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2001 DAILYLAW 1007 (DEL)

PREM SAINI v. LIEUTENANT GOVERNOR

2001-04-26

Vijender Jain, Vuender Jain

body2001
Vijender Jain ( 1 ) THE petitioner purchased 19. 5 Biswas of land in village Ghazipur, Shahdara Zone, Delhi on 6. 6. 1967. The land was acquired by Land Acquisition Collector in the year 1971 by Award No. 27/1970-71 without any notice to the petitioner. ( 2 ) IT is the case of the petitioner that the petitioner came to know about the acquisition of her land when she had to appear before the Addl. District Judge, delhi. The petitioner applied for an alternative plot of land pursuant to the policy of the respondents in the year 1978. The case of the petitioner for allotment of alternative plot was rejected. It is contended by counsel for the petitioner that the case of the petitioner was rejected on the plea that she has purchased land after issuance of notification dated 13. 11. 1959 under Section 4 of the Land Acquisition Act. ( 3 ) LEARNED counsel for the petitioner has contended that the petitioner who is about 70 years of age, from 1981 to 1997 has been representing to various departments of the Govt. of NCT of Delhi. The representations sent to Secretary, Land and Building in the year 1981 was rejected in the year 1982 and thereafter an appeal preferred to the Lt. Governor was also of no consequence as Lt. Governor also referred the matter to the secretary, Land and Building in May, 1995 and ultimately the department of Land and Building rejected the claim of the petitioner vide their letter dated 11. 2. 1997. ( 4 ) MS. MAHAJAN, learned counsel for the petitioner has further contended that on the basis of the award it would be clear that alternative plots have been allotted in case of other persons who were similarly situated as the petitioner and in this regard has invited the attention of this Court to Serial Nos. 29 and 30 at page 35 of the paper-book, whereas Smt. Pritam Rani and Karam chand have been allotted alternative plots and from serial Nos. 42 to 51 at page 36 of the paper-book, all persons have been allotted alternative plots. She has further contended that the respondent has considered the case of one Smt. Pratibha Singh which was identical to the case of the petitioner and her case was settled by the respondent vide their letter No. F. 32 (26)/89 dated 20. 11. 42 to 51 at page 36 of the paper-book, all persons have been allotted alternative plots. She has further contended that the respondent has considered the case of one Smt. Pratibha Singh which was identical to the case of the petitioner and her case was settled by the respondent vide their letter No. F. 32 (26)/89 dated 20. 11. 1991 recommending the allotment of alternative plot of land by the DDA as She was a wife of a former Minister in the Central Government. Another example of I. P. Chaudhary in the writ petition has been made who was an ex-Joint Secretary of Govt. of India. He was also recommended for allotment of alternative plot. Counsel for the petitioner has contended that on the one hand persons who were similarly situated were allotted alternative plots under the same award and thereafter in case of persons who were either related to a minister or enjoyed post in the Government, the alternative plots were allotted, whereas the case of the petitioner has been rejected and the same amounts to hostile discrimination and per se arbitrary and discriminatory. She has further contended that the plea taken by the respondent for rejection of an alternative plot in the case of the petitioner that the land of the petitioner was covered under the notification issued in 1959 under section 4 of the Land Acquisition Act is erroneous. The plea of the respondent that petitioner who purchased the land in the year 1967 is not entitled to an alternative plot is no more res integra in view of the Division Bench judgment of this Court as well as of the Supreme Court. Counsel has cited Smt. Shiv Devi Virlley Vs. Lt. Governor of Delhi and AIR 1987 Delhi 46, a Full Bench decision of this court as well as Udey Raj Giri through mr. Umesh Misra Vs. Union of India and Ors. a Division bench Judgment of this Court in CWP No. 591 and 612 of 1982 decided on 22. 4. 1983. She has further contended that aggrieved by the order passed by the Division Bench in udey Raj s case (supra), the Delhi Government preferred an appeal (Civil Appeal No. 4157 of 1988) in the Supreme court which was dismissed on 5. 9. 1991. ( 5 ) NOTICE of this petition was accepted by counsel for respondent no. 4 on 4. 11. 9. 1991. ( 5 ) NOTICE of this petition was accepted by counsel for respondent no. 4 on 4. 11. 1997 and by counsel for respondents 2 and 3 on 17. 2. 1998. Counter affidavit has not been filed. Therefore, the Court was constrained to issue Rule on 17. 2. 1999. As the petitioner was over 65 years of age, her case was listed on 11. 1. 2001 when this court directed the standing counsel of the NCT of Delhi to apprise the respondent as to why the matter be not heard and disposed of in the absence of respondent having chosen not to file any reply. Mr. Shall then informed the court that subject of land is not under the Govt. of NCT of Delhi and the Land and Building Department have their own panel of advocates. In the interest of Justice, this court granted one opportunity to the respondents closing their right to file counter affidavit and directing the respondent to produce the original record on the next date of hearing. ( 6 ) ON the next date of hearing, Mr. Sanjay Poddar appeared for the respondent-Land and Building Department. The matter was adjourned to 19. 4. 2001. On 19. 4. 2001 when the matter was taken for hearing, Mr. Poddar did not appear nor any. one appeared on-behalf of the respondents. Today is the same position. Nobody is present on behalf of the respondents. ( 7 ) I have given my careful consternations to the arguments advanced by learned counsel for the petitioner. In Smt. Shiv Devi Virlley s case (supra) the Court made following observations : ". . . . IT does not appear to us that there is any impediment in law for the owner of lands to transfer the same merely because a Notification under S. 4 has been issued. No doubt, after the Act of 1972, called the Delhi Land (Restriction on transfer) Act, came into force in the union Territory of Delhi, nobody can transfer the land after the Notification under S. 6 has been issued, except after getting permission under S. 4 of the Delhi lands (Restriction on Transfer) Act. But there is no mention of S. 4 Notification in this Act. But there is no mention of S. 4 Notification in this Act. We do not see how a person who acquires land, after the S. 4 Notification has been issued, can be treated to be a non-owner for the purposes of the Scheme framed in 1961. In fact, there is nothing in the Scheme, which has been reproduced earlier, which shows that it is restricted to owners when the land was notified as being one which the government contemplated to acquire. Something can be said for the argument that after the S. 6 notification the governments decision to acquire the land becomes more or less definite. . . . " ( 8 ) SIMILARLY in Udey Raj Girl s case (supra) similar view was taken by this Court. The appeal of the respondents, Delhi Administration was dismissed by the supreme Court holding as follows : ". . . . . . . WE agree with the view that under the Scheme it was the owner of the land when it was acquired who was entitled to be considered for allotment of land as set out in the relevant decision of the government of India. On the facts and circumstances in the present case, it was the respondent who was the owner of the land at the time when the acquisition was completed and hence, he was entitled to be considered for allotment as per the policy embodied in the said Scheme reflected in the decision of the Government of India. In our view, there is no substance in the appeal and it is dismissed with costs. " ( 9 ) THE petitioner has stated in the writ petition that the cases of Pratibha Singh and I. P. Chaudhary were in similar circumstances and both these persons were recommended for allotment of alternative plots. The respondent has chosen not to file any counter affidavit nor to produce any record wherein a citizen has alleged hostile discrimination while dealing his case in comparison to others whose cases have been considered for allotment of alternative plots. The respondent has chosen not to file any counter affidavit nor to produce any record wherein a citizen has alleged hostile discrimination while dealing his case in comparison to others whose cases have been considered for allotment of alternative plots. ( 10 ) I allow the writ petition and issue a writ of mandamus to Secretary, Land and Building Department, government of NCT to recommend the case of the petitioner for allotment of an alternative plot to the DDA within a period of four weeks and after receiving such recommendation, the DDA will allot the alternative plot to the petitioner within a period of three months in the same area which was allotted in the case of Pratibha singh and I. P. Chaudhary. ( 11 ) PETITION is allowed. Rule is made absolute.