Full Text
HIGH COURT OF DELHI
Date of Decision: - 14.02.2020
S.S DAHIYA & ANR ..... Petitioners
Through: Mr. Vishal Singh, Proxy Counsel for Mr. S.C. Singhal, Advocate.
Through: Mr. Ripu Daman Bhardwaj, CGSC with Mr. T.P. Singh, Advocate for R-
1.
Mr. Sanjay Kumar Pathak, Mr. K.K.
Karan Pathak, Mr. Sunil Kumar Jha and Mr. M.S. Akhtar, Advocates for
LAC/L&B/GNCTD.
Mr. Ajay Verma, Advocate for DDA.
HON'BLE MR. JUSTICE SANJEEV NARULA SANJEEV NARULA, J (Oral):
JUDGMENT
1. The present application has been filed by Respondent No.3-DDA seeking vacation of the status quo order dated 23.07.2013 passed at the initial stage with respect to land of the Petitioners in Khasra No. 150 min (2-10), 155 min (3-00), 159 (3-17), 160 min (3-00), 139 min (0-6), 140 min (4-08), 141/1 min (2-00), 147/1 min (2-10), 148 min (4-14) situated in the Revenue Estate of Village Masoodabad, Najafgarh, Delhi (hereinafter referred as “the subject land”) acquired vide Award No. 12/2008-09 dated 11.02.2009 for the construction of 100 mtr. road under the Planned Development of Delhi. 2020:DHC:1107-DB
2. In brief, the case of the petitioner is that the subject land was acquired vide a notification under section 4 of the Land Acquisition Act, 1984 (hereinafter referred as “the LAA”) issued on 07.04.2006 and a declaration under section 6 of the LAA issued on 04.04.2007. Subsequently, an Award No. 12/2008-09 dated 11.02.2009 was passed in respect of the subject land. The present acquisition is challenged on the ground that the impugned notification under Section 4 of the LAA is bad and vague in law, inter alia, for the reason that there is no proper plan for the construction of the road of 100 mtr. prepared prior to issuance of the such notification, in as much as, no survey was done. Petitioners also have a grievance that they have not been given a proper hearing in respect of the objections filed by them. It is also urged that LAC has passed the award without going through the records and has also not considered the objections filed by the Petitioners. Besides, several other grounds have been urged assailing the award.
3. On 23.07.2013, this Court passed an order directing the parties to maintain status quo with respect to the title, nature of construction and possession of the suit property. The said order has continued to operate since then. Subsequently, on an application filed by Respondent No.4- Delhi Jal Board (DJB), this Court vide order dated 19.11.2014 modified the status quo order and permitted DJB to carry out the laying of the pipeline, subject to conditions contained in the order. Now, vide the present application, Respondent No.3-DDA is seeking vacation of the order directing maintenance of status quo. The Petitioners have filed a response to the application enclosing the notification dated 29.11.2018 issued by the National Highway Authority of India (NHAI). It is urged that the land in Khasra No.141 min-to an extent of 0.0885000 hectare, was proposed to be acquired by NHAI for widening of a two lane stretch of NH 344M from 26 Km to 39 Km. Petitioners have no objection in surrendering a small stretch of land and contend that the larger portion originally acquired is no longer needed by the Respondents. On 16.05.2019, this Court had called upon Mr. Ajay Verma, learned counsel for DDA to take instructions on the aforesaid proposal of the Petitioners. Today, Mr. Verma submits that the entire land as acquired is necessary for the purpose and object of the acquisition, and the submission of the Petitioners that only a portion of land is needed for the said purpose is factually incorrect and is of no consequence.
4. We are presently concerned only with the question as to whether the status quo order dated 23.07.2013 granted by this Court as modified, should continue or not. We are, therefore, not finally deciding any contentions or the grounds urged by the Petitioners challenging the acquisition, as the same would have to be examined at the final stage. For now, what is of consequence is that the acquisition of the subject land is for a public purpose. The acquisition proceedings are complete and award has been passed on 11.02.2009. LAC has annexed the copy of the possession proceedings, whereby it seeks to demonstrate that the possession of the subject land has already been taken over. Further, the compensation amount of the subject land is stated to have been deposited in the Court of Additional District Judge vide cheque dated 27.12.2013.
5. The present Applicant- DDA has also filed an affidavit opposing the petition. In the said counter affidavit, DDA has stated that the physical possession of the land was handed over to them on 23.11.2012. It is also the stand of the DDA that the subject land has been acquired for construction of 100 mtr. road under Planned Development of Delhi connecting National Highway-1 (GT Karnal Road) to National Highway – 8 (Jaipur Road) i.e. Urban Extension Road-2 (UER-II) and it has been further averred as under: “iii. As the acquisition of land is always associated with some displacement of public it is always an effort of the Government that displacement is minimal and the land so acquired is utilized to the maximum possible extent for the benefit of public. In the present case, the said acquired corridor of land is already carrying an overhead HT line. Further, DJB has been permitted to lay raw water mains to carry additional water agreed upon by Haryana Government to Dwarka sub-city, which for more than 10 years does not have the regular municipal water supply. This land corridor in addition to this major road will also carry at BRT (Bus Rapid Transit) corridor and a Metro line as well. iv. It is submitted that of the 22 Km of these Raw Water Mains carrying water upto Dwarka Treatment Plant, only 1.[5] Km is left to be laid. It is, however, clarified that DJB has not been handed over any land for the purpose. DJB has been only permitted to lay these water lines in DDA land corridor acquired for Urban Extension Road. v. Answering Respondent submits that the presence of these utility lines along with the proposed road is not a diversion from the basic purpose of acquisition (Construction of 100 mtr. Road under Planned Development of Delhi) but to utilize the acquired corridor fully for the greater benefit of the public. vi. DJB and DDA are both executing work on government projects for the development of Delhi for the benefit of the residents of Delhi. The project, i.e., Urban Extension Road-II is a very important project for the planned development of the city. vii. Answering Respondent submits that there is no structure existing on the land in question at present.”
6. From the aforesaid narration of facts, there cannot be any doubt that the subject land is acquired to be taken by the Government at the public expense for the public purpose namely “construction of 100 mtr. road under Planned Development of Delhi”. Today, the subject land prima facie vests with Government, as the possession has been taken over. The Supreme Court in the case of K.M. Awastha Narayan Shetty v. State of Karnataka AIR 2014 SC 279 has held that once the possession of land has been taken over, the persons interested are entitled to compensation only. Similar views have been expressed by the Supreme Court in V. Chandrashekharan and Anr. v. Administrative Officer and Ors. 2012 (12) SCC 133. This Court has also echoed similar views in Adil Singh v. Union of India and Ors. 171 (2010) DLT 748 DB, wherein it has held that once the land is vested in the State, there is no question of the land being revested in the erstwhile owner. Government can withdraw from acquisition only up to the point it does not take possession of the land sought to be acquired. Further, in Nagin Chand Godha v. Union of India and Ors. (2003) 70 DRJ 721 this Court has held as under: “10. The Apex Court in the case of Executive Engineer Jal Nigam Central Stores Division U.P. v. Suresha Nand Juyal, (1997) 9 SCC 224, also considered the question of symbolic possession taken by the Officers. Therefore, in view of what is stated hereinabove, it is not possible for this Court to agree with the submission of the learned counsel that possession is not taken. Suffice it so say that after symbolic possession is taken, if the petitioner is enjoying the possession, he is enjoying the possession as a trustee on behalf of the public at large and that by itself cannot be considered to be a ground to contend that possession is not taken. It is the duty of the person who is occupying the property to look after the property and to see that the property is not defaced or devalued by himself or by others. He cannot subsequently come to the Court to say that actual possession is not taken and therefore he should be protected and land be denotified.”
7. It would also be apposite to note the decision of the Supreme Court in Sulochana Chandrakant Galande v. Pune Municipal Transport and Ors. (2010) 8 SCC 467, where the Court while dealing with the Urban Land (Ceiling and Regulation) Act, 1976 considered section 10(3) of the said Act, a provision analogous to Section 16 of the LAA, held as under: “12. The provisions of Section 10(3) of the 1976 Act are analogous to Section 16 of the Land Acquisition Act, 1894 (hereinafter called “the 1894 Act”). Acquisition proceedings cannot be withdrawn/abandoned in exercise of the powers under Section 48 of the 1894 Act or Section 21 of the General Clauses Act, 1897 once the possession of the land has been taken. [Vide State of M.P. v. Vishnu Prasad Sharma [AIR 1966 SC 1593], Lt. Governor of H.P. v. Avinash Sharma [(1970) 2 SCC 149: AIR 1970 SC 1576], Pratap v. State of Rajasthan [(1996) 3 SCC 1], Mandir Shree Sita Ramji v. Collector (L.A.) [(2005) 6 SCC 745: AIR 2005 SC 3581], Bangalore Development Authority v. R. Hanumaiah [(2005) 12 SCC 508] and Hari Ram v. State of Haryana [(2010) 3 SCC 621].]
13. The meaning of the word “vesting” has been considered by this Court time and again. In Fruit & Vegetable Merchants Union v. Delhi Improvement Trust [AIR 1957 SC 344] this Court held that the meaning of the word “vesting” varies as per the context of the statute in which the property vests. While considering the case under Sections 16 and 17 of the 1894 Act, the Court held as under: (AIR p. 353, para 19)
14. “Encumbrance” actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. (Vide Collector of Bombay v. Nusserwanji Rattanji Mistri [AIR 1955 SC 298], H.P. SEB v. Shiv K. Sharma [(2005) 2 SCC 164: AIR 2005 SC 954] and AI Champdany Industries Ltd. v. Official Liquidator [(2009) 4 SCC 486].)
15. In State of H.P. v. Tarsem Singh [(2001) 8 SCC 104], this Court held that the terminology “free from all encumbrances” used in Section 16 of the 1894 Act, is wholly unqualified and would encompass the extinguishing of “all rights, title and interests including easementary rights” when the title vests in the State.
16. Thus, “free from encumbrances” means vesting of land in the State without any charge or burden in it. Thus, the State has absolute title/ownership over it.
17. In Satendra Prasad Jain v. State of U.P. [(1993) 4 SCC 369: AIR 1993 SC 2517], this Court held that once land vests in the State free from all encumbrances, it cannot be divested. The same view has been reiterated in Awadh Bihari Yadav v. State of Bihar [(1995) 6 SCC 31], U.P. Jal Nigam v. Kalra Properties (P) Ltd. [(1996) 3 SCC 124: AIR 1996 SC 1170], Pratap [(1996) 3 SCC 1], Chandragauda Ramgonda Patil v. State of Maharashtra [(1996) 6 SCC 405], Allahabad Development Authority v. Nasiruzzaman [(1996) 6 SCC 424], State of Kerala v. M. Bhaskaran Pillai [(1997) 5 SCC 432: AIR 1997 SC 2703], M. Ramalinga Thevar v. State of T.N. [(2000) 4 SCC 322], Printers (Mysore) Ltd. v. M.A. Rasheed [(2004) 4 SCC 460], Bangalore Development Authority v. R. Hanumaiah [(2005) 12 SCC 508] and Govt. of A.P. v. Syed Akbar [(2005) 1 SCC 558].
18. So far as the change of user is concerned, it is a settled legal proposition that once land vests in the State free from all encumbrances, there cannot be any rider on the power of the State Government to change user of the land in the manner it chooses.
19. In a similar situation, in Gulam Mustafa v. State of Maharashtra [(1976) 1 SCC 800: AIR 1977 SC 448], this Court held as under: (SCC p. 802, para 5)
20. Reiterating a similar view in C. Padma v. Govt. of T.N. [(1997) 2 SCC 627], this Court held that if by virtue of a valid acquisition of land, the land stands vested in the State, thereafter, the claimants are not entitled to restoration of possession on the grounds that either the original public purpose has ceased to be in operation or the land could not be used for any other purposes.
21. In Bhagat Singh v. State of U.P. [(1999) 2 SCC 384: AIR 1999 SC 436], Niladri Narayan Chandradhurja v. State of W.B. [(2002) 9 SCC 682: AIR 2002 SC 2532], and Northern Indian Glass Industries v. Jaswant Singh [(2003) 1 SCC 335], this Court held that, the land user can be changed by the statutory authority after the land vests in the State free from all encumbrances.
22. In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the landowner how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever.” (emphasis supplied)
8. The challenge on the ground of compensation not being tendered is immaterial for deciding the present application. We may only note that the Supreme Court has expressed its views on this in the case of Indore Development Authority v. Shailender (Deceased through LR), 2018 SCCOnline SC 100. The said judgment pertains to Section 24(2) and other issues relating to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Now, some issues are pending before the larger Bench of the Supreme Court. At this stage, what is noteworthy for us is the fact that the subject land vests with the Government. Mr. Verma has explained that on account of the status quo order passed by this Court, the entire construction is being held up. Petitioner No.1 who appears in person, has argued that only a small portion of the subject land is required by the Government and, therefore, the status quo order should not be vacated. Mr. Verma, however, counters the submission by arguing that the subject land is a small part of land acquired for Urban Extension Road - II under the Master Plan Delhi, 2021 from National Highway-1 (GT Karnal Road) to National Highway – 8 (Jaipur Road). He submits that the said road shall act as a third ring road and is being built to provide a direct link to NH-10 towards Rohtak and NH-8 towards Gurgaon for vehicles entering Delhi from Karnal. Alongwith the application, DDA has also annexed a brief note on UER-II explaining the layout of the proposed construction.
9. Having regard to the facts of the present case and in view of the law applicable to the acquisition proceedings noted above, we feel that the status quo order should not be continued as it has resulted in staling the construction activity, which is of immense public importance. Petitioners, if at all, would have the right of compensation which can be examined at a later stage, independent of the status quo order. The entire purpose of the acquisition is being defeated on account of the interim orders passed by this Court and, accordingly, we vacate the status quo order dated 23.07.2013 as modified vide order dated 19.11.2014. The present application is allowed in the above terms.
10. Let the matter now be listed for further hearing on 25.09.2020.
SANJEEV NARULA, J VIPIN SANGHI,J FEBRUARY 14, 2020