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Golcha theatres and ors. Vs. Lt. Governor of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1212 of 1970
Judge
Reported in1983(4)DRJ303; 1983RLR179
ActsDelhi Development Act, 1957- Sections 15
AppellantGolcha theatres and ors.
RespondentLt. Governor of Delhi and ors.
Advocates: Y.S. Chitaley,; Daljit Singh,; C.S. Soma Sekharan,;
Cases ReferredMunshi Singh v. Union of India
Excerpt:
.....- section 15. land can be acquired only for the purpose provided for its use in the master plan or zonal development flan. acquisition of land contrary to its land use in zonal developmept plan is illegal ; public purpose must be clearly stated. a compendious expression like 'planned development of delhi' is understandable if a large area is required. but if a small plot of land is required, this expression will convey nothing to the expropriated owner who cannot file any meaningful objections. such an acquisition cannot be upheld. - - the petitioners say that they were satisfied with the draft zonal plan inasmuch as their property was shown as commercial and, thereforee, they did not file any objection to the plan under section 10(3) of the act. they say that the reconstituted board..........the notification dated 7.8.1969 issued by the delhi administration under section 6 of the land acquisition act 1894 and the notice under sections 9 and 10 of the said act on the ground that the acquisition of the petitioner' property is invalid, illegal, mala fide and ultra vires.(2) the petitioners, golcha theatre and its partners, have brought this writ petition under art. 226 of the constitution of india challenging the notification dated 7.8.1969 issued by the delhi administration under section 6 of the land acquision act 1894 and the notice under sections 9 and 10 of the said act on the ground that the acquisition of the petitioners' property is invalid, illegal, mala fide and ultra vires.(3) the petitioners own property bearing no. 1252/1148 and 1253/ 1148 situated at the.....
Judgment:

Avadh Behari Rohatgi, J.

(1) The petitioners, Golcha Theatre and its partners, have brought this writ petition under Art. 226 of the Constitution of India challenging the notification dated 7.8.1969 issued by the Delhi Administration under section 6 of the Land Acquisition Act 1894 and the notice under sections 9 and 10 of the said Act on the ground that the acquisition of the petitioner' property is invalid, illegal, mala fide and ultra vires.

(2) The petitioners, Golcha Theatre and its partners, have brought this writ petition under Art. 226 of the Constitution of India challenging the notification dated 7.8.1969 issued by the Delhi Administration under section 6 of the Land Acquision Act 1894 and the notice under sections 9 and 10 of the said Act on the ground that the acquisition of the petitioners' property is invalid, illegal, mala fide and ultra vires.

(3) The petitioners own property bearing No. 1252/1148 and 1253/ 1148 situated at the Gurdwara Road, Karol Bagh, New Delhi. They purchased this property in 1962. They wanted to construct a cinema on the site after demolishing the existing building. Permission was sought. But it was refused by the Delhi Development Authority, Respondent No. 3. They again wrote to the Municipal Corporation of Delhi that they be allowed to put the property to commercial use. The authorities wrote to them that they should wait till the Draft Zonal Development Plan is published under section 10 of the Delhi Development Act 1957 (the Act).

(4) On 10 7.1965 the Delhi Development Authority published a Draft Zonal Plan for Karol Bagh Zone. In plan the land use of the property in question was shown as commercial up to a depth of 30 feet from the depth of the plot. The petitioners say that they were satisfied with the Draft Zonal Plan inasmuch as their property was shown as commercial and, thereforee, they did not file any objection to the Plan under section 10(3) of the Act.

(5) The petitioners allege that in February 1967 as a result of elections to the Metropolitan Council and the Municipal Corporation of Delhi, the Jansangh party came into power. The Board constituted under Rule 8 of the Delhi Development (Master Plan and Zonal Development Plan) Rules framed under section 56 of the Act was reconstituted. Vijay Kumar Malhotra, Kedar Nath Sahni, Surat Singh and Ram Babu Maheshwari, Respondents 4 to 7, became its members. The petitioners allege mala fides against the Jansangh members who were in a majority in this Board. They say that the reconstituted Board recommended to the Government that the property in question be immediately acquired for a bus terminus without even waiting for the approval of the Zonal Plan by the Central Government.

(6) The Lt. Governor of Delhi, respondent No. I, issued a preliminary notification on 14.9.1967 under section 4 of the Land Acquisition Act stating that the property of the petitioners was likely to be needed for a public purpose, namely, 'the planned development of Delhi'. The petitioners filed objections to the notification under section 5-A of the Land Acquisition Act.

(7) Though the notification under section 4 did not state the particular public purpose for which the land was required the petitioners came to know from the Delhi Administration officers that the land in question was being acquired for the construction of a bus terminal.

(8) The Lt. Governor made a declaration dated 7.8.1969 under section 6 of the Land Acquisition Act declaring that the petitioners' land in question was required for the 'planned development of Delhi'. Thereafter notices under sections 9 and 10 of the Land Acquisition Act were sent to the petitioners that the Government intends to take possession of the property and that claims to compensation from all persons interested may be made.

(9) The petitioners challenge these acquisition proceedings on a variety of grounds, including mala fides. In my opinion it is unnecessary to deal with the question of mala fides because this case can bedecided on other legal grounds. Now it is not disputed by the Delhi Administration that the land in question is being acquired for a bus station and for providing parking facilities. It is said in their counter-affidavit dated 21.1.1972 that in the Draft Zonal Plan the land in dispute was earmarked as commercial up to 30 feet depth of the plot and that in view of the increase in the number of vehicles and parking problems, it was considered necessary by the screening board of the Delhi Development Authority to use the land in dispute for a bus .station and parking along with another piece of land measuring 3177 sq. yards.

(10) The single question is : Can the petitioners' piece of land be acquired for bus station and parking facilities This being the admitted case of the Government that the land is required for bus station and parking facilities the question is whether this action of the government is in confirmity with the Zonal Development Plan or not. The petitioners' case is that the acquisition, though it purports to be for the 'planned development of Delhi' is in f.act and in truth absolutely contrary to the plans published by the Authority under the Act. They further say that the Zonal Development Plan provides for a sub-central business district in the heart of the zone, that is, the Ajmal Khan Road Complex and the Draft Plan envisages the development of this sub central business district. The Plan provides for common car parks ; bus terminals etc. on different sites of the sub central business district. A bus terminal is specifically provided for at the inter-section of Arya Samaj Road and Saraswati Road-Road No. 10, marked as 'BT' in the Plan. This site was selected for a bus terminal in view of its large size as well as the fact that it is approachable from all sides and is most suitable for the purpose. Several parking lots have also been provided in the proposed sub central business district For this purpose 2.5 acres have been earmarked. In short the petitioners' contention is that the Draft Plan has made ample and adequate provisions for bus terminals and common car parking and thereforee the petitioners' land which can be used for commercial purposes under the Draft Plan cannot be acquired for community purposes such as a bus terminal and parking facilities. This is the main ground of attack of the petitioners

(11) In my opinion the petitioners' contention is well founded. The Act provides for the preparation of the Master Plan and the Zonal Development Plan. Section 8 says that simultaneously with the preparation of the Master Plan or as soon as may be thereafter the Delhi Development Authority shall proceed with the preparation of a Zonal Development Plan for each of the zones into which Delhi may be divided. The zonal Plan shows the extent of land uses. Section 9 provides that every Plan shall, as soon as may be after its reparation, be submitted by the Authority to the Central Government for approval and that Government may either approve the plan without modifications or with such modifications as it may consider necessary or reject the with directions to the Flan Authority to prepare a fresh plan, according to directions. Section 10 such provides that the Authority shall prepare a plan in draft and publish it and shall invite suggestions and objections with respect to the draft plan. After considerating all objections, suggestions and representations that may have been received by the Authority, the Authority shall finally prepare the plan and submit it to the Central Government for approval. Section 11-A provides for the modification of the Master Plan or the Zonal Development Plan. Section 15 says:

'COMPULSORYacquisition of land-(1) If in the opinion of the Central Government, any land is required for the purpose of development or for any other purpose, under this Act, the Central Government may acquire such land under the provisions of the Land Acquisition Act, 1894 (1 of 1894). (2) Where any land has been acquired by the Central Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the purpose for which the land has been acquired on payment by the Authority or the local authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition.'

(12) This section clearly shows that the land can be acquired only 'for the purpose of development or any other purpose under this Act,' thereforee, the Act is the touchstone and the validity of the acquisition must be tested by this touchstone. In P.S. Gill v .Union of India, 2nd 1978(2) Delhi 515 I said:

'ACQUISITIONof land is the means. Development of land is the end. For acquisition the machinery of the Land Acquisition Act 1894 can be employed. But development has to be carried out in accordance with the Act. The Act supplies the content of the public purpose. The Plan vivifies it.'

(13) The Master Plan is 'the basic pattern of framework', to use the wards of sec. 7 of the Act. The Zonal Plans are to be prepared within this framework. The Zonal Plans are no doubt subordinate to the Master Plan but they are the real executants of the plan. The Master Plan is general in character. It outlines trends and tendencies but never in any instance gets down to brass tacks or details. The Plan gives us an overall design and nothing more. The Zonal Development Plan works out the details. The zonal Plan is the local plan. It administers the land and its development in zone, functioning as it does under the general aegis of the Master Plan, (P.S. Gill (supra) page 518.

(14) Now we know that inthe Zonal Plan the petitioners' land is not required for use at bus station or parking place. So this acquisition of the petitioners' land is contrary to the Zonal Plan. This is going against the plan. 1 The planner and the developer has not said that the petitioners' land be used as parking lots for buses and cars. In the Zonal Plan the bus terminal is provided at point 'BT. The Delhi Administration cannot shift it to the petitioner' property until the Plan is amended or modified according to the procedure laid down in the Act. The Zonal Plan has set apart Government land measuring 1.4 acres open from three sites with a frontage of about 150 feet. How can Administration acquire petitioners' property for a purpose which is not a purpose of the Plan? The petitioners' property has a frontage of about 100 feet only. It is approachable from only one side. It is not suitable for a bus station. So the decision of the screening board on which Government relies in support of its action was contrary to the Plan and the acquisition in pursuance of that decision must also be held to be illegal.

(15) I Section 12(4) says that there shall be no development except in accordance with the plans. S. 14 provides that no person shall use any land or building in the zone otherwise than in confirmity with the plans. The former section prohibits development contrary to the plans i.e. the Master Plan or the Zonal Development Plan or both. The latter prohibits user of land and buildings contrary to the Master Plan or the Zonal Plans or both. So the plans or both. So the plans control the development and use of land and buildings, This is what planned development means. Land can be acquired for development. But development if it is contrary to the plan is unauthorised. For unauthorised development land cannot be acquired. The plans are the guiding stars. They control development. They control land use and building use. They control land acquisition Outside the plan there connot be comuplsory acquisition under the Act. Section 15 confers powers to acquire land for purposes of the Act. This is the power to take private property for public use. This power must be exercised for public exigency. This power must be exercised by authority of law. It is not a confiscatory legistation.

(16) There is another good reason for coming to this conclusion. If the land in question had been shown to be used as a bus terminal in the Draft Zonal Plan published on 10 7.1965 the petitioners would have protested and filed objections to the proposal. The decision of the screening board to acquire the land for a bus terminal was taken at a meeting of the Delhi Development Authority held on 29.4.1969. By the impugned acquisition the Government is in essence shifting the site of the bus terminus or parking space and modifying the plan thereby without following the procedure laid down for modification of the Plan in Section 11-A of the Act. The shifting of the bus terminal from one site to another will constitute an 'important alteration in the character of the plan' and relates to land use and thereforee these modifications and alterations cannot be made without inviting objections and suggestions and without considering them. The procedure adopted by the Government has resulted in denial and deprivation of the rights afforded to the petitioners under the Act. '

(17) There is yet another reason why this acquisition has to bestruck down. The notifications state the public purpose as 'planned development of Delhi. This expression is valgue. It does not convey the specific purpose for which the land is required. It is not clear how a single plot of land measuring only 3466 sq. yards can be said to be required for 'planned development of Delhi. Planning is a general catchword. If a large area is required by the Government for the 'planned development of Delhi' it is understandable. But if a small plot of land is required the expression 'Planned Development of Delhi' will convey nothing to the expropriated owner. He 308 cannot file any meaningful objections. Because the area is large in size, scale and significance. By reason for sheer size it is difficult to express the public purpose more accurately than by using the compendious expression 'planned development' which will include manifold activities that the Government will undertake for the public good. But what is a compendious expression in the case of multitude of owners is meaningless when used with reference to a single owner owning a small plot of land. Acquisition means taking private property for public use. But this is not an unfettered power. It is caged, cabined and confined. Public purpose is the essential condition. The citizen must know why he is being deprived of his property. So public purpose must be clearly stated. The plan is the embodiment of public purpose. The petitioners' land is required for development. But development has to be in accordance with the plan. So the validity of acquisition has to be tested on the touchstone of the Plan.

(18) In Aflatoon v. Lt. Governor of Delhi : [1975]1SCR802 the supreme court said:

'INthe case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed.'

(19) In if/a Ram v. Union of India Air 1975 Sc 21 the supreme court said;

'IT is significant that the land covered by the notification is not a small plot but a huge area covering thousand of acres. In such cases it is difficult to insist upon greater precision for specifying the public purpose because it is quite possible that various plots covered by the notification may have to be utilised for different purposes set out in the interim General Plan.'

(20) The question whether the purpose specified in a notification tinder section 4 is sufficient to enable objections to be filed under section 5-A would depend on the facts and circumstances of each case. But in this case the area of acquisition being a small area it is not difficult to specify the particular public purpose for which this plot of land was needed. If the area need consisted of targe tracts of land, such as 34000 acres, as was the case in some of the cases decided by the supreme court, it may be held that the particular purpose is not easy to state in respect of each plot. (See Lila Ram v. Union of India (supra) of. Munshi Singh v. Union of India, : [1973]1SCR973 ). But it is not so in the present case which is concerned only with a small area of 3466 sq. yards. This case illustrates how the expression 'planned development of Delhi' can be misleading. The taker of the land must be explict. If the purpose is not fixed by the notfication and is stated in such vague and general terms as 'planned development of Delhi, in cases of small plots-the court will find it difficult to uphold the acquisition. More so in a case where, as here, the Zonal Development Plan has not been finally approved and published so far in accordance with section 11 of the Act.

(21) For these reasons the writ petition is allowed. The notification under section 6 of the Land Acquisition Act dated 23.7.1969 published on 7.8.1969 is hereby quashed. The notices issued under section 8 and 9 are likewise held to be illegal and are accordingly quashed. The parties are, however, left to bear their own costs.


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