Naresh Kumar v. Union of India

11. It is submitted that the provisions of the Land Acquisition Act, 1894, as well as DDA Act, are clear that if land of a person is required for the purpose of development of Delhi, then such person has the entitlement to an accommodation suitable to their reasonable requirements. The learned counsel for the petitioners relied especially on Section 21 of the DDA Act which stipulates that persons who may be living or carrying out business etc. on the land acquired by the DDA, will be eligible to obtain accommodation, on the land belonging to the DDA or other local Authority, suitable to their reasonable requirements on terms settled with due regard to the price at which any such land has been acquired from them. It is submitted that Hon‟ble Supreme Court in State of UP vs. Smt. Pista Devi AIR 1986 SC 2025, held that Section 21 of the DDA Act contains a wholesome principle which should be followed by all development authorities throughout the country while acquiring large tracks of land for purposes of development in urban areas. It is submitted that despite such observations, the respondents did not abide by the terms and conditions laid down under the Act.

12. It is submitted that although the petitioners have a right of allotment of land out of the land acquired by the respondents under Section 21 of the DDA Act, however, without prejudice to the said contention it is submitted that even otherwise in view of the Rule 6, Rule 12 and Rule 17 of Nazul Land Rules, 1981 (hereinafter “Nazul Rules”), it is also made obligatory on the DDA to allot plot out of Nazul Lands to the persons whose land has been acquired at pre-determined rate. It is submitted that in order of priority, the individuals whose land has been acquired for Planned Development of Delhi after 1st January, 1961 rank highest and it is immaterial whether such persons are owning land and their entire land has not been acquired or they own land inside abadi/Lal Dora.

13. Learned counsel for the petitioner submitted that it is no more res integra that a Section will prevail on a Rule and Rule will prevail on a Policy. Hence, Section 21 of the DDA Act would prevail while deciding the case of the petitioners over the Scheme of 1961 pertaining to control on land value in urban areas of Delhi acquisition, development and disposal of land.

14. It is submitted that villagers and plot owners in the same Village, and being similarly placed as the petitioners herein, have been allotted alternative plots in lieu of their land being acquired. The respondents have been picking and choosing to give benefits to the owners of the property whose lands have been acquired, including those who own land inside Village abadi and whose entire lands were not acquired. Such actions of the respondents are not only discriminatory but also illegal and arbitrary.

15. It is submitted that in light of the position of law as well as the contentions raised above, the impugned letters dated 6th November 2019 are liable to be quashed for being passed arbitrarily without application of mind and in contradiction to the provisions of law.

16. After being given several opportunities to the respondents, they opted not to file a counter affidavit in response to the petition. However, the respondent no. 3 has placed on record its written synopsis in W.P. (C) 2791/2020 which has been perused and the objections raised therein are considered for all the connected matters.

17. Learned counsel appearing on behalf of the respondents vehemently opposed the contentions raised and arguments made on behalf of the petitioners and submitted that the orders rejecting the applications of the petitioners have been passed in accordance with law and in consonance with the Scheme of 1961.

18. It is submitted that orders dated 6th November 2019 are detailed and reasoned orders and the competent authority after duly scrutinizing all the documents and the entire record found the petitioners ineligible as per the Scheme of 1961. It is submitted that at the time of filing applications for allotment of alternative plots, the respective wives of the petitioners already had a plot in their name and hence, the petitioners were not entitled to any allotment in lieu of the land acquired, in light of the condition (a) of paragraph 10 of the Scheme of 1961. It is submitted that as per the provision of the Scheme of 1961, no plot is to be allotted to any person who himself or whose spouse or any of his dependent relations owns a house or residential plot of land in Delhi, New Delhi or Cantonment. It is submitted that the only exception to this condition is for those who are living in a congested locality or whose family has outgrown. However, the case of the petitioners did not lie in any such exception and is barred by the condition (a) of paragraph 10.

19. Further, it is submitted that the report from Halqa Patwari was placed before the competent authority and as per the report, the entire land of the petitioners was not acquired. Part of the land of the petitioners remains in Lal Dora and hence, they were also not entitled for the alternate plot in light of this information. It is submitted that as per the principles outlined in the judgment of Jai Singh Kanwar (Supra) and Surinder Singh Mann (Supra), the objective of the Scheme of 1961 suggests that a plot should be allotted to a person whose land has been taken away entirely and who is left without any plot or residential accommodation. It is a rehabilitative measure to provide for those who become landless or homeless when their land is acquired. Therefore, the Scheme does not apply to the petitioners.

20. It is submitted that the same issue of rejection of applications for alternate plots in Village Dhool Siras has been challenged in various petitions earlier, which were dismissed and against which LPA was also filed by the petitioners therein, which also stood dismissed. It is submitted that all the contentions raised in the instant petition have already been addressed in the said judgment titled Ranjeet Singh vs. Government of NCT of Delhi LPA 173/2017 decided on 27th September

2017.

21. It is submitted that the judgment of Ranjeet Singh (Supra) clarified that the Scheme of 1961 is not in violation of either Section 21 of the DDA Act or the Nazul Rules. The following observations were made by the Division Bench of this Court:-

It is submitted that the Court observed that the Scheme of 1961 is not in violation of but incorporated in the Nazul Rules and is also in consonance with the provisions of the DDA Act.

22. Learned counsel appearing on behalf of the respondents further submitted that the argument advanced on behalf of the petitioner vis-à-vis the terminology used in the Scheme as against the ground mentioned in the rejection letter dated 4th November 2019 with respect to “out of village abadi” or “in village abadi” is immaterial and irrelevant, in light of the observations reproduced hereunder, that reiterate the objective of the Scheme of 1961:-

23. Learned counsel for the respondents further submitted that the Scheme of 1961 does not vest an absolute right in anyone to be allotted an alternate land, especially those who are barred by the conditions laid therein. The right and entitlement with the petitioners were limited to being considered for allotment of alternate land. Reliance has been placed upon Ramanand vs. Union of India 1993 SCC OnLine Del 397.

24. It is submitted that there is no illegality or error in the orders dated 6th November 2019 and the instant petitions are liable to be dismissed in light of the arguments advanced on behalf of the respondents, since, neither did the petitioners have an absolute right for allotment of alternate plot nor were they found eligible when they applied for allotment of alternate plot.

25. Heard learned counsel for the parties and perused the record.

ANALYSIS AND FINDINGS

26. This Court has perused the rejection orders/letters dated 6th May 2019 and 4th November 2019 as well as the Scheme of 1961, which became the primary ground for rejecting the applications of the petitioners for allotment of alternate plot in lieu of acquisition of their land.

27. At the very outset, it is pertinent to outline the scope of writ jurisdiction under Article 226 and 227 of the Constitution of India while examining and adjudicating upon an impugned order. Scope of Writ Jurisdiction

28. Under Article 226 of the Constitution of India, High Courts have the power to adjudicate upon an impugned order along with the power to entertain writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. While adjudicating upon an impugned order, the scope of writ jurisdiction is narrowed to examining the contents of the order which is before the Court. Any consideration beyond assessment of the impugned order, including investigation into evidence and question of facts would amount to exceeding the jurisdiction. While examining the challenge to an impugned order, the Court has to limit itself to the consideration whether there is any illegality, irregularity, impropriety or error apparent on record.

29. In Nagendra Nath Bora vs. Commr. of Hills Division and Appeals AIR 1958 SC 398, the Hon‟ble Supreme Court made the following observations while examining the scope of interference by High Courts in an order impugned and what would constitute an error apparent on record:-

30. The Hon‟ble Supreme Court in Union of India vs. P. Gunasekaran, (2015) 2 SCC 610, elaborating upon the extent of exercise of writ jurisdiction, held as under:-

31. Further, the Hon‟ble Supreme Court in Sarvepalli Ramaiah vs. District Collector, Chittoor (2019) 4 SCC 500, made the observations as reproduced hereunder, while examining the scope of Article 226 of the Constitution of India:-

32. Further in Sanjay Kumar Jha vs. Prakash Chandra Chaudhary, (2019) 2 SCC 499, the following observations were made by the Hon‟ble Supreme Court:-

33. The law, as has been interpreted by the Hon‟ble Supreme Court, is clear that a High Court exercising its writ jurisdiction shall not appreciate evidence and must not interfere in the order impugned unless there is a gross illegality or error apparent on the face of record. Hence, this Court will also limit itself to the question of law and the contents of impugned order.

34. Now it is deemed significant to examine the background, intent as well as the objective of introduction of the Scheme of 1961 and the provisions for alternate plot in lieu of acquisition. Delhi Development Authority Act and Masterplan for Delhi

35. The DDA Act came into force in 1957 with the objective of providing for development of Delhi according to plan. By virtue of the Act, the DDA is vested with the power to acquire, hold and dispose of property, while fulfilling the objects of promoting and securing development of Delhi according to plan. The Act also provides for compulsory acquisition of land where the Central Government is of the opinion that land is required to be acquired for the purposes of development. The Government then acquires land as per the provisions under the Land Acquisition Act, 1894. Initially, the provisions of the DDA Act also provided for compensation for compulsory acquisition and its payment thereof, however, such provisions were subsequently omitted and certain other provisions came into being for compensation in lieu of acquisition.

36. As an extension of application of the DDA Act and the development of the NCT of Delhi, at various phases of development, the Master Plan for Delhi came into being. Master Plan guides the development of the State of NCT in phased and planned manner. The first of these plans was the Master Plan for 1962 which was based on the provisions of the DDA Act. The Master Plan for 1962 set out a developmental vision of large-scale acquisition and development of land. The aim was to ensure that the envisaged spatial pattern of development and use of land would conform to the development plan and, thereby, infrastructure services would be laid out to match the same.

37. It was natural that for planned development of the National Capital Territory, land was needed to be acquired, urbanized and developed as per the requirements deemed fit by the Government, however, the same could not have been done at the cost of those already in possession of the land which was found in the areas required for the planned development. Accordingly, to facilitate development in harmony with those who already possessed the land, the Government came up with schemes and provisions for providing the land owners with alternative rehabilitation and compensation in return for acquisition of their land. One such provision was the Scheme of 1961. Scheme of 1961

38. The subject matter of the Scheme of 1961 was „Control of land values in the Urban Areas of Delhi- Acquisition, development and disposal of land‟ which came into force on 2nd May 1961 and has been modified from time to time. The Scheme not only provided for measures for controlling value in urban areas but also largely regulated the conditions stipulated for acquisition, development and disposal of land.

39. The objective of the Scheme of 1961 suggests as under: “The scheme of providing developed residential plots to farmers whose lands are acquired for planned development of Delhi is a rehabilitation measure”

40. This objective has also been reiterated by this Court as well as the Hon‟ble Supreme Court in various cases. A coordinate bench of this Court in Jai Singh Kanwar vs. Union of India 2008 SCC OnLine Del 492 made the following observations:- “7.[2] Giving its imprimatur to the policy the Full Bench in Shiv Devi Virlley explained the rationale for the policy was to see that the population of Delhi is properly housed and has the means for acquiring residential houses and further that if a person has bought a residential plot privately and the State chooses to acquire that land at a very meagre price, then surely it is the duty of the State to give an alternative plot at a moderate price to those persons who have been deprived of possible residential houses, which they could have constructed on the land they have acquired”

41. Further, in Surinder Singh Mann (Supra), a coordinate bench of this Court observed as under:-

42. A coordinate bench of this Court in Amrit Kumari vs. Asst. Housing Commissioner & Ors, 2016 SCC OnLine Del 1624, also held that a scheme for allotment of alternative plots is purely a welfare scheme formulated to rehabilitate the farmers whose land had been acquired.

43. In State of M.P. vs. Narmada Bachao Andolan, (2011) 7 SCC 639, the Hon‟ble Supreme Court elaborated on the general principle and provisions for rehabilitation and observed as under: “Land acquisition and rehabilitation: Article 21

26. It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other activity on the land acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on the terms settled with due regard to the price at which the land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case.

27. In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition. The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands. “10. … A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens.” (Mahanadi Coalfields Ltd. case [Mahanadi Coalfields Ltd. v. Mathias Oram, (2010) 11 SCC 269: (2010) 4 SCC (Civ) 450: JT (2010) 7 SC 352], SCC p. 273, para 10) For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. (Vide State of U.P. v. Pista Devi [(1986) 4 SCC 251: AIR 1986 SC 2025], Narpat Singh v. Jaipur Development Authority [(2002) 4 SCC 666: AIR 2002 SC 2036], Land Acquisition Officer v. Mahaboob [(2009) 14 SCC 54: (2009) 5 SCC (Civ) 297], Mahanadi Coalfields Ltd. v. Mathias Oram [Mahanadi Coalfields Ltd. v. Mathias Oram, (2010) 11 SCC 269: (2010) 4 SCC (Civ) 450: JT (2010) 7 SC 352] and Brij Mohan v. HUDA [(2011) 2 SCC 29: (2011) 1 SCC (Civ) 336].) The fundamental right of the farmer to cultivation is a part of right to livelihood. “Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity.” India being a predominantly agricultural society, there is a “strong linkage between the land and the person's status in [the] social system”.

44. Hence, it is evident that the Scheme of 1961 was introduced as a means to provide for those whose land is acquired for the purposes of development and to ensure that such persons are not rendered homeless or landless in the event of such acquisition.

45. However, the Scheme for alternative plot does not confer a direct and absolute right to any person whose land is acquired. The Scheme provides for conditions under paragraph 10, which were updated and modified with time and as per requirements. These conditions acted as eligibility criteria for the land owners whose lands were acquired and who became entitled to be considered for allotment of alternate plot, subject to the conditions laid.

46. These conditions which stood under paragraph 10 of the first Scheme are reproduced hereunder:-

47. With subsequent amendments and modifications in the successive years, the Scheme ultimately provided for the following eligibility criteria for allotment of alternate plot:-

48. In the instant matter, the relevant condition, which became the ground for rejection of petitioners‟ applications, was that the respective wives of the petitioners already had a plot in their name at the time of the application for alternate plot. This condition finds mention in the first as well as the subsequently modified version of the Scheme of 1961. The availability of an existing plot in the name of the owner or any of his dependent, including his/her spouse or even unmarried children, creates a bar on the eligibility of the person to have an alternative plot allotted in his/her favour. Rejection/Impugned Letter

49. In the case at hand, in the rejection orders/letters dated 4th November 2019, which is impugned before this Court, the respondent NO. 3 took the existence of a plot/flat in the name of the petitioners‟ wives as a primary ground for rejection of the applications and relied upon the judgments of this Court and the Hon‟ble Supreme Court to support its decision. The relevant part of the similar impugned orders dated 4th November 2019 is reproduced hereunder:- “ Whereas, the Government Policy and the Guidelines are as below: “The applicants should not own a house/residential plot/flat out of village abadi in his /her own name or in the name of his wife/husband or any of his/her dependent relations including unmarried children, nor he should be a member of any Co-operative Housing Society”. Whereas, Hon'ble Supreme Court in the judgment in Civil Appeal No. 8289/2010,8290/2010 of Delhi Development Authority V/s Jaising Kanwar has held that “the object of the scheme is the when the land owned by a person is taken away in entirely and he is left without any house or plot, he should be allotted a plot. The scheme therefore provided that only a person who does not own a house /residential plot/flat will be entitled to apply”. Whereas, the Hon'ble High Court of Delhi in WP© no. 12306/15 titled as Sunder Singh Mann V/s Govt. of NCT if Delhi decided on 25.08.2017 that “The policy of the Government as is the scheme was to provide residential plots to farmers whose land has been acquired. It was a rehabilitative measure; meaning thereby that is was to rehabilitate those farmers whose land has been acquired as they have become homeless or landless. In the instant case, that land of the petitioner has been acquired; yet before his allotment could be processed, the wife of the petitioner has acquired a property in her own name meaning hereby that clause 3 (highlighted supra) created a hurdle in the case of the petitioner and since his wife already owned a plot in her name on the date when the allotment was to be issued, the petitioner was not entitled to an alternative plot. It is also not the case of petitioner that his wife was no dependent on him”.”

50. An examination of the objective of the Scheme read with the observations made in the abovementioned judgments of the Hon‟ble Supreme Court as well as this Court, definitively and unambiguously indicate that the Scheme of 1961 is targeted to those individuals, villagers, farmers etc. who may be rendered homeless or landless upon their land being acquired by the Government, or any Authority under it, for the purposes of development. The very structure of the Scheme suggests that it is a welfare and rehabilitative measure for those affected by the actions taken in the process of development of the State of NCT of Delhi. Being considered for compensation, whether monetary or in the form of alternate plot, is an entitlement which is available to individuals who fulfil the criteria provided for under the Scheme. Those who lose their homes or their agricultural lands, that are the only source of their livelihood, are the custodians of schemes like these and rightly so need to be facilitated as soon as possible. Such individuals, owners, villagers, farmers and their families cannot and should not be left remediless after their land is acquired. However, it should also be borne in mind that in garb of such welfare schemes, those who have alternative and effective means of sustaining a life do not take unfair advantage of the schemes and welfare provisions of the Government and its Authorities. Keeping in mind the objective of the Scheme, it is found that enforcing an eligibility criterion for consideration of application of allotment of alternate land is not unreasonable or unfair and is in fact required for ensuring that the active and effective measures reach those who are in need.

51. Upon perusal of the record before the concerned authority/respondent no.3-SDM, it was found by the concerned authority that the wife of the petitioner already had an alternative plot in her name at the time when the petitioner applied for allotment of alternative plot. Although the respondents have failed to bring out and establish the details of the alternative plot in the name of the spouse of the petitioner, however, to go into the material and records and conducting a roving inquiry would be beyond the scope of writ jurisdiction before this Court, as discussed in the foregoing paragraphs. The consideration before this Court is limited to the extent of evaluating whether there were any illegalities or error apparent in the observation of the respondent no. 3 while issuing the impugned letter dated 4th November 2019.

52. The impugned order dated 6th May 2019 made certain other observations while rejecting the application of the petitioner Sube Singh which are also reproduced below:- “ With reference to your application for allotment of alternative plot in lieu of acquired land, in this connection it is to infrom you that the Scrutiny Committee has examined you case on the basis of the available record and the government guidelines. As per the report of Halka Patwati your entire land has not been acquired and the remaining land is under the Lal Dora now, which urbanized. You have not provided the required documents as per letters Nos. SDM(KH)/2016-17/2892-94 dated 22.9.2017 and Final Notice vide No. SDM(HQ)/2017/21137 dated 1.4.2019 sent to you. Since, your case does not fall under the category of eligible applicant for allotment of alternate plot, the Scrutiny Committee has decided not to recommend your case for allotment of alternate plot.”

53. The said ground was also taken by the concerned authority in the orders dated 4th November 2019 and the following observations were made in this regard:- “Whereas, the Scrutiny Committee had examined the case on the basis of available record and the government guidelines. In the matter, a report from concerned Halka Patwari was called and is placed before the committee. As per the report of Halka Patwari the entire land of applicant was not acquired; the land is remaining in the Lal Dora. Further, the Village has been declared urbanized U/s 507 of the DMC Act vide notification dated 24.10.1994 and U/s 22 of the DDA Act, 1957 vide notification dated 19.08.2002. As per available record on the file the applicant residing in the urbanized area and having his/her house/residential plot/flat in the urban area in the name of his/her own name or in the name of his/her wife/husband or any of his/her dependent.”

54. The respondent no. 3 while passing the impugned orders observed that the entire land of the petitioners was not acquired, as was reported by the Halqa Patwari. While the petitioners have challenged the ground taken by the concerned authority while rejecting their applications, they have failed to place on record any document or other pleading to show that their entire land was acquired and an Award to that effect was also announced. The question whether or not the entire land of the petitioners was acquired remains a disputed question of fact which, as discussed above, cannot be adjudicated upon under the writ jurisdiction of this Court. The respondent no. 3 while passing the order took into consideration the report of the most competent authority for the ground in consideration, which was the Halqa Patwari and relying upon his report passed the impugned orders.

55. The concerned authority appreciated the facts and record before it in light of the established principles of law and in accordance of the scheme of provisions and conditions under the Scheme of 1961. With the modifications brought about in the Scheme over the course of time, the bar to allotment of alternate land to those who have a plot/land/flat in their name or in the name of their dependents etc. has remained a part of the Scheme throughout. Moreover, this Court as well as the Hon‟ble Supreme Court has not held the Scheme to be contrary to any legislation or law in existence.

CONCLUSION

56. Keeping in view the observations and discussions in the foregoing paragraphs and the facts and circumstances, it is found that the orders/letters dated 6th November 2019 have been passed after due and proper adjudication, appreciation of facts, listing out the reasons for rejection in detail, and in accordance with law. Although this Court does not appreciate the inordinate delay of 16 years in passing the impugned orders/letters, however, apart from the delay, there is no illegality in the orders.

57. The petitioners had an alternative plot in the name of their respective spouses which they had the access to and could have taken possession of when the concerned plot was acquired by the concerned authority. As per the detailed reasons stated in the impugned orders the petitioners were not eligible for any alternate plot.

58. This Court does not find any illegality, impropriety or error apparent on the face of record in the orders/letters F.No.31(55)/199/2003/L&B/Alt/4064/79005 in W.P.(C) 2791/2020, F.No.31(55)/63/2003/L&B/Alt/SDMHQSW/1309 in W.P.(C) 2812/2020, F.No.31(55)/199/2003/L&B/Alt/4061/78989 in W.P.(C) 2816/2020 and F.No.31(55)/199/2003/L&B/Alt/4063/79000 in W.P.(C) 2817/2020.

59. This Court does not find any cogent reason to interfere in the impugned orders/letters dated 6th November 2019 passed by respondent no. 3. Accordingly, the instant petitions are dismissed for being devoid of merit.

60. Pending applications, if any, also stand disposed of.

61. The judgment be uploaded on the website forthwith.

JUDGE AUGUST 25, 2022/dy/ms