S.B Wad, J.:— The petitioners have challenged in this petition the Notifications issued by the delhi administration udder sections 4, 6 & 17(1) of the Land Acquisition Acton 6.3.1987 and 10.3.1987 They have also challenged the validity of the entire land acquisition proceedings pursuant to the said Notifications:
2. The petitioners own property No. 6, Ansari Road, Darya Ganj, New Delhi. It measures 5592 sq yards with the built up area of about 47,000 sq. ft. The property is situated on the main Ansari Road at the intersection of Ansari Road with Masjid Ghat abutting the said two main roads Apart from the main buildings on the property, known as Gopal Krishna Bhavan and Radha Krishna Bhavan, there are several godowns, garages, out-houses and allied structures for the proper utilisation of the building. The property is in the main commercial centre of Delhi and was all along being used for commercial purpose, first by the Bharat Bank and then by the American Embassy for running the United States Information Service (USIS).
3. On 27.9.1950 four flats out of the said building were acquisitioned by the Delhi Administration under the Requisitioning and Acquisition of Immovable Property Act, 1952. On 13.3.1959 the remaining building alongwith the garages, warehouses and other structures was requisitioned by the DDA under the said Act The building continued under the requisition till the said Act lapsed on 10 3.1987 On 6.3.1987 the Delhi Administration issued a Notification under Section 4 of the Land Acquisition Act under Section 17(1) of the Act, invoking urgency provisions. The purpose for acquisition mentioned in Notification is “residential use of government servants.” On 10.3.1987 the Delhi Administration issued Notification under Section 6 of the Land Acquisition Act and issued a letter to the Collector to take possession of the property within 15 days. The Delhi Administration thereafter proposed to the petitioners that the building be given on lease and the negotiations continued. The respondents prolonged the negotiations for the lease, only promising that after the Lease Deed was entered into the possession would be handed over to the petitioners The Officers of Delhi Administration continued to stay in the buildings for over 20 months The Delhi Administration suddenly decided to proceed with the land acquisition proceedings after a period of 20 months. At that stage the petitioners filed the present writ petition
4. While issuing the notice the Bench of this Court on 25.11.1988 directed that the possession of the building shall not be taken by the Delhi Administration under Section 17 of the Land Acquisition Act but she acquisition proceedings may go on. Thereafter the Award was rendered by the Land Acquisition Collector fixing Rs. 77,11,230.60 as compensation. The petitioners were ready to accept the compensation without prejudice to their claim for the release of the property and the writ petition, but the Delhi Administration did not make the payment. It also did not offer the payment of 80 percent of the proposed compensation under sub-section 3a of section 17. On 16 8.1990 the petitioners moved CM. 3916/90, claiming further directions for the payment of the said amount of compensation without prejudice to the petitioners claim and also prayed that they be paid damages for the illegal possession of the land by the Delhi Administration after the lapse of Registrationing and Acquisition Act on 10 3.1987
5. The main submissions of the petitioners are that the Notification under Section 4 and under Section 17 did not expressly state the urgency of taking the possession and, therefore, stand vitiaied in law. The petitioners are illegally deprived of their right to raise objections under Section 5A of the Land Acquisition Act. It is also submitted that the Delhi Administration cannot, in law, acquire a commercial building for residential purpose. It is then submitted that the whole exercise of the acquisition of the building under the Land Acquisition Act is a fraud on the powers of the Delhi Administration under the Land Acqusition Act. In reply, the submission of the Delhi Administration is that the building was urgently needed for the residence of its officers. It is also submitted that the building was being used for residential purposes for a long time and it was not correct to say that the building was a commercial building. As for non-payment of amount under sub-section 3 of Section 17, it is stated that steps were have been for securing the sanction for the said amount.
6. Section 17 provides for special powers in case of urgency. The Appropriate Government can direct the Collector to take the possession of the property after expiration of 15 days notice even though no Award is made in cases of urgency. The Division Bench of Bombay High Court in Yesho Nathu v. State of Maharashtra (AIR 1980 Bombay 221) has held that while applying the urgency clause the State should, indeed, act with considerable care and responsibility. The urgency should be such as could not have been foreseen in spite of due care and attention. It was also held that application of urgency clause cannot be a substitute for the laxity on the part of the State Administration in expeditiously initiating acquisition proceedings. Nor can it be invoked to make up for the delay caused only because of the lethargy on the part of the administration.
7. In Dora Phalauli v. State of Punjab (AIR 1979 SC 1594) the Supreme Court has held that the Appropriate Authority must satisfy itself about the urgency of taking immediate possession and also of taking away the right of the owner of the land for filing objections under Section 5A of the Land Acquisition Act. The Supreme Court, therefore, held that the urgency must be clearly spelt out in the Notification urder Section 17 of the Act. In the Notification before the Supreme Court it was not so stated. The Supreme Court held, “Right of a person having interest in the property to file an objection under Section 5-A of the Act should not be interfered with in such a casual or vacalier manner, as has been done in this case.” The Notification was struck down by the Supreme Court. Relying on the said decision of the Supreme Court the D.B of this Court in Dhani Ram & Ors… v. U.O.I…, 1989 DLT Pg. 208, has quashed the Notification under Sections 4 and 17 of the Land Acquisition Act as the urgency of taking possession was not expressly stated in the Notification and what was mentioned was only “Planned Development of Delhi.”
8. In the Notification challenged before us the only thing that is stated is that the property was required for the “residential use of government servants.” There is not a whisper of what was the urgency to take immediate” possession and to deny the right of raising object on to the owner under Section 5-A of the Act. The Notification under sections 4 and 17(1) in the present case, therefore, stand vitiated for non-compliance of the requirement of mentioning urgency in the Notification itself. What is more objectionable is the fact that the building was already in occupation of the officers of Delhi Administration and the Administration knew that the Requisitioning and Acquisition of Immovable Properties Act was to lapse on 10.3.1987 Thus, they had sufficient time to make alternate arrangement for the residence of their officers and there was no urgency whatsoever for invoking the provisions of Section 17(1). The provisions of Section 17(1) cannot be utilised to cover up the laxity or lethargy of the Administration to take appropriate steps in time for making available alternate accommodation for its officers.
9. The Notification under Section 17(1) is also bad in law for noncompliance of the requirement of sub-section 3-A of Section 17 of the Land Acquisition Act. The said Sub-Section mandates the Collector to tender payment of 80 percent of the compensation for the land, as estimated by him, before taking possession of the land. The Delhi Administration has no explanation for this non-compliance with the mandatory provisions except to say that the process of sanction was initiated by them.
10. The counsel for the petitioners is right in his submission that when the Administration knew that the Act was to lapse in March, 1987, not to take any steps for removing its officers to alternate accommodation but to clamp a Notification under Section 17(1) of the Act, without mentioning any urgency in the Notification, is a fraud on the powers. In this connection he has also referred to the averments in para 25 of the petition to the effect that the Adminstration for the lease of the property and the assurance of the Lt. Governor to release the property. These averments are not denied by the Delhi Administration in its counter-affidavit. We also agree with his submission that the acquisition of a commercial property in the highly commercial area of Delhi for residential purposes of the officers is also abuse of powers by the Delhi Administration, vested in them under the Land Acquisition Act and otherwise. The failure of Delhi Administration to offer the payment of 80 percent of the amount of compensation under sub-section 3-A of Section 17 appears to be an ill-advised act to deprive the petitioners of the benefit of the huge amount. In any case it is an act of great lethargy and dereliction causing serious prejudice to the petitioners. There is one more reason why the action of the Delhi Administration is in the nature of a fraud on the powers. In this case the Administration has acted contrary to its well-estabished and published policy of non-acquisition of built up areas. We are every day dealing with the notifications of the Delhi Administration wherein the government lands, lands of religious nature and lands covered by built up areas are exempted from acquisition. It is our experience that even the lands having, built up structures are initially mentioned in the Notification under Section 4, they are dropped from acquisition at the stage of the Award or released from acquisition by a separate order under Section 48 of the Act. No justification has been shown by the administration as to why the said well-established practise of not acquiring the built up land was given a go-by in this particular case.
11. In Express Newspapers Private Limited v. Union of India, AIR 1986 SC 872 (at page 926) the Supreme Court has held that “use of a power for an alien purpose other than the for which the power is conferred is malafide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order.” Such actions would render the impugned act or order ultra vires and it would be a case of fraud on powers. Considering the totality of circumstances in this case, we have no hesitation in holding that the Notifications under Sections 4, 17(1) and 6 and the consequential Award are ultra vires and bad in law and should be quashed.
12. The impugned Notifications under Section 4, read with Section 17(1) and Section 6 and the Award are hereby quashed and set aside. The Delhi Administration is directed to hand-over vacant and peaceful physical possession of the entire building, including garages, warehouses, spaces below the staircases and other open spaces, to the petitioners within one month from today. As we have held that the Notifications in question are illegal and bad in law, the possession of the petitioners property by the Delhi Administration through its officers is illegal and is in the nature of trespass on their property of The Delhi Administration is, therefore, liable to pay damages to the petitioners. The petitioners have submitted that the market value of the property as of today, is around Rs. 20 crores. It is also submitted that the rent charged for the enjoyment of a similar property in this commercial area is not less than Rs. 15 per sq. ft. The petitioners are entitled to damages from 10.3.1987 till the payment.
13. In Assam Sillimanita Limited v. Union of India (AIR 1990 SC 1417) the Supreme Court had appointed an Arbitrator for determining the damages in case of unlawful termination of a lease. Considering the fact that more than three years have elapsed since the Requisitioning and Acquisition of Immovable Property Act has lapsed, it would be more just and appropriate that an Arbitrator is appointed in the present case to determine the damages payable by Delhi Administration instead of making the petitioners run to the Civil Court for that purpose. We appoint Mr. T.V.R Tatachari, former Chief Justice, Delhi High Court, as an Arbitrator who will enter upon the reference within four weeks of the communication of this order to him. He may make the Award within a period of four months thereafter. The Arbitrator will not be obliged to give reasons for his conclusions. The parties will be at liberty to produce their valuers before the Arbitrator for the assessment of damages, if they so desire. The petitioners as well as the Delhi Administration will pay a sum of Rs. 10,000/- each to the Arbitrator as the initial payment towards his fees, A copy of this order he sent to the learned Arbitrator by the Registry.
14. The writ petition is allowed and disposed of with the above terms. Rule is made absolute with costs. Counsel fee Rs. 3,000/-.