Judgment:
Vikramajit Sen, J.
1. Rule.
2. This is the second round of litigation, the first one, CW No.1743/2000, having been allowed by Judgment dated 16th May, 2002. The Petitioner has prayed for the allotment of an alternative plot of land in the context of the land acquired from him. In the said judgment which is between the parties hereto and has attained finality, S.K.Mahajan, J. had specifically held that the entry of ownership in the revenue records would not be an essential requirement for consideration of the grant of an alternative plot. In the concluding part of the Judgment it has been observed as follows:
'I, thereforee, do not want to decide the question as to whether or not the petitioner would be entitled to the allotment of an alternative plot of land on the ground that the land was not acquired for the purposes of planned development of Delhi. If it is a ground which disentitles the petitioner, he may not be entitled to allotment of alternate plot of land, however, it is entirely for the respondent to take a decision thereon.
For the forgoing reasons, I direct the respondents to consider the application of the petitioner for allotment of an alternative plot of land strictly on merits. Since sufficient period has already elapsed from the date of filing of the application, I direct the respondents to take decision on the application within three months from the date of this order.'
3. The contention of learned counsel for the Respondent is that the implementation which is sought for in this Writ Petition strictly and specifically envisages that the land must be purchased by Sale Deed in terms of paragraph B of Annexure M. Reliance has also been placed on the Clause which excludes some person from the coverage of the scheme viz. - 'The land has been acquired for non-plan purposes against the acquisition notification issued under Section 4 of the LA Act prior to 14.7.1987 and that in order to be eligible for consideration, where the acquired land is purchased through Sale Deed, the original Sale Deed must be filed along the application and that proof of mutation should also be enclosed.'
4. The facts of the present case are that the Petitioner had entered into an Agreement to Sell on 13.2.1974 in respect of the subject land; and a Power of Attorney had been executed on 18.6.1974 in his favor. The Notification under Section 4 was published on 13.2.1981, i.e. seven years after the Petitioner had entered upon the land by executing agreements and documents with its recorded owner. A Suit for Specific Performance was filed in 1986 which was eventually decreed in 1991 by the recording of a compromise. Learned counsel for the Respondent has emphasised that one of the terms of the compromise was that the Plaintiff (Petitioner herein) would not insist on the execution of a Sale Deed. It is further strongly contended on behalf of the Respondents that there was no error in the Order dated 25.3.2003 which rejected the Petitioner's application for allotment of an alternate plot. The Deputy Director (ALT.), Govt. of NCT of Delhi, Land & Building Department (Alternative Branch), New Delhi had relied on the judgment of the Hon'ble Supreme Court in Union of India v. Shiv Kumar Bhargava, : [1995]1SCR354 and that of the Division Bench in Jaswant Kaur v. Lt. Governor, 1997 (40) DRJ. In Shiv Kumar Bhargava's case, the Supreme Court had opined as follows:
'The policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the notification may be entitled to claim compensation by virtue of sale made in his favor, namely, the right, title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which notification under Section 4(1) was published. This was the view of this Court in another case while considering the Full Bench judgment of the Delhi High Court. Under these circumstances, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of notification under Section 4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The writ petition stands dismissed. No costs.'
5. In my view the most important words in the above passage are 'subsequent to the notification' . Where land is notified for acquisition, it would be against public policy to allow speculation thereon. Transfer of land in the hiatus between initiation and completion of acquisition proceedings is no longer possible because of the passing of the Delhi Land (Restriction on Transfer) Act, 1972. In the present case, however, the land was purchased in 1974 and what remained was the registration of a Sale Deed and mutation of ownership in the revenue records. I need not to go into the reasons why these two conditions have not been complied with in view of the Decree of Specific Performance passed in 1991. It would not be proper to go behind that Decree. This is despite the fact that the Suit came to be filed in 1986 after the passing of the Award in 1985. In cases where the land had been purchased subsequent to the notification, even by way of an Agreement to Sell or a Power of Attorney, the ratio in Shiv Kumar Bhargava's case would indubitably come to the assistance of the Respondents, but not otherwise.
6. One of the two questions in Jaswant Kaur's case was whether the Petitioner, a purchaser of land subsequent to the date of the Notification under Section 4 of the Land Acquisition Act, 1894 was entitled to allotment of alternative plot under the Policy of the Respondents. It was in that regard that the Division Bench had considered the provisions of the Delhi Land (Restriction on Transfer) Act, 1972. Shiv Kumar Bhargava's case (supra) was cited on the question of the validity of a sale after the promulgation of the Notification under Section 4(1) of the Act. This decision would, thereforee, not have any direct bearing on the issue before me.
7. Had this question not been agitated on an earlier occasion in CW No.1743/2000, the decision in this Writ Petition would have warranted a broader consideration. The facts mentioned above were available for argument in May, 2002, as per the decision in Shiv Kumar Bhargava's case and in Jaswant Kaur's cases. The principles of rest judicata would persuade not to venture into the question of whether only a recorded owner i.e. the person possessing a Sale Deed as well as a mutation in his favor would alone be entitled for allotment of an alternative site. The reasons why the dispute had not been finally disposed of and decided by S.K.Mahajan, J. was obviously because of the controversy whether the land was acquired for the purpose of land development of Delhi still remained. It was only in this regard that his Lordship had directed the Respondents to consider the application of the Petitioner for allotment of an alternative plot of land strictly on merits. Although this question has not been answered or taken up in the Order dated 25.3.2003. There is merit in the statement of Shri B.T.Singh, learned counsel appearing for the Petitioner that an answer can be found in the letter dated 1.8.2001 since it charges expenditure involved in the present acquisition to be debited to the Major Head of Account 5054 Roads & Bridges (Plan) (TYABD Fund). Counsel for the Respondent points out that this is a hand written part of the document, but the genuineness of this document in its entirety has not been disputed in the Counter-Affidavit.
8. In the analysis, the main consideration is whether the purchase has taken place after the acquisition process had been initiated by the publication of a Section 4 Notification. This is not controvertible in the present case as the Agreement to Sell and the Power of Attorney had been executed eight years prior to that Notification. The present case, thereforee, does not fall within the sweep of Shiv Kumar Bhargava decision.
9. Learned counsel for the Respondent again emphasises that Power of Attorney and an Agreement to Sell does not confer ownership. It is too late in the day to make this statement, as it stands decided and answered by S.K.Mahajan, J. in the previous Writ Petition between the parties. His Lordship had opined that the entry of the name of such a person in the revenue records would not make any difference to his entitlement to an alternative plot of land. It had further been observed that upon execution of the Agreement to Sell and the Power of Attorney the Petitioner could deal with the land in any manner that the Petitioner liked. His Lordship had further observed that if for some reason the name of the Petitioner had not been entered into the revenue record, that could not be a ground for rejection of the application. It should also be kept in perspective that so far as the DDA and L&DO; is concerned, conversion of the property is now permissible even on the basis of such documents, namely, Agreements to Sell and Powers of Attorney.
10. In these circumstances, the Writ Petition is allowed and the Respondents are directed to allot an alternative plot of land to the Petitioner in view of the land acquired from him, for which compensation has also been paid to him.
11. Parties to bear their respective costs.