Union of India & Ors Vs. Shri Ghanshyam
Dass Kedia & Ors [1995] INSC 829 (12 December 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J)
CITATION:
1996 SCC (2) 285 JT 1995 (9) 618 1995 SCALE (7)348
ACT:
HEAD NOTE:
O R D
E R
We
have heard the counsel for the parties. The main question canvassed before the
Division Bench in W.P. Nos.3084/87 was that the Government was not justified in
invoking s.17(1) read with s.17(4) of Land Acquisition Act, 1894 (for short
'the Act') dispensing with the enquiry under s.5A. The High Court following its
earlier decision has quashed the notification on the ground that the
notification did not recite the nature of the urgency. Planned Development of
Delhi is not urgent and, therefore, the exercise of the power under s.17(4) was
illegal. We do not find that the view taken by the High Court is legal and
correct.
In Aflatoon
& Ors. v. Lt. Governor of Delhi & Ors.[(1975)] 1 SCR 802], the
Constitution Bench of this Court had upheld the exercise of power under s.17(4)
dispensing the enquiry under s.5-A. It was for planned development of Delhi which would take long time for
development. Yet this court upheld the exercise of the power of urgency. It is
subjective satisfaction of the Government based on the material on record. The
High Court is not a court of appeal over subjective satisfaction and the
opinion of the Government is entitled to great weight. Therefore, it cannot be
said that the notification should specifically recite the nature of the
urgency. It is enough, if the record discloses the consideration by the
Government on urgency for taking action under ss.17(1) and (2).
However,
this conclusion does not solve the problem in this case. It is seen that the
employer of the respondents had obtained sanction from the Delhi Municipal
Corporation as early as in 1951. A plan thereof has been annexed in the paper
book as annexure to the Additional Affidavit filed by Laxman Prasad Mittal. It
is an admitted fact that the plan has not so far seen the light of the day
except production for the first time in this Court. No application under Order
41 Rule 27 CPC was filed. So it cannot be received in evidence. Be it as it
may, it is not in dispute that about 3 acres of land was earmarked by the Birla
Cotton, Spinning and Weaving Mill has become disused but the respondents had
purchased under registered sale deeds from their employer certain extents of
land and most of them had 330 sq.yd. Some of them purchased in excess also. It
is seen that they purchased these lands for residential purpose long prior to
the notification and master plan.
This
Court on November 9,
1995, issued direction
as stated hereunder :
"It
transpires that the respondents are now retired employees of the Birla Cotton
Spinning and Weaving Mills Ltd. and they needed these sites for residential
construction. When we requested Shri Saharya, learned counsel for the DDA to
show us the localisation of the land in the existing zonal plan, counsel is
handicapped for not having the details. He sought for and is granted two weeks
time to produce the zonal plan. With the assistance of his officers and also
after notice to Shri Venugopal, learned senior counsel and his instructing
counsel they would localise the land of 6600 sq. yds. purchased by the 20
respondents and needed for their housing purpose. If it would be possible to
demarcate and delete this part of the land, perhaps much of the controversy may
not survive.
Under
these circumstances, the matter is adjourned to do the needful." Shri V.B.Sahariya,
the learned counsel appearing for the DDA, has placed before us additional
affidavit of P.C.Jain, Additional Commissioner (Area Planning) DDA, Delhi together with annexures. In
Annexure I, they have identified the land originally held by the Mill
approximating three acres. Thereunder, they identified in north-east Corner the
land which the respondents had purchased. In the Area Plan, Annexure-2, the
land is reserved for institutional purpose and for Education and Research in
Annexure-3. It is marked as red and in Annexure-4, it was identified abutting
the road by name Mehrauli
Road. It is in the
middle of the area reserved for institution (Education & Research). It is
stated in Annexure I that on the eastern side, Azad Appartments are situated;
on the northern side, it is abutting the Mehrauli Road. In that view of the matter, it would be expedient that
since the respondents have purchased long before the master plans have been
prepared for residential purpose and on the eastern side residential flats are
in existence, there may not be much difficulty for change of user of the land
and the plan, leaving out the portion of the land for the residential purpose.
It is
not in dispute that 19 persons now want construction of their houses in this
area. Though some of them had purchased more than 330 sq. yds, uniformly
everyone should have 330 sq. yds. We are of the considered view that it is
appropriate for the appellant-Union of India to change user of land in the
Master and Zonal Plans to the above extent and direct the Lt. Governor to carve
out the above land as part of the residential purpose which is adjacent to
already existing residential apartment. The appropriate Government would
suitably consider withdrawl from acquisition to the above extent only and allow
use for residential purpose. They would take proper steps to release that part
of the land which is necessary for the respondents to construct their houses.
The area needed for amenities like road etc. need to be provided to these 19
plots and the same would also be set part. Necessary permission accordingly be
given to the respondents as per rules by granting sanction to construct their
houses.
The
appeal is accordingly allowed to the above extent.
Back