Department Of Forests And Wildlife Govt.of Nct Of Delhi v. Union Of India & Others

D.K. Jain, J.

1. By these ten writ petitions, filed by the Department of Forests & Wildlife, a wing of the Government of National Capital Territory of Delhi, a direction is sought to the Land Acquisition Collector (South), New Delhi, to determine afresh the compensation already paid for acquisition of land in village Tughlakabad, Delhi, after affording an opportunity of hearing to them.

2. Since a common question of facts and law is raised in all the writ petitions, these have been heard together and are being disposed of by this common order. For the sake of convenience, facts of CWP No. 8682/2003 are being taken as illustrative.

3. The three respondents respectively are: (i) The Union of India through Land Acquisition Collector (South), Saket, New Delhi (for short the LAC); (ii) Land and Building Department, through Secretary (L&B), Vikas Bhawan, New Delhi and (iii) the owner of the subject land.

4. According to the petitioner the process for acquisition of subject land for setting up a Wildlife Sanctuary was set into motion by issue of a notification under Section 4 read with Section 17(1) of the Land Acquisition Act, 1894 (for short the) on 1 June, 1992, followed by a declaration under Section 6 on 29 July 1992. Section 17 (4) of thewas invoked; compliance with Section 5(A) of thewas waived off; possession of the land was taken and award was made on 17 May, 1994 offering amount of compensation to the claimants @ Rs. 118/- per sq. yd. as against the claim of Rs. 5,000/- per sq. yd.

5. Feeling dissatisfied with the amount of compensation awarded by the LAC, a reference under Section 18 of thewas sought by the owner of the subject land and the matter was referred by respondent No. 3 to the Additional District Judge. The reference Court enhanced the compensation from Rs. 118/- per sq. yd. to Rs. 223/- per sq. yd. Still aggrieved the said owner/respondent preferred appeal to the High Court but because of paucity of funds to pay the requisite amount of Court fee, claim was restricted to Rs. 3,000/- per sq. yd. The High Court, vide order dated 30 March, 2001, enhanced the compensation to Rs. 3,000 per sq. yd. It appears that against the decision of the High Court, the Union of India filed special leave petitions, although much belatedly, which were dismissed as barred by limitation. Thus, the compensation as determined by the High Court was affirmed. Review petitions filed in these special leave petitions were also unsuccessful.

6. The only grievance of the petitioners is that the land having been acquired for their benefit, a right under Section 50(2) of thewas conferred on them to participate in the acquisition proceeding at the stage of determination of the amount of compensation payable to the owner of the land but notice under the said section was not served on them either by the LAC or the reference Court. Therefore, the award and subsequent orders, enhancing the compensation, are null and void.

7. In the affidavit filed on behalf of the LAC it is stated that after the pronouncement of the award, on intimation, the petitioner/beneficiary deposited the amount of compensation payable in terms of the award and the same was disbursed to the persons interested between the period from March 1992 to March 1995. The enhanced compensation was also deposited by the petitioner on 17 January, 1996 and 31 March, 1997 and it was also disbursed in accordance with law. It is also pointed out that the LAC had recommended to the concerned law agency that an appeal against the decision of the High Court dated 30 March, 2001 should be filed. But, in the meanwhile warrants of attachment of the properties of the LAC were issued by the executing Court and, therefore, vide letter dated 4 December, 2002, the LAC raised the demand on the petitioner. In response thereto, on 22 January, 2003, the petitioner made payment of the enhanced compensation amounting to Rs. 36,06,64,943/-.

8. The claimant-respondent No. 3 has not filed any reply to the writ petitions. Instead, brief written submissions have been filed on his behalf.

9. We have heard Mr. D.N. Goburdhan, Mr.Sanjay Poddar and Mr. Dhruv Mehta, respectively on behalf of the petitioner, LAC and the claimant.

10. Mr. Goburdhan has submitted that since the land was acquired at the cost of the petitioner, a notice under Section 50(2) of theto them was mandatory. It is asserted that a mere knowledge of the award or subsequent payments of compensation in terms thereof, as demanded by the LAC, is of no consequence insofar as compliance with the said mandatory provision is concerned. In support of the proposition that service of notice is an integral part of the right conferred on the local authority under Section 50(2) of theand failure to give such a notice results in denial of the said right, reliance is placed on a decision of the Apex Court in Kanak (Smt.) & Anr. v. U.P. Avas Evam Vikas Parishad & Ors., V (2003) SLT 532=(2003) 7 SCC 693 [LQ/SC/2003/859] . Reference is also made to another decision of the Supreme Court in Himalaya Tiles & Marble (P) Ltd. v. F.V. Coutinho, AIR 1980 SC 1118 [LQ/SC/1980/152] to contend that since the land was acquired for the benefit and at cost of the petitioner, it is an interested person and, therefore, competent to challenge the legality and validity of the award. It is, thus, pleaded that the LAC be directed to determine afresh the compensation payable to the claimant after giving an opportunity to the petitioner.

11. Mr. Mehta, learned Counsel for the claimant, on the other hand, has strenuously urged that the writ petition deserves to be dismissed in limine because: (i) the petitioner being a Department of the Government is neither a company nor a local authority, does not fall within the ambit of Section 50 of theand, therefore, has no locus standi to file such a writ petition; (ii) the petitioner is guilty of suppressing material facts inasmuch as it has nowhere disclosed in the writ petition the factum of filing of the SLPs and review applications in the Supreme Court, which were dismissed long time back; (iii) the plea of the petitioner that it was not aware of the proceedings pertaining to the enhancement of the compensation is falsified by the affidavit of the LAC, in which it is clearly stated that letters with regard to the determination and enhancement of compensation were written to them by the said Department in the months of July and December, 2002 and the amounts of compensation were deposited by the petitioner in terms of thereof without any protest; and (iv) the present writ petitions are yet another attempt by the Government to reopen the issue of compensation, which attained finality on dismissal of Governments special leave petitions against the decision of this Court dated 30 March, 2001 on similar grounds. The afore-referred decisions of the Supreme Court are sought to be distinguished on the plea that these were rendered with reference to Section 50 of the Act, which is not at all attracted in the present case.

12. We find merit in the objections raised on behalf of respondent No. 3 to the maintainability of the writ petitions. In our view Section 50(2) of the Act, on which heavy reliance is placed by the petitioner, has no application on the facts in hand.

13. Section 50 of thereads as follows:

50. Acquisition of land at cost of a local authority or company.

(1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any company, the charges of any incidental to such acquisition shall be defrayed from or by such fund or company.

(2) In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation:

Provided that no such local authority or Company shall be entitled to demand a reference under Section 18.

14. A bare reading of the section leaves little scope for any doubt that it applies only in a case where the land is acquired at cost of the funds controlled or managed by a local authority or a company. In the very first paragraph of the writ petition, it is petitioners own case that it is Forest and Wildlife Department of the Government of NCT of Delhi. Therefore, they cannot be said to be either a local authority or a company falling within the ambit of Section 50 of the. In the entire writ petition there is no averment and rightly so that the petitioner is a local authority. Despite a valiant attempt, learned Counsel for the petitioner has not been able to convince us as to how the petitioner can bank upon Section 50 of the. The object behind the said provision is evident from the proviso to Sub-section (2) of Section 50. The section provides an opportunity to the local authority or a company to lead evidence with regard to the determination of the amount of compensation because such local authority or company has otherwise been barred from demanding a reference under Section 18 of theagainst the determination of the amount of compensation which prohibition does not apply in the case of the Government or its departments. We have, therefore, no hesitation in holding that a notice under Section 50(2) of thewas not required to be issued to the petitioner, as is sought to be pleaded.

15. For the view we have taken above, we deem it unnecessary to deal with the other objections raised on behalf of respondent No. 3 to the maintainability of the writ petitions, though, prima facie, it appears to us that the petitioner has not come to the Court with clean hands and had in fact succeeded in obtaining an ex parte stay order without disclosing a very material fact that the special leave petitions were in fact preferred by the Union of India against the decision of this Court enhancing the compensation in the Supreme Court but the same were dismissed. In effect what the petitioner is now asking us to do is to direct the LAC to redetermine the compensation, which already stands enhanced by virtue of the Bench decision of this Court, rendered three years ago on 30 March, 2001, and special leave petitions of the Government against the said decision have been dismissed. It is also pertinent to note that the enhanced compensation had also been disbursed to the claimants much before the filing of the present writ petitions.

16. In the light of the factual scenario projected above and the legal position, we are of the considered view that the present writ petitions, on the stated grounds, at this juncture are utterly misconceived and are dismissed accordingly.

17. Before we part, we deem it necessary to take note of the wanton slackness and callous attitude with which the matter has been dealt with by the authorities concerned at every stage. Be it officials of the Finance Department of the Government of National Capital Territory of Delhi, who seemingly were releasing the funds without any query or demur or of the Land and Building Department of the Government of Delhi, who despite the recommendation of the LAC delayed the filing of special leave petitions, which were dismissed as barred by limitation. In the absence of the relevant records before us, we are unable to say whether inaction on their part is habitual indifference of the Government officials or was it an oblique motive to enrich someone. We feel that if there is even a grain of truth in what is now pleaded in the writ petition, it is a matter of grave concern and needs to be properly investigated. Accordingly, we direct that the matter shall be placed before the Chief Secretary, Government of NCT of Delhi, who will personally look into it and have a thorough inquiry conducted in the entire matter, including the cause for delay in filing the special leave petitions in the Supreme Court. A complete report in this regard shall be submitted by the Chief Secretary on or before 30 September, 2004 for being placed before this Bench.