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Shori Lal Jain. Petitioner v. Lt. Governor & Ors. Respondants
Factual and Procedural Background
The petitions arise from the proposed acquisition of a building known as Kothi Nawab Loharowali, Bazar Ballimaran, Delhi (shops Nos. 2376 to 2382, 2395 to 2402), which housed two Government Girls Higher Secondary Schools on the first and second floors and contained multiple shops/godowns on the ground floor. The Directorate of Education proposed acquisition on the grounds that there was no prospect of constructing Higher Secondary Schools nearby and the schools were serving a large minority (Muslim) population in a densely populated locality. The Administration had been paying rent for the school premises and it was said that acquiring the whole building would eliminate rent expenditures and capture rental income from the shops.
A notification under section 4 of the Land Acquisition Act, 1894 was issued on 11-12-1968. The Land Acquisition Collector reported under section 5-A on 11-3-1969 that no objections to the section 4 notification had been received and recommended issuing a declaration under section 6. A notification under section 6 was issued on 24-4-1969 declaring the land acquired for a Government school.
Petitioners (tenants of various shops, including a partner of Messrs Jain Optical Industries) filed writ petitions attacking the notifications under sections 4 and 6. They explained delay in filing by stating they only came to know of acquisition after service of a section 9 notice in July 1971. The petitions were brought prior to the making of any award.
Legal Issues Presented
- Whether the section 6 declaration is valid, given the absence of a report or the proper expression of satisfaction by the “appropriate Government” (the Lt. Governor) as a condition precedent to issuing the section 6 declaration.
- Whether there was a lawful inquiry under section 5-A of the Land Acquisition Act and whether the Collector's report satisfied statutory requirements for proceeding to a section 6 declaration.
- Whether the Lt. Governor's satisfaction required by section 6 could be (or had been) delegated to a Secretary, and if such delegation (actual or purported) would be valid.
- Whether, in view of the lapse of time (more than three years since the section 4 notification), a further section 6 notification could now be issued on the basis of that section 4 notification.
- Collaterally, but not decided by the Court due to the primary defect found: whether the acquisition complied with planning requirements (Master Plan, Delhi Development Authority approval), requirements of the Delhi Education Code, and whether the acquisition was for a bona fide public purpose rather than for collateral/profitable reasons.
Arguments of the Parties
Petitioners' Arguments (as presented by Shri P. N. Lekhi)
- There had been no inquiry under section 5-A of the Land Acquisition Act; consequently the acquisition was invalid on that ground.
- The file did not show any report, as contemplated by law, on the basis of which the Lt. Governor could express satisfaction required by section 6.
- The Lt. Governor's satisfaction under section 6 is a personal duty and could not be delegated to a Secretary; only authentication powers under Rule 7 of the Rules of Business are delegated to Secretaries.
- Because the section 4 notification dated 1968 and the section 6 notification dated 1969 are over three years old, no valid section 6 could now be issued based on that earlier section 4 notification.
- Additional contentions (listed at the petitioner’s request and not decided by the Court): lack of Delhi Development Authority approval for establishment of the school; inconsistency with the Master Plan and the special space standards for higher secondary schools; failure to comply with the Delhi Education Code requirements for school recognition (including playground and sufficient accommodation); allegation that acquisition was motivated by a collateral, profit-making purpose (saving rent and capturing shop rents), amounting to mala fides; and that a school without required space and facilities would not serve the minority community’s interests.
Respondent's Position (as set out in the affidavit of return by Shri R. N. Puri, Deputy Secretary)
- The affidavit did not admit the petitioners' allegation concerning absence of a report under section 5-A; it stated that satisfaction for issuing the notification had been arrived at after due consideration.
- It was asserted that no objections under section 5-A had been received from any quarter.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vine v. National Dock Labour Board (1957 A.C. 488) | Principle that certain duties (including disciplinary or judicial-type functions) normally cannot be delegated; in assessing delegation one must consider the nature of the duty and the character of the person on whom the duty is imposed. | The Court relied on Vine to support the proposition that the Lt. Governor's satisfaction under section 6 is a personal and non-delegable duty; the Secretary's mere authentication role under Rule 7 does not substitute for the Lt. Governor's own satisfaction. |
| Allingham v. Minister of Agriculture and Fisheries (1948 I All E.R. 780) | Illustration that a committee cannot lawfully leave to an officer the duty they themselves have to decide; a decision delegated down in substance can invalidate the outcome. | The Court invoked Allingham to reinforce the principle that a delegated official cannot perform the decision-making function that the statute places on the designated authority, supporting the conclusion that satisfaction under section 6 could not validly be treated as having been given by a Secretary in place of the Lt. Governor. |
| Jaichand Lal Sethia v. State of West Bengal and others (1967 A.I.R. S.C. 483) | Principle that exercise of eminent domain for a collateral or improper purpose (mala fide) is invalid. | The Court cited Jaichand Lal Sethia in framing the petitioners' contention that the acquisition might have been motivated by profit/saving of rent rather than a bona fide public purpose; the Court nevertheless noted these contentions but did not express an opinion on them because it quashed the section 6 notification on other grounds. |
| B.T. Manghani v. Delhi Development Authority & Ors (Full Bench C.W. 465 of 1970) | The Full Bench observation that the Master Plan has the "status of a statute" (as held by S. N. Andley, C.J.). | The Court recorded this authority to explain the petitioners' reliance on the Master Plan's requirements and special space standards for higher secondary schools; again the Court set out these contentions but did not decide them in light of the primary defect found in the acquisition procedure. |
Court's Reasoning and Analysis
The Court undertook a document-based verification after the petition traversed the existence of a proper report and the existence of the Lt. Governor's satisfaction. When the land acquisition file was produced, the Collector's report of 11-3-1969 (stating no objections under section 5-A) was found. However, the Court discovered a critical procedural lacuna: the file did not show that the Lt. Governor personally considered the report or expressed the statutory satisfaction required by section 6 before the declaration was issued on 24-4-1969.
The Court analysed the statutory requirement in section 6 that the "appropriate Government" (here, the Lt. Governor) must be satisfied that the land is required for a public purpose before issuing a declaration. The Court contrasted this with the limited delegation under Rule 7 of the Rules of Business of the Delhi Administration, which authorises Secretaries only to authenticate notifications made with the Lt. Governor's approval and consent. The Court emphasised that authentication is distinct from the substantive act of being satisfied that acquisition is necessary; the latter is a personal duty of the Lt. Governor and cannot be performed by Secretaries.
To elucidate and support this principle, the Court drew on the authorities of Vine v. National Dock Labour Board and Allingham v. Minister of Agriculture and Fisheries. Those decisions were cited to demonstrate the established rule that certain statutory duties of decision-making or satisfaction, especially those of a quasi-judicial or important administrative character, do not admit sub-delegation and must be performed by the person upon whom the statute places the duty.
Finding that the file had only been seen by the Secretary and had not been presented to the Lt. Governor for his satisfaction to be recorded, the Court concluded there was a "serious lacuna" — the condition precedent for issuing the declaration under section 6 had not been satisfied. Consequently, the section 6 notification of 24-4-1969 was procedurally invalid.
The Court further noted that because the section 4 notification was made in 1968 and more than three years had elapsed, it was not possible in law to issue any further section 6 notification in pursuance of that stale section 4 notification. Therefore, even apart from the absence of the Lt. Governor's recorded satisfaction, the passage of time meant the administration could not now validate the 1969 declaration by retroactive measures; a fresh section 4 notification would be necessary to restart the acquisition process.
The Court expressly refrained from deciding the other detailed contentions raised by petitioners (planning approval, Master Plan compliance, Delhi Education Code requirements, mala fide purpose), stating those issues did not fall for decision once the section 6 notification was quashed.
Holding and Implications
Holding: The Court quashed the notification issued under section 6 of the Land Acquisition Act dated 24-4-1969 in respect of the building (Annexure 4 to the petition). The writ petition is accepted to that extent. There will be no order as to costs.
Implications and immediate consequences:
- The section 6 declaration of 24-4-1969 is invalid and has been quashed because the Lt. Governor did not personally record the satisfaction required by section 6; a Secretary's handling/authentication of the file was insufficient.
- Because the section 4 notification underlying that section 6 declaration dates from 1968 and more than three years have elapsed, the Administration cannot now validly proceed under that section 4 notification to issue a section 6 declaration; if the Government intends to pursue acquisition it must initiate the process anew by issuing a fresh section 4 notification.
- The Court did not adjudicate the other substantive objections (Master Plan compliance, DDA approval, Delhi Education Code, allegations of mala fide motivation); those issues were noted but left undecided as unnecessary to resolve given the procedural defect found.
This summary is confined to the matters stated in the provided opinion and does not add or infer facts beyond the text of the judgment.
S. Rangarajan, J.:— This judgment will dispose of Civil Writ petitions 48 to 57 of 1972 also. The petitioner in Writ Petition No. 1162 of 1971 is one of the three partners of the firm known as Messrs Jain Optical Industries, carrying on business of optical goods as a tenant in shops No. 2395/1, 2397 to 2400, Ballimaran, Delhi. The petitioners in the other petitions are tenants in other shops, all housed in building known as Kothi Nawab Loharowali, Bazar Ballimaran, Delhi (No. 2376 to 2382, 2395 to 2402), which has been acquired for the purpose of running two Government Girls Higher Secondary Schools. The first and second floors of the building were taken on rent by the Government in May, 1957 at a rent of Rs. 1150/- per month for running the School. The ground floor of the property comprises 19 shops/godowns, one of which has been rented to the Government and is in the use of the Government Schools. The annual rental income to the owners from these shops/godowns in the ground floor is stated to be Rs. 1135/- per month. The acquisition of the properties of the entire building was suggested by the Directorate of Education on the ground that there was no prospect of the Government constructing Higher Secondary Schools in that area owing to non-availability of a suitable site and there being no possibility of shifting the schools outside the area since the same were meant to serve the minority community (Muslims) which comprises quite a large population in this densely populated locality. It was pointed out that the Directorate of Education, Delhi Administration had paid, until April 1968, when the proposal to acquire was made by the Directorate, Rs. 1,51,800/- as rent to the owners of the building for the school. The schools are being run in two shifts; one in the morning and the other in the afternoon. It was also suggested that it will be profitable for the Government to acquire the entire building with the shops and godowns in the ground floor not only because of the rent it was fetching but also the saving that would result to the Government in not having to pay so much by way of rent.
The notification under section 4 of the land Acquisition Act, 1894 (hereinafter called the Act) was made on 11-12-1968. The Land Acquisition Collector made a report, on 11-3-1969, under section 5-A of the Act that no-objections had been received to the notification under section 4 (1) of the Act and that in the absence of any objection the acquisition proceedings may be processed further. It was further suggested by the Collector that notification under section 6 of the Act may be made. Such a notification, under section 6 of the Act, was issued on 24-4-1969 stating as follows:
“Whereas it appears to the Lt. Governor, Delhi that land is required to be taken by Government at the public expense for a public purpose, namely, for Government school, it is hereby declared that the land described in the specification below is acquired for the above purpose”. (emphasis added)
The present Writ Petition as well as the connected Writ Petitions have been filed attacking notification under section 4 and 6 of the Act on various grounds. The delay in the filing of the petitions has been explained on the ground that the petitioners came to know about the acquisition only after the notice under section 9 of the Act was served in July, 1971. The petitions were filed without any loss of time having regard to the time taken to ascertain the true facts. The award having not been yet passed the petitions cannot be defeated on the ground of delay when, as the present discussion will show, the notification under section 6 is seen to be illegal.
The objection in C.W 1162 of 1971 is the most comprehensive and the same was argued by Shri P.N Lekhi, learned counsel for the petitioner, at great, length, his arguments being merely adopted in the other petition. It was contended by Shri Lekhi, inter alia, that there had been no inquiry under section 5-A of the Act and for that reason itself the acquisition was bad. In the affidavit of return filed by Shri R.N Puri Deputy Secretary, Land and Building Department on behalf of Delhi Administration (Respondent 11) it was only mentioned that the allegation in paragraph 35 of the petition concerning the absence of report under section 5-A was not admitted; it was further stated that “satisfaction” for issuing the said notification was arrived at after due consideration and that no objection under section 5-A of the Act was received from any quarter. There was a categorical assertion in paragraph 35 of the petition that there was no report, as contemplated by law, on the basis of which the Lt. Governor (Respondent 1) could express his satisfaction. In view of the above allegation and the manner in which it had been traversed, I directed the concerned land acquisition file to be produced. When it was produced it transpired that there was a report by the Land Acquisition Collector, as noticed above, but an even more serious lacuna was seen to exist on a perusal of the file. By a strange coincidence the file does not appear to have been put up at all before the Lt. Governor for his satisfaction to be expressed under section 6 of the Land Acquisition Act. Such satisfaction of the, ‘appropriate Govt.’ is a condition precedent for the issue of the declaration under section 6 of the Act. It is not disputed that for the purpose of section 6 the Lt. Governor is the “appropriate government” and that he has to express his satisfaction before a declaration under that section is made. The file shows that when the above said report was received from the Collector stating that no objection had been received against acquisition a note was put up that permission may be accorded. Only the Secretary had seen the file; the file does not appear to have even been placed before the Lt. Governor at all. In view of this serious lacuna there seems to be no other option but to quash the notification issued in respect of the above building under section 6 of the Act on 24-4-1969 (copy of which is Annexure 4 to the petition).
The Lt. Governor has to be satisfied; not any of his Secretaries to whom, under Rule 7 of the Rules of Business of Delhi Admn. only the power to authenticate notifications made with his approval and consent has been delegated. The Lt. Governor himself could not delegate to any of his Secretaries the duty of being satisfied that any particular property requires to be acquired for a public purpose; the satisfaction has to be by him personally. A similar question arose before the House of Lords in Vine v. National Dock Labour Board (1957 A.C 488) (1). In that case the Board had lawfully delegated its disciplinary powers over registered dock workers to local boards. The local board, with the approval of the national board, had in turn sub-delegated those powers to a disciplinary committee. In the event Vine was dismissed by that committee. The question was whether the sub-delegation was valid; if it was not Vine's dismissal was wrongful and ultra vires. The House of Lords pointed out that in deciding whether it is an implied power to delegate one has to consider (a) the nature of the duty, (b) the character of the person on whom the duty is put. As to (a) the House of Lords observed as follows:
“Judicial authority normally cannot of course be delegated. . There are, on the other hand, many administrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would normally have no authority to delegate. He could take advice of course but he could not authorise some one to make the appointment without further reference to him. . I am clear that disciplinary powers, whether judicial or not, cannot be delegated.”
The same question also arose earlier in Allingham v. Minister of Agriculture and Fisheries (1948 I All E.R 780) (2). The Minister in that case had by regulations lawfully delegated to an agricultural committee his powers to give directions concerning the use for agricultural purposes of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction should apply. The officer consulted a local sub-committee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves.
In the present case it is not even suggested that there has been any such delegation, as a fact, by the Lt. Governor to the Secretary concerned; even if there was such delegation it would be invalid.
Since the notification under section 4 was made as early as in the year 1968 and more than 3 years have elapsed since then (even the notification under section 6 was more than 3 years old) it is not possible in law to issue any further notification under section 6 in pursuance of the above-said notification under section 4 of the Act. In view of this lacuna it is realised on all hands that the other questions which have been debated before me at length in this Writ Petition, do not fall for decision as the notification under section 6 will have to be quashed. If the Government wishes to proceed further with the acquisition of this building it will have to be necessarily by means of a fresh notification under section 4 of the Act.
Shri P.N Lekhi, however, requested that at least the more important contentions which he put forward against the acquisition may by briefly set out though it has become unnecessary to consider them in the above view of the present case. Shri Lekhi urged, inter alia, the following:
(1) The Delhi Development Authority (Respondent 13) who is charged with the duty of planned development of Delhi, had not accorded its approval for the establishment of the school.
(2) In accordance with the Master Plan (page 26) in the case of most of the areas within the old city having higher gross densities it was recommended that vacant plots and plots having dangerous structures thereon which were being demolished every year by the Municipal Corporation of Delhi only may be acquired for the purpose of locating community facilities, the present building is not a dangerous structure. Such a procedure had not been adopted in this case and the Municipal Corporation of Delhi had not made the acquisition.
(3) The acquisition of the building for a school which is not a part of the planned development of Delhi is not a public purpose.
(4) Development is not lawful unless it is done with planning permission obtained from the local planning authority. In the sketch attached to the Master Plan Balimaran area has been shaded with a colour indicating the land use as commercial.
(5) The Master Plan for Delhi, which has to be in accordance with the procedure prescribed by section 7, become operative under section 11, enforceable under section 14, and punishable for violation under section 29 of the Delhi Development Act, 1957 has “the statuts of a statute” as was observed by S.N Andley, C.J, speaking for the Full Bench of this Court, in C.W 465 of 1970 (B.T Manghani v. Delhi Development Authority & Ors. decided on 31-12-1973), (3). Hence there could not be any violation of the Master Plan which has prescribed the special space standard for higher secondary schools inside the old city as follows: 0.5 to 1.5 acres for a school of 1000 students to serve population of 15,000 (Page 70 of the Plan). There is also an indication that the above-said special space standard table is a guide only and that the competent authority may relax to the necessary extent. The contention is that no authority had applied its mind in the matter of granting such relaxation and thus the Master Plan had been violated because admittedly the present building is very much less than the minimum of 0.5 acres.
(6) The Delhi Education Code, 1965 for the Union Territory of Delhi, which came into force 15-2-1965 (similar provisions, are now being put on a statutory footing) requires that schools can be recognised only if certain conditions are fulfilled, some of which are that accommodation should be sufficient for the classes for imparting instruction and suitable ground should be provided for out-door work. Reference was also made in this connection to a letter of the Education Department addressed to the Secretary, Lands & Buildings on 5-7-1968, a copy of which was supplied during the hearing.
(7) The exercise of the power of eminent domain should not be for a collateral purpose. The very proposal for acquisition in this case suggests that the acquisition would be profitable to the Government on account of the rent from the shops and godowns in the ground floor and there would be a saving of rent paid for the school. Such exercise of power for a purpose different from what was intended by the Statute would amount to mala fides in law vide Jaichand Lal Sethia v. The State of West Bengal and others (1967 A.I.R.S.C 483) (4).
(8) The plea that the acquisition was for running a school by the minority community was a hollow one; a school without the necessary playground, sufficient area for classes and other facilities would not be conducive for the health of the pupils and such consequence could not be intended for the minority community; the said notification of acquisition, therefore, could not be sustained.
It seems proper to repeat that the above contentions of Shri Lekhi have only been set out, at his request, but that no opinion is expressed on all or any of them.
In the circumstances the notification under section 6 of the Act (copy of which is Annexure 4 to the petition) is alone quashed. The Writ Petition is accepted to the above extent. There will be no order as to costs.
Order accordingly.
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