UNION OF INDIA versus SH. GANSHYAM DASS KEDIA AND ORS.

We have heard the counsel for the parties. The mam 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 AcquisJ'tion 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 tbe High Court is legal and correct. lnAjlatoon & Ors. v. Lt. Governor of Delhi & Ors., [1975) 1 SCR 802, tbe Constitution Bench of this Court had upheld the exercise of power under s.17( 4) dispensing tbe enquiry under s5-A. It was for planned development of Delhi which would take long time for development. Yet tbis court upheld tbe exercise of the power of urgency .. It is subjective satisfaction of tbe Government based on tbe material on record. The High Co~i is not a court of appeal over subjective satisfaction and tbe opinion of tbe Government is entitled to great weight. Therefore, it cannot be said that tbe notification should specifically recite the nature of tbe urgency. It is enough,. if tbe record discloses tbe consideration by the Government on urgency for taking action under ss.1151) and (2).

pp. 625–626, margin F

However, this conclusion does not solve the problem in tbis case. It is seen that tbe employer of tbe respondents had obtained sanction from tbe Delhi Municipal Corporation as early as in 1951. A plan tbereof has . been annexed in the paper book as annexure to tbe Additional Affidavit filed by Laxman Prasad Mittal It is an admitted fact that tbe plan has not so far seen tbe light of tbe day except production for the first time in tbis Court. No application under Order 41Rule27 CPC was filed. So it cannot be received in evidence. Be it as it may, it is not in dispute that abent 3 acres of land was earmarked by tbe Birla Cotton, Spinnin& am Weaving Mill for tbe construction of tbe staff quarters. The Mill has become disused but tbe respondenis had purchased under registered sale deeds from tbeir employer certain extents of land and most of tbem had 330 sq. yds. Some of tbem purchased in excess also. It is seen that tbey purchased tbese lands for residential purpose long prior to tbe notification and master plan..

p. 626, margin C

This Court on November 9, 1995, issued direction as stated hereunder:

p. 626, margin F

'It transpires that the respondents are now retired. employees of tbe Birla Cotton Spinning and Weaving Mills Ud. and tbey needed tbese sites for residential construction. When we requested Shri Saharya, learned counsel for the DDA to show us the localisation . of tbe land in the existing zonal plan, counsel is handicapped for not having tbe details. He sought for and is granted two weeks, time to produce tbe zonal plan. Witb tbe 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 purchase. 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

pp. 626–627, margin F

needful." Shri V.B. Sahariya, the learned counsel appearing for the DOA, has placed before us additional affidavit of P.C. Jain, Additional Commissioner (Area Planning) DOA, 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 !:ad purchased. In the Area Plan, Annexure-2, the land is reserve.<! for inst;~.itional 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 ll)iddle of the area reserved for institution (Education & Research). It is stated in Annexure I that on the eastern side, Azad Apartments 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.

p. 627, margin B

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 a part of the residential purpose which is adjacent to already existing residential apartment. The appropriate Government would suitably consider withdrawal from acquisition to the above extent only and allow use for residential purpose. They would take proper steps to release that part to 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.

pp. 627–628, margin F

The appeal is accordingly allowed to the above extent. The direction for release of the land should not be treated as a precedent in another case. It would be confined to the special facts in this case. No costs. V.M. Appeals partly allowed.

p. 628, margin A