Full Judgment Text
i.27 & 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision : 9 December, 2009
+ LPA 412/2004
DELHI ADMINISTRATION LAND & BUILDING ..... Appellant
Through: Ms.Rachana Srivastava, Advocate.
versus
KANWAR SAIN GOEL ..... Respondent
Through: Mr.Rajiv Bansal, Advocate and
Mr.Prashant Mehra, Advocate.
W.P.(C) 829/1985
NIRMAL GUPTA ..... Petitioner
Through: Mr.R.K.Saini, Advocate.
versus
DDA & ORS. ..... Respondent
Through: Mr.Sanjay Poddar, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the
Digest? No
PRADEEP NANDRAJOG, J. (Oral)
1. The facts of the instant appeal and the writ petition
show, how bureaucrats misuse the process of law to fatten
their coffers.
2. It is not in dispute that on 26.9.1966 a notification
LPA No.412/2004 & WP(C) No.829/1985 Page 1 of 10
was issued under Section 4 of the Land Acquisition Act 1894
notifying the intention of the Appropriate Government to
acquire various lands including the lands in some Khasras
comprised in the revenue estate of village Sarai Peepal Thala.
3. Declaration under Section 6 was issued on
30.12.1966.
4. On 13.11.1972 various persons, which included
Smt.Nirmal Gupta, the writ petitioner of WP(C) No.829/1985,
Shri Kanwar Sain, the respondent in LPA No.412/2004 and one
Shri J.P.Goel, the writ petitioner of WP(C) No.911/1985 entered
into a common sale agreement to purchase land comprised in
Khasra No.2148, 455/413/24/5, 27 Min., 52, 26 and 43 in the
revenue estate of village Sarai Peepal Thala, which was under
acquisition.
5. Needless to state, that the sale agreement is on a
stamp paper of Rs.2/-. It is not a sale deed. It is simply an
agreement to sell. Further, the date of the agreement is much
after the notification under Section 4 of the Land Acquisition
Act 1894 and the declaration under Section 6 of the said Act
were issued.
6. Notwithstanding the parties to the agreement to
sell dated 13.11.1972 not being ever recorded as the owners
of the subject property, they proceeded to stake a claim under
the award dated 23.3.1973 where-under the lands in question
LPA No.412/2004 & WP(C) No.829/1985 Page 2 of 10
as also other lands notified for acquisition were acquired.
7. Three out of the various purchasers under the
agreement to sell in question, namely, Smt.Nirmal Gupta, Shri
Kanwar Sain and Shri J.P.Goel made applications to the Delhi
Administration (Land & Building Department). As per the
applications they prayed that under the policy of acquisition of
lands in Delhi for purposes of planned development of Delhi
they be allotted an alternative residential plot.
8. It is not in dispute that the policy in question
mandates that the person who makes the application in
question should be the owner of the land as on the date when
notification under Section 4 of the Land Acquisition Act 1894
was issued. Ignoring that the three claimants were not the
owners of the land on the date when notification under Section
4 was issued, the officer concerned in the Delhi Administration
(Land & Building Department) recommended the entitlement
of the three persons to DDA for allotment of an alternative
residential plot. This happened, as we are told, on 31.5.1980.
9. DDA is the authority which has to give effect to the
recommendations. DDA proceeded to process the case of the
said three persons for allotment of an alternative residential
plot when somebody in Delhi Administration realized that the
three recommendations were contrary to the policy and hence
vide letter dated 2.1.1982 cancelled/withdrew the
LPA No.412/2004 & WP(C) No.829/1985 Page 3 of 10
recommendations.
10. We may note that in the meanwhile the name of
the three recommendees were entered in a draw of lots and
specific plots were allotted and even demand was raised for
payment of the premium which was paid by the three
allottees.
11. The withdrawal of the recommendations took place
before possession could be actually handed over.
12. The three writ petitions came to be filed.
13. Smt.Nirmal Gupta filed WP(C) No.829/1985.
J.P.Goel filed WP(C) No.911/1985. Kanwar Sain filed WP(C)
No.574/1985.
14. All three staked their claim under the agreement to
sell dated 13.11.1972. They stated that they had received the
compensation for the acquired lands and that they were
entitled to be allotted an alternative residential plot. They
alleged that their names were rightly forwarded for allotment
of a residential plot and that DDA rightly entered their names
in the draw of lots. Each of them alleged that specific plots
were allotted to them for which the premium at the pre-
determined rates demanded by DDA has been paid.
15. It was alleged that the recommendations were
withdrawn in violation of the principles of natural justice, in
that, none was put to notice before the recommendations and
LPA No.412/2004 & WP(C) No.829/1985 Page 4 of 10
the allotments were withdrawn.
16. The writ petition filed by Kanwar Sain and J.P.Goel
were allowed by the learned Single Judge vide two separate
judgments, identically worded, dated 20.2.2003.
17. Briefly recorded, the learned Single Judge held that
since Kanwar Sain and J.P.Goel had received the compensation
it was apparent that both of them were the owners of the
acquired lands. Thus, learned Single Judge has held that under
the policy in question both of them would be entitled to a
residential plot of land at the pre-determined rates. The
allotment of a plot each to J.P.Goel and Kanwar Sain was
restored.
18. Writ petition filed by Smt.Nirmal Gupta chartered a
difference course. It was listed before the Division Bench on
25.7.2002 and was dismissed in the absence of any
representation from the side of Smt.Nirmal Gupta. The
Division Bench noted that as per the policy only such persons
could be allotted an alternative plot who were the owners of
the acquired land at the date when the notification under
Section 4 of the Land Acquisition Act 1894 was issued.
19. To keep the records straight, it may be noted that
on an application being filed, order dated 25.7.2002 dismissing
WP(C) No.829/1985 was recalled and the said writ petition was
restored and has thus been listed before us today for
LPA No.412/2004 & WP(C) No.829/1985 Page 5 of 10
consideration.
20. For the reason, with the promulgation of the
Government of NCT of Delhi Act 1996 the affairs of the Union
Territory of Delhi being taken over from the Delhi
Administration by the Government of NCT of Delhi, the
concerned officer had to consider what to do after the learned
Single Judge allowed the writ petitions filed by J.P.Goel and
Kanwar Sain.
21. Surprisingly enough, the same person concerned,
took a decision to challenge the decision of the learned Single
Judge in favour of Kanwar Sain, and not J.P.Goel. This resulted
in DDA executing a conveyance deed in favour of J.P.Goel
giving him a plot of land at pre-determined rates.
22. The issue in the appeal and the writ petition
requires a look at the policy as per which four conditions have
been mandated for being eligible to be allotted an alternative
residential plot. The four conditions are as under:-
“(a) The application must have been filed within a
period of one year from the date of receipt of
compensation.
(b) He/she should be recorded owner of the acquired
land on the date of Section 4 Notification.
(c) He must have received the compensation for the
said land.
(d) Neither he nor his spouse or any of his
dependent children own any residential property in
Delhi.”
LPA No.412/2004 & WP(C) No.829/1985 Page 6 of 10
23. We need not waste much energy on the
interpretation of the policy for the reason the issue is no longer
res integra .
24. In the decision reported as (1995) 2 SCC 427 Union
of India vs. Shivkumar Bhargava & Ors . as also the decision
reported as (1996) 7 SCC 426 Sneh Prabha (Smt.) & Ors. Vs.
State of U.P. & Anr ., the Supreme Court has opined that the
policy is clear. The requirement of law is that the person
concerned must be the owner of the land when the notification
under Section 4 of the Land Acquisition Act 1894 was issued.
25. In para 5 of the decision in Sneh Prabha’s case
(supra) the following was held:-
“5. Though at first blush, we were inclined to agree
with the appellant but on deeper probe, we find that
the appellant is not entitled to the benefit of the Land
Policy. It is settled law that any person who purchases
land after publication of the notification under Section
4(1), does so at his/her own peril. The object of
publication of the notification under Section 4(1) is
notice to everyone that the land is needed or is likely
to be needed for public purpose and the acquisition
proceedings point out an impediment to anyone to
encumber the land acquired thereunder. It authorizes
the designated officer to enter upon the land to do
preliminaries etc. Therefore, any alienation of land
after the publication of the notification under Section
4(1) does not bind the Government or the beneficiary
under the acquisition. On taking possession of the
land, all rights, titles and interests in land stand vested
in the State, under Section 16 of the Act, free from all
encumbrances and, thereby absolute title in the land
is acquired thereunder. If any subsequent purchaser
acquires land, his/her only right would be subject to
the provisions of the Act and/or to receive
compensation for the land. In a recent judgment, this
LPA No.412/2004 & WP(C) No.829/1985 Page 7 of 10
Court in Union of India vs. Shivkumar Bhargava
considered the controversy and held that a person
who purchases land subsequent to the notification is
not entitled to alternative site. It is seen that the Land
Policy expressly conferred that right only on that
person whose land was acquired. In other words, the
person must be the owner of the land was acquired.
In other words, the person must be the owner of the
land on the date on which notification under Section
4(1) was published. By necessary implication, the
subsequent purchaser was elbowed out from the
policy and became diSaintitled to the benefit of the
Land Policy.”
26. Under the circumstances, there is no scope to effect
any allotment of alternative plot in favour of the persons who
have entered into the agreement to sell on 13.11.1972.
27. The plea urged before us today is that since J.P.Goel
has been given the benefit of allotment, Smt.Nirmal Gupta and
Kanwar Sain being identically situated, relief cannot be denied
to them. We note and reject the argument for the reason, a
plea of discrimination can never be founded on a wrong.
28. We may note that a somewhat similar situation
confronted the Supreme Court in Sneh Prabha’s case (supra).
In para 8 of the said decision it was observed as under:-
“8. ……………… It would thus be seen that no
discrimination, much less invidious discrimination, was
meted out to the appellant. Even if a benefit is
wrongly given in favour of one or two, it does not
clothe with a right to perpetuate the wrong and the
court cannot give countenance to such actions though
they are blameworthy and condemnable. Equality
clause does not extend to perpetuate wrong nor can
anyone equate a right to have the wrong repeated and
benefit reaped thereunder.”
LPA No.412/2004 & WP(C) No.829/1985 Page 8 of 10
29. Thus, WP(C) No.829/1985 filed by Smt.Nirmal Gupta
is dismissed with a direction to DDA to refund the premium
which Smt.Nirmal Gupta has deposited.
30. LPA No.412/2004 is allowed. Impugned judgment
and order dated 20.2.2003 allowing WP(C) No.574/1985 is set
aside. The said writ petition is dismissed.
31. Directions are issued to DDA to refund the premium
deposited by Kanwar Sain.
32. This is not curtains down. Certain directions need
to be issued to unearth the scum which is rampantly rearing
its head and flourishing in the corridors of power.
33. The facts of the instant case require refund of the
loss to the Government in respect of the conveyance deed
executed in favour of J.P.Goel to whom plot of land ad-
measuring 209 sq.yds. had been allotted at the pre-
determined rates. It is known to one and all that pre-
determined rates are a fraction of the market value of the
land.
34. We call upon the appellant in LPA No.412/2004 to
file an affidavit within 3 weeks from today. The affidavit would
indicate as to who were the officers concerned who received
the decisions of the learned Single Judge, both decisions dated
20.2.2003 allowing the writ petitions filed by Kanwar Sain and
J.P.Goel. It would be indicated as to why no appeal was filed
LPA No.412/2004 & WP(C) No.829/1985 Page 9 of 10
with respect to the decision in favour of J.P.Goel. The name of
the official would be indicated for the reason we propose to
issue a show-cause notice to the officer concerned to respond
as to why he should not be directed to pay the difference of
the price as per the market value of the plot and the pre-
determined rate at which the Government has demised the
plot in favour of J.P.Goel.
35. List LPA No.412/2004 before this Bench for
directions on 18.1.2010.
36. Copy of this order be given dasti to learned counsel
for the appellant in LPA No.412/2004.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
DECEMBER 09, 2009
Dharmender
LPA No.412/2004 & WP(C) No.829/1985 Page 10 of 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision : 9 December, 2009
+ LPA 412/2004
DELHI ADMINISTRATION LAND & BUILDING ..... Appellant
Through: Ms.Rachana Srivastava, Advocate.
versus
KANWAR SAIN GOEL ..... Respondent
Through: Mr.Rajiv Bansal, Advocate and
Mr.Prashant Mehra, Advocate.
W.P.(C) 829/1985
NIRMAL GUPTA ..... Petitioner
Through: Mr.R.K.Saini, Advocate.
versus
DDA & ORS. ..... Respondent
Through: Mr.Sanjay Poddar, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the
Digest? No
PRADEEP NANDRAJOG, J. (Oral)
1. The facts of the instant appeal and the writ petition
show, how bureaucrats misuse the process of law to fatten
their coffers.
2. It is not in dispute that on 26.9.1966 a notification
LPA No.412/2004 & WP(C) No.829/1985 Page 1 of 10
was issued under Section 4 of the Land Acquisition Act 1894
notifying the intention of the Appropriate Government to
acquire various lands including the lands in some Khasras
comprised in the revenue estate of village Sarai Peepal Thala.
3. Declaration under Section 6 was issued on
30.12.1966.
4. On 13.11.1972 various persons, which included
Smt.Nirmal Gupta, the writ petitioner of WP(C) No.829/1985,
Shri Kanwar Sain, the respondent in LPA No.412/2004 and one
Shri J.P.Goel, the writ petitioner of WP(C) No.911/1985 entered
into a common sale agreement to purchase land comprised in
Khasra No.2148, 455/413/24/5, 27 Min., 52, 26 and 43 in the
revenue estate of village Sarai Peepal Thala, which was under
acquisition.
5. Needless to state, that the sale agreement is on a
stamp paper of Rs.2/-. It is not a sale deed. It is simply an
agreement to sell. Further, the date of the agreement is much
after the notification under Section 4 of the Land Acquisition
Act 1894 and the declaration under Section 6 of the said Act
were issued.
6. Notwithstanding the parties to the agreement to
sell dated 13.11.1972 not being ever recorded as the owners
of the subject property, they proceeded to stake a claim under
the award dated 23.3.1973 where-under the lands in question
LPA No.412/2004 & WP(C) No.829/1985 Page 2 of 10
as also other lands notified for acquisition were acquired.
7. Three out of the various purchasers under the
agreement to sell in question, namely, Smt.Nirmal Gupta, Shri
Kanwar Sain and Shri J.P.Goel made applications to the Delhi
Administration (Land & Building Department). As per the
applications they prayed that under the policy of acquisition of
lands in Delhi for purposes of planned development of Delhi
they be allotted an alternative residential plot.
8. It is not in dispute that the policy in question
mandates that the person who makes the application in
question should be the owner of the land as on the date when
notification under Section 4 of the Land Acquisition Act 1894
was issued. Ignoring that the three claimants were not the
owners of the land on the date when notification under Section
4 was issued, the officer concerned in the Delhi Administration
(Land & Building Department) recommended the entitlement
of the three persons to DDA for allotment of an alternative
residential plot. This happened, as we are told, on 31.5.1980.
9. DDA is the authority which has to give effect to the
recommendations. DDA proceeded to process the case of the
said three persons for allotment of an alternative residential
plot when somebody in Delhi Administration realized that the
three recommendations were contrary to the policy and hence
vide letter dated 2.1.1982 cancelled/withdrew the
LPA No.412/2004 & WP(C) No.829/1985 Page 3 of 10
recommendations.
10. We may note that in the meanwhile the name of
the three recommendees were entered in a draw of lots and
specific plots were allotted and even demand was raised for
payment of the premium which was paid by the three
allottees.
11. The withdrawal of the recommendations took place
before possession could be actually handed over.
12. The three writ petitions came to be filed.
13. Smt.Nirmal Gupta filed WP(C) No.829/1985.
J.P.Goel filed WP(C) No.911/1985. Kanwar Sain filed WP(C)
No.574/1985.
14. All three staked their claim under the agreement to
sell dated 13.11.1972. They stated that they had received the
compensation for the acquired lands and that they were
entitled to be allotted an alternative residential plot. They
alleged that their names were rightly forwarded for allotment
of a residential plot and that DDA rightly entered their names
in the draw of lots. Each of them alleged that specific plots
were allotted to them for which the premium at the pre-
determined rates demanded by DDA has been paid.
15. It was alleged that the recommendations were
withdrawn in violation of the principles of natural justice, in
that, none was put to notice before the recommendations and
LPA No.412/2004 & WP(C) No.829/1985 Page 4 of 10
the allotments were withdrawn.
16. The writ petition filed by Kanwar Sain and J.P.Goel
were allowed by the learned Single Judge vide two separate
judgments, identically worded, dated 20.2.2003.
17. Briefly recorded, the learned Single Judge held that
since Kanwar Sain and J.P.Goel had received the compensation
it was apparent that both of them were the owners of the
acquired lands. Thus, learned Single Judge has held that under
the policy in question both of them would be entitled to a
residential plot of land at the pre-determined rates. The
allotment of a plot each to J.P.Goel and Kanwar Sain was
restored.
18. Writ petition filed by Smt.Nirmal Gupta chartered a
difference course. It was listed before the Division Bench on
25.7.2002 and was dismissed in the absence of any
representation from the side of Smt.Nirmal Gupta. The
Division Bench noted that as per the policy only such persons
could be allotted an alternative plot who were the owners of
the acquired land at the date when the notification under
Section 4 of the Land Acquisition Act 1894 was issued.
19. To keep the records straight, it may be noted that
on an application being filed, order dated 25.7.2002 dismissing
WP(C) No.829/1985 was recalled and the said writ petition was
restored and has thus been listed before us today for
LPA No.412/2004 & WP(C) No.829/1985 Page 5 of 10
consideration.
20. For the reason, with the promulgation of the
Government of NCT of Delhi Act 1996 the affairs of the Union
Territory of Delhi being taken over from the Delhi
Administration by the Government of NCT of Delhi, the
concerned officer had to consider what to do after the learned
Single Judge allowed the writ petitions filed by J.P.Goel and
Kanwar Sain.
21. Surprisingly enough, the same person concerned,
took a decision to challenge the decision of the learned Single
Judge in favour of Kanwar Sain, and not J.P.Goel. This resulted
in DDA executing a conveyance deed in favour of J.P.Goel
giving him a plot of land at pre-determined rates.
22. The issue in the appeal and the writ petition
requires a look at the policy as per which four conditions have
been mandated for being eligible to be allotted an alternative
residential plot. The four conditions are as under:-
“(a) The application must have been filed within a
period of one year from the date of receipt of
compensation.
(b) He/she should be recorded owner of the acquired
land on the date of Section 4 Notification.
(c) He must have received the compensation for the
said land.
(d) Neither he nor his spouse or any of his
dependent children own any residential property in
Delhi.”
LPA No.412/2004 & WP(C) No.829/1985 Page 6 of 10
23. We need not waste much energy on the
interpretation of the policy for the reason the issue is no longer
res integra .
24. In the decision reported as (1995) 2 SCC 427 Union
of India vs. Shivkumar Bhargava & Ors . as also the decision
reported as (1996) 7 SCC 426 Sneh Prabha (Smt.) & Ors. Vs.
State of U.P. & Anr ., the Supreme Court has opined that the
policy is clear. The requirement of law is that the person
concerned must be the owner of the land when the notification
under Section 4 of the Land Acquisition Act 1894 was issued.
25. In para 5 of the decision in Sneh Prabha’s case
(supra) the following was held:-
“5. Though at first blush, we were inclined to agree
with the appellant but on deeper probe, we find that
the appellant is not entitled to the benefit of the Land
Policy. It is settled law that any person who purchases
land after publication of the notification under Section
4(1), does so at his/her own peril. The object of
publication of the notification under Section 4(1) is
notice to everyone that the land is needed or is likely
to be needed for public purpose and the acquisition
proceedings point out an impediment to anyone to
encumber the land acquired thereunder. It authorizes
the designated officer to enter upon the land to do
preliminaries etc. Therefore, any alienation of land
after the publication of the notification under Section
4(1) does not bind the Government or the beneficiary
under the acquisition. On taking possession of the
land, all rights, titles and interests in land stand vested
in the State, under Section 16 of the Act, free from all
encumbrances and, thereby absolute title in the land
is acquired thereunder. If any subsequent purchaser
acquires land, his/her only right would be subject to
the provisions of the Act and/or to receive
compensation for the land. In a recent judgment, this
LPA No.412/2004 & WP(C) No.829/1985 Page 7 of 10
Court in Union of India vs. Shivkumar Bhargava
considered the controversy and held that a person
who purchases land subsequent to the notification is
not entitled to alternative site. It is seen that the Land
Policy expressly conferred that right only on that
person whose land was acquired. In other words, the
person must be the owner of the land was acquired.
In other words, the person must be the owner of the
land on the date on which notification under Section
4(1) was published. By necessary implication, the
subsequent purchaser was elbowed out from the
policy and became diSaintitled to the benefit of the
Land Policy.”
26. Under the circumstances, there is no scope to effect
any allotment of alternative plot in favour of the persons who
have entered into the agreement to sell on 13.11.1972.
27. The plea urged before us today is that since J.P.Goel
has been given the benefit of allotment, Smt.Nirmal Gupta and
Kanwar Sain being identically situated, relief cannot be denied
to them. We note and reject the argument for the reason, a
plea of discrimination can never be founded on a wrong.
28. We may note that a somewhat similar situation
confronted the Supreme Court in Sneh Prabha’s case (supra).
In para 8 of the said decision it was observed as under:-
“8. ……………… It would thus be seen that no
discrimination, much less invidious discrimination, was
meted out to the appellant. Even if a benefit is
wrongly given in favour of one or two, it does not
clothe with a right to perpetuate the wrong and the
court cannot give countenance to such actions though
they are blameworthy and condemnable. Equality
clause does not extend to perpetuate wrong nor can
anyone equate a right to have the wrong repeated and
benefit reaped thereunder.”
LPA No.412/2004 & WP(C) No.829/1985 Page 8 of 10
29. Thus, WP(C) No.829/1985 filed by Smt.Nirmal Gupta
is dismissed with a direction to DDA to refund the premium
which Smt.Nirmal Gupta has deposited.
30. LPA No.412/2004 is allowed. Impugned judgment
and order dated 20.2.2003 allowing WP(C) No.574/1985 is set
aside. The said writ petition is dismissed.
31. Directions are issued to DDA to refund the premium
deposited by Kanwar Sain.
32. This is not curtains down. Certain directions need
to be issued to unearth the scum which is rampantly rearing
its head and flourishing in the corridors of power.
33. The facts of the instant case require refund of the
loss to the Government in respect of the conveyance deed
executed in favour of J.P.Goel to whom plot of land ad-
measuring 209 sq.yds. had been allotted at the pre-
determined rates. It is known to one and all that pre-
determined rates are a fraction of the market value of the
land.
34. We call upon the appellant in LPA No.412/2004 to
file an affidavit within 3 weeks from today. The affidavit would
indicate as to who were the officers concerned who received
the decisions of the learned Single Judge, both decisions dated
20.2.2003 allowing the writ petitions filed by Kanwar Sain and
J.P.Goel. It would be indicated as to why no appeal was filed
LPA No.412/2004 & WP(C) No.829/1985 Page 9 of 10
with respect to the decision in favour of J.P.Goel. The name of
the official would be indicated for the reason we propose to
issue a show-cause notice to the officer concerned to respond
as to why he should not be directed to pay the difference of
the price as per the market value of the plot and the pre-
determined rate at which the Government has demised the
plot in favour of J.P.Goel.
35. List LPA No.412/2004 before this Bench for
directions on 18.1.2010.
36. Copy of this order be given dasti to learned counsel
for the appellant in LPA No.412/2004.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
DECEMBER 09, 2009
Dharmender
LPA No.412/2004 & WP(C) No.829/1985 Page 10 of 10