Swatanter Kumar, J.— On 8th May, 2002 the petitioner filed the present petition praying that the notification number F.10 (30) 96.L7B/LA/13417 dated 13th December, 2000 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) and notification/declaration dated 7th December, 2001 under Section 6 of the Act in respect of khasra numbers 5/21, 6/24, 6/25, 6/26, 11/4, 11/5, 12/1 and 12/2 measuring 21 bighas 08 biswas situated in the revenue estate of village Pochan Pur, Tehsil Mehrauli, Delhi, were issued in abuse and excess of authority and also were violative of the rights of the petitioners under Article 14, 26, 300A of the Constitution of India. The ground taken for impugning the said notifications is that notifications are illegal, mala fide and unconstitutional. Further, the petitioners pray that the entire acquisition proceedings be set aside in relation to the land which is stated to be in possession of the petitioners.
2. Large chunks of lands in different villages were acquired by the notification under Section 4 of the Act for a public purpose, namely for Planned Development of Dwarka, Phase-II, Delhi under the Planned Development of Delhi. The land of the petitioner in the revenue estate of village Pochan Pur was also part of the same notification. The petitioners had filed detailed objections to the notifications under Section 5A of the Act, which was considered by the authorities and declaration under Section 6 was issued by the competent authority with a direction to the Land Acquisition Collector under Section 7 of the Act, Delhi, to take orders for acquisition of the land in accordance with law. On 21st April, 2002 notification under Section 17(1) of the Act was issued and the petitioners made representation to the respondents for denotification of the land on 14th April, 2002. The reliance by the petitioners was also placed on the policy guidelines for the denotification for land, stated to have been issued by the Secretary, Revenue (Land) on 2nd December, 1998 for this purpose. Copy of this representation is annexed to the writ petition as Annexure E. In terms of the notification dated 21st March, 2002, regarding the lands covered under the notification issued under Section 4 of the Act, the authorities were directed to take possession of those lands in terms of provisions of Section 17(1) of the Act for an emergent purpose i.e ‘Planned Development of Dwarka Complex’. As the petitioners were expecting serious threat of dispossession they filed this petition questioning the legality, correctness and proprietary of the two notifications afore-referred.
3. When the writ petition came up for hearing before the Division Bench of this Court on 27th May, 2002, the Bench passed the following order:—
“Mr. Sanjay Jain appearing for the UOI, Ministry of Urban Development & Poverty Alleviation (Delhi Division) says that the Lt. Governor has rejected the question of denotification of the land in question. The rejection has been primarily on the grounds that land affects the road alignment and connectivity between Dwarka Phase I and II; land is acquired for public purpose and for construction of flats since 1979. Copy of the letter produced by Mr. Sanjay Jain, Standing Counsel for UOI is taken on reocrd.
List the matter on 7th August, 2002.”
4. On the adjourned date of 7th August, 2002, in all probability, there was no challenge to the notifications issued under Section 4 and 6 of the Act, but the petitioners vehemently wanted to pursue their representation before the authorities for denotification of the land in question. On 7th August, 2002, the Court passed the following order:—
“On the last date, learned counsel for respondent had brought to the notice of the Court a letter dated 23.5.2002 from the Desk Officer addressed to the counsel conveying decision of DDA on the petitioner's prayer for denotifying the land. He has today handed over to us another letter, which was written by DDA to the Ministry of Urban Development and Poverty Alleviation (DD), Nirman Bhawan, New Delhi, on the basis of which letter dated 23.5.2002 was written. In the said letter, some suggestions of DDA for alternative site has also been given.
Our attention has been drawn by learned Counsel for the petitioner to the Policy Guidelines on denotification of land. Under the said Policy, there is a committee called De-notification Committee comprising four members. After the matter is examined by the committee its proposal is submitted to the Lieutenant Governor for acceptance. De-notification according to the policy is done on the guidelines. The petitioner has alleged that on 14.4.2002 representation Annexure ‘E’ was submitted to the Lieutenant Governor praying for denotifying the land belonging to petitioner's society. It appears that decision has not yet been taken on the said representation. As such before proceeding further the only direction which need be given to the second respondent is to have the representation Annexure ‘E’ placed before the “Denotification Committee”. The Committee will duly consider the petitioner's representation in the light of the Policy guidelines and if considered appropriate after hearing the petitioner's representative. The Committee will forward its recommendation to the Lieutenant Governor for consideration. Decision if any will be brought on the record of this petition before the next date Suggestions contained in letter of DDA dated 20.5.2002 to the Ministry of Urban Development and Poverty Alleviation will also be taken into consideration by the Committee for which purpose petitioner's representative and representative of DDA be also heard on allotment of land preferably in Dwarka itself within the prescribed norms for such uses and purposes. The Committee will also examine this aspect before conveying its recommendations.
In the meanwhile, it is directed that status quo as regards possession, will continue to be maintained by the parties and we make it clear the mere fact that status quo has been directed to be maintained, the petitiner will not claim any equity on that score.
List on 11.11.2002
A copy of this order be given dasti to the learned counsel for the parties, under the signatures of the Court Master, on usual terms.”
5. Again on 11th November, 2002 while directing the respondents to comply with the order of the Court, the Court passed the following order:—
“It appears that the order dated 7th August, 2002 has not been complied with till date.
We direct that the matter will be duly considered by the De-notification committee in the light of the Policy guidelines and, if considered appropriate, after hearing the petitioner's representatives. A meeting will be duly arranged within four weeks from today after due notice to the petitioner's representatives. Decision taken by the committee will be forwarded by the Lt. Governor for due consideration to pass appropriate order within a period of four weeks thereafter.
List on 29th January, 2003.
Interim order to continue.
Copy of the order be given dasti under the signature of the Court master to the learned counsel for parties.”
6. The Denotification Committee recorded its minutes on 7th November, 2002 and by a detailed report and visit of site, rejected the request for denotification and observed that the petitioners be advised to approach the DDA for allotment of land in the institutional area. After receiving the said minutes-cum-order, the petitioner filed an additional affidavit on 18th March, 2004 raising the challenge to the decision of the Committee on various grounds. The parties thereafter filed additional affidavits, counter affidavits and serious contentions were raised by the petitioners for challenging the decision of the Committee rejecting the request of the petitioners for denotification of the land in question. It will be appropriate to specifically note here that proceedings in the case, right from 27th May, 2002 have been directed before the Court on the plea and arguments of denotification. The learned Counsel appearing for the petitioners, upon instructions of their clients, also submitted that there is no challenge by the petitioners to the notification issued under Section 4 and 6 of the Act, but the writ petition of the petitioners should be treated as challenge to the order of denotification passed by the Denotification Committee in light of the earlier orders passed by the Court in this petition. Consequently, we would proceed to discuss the challenge raised by the petitioners to the order of denotification made by the Committee dated 7th November, 2002.
7. The legality, correctness and even proprietary of the order rejecting the request of the petitioner for denotification dated 7th November, 2002 is vehemently challenged by the petitioners on the following grounds:—
(a) As per the DDA Plan of 1995 the road in question would not in any case pass through the land belonging to, and in possession of the petitioners. These plans were in force upto 2000 and as such before the Committee no plans with any variations would be legal and in existence. The respondents have changed the alignment of the road malafidely and the road now (constructed till boundary wall of the petitioners) would pass through the land of the petitioners.
(b) The change in plans, if any, is malafide and is intended to prejudice the request of the petitioners for denotification. Such plans could not be relied upon by the Denotification Committee.
(c) The order of the Denotification Committee dated 7th November, 2002 has no force of law in as much as the same was not placed before the Lt. Governor, the competent authority for that purpose, and even in terms of the orders of the Court. As such there is no order, valid and proper, of rejecting the request of the petitioners for denotification in the eyes of law.
(d) The impugned order is violative of principles of natural justice as no hearing was granted to the petitioners and in any case, there is no application of mind by the authorities in passing the order.
(e) The Denotification Committee which considered the request of the petitioner for denotification of their land was not properly constituted in terms of the order passed by the appropriate government and as such the consideration itself, by an illegally constituted committee, would be bad in law and inconsequential.
8. We would first deal with the last contention raised by the petitioners before us. It is contended on behalf of the petitioners that in terms of the Policy Guidelines ‘for denotification of land’ under clause 2.1 A ‘the Denotification Committee’ was constituted with the following persons:—
“1. Secretary (Land) - Chairman 2. Secretary to Lt. Governor - Member 3. Commissioner (Land Acquisition) DDA - Member 4. Dy. Commissioner (concerned) - Member”
9. However, the Denotification Committee which conducted the proceedings and rejected the request of the petitioners for denotification, had Commissioner (Land and Management) in place of Commissioner, (Land Acquisition, DDA) and OSD to Lt. Governor in place of Secretary to the Lt. Governor, as members of the Committee. According to the petitioners this was not the proper constitution of Committee and any matter considered by an illegally constituted committee would vitiate the order in its entirety. We are unable to find any merit in this contention, legal and even factual. These are not committees constituted under a statute but are administrative guidelines prepared by the competent authority who in order to enable him to exercise his powers under Section 48 of the Act, devised a particular procedure for arriving at a final conclusion. Once there are no statutory rules, the guidelines can control the field effectively. These guidelines are administrative guidelines in their nature and application, and merely because the Officer, though of the equal rank but of a different designation, has participated in the Committee, the recommendations of which are subject to the final approval of the competent authority, in our opinion, would not vitiate the order. As the argument of the petitioners is not even factually correct we do not consider it necessary for us to deliberate on this issue any further. During the course of hearing, we were informed and which can hardly be disputed, that in the DDA there is no post of Commissioner (Land Acquisition), and it is the Commissioner, (Land Management), who perform all these functions under the provisions of the policy and the Act. If the designation in the Delhi Development Authority is that of the Commissioner (Land Management) then his participation in the Denotification Committee as a representative of the DDA would in no way adversely affect its proceedings. Furthermore, the Lt. Governor vide his order dated 26th September, 2000 had directed “that henceforth OSD for the Lt. Governor may be nominated as a member of the said committee in place of Secretary to L.G”. This direction related to the Denotification Committee. In light of this factual aspect of the matter, the contention of the petitioners is required to be noticed only for being rejected.
Point (a) to (d) can be discussed.
10. The first and the foremost point that requires consideration of these contentions is whether the order dated 7th November, 2002 has been passed by the appropriate committee and whether it has approval of the competent authority or not, in accordance with law. The minutes of the Denotification Committee has been placed on record of the file by the petitioners. The Denotification Committee constituted in terms of the order of the Lt. Governor had dealt with the matter at great length, had visited the site and then the unanimous opinion of the Committee was recorded as under:—
“The Committee, based on the facts mentioned above in previous paras, is of the opinion that the application for Denotification should be rejected. The applicant may be advised to approach DDA for allotment of land in institutional area. DDA may also be advised to consider their case sympathetically.
(Sh. U.S Jolly) Commissioner(LM) DDA (Sh. Alok Swarup) OSD to L.G Dy. Commissioner(South-West) on leave (Sh. S.S Kanawat)ADM (Prakash Kumar) Secretary (Land & Building)”
11. This opinion of the Committee according to the petitioner is of no consequence in as much as it was never placed for approval or consideration of the Lt. Governor. The decision was served upon the petitioners on 8th November, 2002. During the course of hearing, original records were produced which were examined by the Court. The report of the Committee was submitted by the Secretary (Land) on 7th November, 2002 for approval/consideration of the Lt. Governor by recording a specific note to the effect that petitioners were called and heard by the Committee and appropriate authority has to take the decision. It was also mentioned on the file that the present writ petition was coming up for hearing before the Court on 11th November, 2002. On 7th November, 2002 the Lt. Governor made a note in his hand-writing “as recommended by the Committee”. The only conclusion that reasonably can be drawn from the records produced before us is that the report of the Committee was put up before the Lt. Governor for his consideration on 7th November, 2002 and on the same day it was approved by the Lt. Governor keeping in view the fact that this case was coming up for hearing before the Court on 11th November, 2002. Admittedly, the decision of the Committee, as approved by the Lt. Governor, was conveyed to the petitioners on 8th November, 2002. In view of these facts, we are unable to accept the contention of the petitioners that there is non-application of mind by the Lt. Governor in passing the order and approving the minutes of the Committee.
12. Coming to the report of the Committee it is a detailed report prepared by the Denotification Committee wherein it is recorded that the Committee visited the site, heard the petitioners, had taken figures and photographs upon the physical inspection of the site. The committee in furtherance to the order of the Court dated 7th August, 2002 had held a meeting on 23rd October, 2002 and decided to visit the spot to see for itself the position prevailing at the site. On 26th October, 2002 when they visited the site, Sh. Sandeep Sood, Sh. Joginder Singh and other members of Radhasoami Satsang Beas were present during the inspection. The lay out which was attached to the report as Annexure 1 gave the alignment of the major roads connecting Dwarka Phase-I with Dwarka Phase-II, as well as plot of the petitioners. The committee also considered at some length, the objections of the respondents that the property was being used for a public purpose i.e for religious purpose and for running a dispensary etc. and as such could easily be denotified. The Committee in its report dealt with this contention as under:—
“The structure is an open shed built on steel pillars with corrugated sheets on the top. The same is used for congregation on two days in a week fro few hours, as per applicant. When asked as to why permission was not tkane before constructing the structure, the committee was told that it was not done as the structure was constructed for keeping tractors and far produce…..
… The use to which the structure is being put to is two fold, one for congregation ‘sabha’ and ‘pravachan’) and the other for keeping tractors and agricultural implements. The applicant has quoted rulings of Hon'ble High Court on religious structures. One has to make the distinction between a structure which is in existence for years and the other, which is perhaps purposefully taken up and put to such use to take advantage of under the guidelines. (The one room part time charitable dispensary and one room reading room in this case and the shed for congregation are examples of the same). Keeping in view the use to which the structure is being put to, the same can be easily shifted to some other location in near vicinity so that it can continue to serve the people of the nearby areas, reportedly being served now. Allotment of alternate land in Dwarka city area is one of the prayers of the applicant society, which could be considered by DDA.
The applicant has also mentioned in its supplementary application that the oil pipeline passes under the land of the applicant on which no construction is allowed. Since they are using the land as open place for agricultural purposes and congregation purposes, they should be allowed to be there and the land be denotified. This position was checked on the ground. The oil pipeline is outside the boundary of the plot of land and the contention of the applicant was not found correct to this extent. The applicant has filed letter dated 26.4.99 signed by Line Patrolman of IOC which mentions that in the ROW (Right of Way) no construction should be made. Even construction of boundary wall, planting trees and digging are prohibited. It is pertinent to mention here that the applicant has constructed boundary wall along the pipeline. To ensure that pipeline is not damaged there are engineering solutions (like bridge culvert etc.) for constructing road over it. If the contention of applicant is true then no road can be constructed crossing any oil pipeline, which is certainly not the case.”
13. Delhi Development Authority had even stated its stand before the Committee and before us that the land in question in Village Pochan Pur, which is an integral part of the Dwarka Phase-II, was needed for making a road/road alignment, which is the connecting road of Dwarka Phase-I and Phase-II and the request of the petitioner could not be accepted by them as well. It is stated that the land affected the road alignment and connectivity between the two phases. Major part of the road has already been constructed and it is further held up in Dwarka Phase-II at the boundary wall of the petitioners. This was considered to be an urgent purpose by the authority as large number of allottees of DDA flats and plots were waiting for allotment and depending upon the development of the area in question. From the maps filed on record by both the parties it is evident that the areas surrounding the land in dispute have already been developed and the connectivity of the roads majorly depend upon the construction of this main road, which connects Dwarka Phase-I and Dwarka Phase-II. The public purpose for which the land has been acquired is in the larger interest of the public and is a continuing object of Planned Development of Delhi including providing of residential accommodation to the public at large in Delhi.
14. The petitioners seriously contended that the joint survey in terms of the order of the Court was not conducted by the respondents and as such the very purpose of determining the need for acquisition of the land as well as the alignment of the road were not dealt with objectively by the Committee. According to the petitioners on 7th November, 2002 it was decided in the meeting that a joint survey of the land in question be conducted on the next date. However, instead of conducting a joint survey on the next date, the Denotification Committee gave its recommendations and as such there is violation of principles of natural justice as well as the Court orders. There was no direction in the earlier orders of the Court requiring the parties of the Denotification Committee to conduct a joint survey, however, in the order dated 3rd November, 2004 the Court had directed the joint survey of the subject land on 1st December, 2004 at 11.00 a.m where the parties were directed to remain present at the site. The parties were present at the site for carrying out the direction of the Court and on 7th December, 2004, the Committee noticed that the representatives of the Radhasoami Satsang Beas were basing the dimensions for demarcation of the road under reference on the earlier conceptual plan prepared by the DDA, prior to the acquisition (without any physical survey) and which was for internal office use only and not for execution. In view of this the joint survey could not be carried out despite the fact that the petitioners were informed that the dimensions have to be taken as per approved sector plan of Sector-19, Phase-II and the petitioners would have to surrender the possession of the land. There are different maps placed before us by the authorities. It is the case of the DDA that there has been no change in the alignment of the road. The maps which have been placed on record show that the connectivity of this road to pass through part of the land of the petitioners. It is for the specialised bodies to decide the utility of the area and alignment of the roads and the various facets of development. Such decisions of the authorities would hardly be open to judicial review unless and until they were patently so arbitrary and discriminatory, that the decisions of the authorities would ex facie be perverse. In the maps filed by the respondents as annexure R1/3 to their affidavit it has been shown that the area has been developed and the 60 meter wide road, which is the connecting road to the two phases, would pass through the part of the land of the petitioners and presently the road is blocked at the boundary wall of the petitioners. The plans put on record by the petitioner is of the year 1995 which according to the respondents is only an office plan and it was never intended to give effect to the said plan. Even as per the petitioner the plans were changed in the year 2002 and till 2000 the same planned was treated to be the correct plan in relation to the development of different sectors of Dwarka. It is a settled principle of law that the plans could be modified or changed by the authorities in accordance with law in the larger public interest. It is not always true to say that the appropriate government would be bound by the initial plans, irrespective of the fact that there is a need for amending or modifying the plans for greater need of the society. The plans can be subjected to appropriate changes and such an act would not make the action of the respondents as arbitrary or malafide.
15. The provisions of section 48 vests discretion in the Government granting it liberty to withdraw from the acquisition of any land of which possession has not been taken. This liberty to the Government is with an exception postulated under Section 36 of the Act. The provisions of section 48 also provides a safeguard to an owner, which the owner might have suffered as a consequence of the notice or any proceedings under the Act, but certainly there is no legal right vested in the owner of the land to compel the government to denotify the land under the provisions of this Section. The Government is expected to act fairly and the scope of Section 48 cannot be placed at parity with the quasi-judicial functions, as the plain language of the Section suggests that it is an administrative power which may be exercised by the State in consonance with the settled cannons of administrative jurisprudence. Every action of the State essentially must be fair, free of discrimination and be supported by reasons. There is a fine line of distinction between the administrative or quasi-judicial functions and such fine distinction does not, in any way, eliminate or dispense the concept of proper application of mind to such decision-making. We are much concerned in the present case with the scope of judicial review of exercise of administrative power by the appropriate government under Section 48 of the Act. In exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, the court does not sit as an appellate forum over the administrative decision taken by the State. In order to bring such decision of the State within the ambit of High Court's jurisdiction requiring interference, the decision has to be perverse or such that no reasonable person exercising his powers justly and fairly, could arrive at that conclusion.
Merely because on the facts disclosed in the record, there was possibility of taking another view, would be no reason for the High Court to interfere in exercise of such discretion. Another pertinent class of cases which would fall in such categories would be where there is violation of principles of natural justice and such violation has caused prejudice to the petitioners. The High Court would have to interfere in such decisions or the process leading to such decisions with some circumscribed and accepted norms of limitations for exercise of such powers. The Court cannot ignore the fact that after issuance of notification under Section 4 of the Act, owner has a right to file objections under Section 5A of the Act, the merit of which and need for exclusion of the land from acquisition is considered by the appropriate government and then alone declaration under Section 6 of the Act is notified. Again the notice is given to the owner as contemplated under Section 9 and 10 of the Act. The appropriate Government having applied its mind to all facets of acquisition then finally makes an award and directs payment of compensation and possession of the acquired land to be taken by the concerned authority. In this scheme of the Act, the provisions of Section 48 are not intended to vest any right in the owner for denotification of his land. It primarily indicates legislative intent of exception to the Rule of taking possession of the land which has been acquired. Grant of liberty to the appropriate government should be understood in its correct perspective and its substitution by a vested right in the owner for release of the land from acquisition would be patent misconstruction of the provisions. Thus, the jurisdiction of the Court to interfere in this administrative exercise of power by the authorities falls within a very narrow and limited compass. The nature of power and the manner of its expression in the statute, under Section 48 vests the authorities with a great degree of latitude and circumstantial flexibility.
Hence whenever judicial review under Article 226 is invoked vis-a-vis the exercise or refusal to exercise such power, the Court needs to be mindful of this flexibility, and also that the appropriate government has completed various stages of acquisition. Those stages comprehend the decision that the lands are required for one or the other defined public purpose. In other words, judicial review in this realm-where issues of withdrawal from acquisition under Section 48 are concerned-rarely if ever deal with the issues of legality of the decision; they are confined to whether the exercise of power is bona fide, arrived at after consideration and application of mind to the relevant factors.
16. In the case of Nasik Municipal Corporation v. Harbans Lal (1997) 4 Supreme Court Cases 1999, the government could issue corrigendum on representation by the Corporation and the public purpose becomes conclusive on publication of declaration under Section 6 and the scheme under the Town Planning Act, would be deemed to be suitably varied by acquisition and it is not necessary for the authorities to follow the procedure for amendment under the Town Planning Act.
17. Still, in another judgment in Chandragauda Ramgonda Patin and Anr. v. State of Maharashtra and Ors. (1996) 6 Supreme Court Cases 405, their Lordships of the Supreme Court clearly enunciated the principle “It is axiomatic that the land acquired for a public purpose would be utilised for any other public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remained unutilised should be restituted to the erstwhile owner, to whom adequate compensation was paid according to the market values as on the date of the notification” (emphasis applied by us).
18. In the case of Union of India & Ors. v. Jaswant Raj Kochhar and Ors. (1996) 3 Supreme Court Cases 491, the land was acquired for public purpose of housing scheme but was sought to be used for commercial purpose namely District Centre, and it was held to be a proper public purpose and the Supreme Court held as under:—
“It is a well settled law that the land sought to be acquired for public purpose may be used for another public purpose. Therefore, when the notification has mentioned that the land is sought to be acquired for housing scheme but it is sought to be used for District Centre, the public purpose does not cease to be public purpose and the nomenclature mentioned in the notification under Section 4 (1) as housing scheme cannot be construed to be a colourable one. The notification under Section 4 (1) could no have been quashed on the ground that the land is sought to be used for District Centre, namely, for commercial purpose.”
19. This view has been consistently followed by the Supreme Court with approval in its subsequent judgments. In more recent judgments in the case of Northern Indian Glass Industries v. Jaswant Singh and Ors. (2003) 1 Supreme Court Cases 335, the Supreme Court while completely denying any right of the land owners to press their relief for denotification on the land because admittedly, there was change in public purpose for which the land was acquired initially and was being put to another use, the Court held as under:—
“The High Court was also not right in ordering restoration of land to the respondents on the ground that the land acquired was not used for which it had been acquired. It is undeniable that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the landowner does not get any right to ask for revesting the land in him to ask for restitution of possession.
If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. The State Government in this regard has already initiated proceedings for resumption of the land. It is concluded that there arises no question of any unjust enrichment to the appellant Company.”
20. The change in public purpose is not an unknown concept applicable to acquisition proceedings under the Act. Not only minor deviations but even major change in user or planned development of any area in the larger public interest is permissible. In the case of Bhagat Singh v. State of Uttar Pradesh 1999 (2) Supreme Court 384, the Supreme Court accepted the principle that even change of user in the master/zonal plan was permissible after taking necessary sanctions etc. The Court held as under:—
“There is no rule that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. Acquisition for a public purpose and obtaining permission from the competent authority under the Development Act concerned for change of land use are different from one another and the former is no dependent upon the latter.”
21. Applying the above principle to the present case, even if for the sake of arguments, we accept the arguments of the petitioners that there was deviation in the alignment of the road and it has prejudiced the interest of the petitioner, the same would still have to be rejected. There is pipeline near the road and technical experts who are the best judges of the entire development project have decided to lay the road as shown in the maps placed on record. We are unable to appreciate the contention that this action of the respondents is malafide.
22. In the present case, the Denotification Committee has given detailed reasons for rejecting the request of the petitioners for exclusion of their land from acquisition. As already noticed, recommendations were approved by the Lt. Governor. Apparently, the petitioners were present on the site during inspection, on different occasions. They filed detailed representation before the authorities, which was considered by the Committee in great detail. The joint survey could not be conducted because there was conflict between the petitioners and officials in regard to the plans which could be looked into for proper demarcation of the land. According to the DDA, the plan of 1995 was never given effect to and plan of 2000 and 2002 were the detailed plans which were issued prior to the issuance of notification under Section 4 and/or immediately thereafter to show the complete layout of the development plan of Dwarka Phase-II. The plans, in any case, could be modified or altered by the authorities in accordance with law and there cannot be an absolute rule to say that the DDA cannot deviate from its plans in accordance with law and in the larger interest of the public. The case of the DDA before us is that there is no change in the sanction plan and right from the year 2000, the alignment of the road is same as depicted in the plans produced before the Court including annexure R1/3. These plans indicate the complete development of the area that is Dwarka, Phase-II, and show the alignment of the road in question, which is a connecting road to Dwarka Phase-I passing through the land of the petitioners. In fact, it is clear from the map as well as the photographs placed on record that road has already been constructed till the boundary wall raised by the petitioners. In the affidavit/additional affidavit filed, it has nowhere been reflected that what prejudice the petitioners have suffered as a non-preparation of joint survey report in the circumstances of the case.
23. The Committee itself had visited the spot and had seen the alignment of the road as per the development plans. It is not for this Court to get into factual controversies in this regard, any further. Even if for the sake of arguments, we assume that there has been change in the plans, and alignment of the road has been altered, such an act of the authorities would not suffer per se for the element of legal and/or factual malafides. There are no factual malafides pleaded in the petition and to establish a case of factual malafides there has to be definite averments supported by proper documents and onus to satisfy the Court in this regard is open to the petitioners. The Denotification Committee has performed its functions in normal course of its business and has arrived at a finding. The Committee is constituted of experts and officials who are familiar with the ground realities and they have formed an opinion which is certainly not perverse. The authorities can change or modify the plans keeping in view the development of the area and larger public interest. It may not be necessary for the authorities to finalise their development plans prior to the issuance of the notifications but its right to alter the same in accordance with law cannot be taken away. At this stage, we may refer to a judgment of a Division Bench of this Court in the case of Vasant Kunj Enclave Housing Welfare Society v. Union of India & Ors. in W.P(C) No. 4789/1995 decided on March 03, 2005, where the Court held as under:—
“40. It is true that once the acquisition is upheld, the Government has to make every effort to utilise land for the purpose for which it was acquired. The utilisation of the land can be in a manner which the Government may finalise in terms of the notification even at a subsequent stage. The Delhi Development Authority Act itself postulates grant of permission by the competent authority in relation to change in user as well as the manner of development and as such it will be unfair to pre-determine the issue in that regard at a stage prior to issuance of notification under Section 4, in all events and to bind the State by the same, leaving any leverage for the planned development or amended planned development of Delhi. In this regard reference can be made to the judgment of the Supreme Court in the case of Bhagat Singh (supra), where the court held as under:—
“As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquistion be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon case 9 (1998) 6 SCC 1 it is clear that acquisition for a public purpose and obtaining permission from the competent authority under the Development Act concerned for change of land use are different from one another and the former is not dependent upon the latter
24. In the modern times the Planned Development of Delhi is a very complex project and alterations or modifications in the plans for the purpose for which the land is acquired initially, would be somewhat a necessary event. It may not be very fair to unnecessarily circumvent such administrative power of the State, of course it essentially should be exercised free of arbitrariness and malafides. colourable exercise of power in any case would render the administrative decision liable for interference by the Courts in exercise of its power of judicial review. The petitioner must specifically plead grounds of malafides or arbitrariness with some supporting material to show that the power was being exercised by the authorities malafide and not in larger public interest. Private interest should tilt in favour of the public interest and merely because there is certain divergence in the development plans which have been made in accordance with law, would no way call for judicial intervention. In the present case, there is a specific pleading on behalf of the Delhi Development Authority that they have not made any changes in the alignment of the road and the plans which were prepared immediately prior to the issuance of the notification in the year 2000 have been further explained by drawing plans for development of the area. Even, if there is some change, we are unable to sustain the objection raised on behalf of the petitioners that the same is malafide and arbitrary. It is apparent from the record that the plan in question is part of the bigger development project which relates to all phases of Dwarka including phase I and II for which the road in question is a connecting road. Such administrative decisions are subject to judicial review which has a very limited scope. A Division Bench of this Court in the case of Delhi Auto and General Finance v. Union of India & Ors. in W.P(C) No. 3879/2003 decided on March 04, 2005 while dealing with a case of somewhat similar nature where the petitioner had prayed for issuance of appropriate direction to the respondent for giving effect to their policy and release the lands of the petitioner from acquisition proceedings held as under:—
“The facts of this case show that there was intimation to the petitioner merely about the direction. The existence of such a direction cannot be denied. Yet, that direction, in our view, does not clothe the petitioner with a right. The direction was in furtherance of a power for efficient administration of the Act. This implied that the authorities, including the DDA were to primarily keep that objective, and the overall purpose of the enactment, while giving effect to it. There is no quarrel with theg proposition that a superior authority's orders have to be carried out by an authority subordinate to it. Yet, as long as there is no bar, the subordinate authority can engage in correspondence with the superior authority for a second look, or review of that decision, if it is felt that the decision would not sub-serve the policy, i.e the enactment in question. That is precisely what happened, here.”
25. In this very case, the Division Bench discussed the scope of administration, change in policy and consequently legitimate expectation of the owner of a land. Obviously, the objections of the petitioner must have been considered by the authorities in accordance with law. Re-agitating the same, issue would be of no consequence, and particularly in the light of the Division Bench judgment of this court in the case of Ramjas Foundation v. Union of India & Ors., 2004 (73) DRJ 128 : 110 (2004) Delhi Law Times 10 (DB) where the Court discussed the limited scope of denotification proceedings and interference by the Court. The court held as under:—
“Rejection of an application under Section 48(1) of the Act would mean that the need and public purpose, both continue to operate. In absence of proved malafide can a decision of Lt. Governor be challenged, more particularly by a speaking order while rejecting the application, it is pointed out that the land is required for development and before the Court beneficiary has pointed out to put the land to use for development strictly according to Master Plan.
Aforesaid aspect we have referred with a view to indicate that on the basis of the material placed before the competent authority, which on examination of the record arrived at a satisfaction that the land is needed for a public purpose. Then is it open on mere ipse dixit to ask the Government to exercise the power under Section 48(1) of the Act to de-notify the land from acquisition? One should note that this Court is not required to sit as an appellate Court to examine the decision rendered by the Lt. Governor. Power under Article 226 of the Constitution are required to be exercised in furtherance of interest of justice. The Lt. Governor while passing an order was required to apply his mind to all relevant aspects and was not required to be swayed away by irrelevant aspects. The Lt. Governor has arrived at a conclusion which cannot be said to be perverse. On the basis of the material on record, when the Lt. Governor was satisfied that it is a case which requires no exercise of power under Section 48 of the Act, and the land is required for development, it cannot be said that the Court is required to question the decision. As the respondents have pointed out that the land is required for a public purpose and that purpose is not abandoned, then in such a case it would not be permissible to the applicant to ask the authority to reopen the case by the State and in this situation it would not be open for this Court to interfere with the decision which is under challenge. In the matter of land acquisition, the Court will have to consider public interest as the paramount interest. Private interest has no place in the matter of land acquisition when a person is to be compensated. In the instant case, acquisition proceedings have been completed and unsuccessfully the petitioner has challenged the proceedings twice which has caused delay in development of land in accordance with the development plan. When the Lt. Governor has rejected the application after considering the material on record, Court should not interfere.”
26. The court also affirmed the principle laid down in the case of Union Of India & Ors… v. Parshadi & Ors…S. 2003 (69) Delhi Reported Judgments 751 to say that the petitioner has no locus standii to make an application under Section 48 of the Act one the land is vested in the Government. We have already noticed that possession of the petitioner has been protected by the order of the Court and remaining proceedings under the Land Acquisition Act have already been completed.
27. It is evident from the record before us that the petitioner had purchased the lands in question from various owners in April 1999, while in the year 1990 itself, the appropriate government had issued notices in furtherance to the declaration made on 20th September, 1988 declaring the entire area as development area. It is obvious that petitioners were fully aware of the fact that it is a developmental area and could be acquired any time by the appropriate government. Request for denotification has to be entertained by the authorities within the limited scope as outlined in the provision of Section 48 of the Act. The Section does not vest or clothe the petitioner with any indefensible legal right of compelling the administration to denotify its lands particularly when the award in that regard has already been made and the administration would also have taken possession of the land, but for interim orders granted by the Court. The connecting road has already been constructed till the boundary wall of the land in dispute and we see no reason as to why this connecting road to Dwarka Phase I and Phase II should not be completed at the earliest by the respondents, particularly when this is the basic purpose for acquiring the land. We must keep in mind another important aspect of this case, that the entire area around the land in dispute has already been developed and thus, the larger public interest would demand the private interest of the petitioner should tilt in favour of the larger interest.
28. In view of the above detailed discussion on various facets, relating to the merit of the contentions raised on behalf of the petitioner, we are unable to find any error of jurisdiction or otherwise, in the recommendations of the Denotification Committee and the order of the Lt. Governor, both dated 7th November, 2002, we find no merit in this petition and the same is dismissed, while leaving the parties to bear their own costs.
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