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Shori Lal JaIn Vs. Lt. Governor, Delhi and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1162 of 1972
Reported inAIR1975Delhi221; 11(1975)DLT69; 1974RLR638
ActsLand Acquisition Act, 1894 - Sections 6
AppellantShori Lal Jain
RespondentLt. Governor, Delhi and ors.
Advocates: P.N. Lekhi,; Arun Kumar,; S.S. Chadha,;
Cases ReferredJaichand Lal Sethia v. The State of West Bengal and
(i) property - acquisition - section 6 of land acquisition act, 1894 - petitioner challenged acquisition by government for purpose of running of school - respondent contended that acquisition was for running school by minority community - school without necessary playground, sufficient area for classes and other facilities would not conducive for health of pupils and such consequence could not be intended for minority community - held, notification of acquisition quashed. (ii) validity of acquisition - declaration of acquisition under section 6 challenged - satisfaction of appropriate government is condition precedent for issue of declaration under section 6 - only secretary had seen file recording such satisfaction - file not placed before respondent - serious lacuna on part of..........government in not having to pay so much by way of rent.(2) the notification under section 4 of the land acquisition act, 1894 (hereinafter called the act) was made on 11-12-1968. the land acquisition collector made a report, on 11-3-1969, under section 5-a of the act that no-objections had been received to the notification under secion 4(1) of the act and that in the absence of any objection the acquisition proceedings may be processed further. it was further suggested by the coilector that notification under section 6 of the a.ct may be made. such a notification, under section 6 of the act was issued on 24-4-1969 staling as follows : 'whereas it appears to the lt. governor, delhi that land is required to be taken by government at the public expense for a public purpose, namely, for.....

S. Rangarajan, J.

(1) This judgment will dispose of Civil Writ petitions 48 to 57 to 1972 also. The petitioner in Writ Petition No. 1162 of 1971 is one of the three partners of the firm known as Messrs Jain Optical Industries, carrying on business of optical goods as a tenant in shops No. 2395/1, 2397 to 2400, Ballimaran, Delhi. The petitioners in the other petitions are tenants in other shops, all housed in building known as Kothi Nawab Loharowali, Bazar Ballimaran, Delhi (No. 2376 to 2382, 2395 to 2402), which has been acquired for the purpose of running two Government Girls Higher Secondary Schools. The first and second floors of the building were taken on rent by the Government in May, 1957 at a rent of Rs. 1150.00 per month for running the School. The ground floor of the property comprises 19 shops/godowns, one of which lias been rented to the Government and is in the use of the Government Schools. The annual rental income to the owners from these shops/godowns in the ground floor is stated to be Rs. 1135.00 per month. The acquisition of the properties of the entire building was suggested by the Directorate of Education on the ground that there was no prospect of the Government constructing Higher Secondary Schools in that area owing to non-availability of a suitable site and there being no possibility of shifting the schools outside the area since the same were meant to serve the minority community (Muslims) which comprises quite a large population in this densely populated locality. It was pointed out that the Directorate of Education, Delhi Administration had paid, until April 1968, when the proposal to acquire was made by the Directorate, Rs. l,51,800.00 as rent to the owners of the buiding for the school. The schools are being run in two shifts; one in the morning and the other in the afternoon. It was also suggested that it will be profitable for the Government to acquire the entire building with the shops and godowns in the ground floor not only because of the rent it was fetcirmg but also the saving that would result to the Government in not having to pay so much by way of rent.

(2) The notification under section 4 of the land Acquisition Act, 1894 (hereinafter called the Act) was made on 11-12-1968. The Land Acquisition Collector made a report, on 11-3-1969, under section 5-A of the Act that no-objections had been received to the notification under secion 4(1) of the Act and that in the absence of any objection the acquisition proceedings may be processed further. It was further suggested by the Coilector that notification under section 6 of the A.ct may be made. Such a notification, under section 6 of the Act was issued on 24-4-1969 staling as follows :

'WHEREAS it appears to the Lt. Governor, Delhi that land is required to be taken by Government at the public expense for a public purpose, namely, for Government school, it is hereby declared that the land described in the specification below is acquired for the above purpose'.

The present Writ Petition as well as the connected Writ Petitions have been filed attacking notification under section 4 and 6 of the Act on various grounds. The delay in the filing of the petitions has been explained on the ground that the petitioners came to know about the acquisition only after the notice under section 9 of the Act was served in July, 1971. The petitions were filed without any loss of time having regard to the time taken to ascertain the true facts. The award having not been yet passed the petitions cannot be defeated on the ground of delay when, as the present discussion will show, the notification under section 6 is seen to be illegal.

(3) The objection in C.W. 1162 of 1971 is the most comprehensive and the same was argued by Shri P. N. Lekhi, learned counsel for the petitioner, at great length, his arguments being merely adopted in the other petition. It was contended by Shri Lekhi, infer cilia., that there had been no inquiry under section 5-A of the Act and for that reason itself the acquisition was bad. In the affidavit of return filed by Shri R. N. Puri Deputy Secretary, Land and Building Department on behalf of Delhi Administration (Respondent II) it was only mentioned that the allegation in paragraph 35 of the petition concerning the absence of report under section 5-A was not admitted; it was further stated that 'satisfaction' for issuing the said notification was arrived at after due consideration and that no obniection under section 5-A of the Act was received from any quarter. There was a. categorical assertion in paragraph 35 of the petition that there was no report, as contemplated by law, on The basis of which the Lt. Governor (Respondent 1) could express his satisfaction. In view of the above allegation and the manner in which it had been traversed, I directed the concerned land acquisition file to be produced. When it was produced it transpired that there was a report by the Land Acquisition Collector, as noticed above, but an even more serious lacuna was seen to exist on a perusal of the file. By a strange coincidence the file does not appear to have been put up at all before the Lt. Governor for his satisfaction to be expressed under section 6 of the Land Acquisition Act. Such satisfaction of the, appropriate Govt.' is a condition precedent for the issue of the declaration under section 6 of the Act. It is not disputed that for the purpose of section 6 the Lt. Governor is the 'appropriate government' and that he has to express his satisfaction before a declaration under that section is made. The file shows that when the above said report was received from the Collector staling that no objection had been received against acquisition a note was put up that permission may be accorded. Only the Secretary had seen the file; the file does not appear to have even been placed before the Lt. Governor at all. In view of this serious lacuna there seems to be no other option but to quash the notification issued in respect of the above building under section 6 of the Act on 24-4-1969 (copy of which is Annexure 4 to the petition).

(4) The Lt. Governor has to be satisfied; not any of his Secretaries to whom, under Rule 7 of the Rules of Business of Delhi Admn. only the power to authenticate notifications made with his approval and consent has been delegated. The Lt. Governor himself could not delegate to any of his Secretaries the duty of being satisfied that any particular property requires to be acquired for a public purpose; the satisfaction has to be by him personally- A similar question arose before the House of Lords in Vine v. National Dock Labour Board 1957 A. C. 488. In that case the Board had lawfully delegated its disciplinary powers over registered dock workers to local boards. The local board, with the approval of the national board, had in turn subdelegated those powers to a disciplinary committee. In the event Vine was dismissed by that committee. The question was whether the sub-delegation was valid; if it was not Vine's dismissal was wrongful and ultra vires. The House of Lords pointed out that in deciding whether it is an implied power to delegate one has to consider (a) the nature of the duty. (b) the character of the person on whom the duty is put. As to (a) the House of Lords observed as follows : Judicial authority normally cannot of course be delegated . . . There are, on the other hand, many administrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would normally have no authority to delegate. He could take advice of course but he could not authorise some one to make the appointment without further reference to him . I am clear that disciplinary powers, whether judicial or not, cannot be delegated.'

(5) The same question also arose earlier in Allingham v. Minister of Agriculture and Fisheries 1948 1 All E.R. 780. The Minister in that case had by regulations lawfully delegated to an agricultural committee his powers to give directions concerning the use for agricultural purposes of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction should apply. The officer consulted a local sub-committee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves.

(6) In the present case it is not even suggested that there has been any such delegation, as a fact, by the Lt. Governor to the Secretary concerned; even if there was such delegation it would be invalid.

(7) Since the notification under section 4 was made as early as in the year 1968 and more than 3 years have elapsed since then (even the notification under section 6 was more than 3 years old) it is not possible in law to issue any further notification under section 6 in pursuance of the above-said notification under section 4 of the Act. In view of this lacuna it is realised on all hands that the other questions which have been debated before me at length in this Writ Petition, do not fall for decision as the notification under section 6 will have to be quashed. If the Government wishes to proceed further with the acquisition of this building it will have to be necessarily by means of a fresh notification under section 4 of the Act.

(8) Shri P. N. Lekhi. however, requested that at least the more impotent contentions which he put forward against the acquisition may by briefly set out though it has become unnecessary to consider them in the above view of the Dresent case. Shri Lekhi urged, infer aha, the following :

(1) The Delhi Development Authority (Respondent 13) who is charged with the duty of planned development of Delhi, had not accorded its approval for the establishment of the school. (2) In accordance with the Master Plan (page 26) in the case of most of the areas within the old city having higher gross densities it was recommended that vacant plots and plots having dangerous structures thereon which were being demolished every year by the Municipal Corporation of Delhi only may be acquired for the purpose of locating community facilities, the present building is not a dangerous structure. Such a procedure had not been adopted in this case and the Municipal Corporation of Delhi had not made the acquisition. (3) The acquisition of the building for a. school which is not a part of the planned development of Delhi is not a public purpose. (4) Development is not lawful unless it is done with planning permission obtained from the local planning authority. In the sketch attached to the Master Plan Balimaran area has been shaded with a colour indicating the land use as commercial. (5) The Master Plan for Delhi, which has to be in accordance with the procedure prescribed by section 7, become operative under section 11, enforceable under section 14, and punishable for violation under section 29 of the Delhi Development Act, 1957 has 'the statlits of a statute' as was observed by S. N. Andley, CJ., speaking for the Full Bench of this Court, in C.W. 465 of 1970 (B. T. Manghani v. Delhi Dcvc'opmem AmhorUy & Ors. decided on 31-1.2-1973), (3). Hence, there could not be any violation of the Master Plan. which has prescribed the special space standard for higher secondary schools inside the old city as follows: O.5 to 1.5 acres for a school of 1000 students to serve population of 15.000 (Page 70 of the Plan). There is also an indication that the above-said special space standard table is a guide only and that the competent authority may relax to the necessary extent. The contention is that no authority had applied its mind in the matter of granting such relaxation and thus the Master Plan had been violated because admittedly the present budding is very much less than the minimum of 0,5 acres. (6) The Delhi Education Code, 1965 for the Union Territory of Delhi, which came into force 15-2-1965 (similar provisions, are now being put on a statutory footing) requires that schools can be recognised only if certain conditions are fulfillled, some of which are that accommodation should be sufficient for the classes for imparting instruction and suitable ground should be provided for out-door worK. Reference was al;:o made in this connection to a letter of the Education Department addressed to the Secretary, Lands & Puilcings on 5-7-1968, a copy of which was supplied during the hearing. (7) The exercise of the power of eminent domain should '?t be for a collateral purpose. the very proposal for acquisition in this case suggest that the acquisition would be profitable to the Government on account of the rent from the shops and godowns in the ground floor and there would be a saving of rent paid for the school. Such exercise of power for a purpose different from what was intended by the Statute would amount to mala fides in law vide Jaichand Lal Sethia v. The State of West Bengal and others 1967 Air S.C. 483. (8) The plea that the acquisition was for running a school by the minority community was a hollow one; a school without the necessary playground, sufficient area for classes and other facilities would not be conducive for the health of the pupils and such consequence could not be intended for the minority community; the said notification. of acquisition, thereforee, could not be sustained.

(9) It seems proper to repeat that the above contentions of Shri Lekhi have only been set out, at his request, but that no opinion is expressed on all or any of them.

(10) In the circumstances the notification under section 6 of the Act (copy of which is Annexure 4 to the petition) is alone quashed. The Writ Petition is accepted to the above extent. There will be no order as to costs.

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