6 may issue for the entire 2183 bighas (3283 - 1101). The built up portion can be left out at the award stage by the LAC keeping in view DDA's requirements at the time.
Based on the above two alternatives, two draft notifications are placed on the file, one of which may be approved by L.G.
In my opinion, the second alternative will be better.
50. On 30th May, 1996, the Lt. Governor considered the proposal put up before him and passed a short order, the relevant portion of which reads as follows:-
I have gone through the report under section 5A of the Land Acquisition Act submitted by the LAC, and the objections filed by the land-owners and other interested persons. The position that emerges is that only 22 out of 177 objectors have been able to produce documentary proof of being in possession of farm houses approved formally by the MCD. In the circumstances, I consider that it would be equitable to leave out only those farm houses as have produced such proof to the satisfaction of the LAC. The other 155 objectors cannot be given any consideration by us, in the proceedings for the land acquisition proposed.
A notification may accordingly be drafted and put up to me for approval by tomorrow morning so that it may be issued and published in the Delhi Gazette.
51. Next morning, however, the Lt. Governor called a meeting in which the Chief Secretary was also present. In that meeting [as per the note dated 31st May, 1996 recorded by the Commissioner and Secretary (L and B/PWD)], the Lt. Governor expressed the view that a Notification under Section 6 of the Act cannot be issued for two principal reasons, namely, that the report of the inquiry conducted by the LAC was incomplete and he had also not dealt with the validity of objections filed by the 177 objectors. The second reason was that in view of the fact that almost 1/3rd of the area notified under Section 4 of the Act had been separately notified under Section 154 of the Delhi Land Reforms Act, 1954 as a result of the orders of the Supreme Court, the plans of DA for the Vasant Kunj project would require to be modified. The Lt. Governor was of the view that a fresh proposal for acquisition should now be prepared.
52. The note recorded on 31st May, 1996 by the Commissioner and Secretary (L and B/PWD) is significant and this reads as follows:-
1. A meeting was taken by LG this morning to discuss this case, at which CS was also present. After detailed discussions, LG was of the view that section 6 notification cannot be issued in this case for the following reasons: -
(a) The report of the enquiry under section 5A carried out by the Land Acquisition Collector was incomplete. The LAC had not specified the basis on which the farm houses and other constructed areas are recommended to be left out of acquisition. LAC had also not given details of the number of such farm houses, the area occupied by each of them, the exact khasra numbers, and whether these were approved or unapproved. The validity of the objections filed by the 177 parties had also not been examined and exported upon.
(b) Almost one-third of the area notified under section 4 of the Land Acquisition Act, had separately been notified under section 154 of the Delhi Land Reforms Act, as a result of the decision of the Supreme Court in CWP No. 4677 of 1985 - M.C. Mehta vs. Union of India. With the reduction in the area of one-third, the plans of the DDA for the Vasantkunj project would require to be modified.
2. In view of the above, the LG decided that a fresh proposal for the acquisition of land for Vasantkunj project may be submitted by 15.6.96 after consulting the DDA.
3. As a general policy; the area covered by the approved farm houses, or those who have submitted their plans before issue of notification declaring the area as a Development Area under Section 12 of the DDA Act, should be left out of acquisition. Unapproved buildings, farm lands should, however be included in the fresh proposal. The general policy being followed is that approved farm houses should not be acquired until and unless it is essential to do so for execution of the project, as was the case for acquisition of land for the Sewage Treatment Plants. This policy may be taken into account while formulating the fresh proposal.
4. L.G. also desired that instructions should issue to the MCD and the DDA not to approve any new constructions in the area, since it had already been declared as a Development Area. DDA should also ensure that no fresh constructions came up in the interim period before finalization of the acquisition proceedings.
5. The above record of discussions may kindly be seen for approval before further action is taken to formulate a fresh proposal for acquisition of land for Vasantkunj Phase-IV.
53. Thereafter, the matter was reconsidered by the Respondents and as per the note prepared by the Under Secretary (L and B) on 20th June, 1996, it was proposed that three Notifications be issued under Sections 4, 6 and 17 of the Act for the acquisition of 1337 bighas and 4 bids was of land for use by DDA (pertaining to this batch of cases), 369 bighas and 1 biswa of land covering unapproved farm houses for use by DDA (pertaining to Radiance Fincap batch of cases) and 130 bighas and 15 bids was of land for staff quarters for the Delhi Government (pertaining to Gig Raj Patodia batch of cases).
54. In her note dated 21st June, 1996, the Commissioner and Secretary (L and B/PWD) concurred with the three proposals but suggested that the first two proposals, that is, with regard to acquisition of 1337 bighas and 4 bids was and 130 bighas and 15 bids was of land for use by DDA, should be after invoking the urgency clause under Section 17(1) of the Act.
55. On 24th June, 1996, the Lt. Governor approved the Notifications as proposed. He made a remark with regard to farm houses of two persons but since I am not concerned with that issue, that part of the note is not adverted to in greater detail.
56. The impugned Notification under Section 4 of the Act was then issued on 27th June, 1996 pertaining to 1337 bighas and 4 bids was of land followed by a Notification dated 10th January, 1997 under Section 6 of the Act in respect of this land required for the development of Vasant Kunj Phase-IV, the subject matter of challenge in the present batch of writ petitions.
57. The relevant nothings which have been extracted above in detail show that, as in the past, there was no application of mind by the Lt. Governor or by any of the officers of the Delhi Government to the requirement of Section 17(4) of the Act or dispensing with a hearing under Section 5A of the Act. The case law that has already been discussed hereinabove is, thereforee, fully applicable to the question whether there was any application of mind to Section 17(4) of the Act and, based on the nothings and he case law available, the answer in this respect must be in the negative.
58. Learned counsel for the Respondents, however, placed considerable reliance on Krishi Utpadan Mandi Samiti, Muzaffarnagar vs. Ratan Prakash Mangal and Ors., : AIR1988SC1459 to contend that even if it is held that no valid order was passed under Section 17(4) of the Act dispensing with an inquiry under Section 5A thereof, at best, we can only direct the Respondents to give a hearing to the Petitioners under Section 5A of the Act. Carrying the argument a little further, it was submitted that such a direction would not really serve any purpose because a hearing had earlier been given to the Petitioners when their land was sought to be acquired in terms of the Notification dated 1st June, 1995 and, thereforee, giving them another hearing would be a futile exercise. It was contended by learned counsel for the Respondents that the principle laid down in Krishi Utpadan Mandi Samiti has been followed by a Division Bench of this Court in Sandhya Educational Society (Regd.) vs. Union of India and Ors., CWP No. 3596/1997 decided on 26th March, 2004
59. I am of the view that it is not necessary for us to decide on the applicability of Krishi Utpadan Mandi Samiti. The reason for this is that the report given by the LAC was somewhat sketchy as observed by the Commissioner and Secretary (L and B/PWD) in her note dated 30th May, 1996 and more importantly, however, the report was rejected by the Lt. Governor himself as recorded in the note of the Commissioner and Secretary (L and B/PWD) dated 31st May, 1996 prepared after a meeting with the Lt. Governor, which was also attended by the Chief Secretary of the Delhi Government. According to the note, the Lt. Governor has observed that the validity of the objections had not been examined and reported upon. This was an important reason that weighed wit the Lt. Governor for declining to accept the report of the LAC and issue a Notification under Section 6 of the Act. In fact, this was also one of the main reasons why the Lt. Governor allowed the Notification dated 1st June, 1995 issued under Section 4 of the Act to lapse. When the Lt. Governor himself was not prepared to accept the report of the LAC, it is not possible for me to accept its contents. It is for this reason that I reject the contention of learned counsel for the Respondents to the effect that giving a fresh hearing under Section 5A of the Act would be an exercise of futility under the changed circumstances.
60. Since I have concluded that there was no application of mind by the Lt. Governor to the provisions of Section 17(4) of the Act, the Respondents are now obliged to follow the procedure laid down under the Act before issuing a Notification under Section 6 thereof. I leave it open to the Respondents to decide whether they are inclined to invite fresh objections under Section 5A of the Act in view of the decision rendered by me today or whether they would like to proceed from the stage of receipt of objections under Section 5A of the Act and have the LAC prepare a fresh report. I do not propose to comment on the correctness or otherwise of either course of action that the Respondents may take because that is not in issue before me today.
61. Under the circumstances, I am of the view that learned counsels for the Petitioners were partially correct in raising Ground No. 5. That the Respondents were entitled to invoke the provisions of Section 17(1) of the Act cannot be doubted, but at the same time it must be held that there was no application of mind to the provisions of Section 17(4) of the Act, by mechanically invoking which the Respondents denied to the Petitioners their right to file objections under Section 5A of the Act. Assuming I am wrong in my conclusions about the invocation of Section 17(4) of the Act, I am of the view that report given by the LAC pursuant to the hearing given by him under Section 5A of the Act in respect of the same land covered by the Notification dated 1t June, 1995 issued under Section 4 of the Act, is a report that cannot be said to be valid inasmuch as it has not even been accepted by the Lt. Governor before whom it was placed for consideration.
62. For the above reasons, all the writ petitions are allowed to the extent that a part of the Notification bearing No. F.9(12)/95/L and B/LA/9743 dated 27th June, 1996 is struck down to the extent that it seeks to invoke Section 17(4) of the Act and to deny to the Petitioners their right to file objections under Section 5A of the Act. It is left to the Respondents to decide whether they would like to invite fresh objections under Section 5A of the Act or reconsider the objections already received - I do not wish to comment on the correctness or otherwise of either course of action.
63. In each of the 25 writ petitions, the first Petitioner will be entitled to costs of Rs.1,000/-. The writ petitions stand disposed of in the above terms.