Siel
Foods & Fertilisers Industries Vs. Union of India & Ors. [2010] INSC
221 (25 March 2010)
Judgment
IN THE
SURPEME COURT OF INDIA CIVIL ORIGINAL JURISDICTION REVIEW PETITION (C.) NO.
1200 OF 2002 IN I.A. No. 22 IN I.A. No. 36 IN I.A. No. 129 IN W.P.(C ) No.
4677/1985 WITH
R.P. (C ) No. 1256/2003 in I.A. No. 22 in I.A. No. 129 in W.P. ( C) No.
4677/1995;
R.P. (C )
No. 1295 of 2003 in I.A. No. 22 in W.P. (C ) No. 4677/1985; R.P.
(C ) No.
1296 of 2003 in I.A. No. 22 in W.P. (C ) No. 4677/1985;
I.A. No.
1328 in W.P. (C ) No. 4677/1985;
I.A. No.
1329 in W.P. ( C ) No. 4677/1985;
I.A. No.
1782 in W.P. (C ) No. 4677/1985;
I.A. No.
1805 in W.P. (C ) No. 4677/1985;
I.A. No.
1850 in W.P. (C ) No. 4677/1985;
I.A. No.
1 in I.A. No. .... IN W.P. (C ) No. 4677/1985;
Contempt
Petition (C ) No. 22 of 2005 in I.A. No. 22 in W.P. (C ) No. 4677/1985;
I.A. No.
1876 in CONMT. Petition (C) No. 22 of 2005 in W.P. (C ) No. 4677/1985;
I.A. No.
1877 in CONMT. PET. ( C ) No. 22 of 2005 in W.P. (C ) No. 4677/1985;
I.A. No.
1883 in R.P. (C ) No. 1296/2003 in R.P. (C ) No. 1200/2002 in R.P. (C ) No.
1256/2002 in W.P. (C ) No. 4677/1985;
I.A. No.
1913-1914 in W.P. (C ) No. 4677/1985;
I.A. No.
2205 in I.A. 1914/06 in W.P. (C ) No. 4677/1985;
I.A. 2222
in I.A. 1172 in W.P. ( C ) No. 4677/1985;
I.A. No.
2238 in I.A. 1914/06 in W.P. (C ) No. 4677/1985;
I.A. No.
2266 in W.P. (C ) No. 4677/1985 2 versus
K.G.
BALAKRISHNAN, CJI:
1.
In the city of Delhi, there were several hazardous and noxious
industries, as also several large and heavy industries, causing extensive
pollution. The Master Plan for Delhi - Perspective 2001, which was published in
the Gazette of India on 01.08.1990, did not permit any of these industries to
operate in Delhi. In a Public Interest Litigation i.e. M.C. Mehta v. Union of
India & Others, [IA No.22 in W.P. (C) No. 4677/1985] the question of
shifting these polluting industries from Delhi and relocating them outside the
city of Delhi and other related issues were considered and a series of orders
were passed regarding shifting and relocating the industries.
The
polluting industries were notified through individual notices, public notices
in newspapers and electronic media. This Court monitored the matter from
January, 1995 and all stake holders, including Union of India, Delhi 3
Administration, Central Pollution Control Board, National Capital Region
Planning Board, Delhi Development Authority, and the polluting industries were
heard/consulted during several hearings. The Delhi Development Authority [for
short "DDA"] was also directed to frame suitable schemes regarding
the utilization of land which would become available after the relocation of
the hazardous/noxious/heavy/large industries from Delhi. DDA constituted a
Committee with Mr. K.J. Alphons, Commissioner, Land Management, DDA, as
Chairman for this purpose. The said Committee examined the question regarding
the utilization of land made available as a result of the re-location/ shifting
of the industries and submitted detailed proposals. Views of other experts were
also considered.
2.
After hearing the parties including the affected industries,
ultimately an order was passed on 10.05.1996 (reported in 1996 (4) SCC 351)
relevant portions of which are extracted below:
"6.
We have given our thoughtful consideration to the point at issue before us. We
have had elaborate discussion with the learned counsel representing various
industries which are to be relocated/shifted. The basic charter for the land
use in the city of Delhi is the Master Plan. The provisions of the Master Plan
are statutory and binding. The relevant provisions regarding
hazardous/noxious/heavy/large industries under the Master Plan are as under:
"HAZARDOUS
AND NOXIOUS INDUSTRIES Refer Annexure III H(a).
4 (a) The
hazardous and noxious industrial units are not permitted in Delhi.
(b) The
existing industrial units of this type shall be shifted on priority within a
maximum time-period of three years. Project report to effectuate shifting shall
be prepared by the units concerned and submitted to the authority within a
maximum period of one year.
(c) The
land which would become available on account of shifting as administered in (b)
above, would be used for making up the deficiency, as per the needs of the
community; based on norms given in Master Plan; if any land or part of land, so
vacated is not needed for the deficiency of the community services, it will be
used as per prescribed land use; however the land shall be used for light and
service industries, even if the land use according to the Master Plan/Zonal
Development Plan is extensive industry.
(d) * * *
HEAVY AND LARGE INDUSTRIES Refer Annexure III H(b) (a) No new heavy and large
industrial units shall be permitted in Delhi.
(b) The
existing heavy and large-scale industrial units shall shift to Delhi
Metropolitan Area and the National Capital region keeping in view the National
Capital Region Plan and National Industrial Policy of the Government of India.
(c) The
land which would become available on account of shifting as administered in (b)
above, would be used for making up the deficiency, as per the needs of the
community; based on norms given in the Master Plan;
if any
land or part of land so vacated is not needed for the deficiency of the
community services, it will be used as per prescribed land use;
however
the land shall be used for light and service industries, even if the land use
according to the Master Plan/Zonal Development Plan is extensive industry.
(d) * * *
It is thus obvious that the land which would become available on account of
shifting/relocation of the industries can only be used for making up the
deficiency, as per the needs of the community, based on the norms given in the
Master Plan. If any land or part of the land, so vacated is not needed for
community services it can be used as per the prescribed land use. To appreciate
the concept "need of the community" under the Master Plan, it would
be useful to have a look at the following provisions of the Master Plan :-
"In general it would be desirable to take up all the existing developed
residential areas one by one for environmental improvements through (i) 5
plantation and landscaping (ii) provision of infrastructure - physical and
social and proper access where lacking (iii) possibility of infrastructure
management of the last tier through the local residents.
Conservation
and revitalization is required in case of traditional areas and environmental
upgradation and improvement is needed in other old built- up areas.
LUNG
SPACES x xxx xxxx xxxx Further conversion of recreational areas to other uses
should be permitted only under extraordinary circumstances. Areas in lieu of
such conversion may be provided elsewhere in order to maintain the overall
average for the city. xxxx xxxx"
7. Delhi
is one of the most polluted cities in the world. The quality of ambient air is
so hazardous that lung and respiratory diseases are on the increase. The city
has become a vast and unmanageable conglomeration of commercial, industrial,
unauthorized colonies, resettlement colonies and unplanned housing. There is
total lack of open spaces and green areas.
Once a
beautiful city Delhi now presents a chaotic picture. The most vital "community
need" as at present is the conservation of the environment and reversal of
the environmental degradation. There are virtually no "lung spaces"
in the city. The Master Plan indicates the "approximately 34 per cent of
recreational areas have been lost to other uses". We are aware that the
housing, the sports activity and the recreational areas are also part of the
"community need" but the most important community need which is
wholly deficient and needed urgently is to provide for the "lung
spaces"
in the
city of Delhi in the shape of green belts and open spaces. We are, therefore,
of the view that totality of the land which is surrendered and dedicated to the
community by the owners/occupiers of the relocated/shifted industries should be
used for the development of green belts and open spaces.
8. The
core question for consideration, however, is how much of the total land which
would become available from each of the industrialists is to be taken away by
the community for its use and how much is to be left in the hands of the
industrialists for the community use. The suggestions given by Alphons
Committee in this respect have been noted by us in the earlier part of the
order. Mr. Omesh Sehgal, Mr. P.C. Jain and Justice Khanna by and large agree
with the suggestions of the Alphons Committee. We are of the view that no
useful purpose would be served by maintaining two categories as suggested by
Alphons Committee in columns 3 and 4. After leaving a part of the land 6 with
the owner for developing the same in accordance with the surrender to the Delhi
Development Authority [DDA] for developing the same to meet the community
needs, it obviously means that the land has to be surrendered and dedicated to
the community. While meeting the community needs it is necessary to make a
suitable provision for the owner to enable him to meet the expenses of
relocating/shifting the industry. It would, therefore, be in conformity with
the broader concept of "community need" under the Master Plan, to
permit the owner to develop part of the land for his own benefit and surrender
the remaining land for the use of the community at large.
9. We,
therefore, order and direct that the land which would become available on
account of shifting/relocation of hazardous/noxious/heavy and large industries
from the city of Delhi shall be used in the following manner:
S.No.
Extent Percentage to be Percentage to be surrendered and development by the
dedicated to the owner for his own DDA for benefit in accordance development of
with the user permitted green belts and under the Master Plan other spaces (1)
(2) (3) (4) 1 Up to 2000 sq. - 100% to be developed by mts. (including the the
owner in accordance first 2000 sq. mts. with the zoning regulation of the
larger plot) of the Master Plan 2 0.2 ha to 5 ha 57 43 3 5 h to 10 ha 65 35 4
Over 10 ha 68 32
10. We do
not agree with the learned counsel for the industrialists that Floor Area Ratio
[FAR] be permitted to them on the total area of the plot. We, however, direct
that on the percentage of land as shown in column 4 the owners at Serial Nos.
2, 3 and 4 shall be entitled to one and a half times of the permissible FAR
under the Master Plan
11. The
DDA has suggested that it may be necessary to amend the Master Plan for
regularizing the land use as directed by us.
The
totality of the land made available as a result of the relocating/shifting of
the industries is to be used for the community needs. The land surrendered by
the owner has to be used for the development of green belt and open spaces. The
7 land left with the owner is to be developed in accordance with the user
permitted under the Master Plan. In either way the development is to meet the
community needs which is in conformity with the provisions of the Master
Plan."
(emphasis
supplied)
3. This
was followed by another order dated 8.7.1996 (reported in 1996 (4) SCC 750)
wherein this Court observed :
"....
The allotment of the plots shall be made on priority basis. We have no doubt
that reasonable incentives, which are normally provided to new industries in
new industrial estates, shall be extended to the shifting industries. This
Court by the order dated 10.5.1996 in M.C. Mehta v.
Union of
India [1996 (4) SCC 351] has already directed and laid down the manner in which
the land which would become available on account of shifting of H(a) and H(b)
industries is to be used. In view of the huge increase of prices of land in
Delhi, the reuse of the vacant land is bound to bring lots of money which can
meet the cost of relocation."
"The
use of the land which would become available on account of shifting/relocation
of the industries shall be permitted in terms of the orders of this Court dated
10.5.1996 in M.C. Mehta."
(emphasis
supplied)
4. By
order dated 4.12.1996 (reported in 1997 (11) SCC 237) several clarifications
were issued. One of the clarifications was that the order dated 10.5.1996
regarding land use - that is utilization of land available as a result of
shifting/relocation/closure of hazardous/noxious/heavy/large industries from
Delhi - are applicable both for relocating industries as well as those which
decide to close down and not to relocate.
5. While
most of the industries, shifted or relocated, there were delay and obstacles in
surrendering the land for community purposes as per the order dated 10.5.1996.
The District court, Delhi was authorized to implement the directions issued by
this Court. The High Court has been monitoring the progress of the surrender of
the lands as a consequence of such re-locations.
6. Some
of the industries including Swatantra Bharat Mills and DCM Silk Mills filed
interlocutory applications praying for a direction to DDA to acquire the land
required to be surrendered under the DDA Act or Land Acquisition Act and to
restrain DDA from trying to expropriate their lands.
The
request was turned down and IAs were dismissed as withdrawn.
7.
Thereafter, M.C. Mehta, the petitioner in the public interest litigation moved
an application (IA No.129 in IA No.22) making a grievance that though the
industries were closed, they had not surrendered the excess land to DDA, in
pursuance of the orders dated 10.5.1996 and 8.7.1996. Notices were issued to
the defaulting industries. A large number of industries appeared through
counsel and the matter was heard at length. Mr. K.K. Venugopal, learned senior
counsel appearing on behalf of a group of 9 industries contended that this
Court had never contemplated that the land should be surrendered free of cost.
He further contended that when this Court directed that their land should be
surrendered, it was clearly implied that the DDA would have to acquire the land
under Section 15 of the Delhi Development Act, 1957 and pay compensation for
the land. After considering the contentions, this Court by order dated
28.4.2000 (reported in 2000 (5) SCC 525), categorically rejected the said
contention by holding as follows:
"When
this Court first passed the order on 10.05.1996, it had before it the report of
Mr. Justice D.R. Khanna and had the advantage of hearing several counsels over
a period of six months as is evident from the order itself. It will be
difficult to believe or accept that the Court was not aware of the provisions
of the Delhi Development Authority Act which, inter alia, provides in Section
15 that the Authority could acquire the land for the purposes of the Act. The
Court nevertheless directed the surplus land not to be acquired by DDA but to
be surrendered by the owners. With regard to the balance of land, it was to be
retained by the owner. The Court directed that FAR would stand increased to
"one-and-a-half times of the permissible FAR under the Master Plan".
It is true that the Court did not direct any compensation, but this element of
compensation was clearly present in the mind of the Court when it increased FAR
and permitted the owner to build more than what was permissible under the
Master Plan. It is not possible, therefore, to accept the contention that DDA
is bound to acquire the land under Section 15 after paying compensation.
Be that
as it may, there is nothing to indicate in the order nor has our attention been
drawn to any affidavit that there was, at any point of time, a contention
raised or a demand made that cash payment should be made for the land required
to be surrendered or that DDA should be asked to acquire the land under Section
15. Mr. G.L. Sanghi, learned Senior Counsel submits that in a matter like this
where a public interest litigation is filed, the principle of res judicata does
not strictly apply. Even if this be so, we would have expected the owners to
have raised this contention if they had genuinely felt that there was a need
for 10 compensation to be awarded for the land which was to be surrendered.
Perhaps they were happy to have an increased FAR which would have enabled them
to construct more and would have offset the loss of land without payment of
money. In fact, by the order (4) SCC 750 at page 762, para 15], it was observed
as follows:
`In view
of the huge increase of prices of land in Delhi, the reuse of the vacant land
is bound to bring lots of money which can meet the cost of relocation' Be that
as it may, we do not think that it is appropriate at this juncture to permit
the erstwhile owners of the land to raise the contention that they should be
paid compensation.
It has to
be borne in mind that the Master Plan of 1990 made it obligatory on the
hazardous industries to shift within three years. No time limit was stipulated
with regard to the existing heavy and large industries, but the spirit clearly
was that they should shift within a reasonable period of time.
If the
industries continued to use the land in violation of and in disregard of the
Master Plan and then have had to lose some parcels of land, they have to blame
themselves for it. It was contended before us by Mr. K.K. Venugopal that if the
industry had shut before 1996, it would have been entitled to retain all the
land, but because the closure has been effected as a result of the order of
this Court, the owners have had to surrender part of the land free of cost.
This is undoubtedly, true but as we have observed above if the owners had cared
to obey the law then, as is always the case, would have been more
profitable."
(emphasis
supplied)
8.
Another attempt was made by a group of industries by raising this issue
regarding compensation for land surrendered, when DDA filed an interlocutory
application for various directions. The industries also filed several
applications. All those interlocutory applications came up before a three Judge
Bench of this Court and this Court disposed of the matter by judgment dated
01.03.2001 [reported in (2001) 4 SCC 577]. It was 11 contended by the industries
that their industrial units which had been ordered to re-locate were not bound
to surrender their freehold land free of cost and that the DDA had to acquire
the land under Section 15 of the Act.
The
matter was elaborately argued by eminent counsel and their arguments were
discussed in detail, and all their pleas were rejected. This Court also noticed
that the Master Plan came into existence in 1962 and that `H' category
industries ought to have shifted out of the area in 1962 itself; that the subsequent
Master Plan in 1990 directed shifting the industries within a specified period
of within three years; that there was an obligation on the `H' category
industries to shift and relocate in terms of the Master Plan by the year 1993;
and that all possible opportunities were given to the industries and upon
assessment of the situation through the appointments of commissions and
obtaining the consent of various parties on these aspects, the Court passed the
order on 10.05.1996. This Court issued specific directions on several issues
raised by DDA. This Court directed that even industries which closed prior to
the order dated 10.5.1996 (whose names appeared in the list of `H' category
industries to be closed) are liable to surrender land as per order dated 10.5.1996.
The relevant portions of the order are extracted below :- 12 "Be it noted
that the learned Amicus Curiae with his usual eloquence contended that review
applications against the order passed on 10.5.1996 numbered 36 in the year
1966, 55 in the year 1997, 3 in the year 1999 and 2 petitions in the year 2000,
as the records depict, were all dismissed and in the wake of the same, Mr.
Ranjit Kumar addressed us in detail that the present petition said to be for
clarification cannot but be attributed to be a further attempt to review the
order dated 10.5.1996 which, in fact, does not call for any review nor does it
call for any further order substituting the earlier order dated 10.5.1996.
Be it
noted that the order dated 10.5.1996 specifically directed that `H' category
industries are required to surrender the land to DDA. We may note here that
this order of surrender was passed by reason of the fact that the pollution
level has reached its optimum in the city of Delhi affecting the entire society
- `H' category industries were directed to close and to surrender the land so
as to make available some green belt and open space popularly ascribed to be
lung space for the city. Industries might have closed in terms of the order of
this Court and the compliance with the order was to this limited extent only.
Structures are still lying there and no surrender has yet taken place. The
majesty of law demanded compliance in observance rather than in its breach - it
is for the society only that this Court thought it fit to pass order to the
extent as indicated above ......
.......
We make it clear that the order dated 7.12.1999, in the case of vegetable oil
was in the peculiar facts of that case and is not of universal application, nor
does it in any way dilute the mandate of the order of this Court directing
surrender of entire land subject to the extent of availability to the owner as
per order dated 10.5.1996.
..... On
the question as to the land to be surrendered should be free from encumbrance,
we are of the view, if the land is already encumbered, then a direction to
release it from encumbrance and surrender will be a great burden. At the same
time, such land will be of no use to the society unless released from
encumbrance. In the circumstances we direct that the owner cannot utilize the
land available to him by virtue of order of this Court dated 10.5.1996, until
he releases the surrendered land from encumbrance.
Further,
if it is not made free from encumbrance within five years, then he will not get
the benefit of the order dated 10.5.19996 and after five years even the land
which the owner was otherwise entitled to retain would stand vested with DDA
for the use and the need of the society. "
9. The
petitioners in these Review Petitions and Interlocutory Applications seek a
review of the orders dated 10.5.1996 8.7.1996, 13 4.12.1996 and 28.4.2000
passed by this Court. We have heard Sri Harish Salve, Sri Mukul Rohatgi, Dr.
A.M. Singhvi, Sri Dushyant Dave, Mr.
Jaideep
Gupta, Mr. M.L. Lahoti, and others for the land-owners (erstwhile industries in
Delhi) as also the learned Additional Solicitor General on behalf of the Union
Government, and Mr. D.N. Goburdhan, on behalf of the Delhi Development
Authority. Mr. Ranjit Kumar rendered able assistance as amicus curiae.
10. The
petitioners/ applicants contended that the findings of this Court in the
earlier judgments and orders dated 10.5.1996, 8.7.1996 and 28.4.2000 regarding
the element of compensation are ex facie incorrect and the judgment and order
dated 10.05.1996 is liable to be reviewed. It was urged that the increased FAR
mentioned in the Order is illusory and that there were restrictions on the
permitted height of construction and many of the owners of freehold land had
not been able to use the increased FAR. They contended that if any land is
required for the purpose of development or for any other purpose, DDA should
resort to compulsory acquisition under section 15 of the Delhi Development Act,
1957. It was contended that no land can be taken over or required to be
surrendered without compulsory acquisition under Section 15 of the Delhi
Development Act, 1957 and 14 payment of market value as compensation. It was
contended that transfer of ownership of freehold land otherwise than by
acquisition or by conveyance or by inheritance was not known to law; and
Article 300A of the Constitution barred any person being deprived of his
property save by authority of law. It was further contended that the mere fact
that this court did not want the Government to undertake the time consuming
process of acquisition under Section 15 of the Delhi Development Act would not
in any way detract from the rule of law which requires the land owners of Delhi
Industries to be treated on par with owners of land in other parts of the country
which are acquired for the purposes of urban development. It was submitted
while Section 15 deals with compulsory acquisition of land where the land is
required for the purpose of development or any other purpose under the DD Act,
Section 55 of the said Act dealt with modification of the Master Plan or zonal
development plan in certain cases. The said section provided that where any
land is required by the Master Plan or a zonal Development Plan to be kept as
an open space or un-built upon or is designated in any such plan as subject to
compulsory acquisition, then if at the expiration of 10 years from the date of
operation of the plan under section 11 or where such land has been so required
or designated by any amendment of such plan, from the date of operation of such
amendment, the 15 land is not compulsorily acquired, the owner of the land may
serve notice on the Government requiring his interest in the land to be so
acquired; and if the Government fails to acquire the land within a period of
six months from the date of the said notice, the Master Plan or the Zonal
Development Plan, shall have effect, as if the land were not required to be
kept as an open space or un-built upon or were not designated as subject to
compulsory acquisition. It is submitted this provision was completely ignored
by this Court, while passing the order dated 10.5.1996. It was argued that as
relevant constitutional and statutory provisions had not been taken note of by
this Court, and as there is an apparent error on the face of the record, the
impugned order dated 10.05.1996 should be reviewed. Another argument put forth
by some of the owners is the word `surrender' used in the order dated 10.5.1996
would apply only to leasehold land and not to freehold land.
It was
further submitted that physical surrender of land to DDA in pursuance of the
order dated 10.5.1996 being for the limited purpose of maintaining green belt
and lung spaces, DDA cannot claim any ownership right nor commercially exploit
the same. It was lastly contended that the rule of `res judicata' would not
apply in this case to prevent the Court from entertaining the grievance and
giving appropriate directions.
11. The
learned Amicus Curiae pointed out that despite the fact that the Master Plan
for Delhi was published as early as in 1990, these hazardous, noxious, large
and heavy industries did not take steps to shift their premises out of Delhi
and these industries had been causing severe pollution for a long period
thereby violating the Master Plan as well as damaging the environment and it
was at this juncture that this Court had passed the order and directed all
these industries to be re-located outside Delhi and issued categorical
directions regarding surrender of portions of the land cleared by shifting of
industries for community use; and that the landowners were not entitled to any
compensation in regard to such surrender except the additional FAR granted under
the decision. The learned Additional Solicitor General and the learned counsel
for DDA also took the same stand. They further pointed out that all the
above-mentioned pleas had been raised before this Court and had been considered
in detail on more than one occasion and that they had been rejected and many of
these petitioners have repeatedly filed review petitions, curative petitions
and writ petitions and some of these petitions have been filed much after the
original order that was passed on 10.05.1996. Therefore, it was urged that
there is no merit in the contentions advanced by the petitioners.
12. There
is no question of acquisition and/or compensation in regard to the lands to be
surrendered, is also evident from the categorical directions given in the order
dated 10.5.1996. The surrender of lands by the industries was under a broad
scheme framed by the court after assessment and consideration of the then
existing situation, the reports of various committees, the grievances and
contentions of various industries and the consensus arrived at on certain
issues, and the findings on several other issues. This Court categorically
stated :
"After
leaving a part of the land with the owner for developing the same in accordance
with the permissible land use under the Master Plan, the remaining land should
be surrendered to Delhi Development Authority for developing the same to meet
the community needs."
In para
10 of the order dated 10.5.1996, this Court held that in respect of the land
which was to be retained by the owner for its own benefit and to be developed
in accordance with the permitted use, the owner will be entitled to one and
half times the permissible FAR under the Master Plan. The scheme contemplated
not merely surrender of a part of the land but "dedication" of such
surrendered land to the DDA for development of green belts and open spaces. The
land that was to be surrendered had to be retained as green belt and open
spaces and not to be sold, constructed or developed by DDA.
13. We have
carefully considered the various review petitions and other applications filed
in this regard. We have extracted the relevant portions of the orders dated
10.5.1996, 8.7.1996, 4.12.1996 and 28.4.2000 which clearly demonstrate that the
owners of land/industries were given a fair hearing before passing the order on
10.5.1996. The petitioners had now raised these very contentions that their
lands will have to be acquired and that they are entitled to get reasonable
compensation when their land was taken over. All these pleas had been
repeatedly rejected by this Court. The Scheme evolved by this Court in its
order dated 10.5.1996 is clear :
(i) The
land which becomes available on account of an industry being shifted out of
Delhi would be divided equitably into two portions. The one portion to be
retained by the land owner for development for his own benefit and the other
portion to be surrendered to DDA for community use for development of green
belts, open/lung spaces. The land to be surrendered and dedicated for community
use was 57% (where the size of the plot was 0.2H to 5H), 65% (where the size of
the plot was 5H to 10H) and 68% (where the plot was over 10H). The balance was
to be retained by the landowner. The percentage was to be calculated after deducting
first 2000 sq.m. for development by the owner.
(ii) In
consideration of the land owners surrendering and dedicating a part of the land
for community use, they (land owners) will be entitled to an 19 additional 50%
FAR in regard to the land permitted to be retained by them for their benefit.
That is, the FAR would stand increased to one and a half times of the
admissible FAR under the Master Plan. The landowners will not be entitled to
any other consideration/compensation for the land surrendered and dedicated to
the community.
(iii) The
portions of land surrendered to DDA and dedicated for community purposes, that
is only for being used as green belt or open `lung spaces' for the city. Such
dedicated land will be used only for such dedicated purpose and not any other
purpose.
(iv) The
land will be at the disposal of the community at large and the DDA shall not
exploit it for either commercial use or construction of residential flats. As
DDA is not going to derive any benefit by exploitation thereof, and was to only
hold it in trust for and on behalf of the community, there was no question of
DDA paying any compensation therefore to the land owners.
It
therefore, follows that such land dedicated by private owners to the community,
is acquired for any other purpose, or is diverted to any other use by DDA (as
for example for putting up constructions or for sale or lease for development
or construction), the land owner will be entitled to compensation. But so long
as the land remained as lung space/green area, 20 there is no question of any
payment to the owner, as compensation or otherwise.
14. The
order dated 10.5.1996 was passed to get effect to the Master Plan, to save the
city and in public interest. Therefore by surrendering a part of the land, the
owners were not only benefiting the community but themselves.
The
records clearly show that before the order dated 10.5.1996 was passed, the
question what should be the compensation for the surrendered lands was
specifically raised and considered. It was made clear that additional FAR will
be in lieu of any monetary compensation for the land to be surrendered and
dedicated to DDA for community use, for development green belts and lung
spaces. Therefore, it is evident that the order dated 10.5.1996 clearly intended
that the land to be surrendered would vest in trust in DDA for the benefit of
the community and the additional FAR was the only compensation for such
surrender land for community benefit and there would be no further
compensation. Contentions similar to the contentions now raised were rejected
by this Court by order dated 28.4.2000. Therefore, it is not possible for this
Court to again review all these orders or take a different view. Therefore, all
these review petitions, applications for directions and clarifications are
without any merit.
15. We
may note that some of these review petitions have been filed after dismissal or
withdrawal of the earlier petition by the very same petitioners seeking almost
the very same reliefs. Therefore, such petitions are prima facie not
maintainable and the pleas raised by these petitioners to review the earlier
order passed by this Court cannot be considered. Be that as it may. As the
contentions raised by others have been considered, this issue loses relevance.
16. One
aspect requires clarification, particularly in view of some of the surrendered
land being acquired or taken perpetual lease by Delhi Metro Rail Corporation
from DDA. The landowners surrendered and dedicated portions of the land as
shown in Column III of the Table contained in Para 9 of the Order dated
10.5.1996 exclusively for the purpose of development of green belt and open
spaces. Therefore wherever such open lung space is created, it shall be shown
in the Municipal/DDA records as `DDA land - dedicated by xxxxxxxx'. The DDA
shall maintain a Trust Account of such surrendered lands. This would mean that
the DDA which holds the surrendered and dedicated land in Trust cannot use it
for any purpose other than as green belt or other spaces for the benefit of the
community. This 22 will be necessary to identify if the land held by DDA in
trust for the community is not lost and is not treated as DDA owned lands which
can be dealt with by DDA as absolute owner. In the event of any acquisition or
development of such surrendered land, the owner- dedicator will have the
benefit of compensation on account of land ceasing to be `land dedicated to the
community purpose of lung/open space". As the owner has already received
some consideration in the form of 50% additional FAR, we are of the view that
when such acquisition/alienation takes place, DDA and the land owner will be
entitled to share the compensation at 50% each. The second aspect is where the
land surrendered is very small (say on account of 57% of 0.2 Hectare that is
1140 sqm being surrendered) or being of an irregular shape, and DDA finds that
it is not feasible or practical to maintain any small areas as independent
green belt or park or playground or lung space or to safeguard any such area
from encroachers, DDA can take steps to consolidate several smaller areas into
larger blocks in the same locality so that they can be used effectively. For
that purpose, DDA may also enter into suitable arrangements by way of exchange
or otherwise. But any such consolidation or exchange shall be only with the
sanction of the District Court, Delhi, after notice to the Landowners -
Dedicators. Any change in use of such surrendered land held in trust by DDA or
any transfer by DDA 23 shall be only after securing prior permission from the
High Court of Delhi.
17. M/s
SIEL Ltd., the applicant in IA No. 1914/2006 and IA No. 2205/2007 (SIEL Ltd.)
submitted that DDA, out of 18.854 Hec. surrendered by it though it did not have
either ownership or right of commercial exploitation had transferred 7.5 Hec.
plus 1.21 Hec. to DMRC on payment of a premium of 1,55,33,213/- plus others
amounts. It is contended that such transfer was impermissible and the monetary
gain should be paid over to the owner of the land. It is also contended that
the land should be used only in accordance with the order dated 10.5.1996.
18. The
land surrendered by SIEL Ltd. as per the order dated 10.5.1996 to DDA could be
used only for community purposes and cannot be used for any private purpose. In
circumstances where the land is acquired or used (other than as green belt and
open lung space) for any other purpose under extreme necessity the land owner
would be entitled to get 50% of the compensation or consideration for the use
of such land. We make it clear that the owner of such land would be entitled to
get 50% of the amount received by DDA as consideration/compensation. If DDA
fails to pay the same, such persons would be entitled to take appropriate legal
action. We again reiterate that any such diversion of use by DDA shall
henceforth be 24 only with the permission of the District Court, Delhi, after
notice to the landowners concerned. I.A. 1850/2003 and IA 1914/2006 with IA
No.2205/2007 are disposed of accordingly.
19. All
review petitions, interlocutory applications and other petitions are dismissed,
subject to the clarification contained in paras 13, 16, 17 and 18 above.
..............................CJI (K.G. BALAKRISHNAN)
................................J. (R.V. RAVEENDRAN)
................................J. (J.M. PANCHAL)
New Delhi
March 25, 2010.
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