IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT: LAND ACQUISITION ACT, 1894

WP (C) No. 4837 of 2005

 

Judgement reserved on: April 20, 2005

 

Judgement delivered on: July 7, 2005

 

Raheja Hospital & Psychiatric Research Institute

through its Director Dr. H.C. Raheja

Dwarka Phase-II

Dhool Sirsa Chowk

Village Bharthal

(Near Bijwasan)

New Delhi - 110 045 ...Petitioner

Through Mr. Jayant Bhushan, Sr. Adv. with

Mr. V. Hari Pillai, Mr. Anil Dutt and Mr. Manish Bishnoi, Advs.

 

 

Versus

 

 

1. Lt. Governor of Delhi

Raj Nivas

Delhi - 110 054

 

2. Land Acquisition Collector (South-West)

Govt. of NCT of Delhi

Kapashera, New Delhi-110030

 

3. Delhi Development Authority

Through its Vice-Chairman

Vikas Sadan

New Delhi

 

4. Govt. of NCT of Delhi

Through Secretary, Dept. of Land & Building

Vikas Bhawan

New Delhi - 110 002

 

5. Union of India

Through Secretary

Ministry of Urban Development

Govt. of India

Nirman Bhawan, New Delhi ...Respondents

 

Through Ms. Rachna Srivastava and Mr. Sanjay

Poddar, Advs. for Respondent No.2

Mr. Rajiv Bansal with Ms. Aparajita

Sinha, Advs. for Respondent No.3

 

Coram:

 

HON'BLE MR. JUSTICE SWATANTER KUMAR

HON'BLE MR. JUSTICE MADAN B. LOKUR

 

MADAN B. LOKUR, J.

 

1. The Petitioner is in the third round of litigation in respect of its property admeasuring 22 bigha and 1 biswa in village Bhartal, Tehsil Mehrauli, Delhi.

 

2. A Notification under Section 4 of the Land Acquisition Act, 1894 (the Act) was issued on 13th December, 2000 by the Respondents proposing to acquire land for a public purpose, namely construction of Dwarka Phase–II under the planned development of Delhi. Thereafter, on considering the objections of parties a declaration under Section 6 of the Act was issued on 7th December, 2001 acquiring 2904 bigha and 16 biswa of land. In view of the urgency in acquisition, the provisions of Section 17(1) of the Act were invoked on 15th March, 2002 and possession of almost the entire acquired area was taken over on or about 14th August, 2002. The land of the Petitioner is roughly 0.76% of the entire acquired area.

 

3. Sometime in April 2002 the Petitioner filed a writ petition being CWP 2453/2002 challenging the validity of Notifications under Sections 4 and 6 of the Act. During the pendency of that writ petition, a restraint order was passed on 16th April, 2002 preventing the Respondents from dispossessing the Petitioner. That writ petition (for convenience referred to as the first writ petition) came to be finally heard by a Division Bench of this Court which upheld the acquisition and dismissed the writ petition by a judgment and order dated 4th September, 2003. The decision of this Court is reported as Raheja Hospital and Psychiatric Research Institute v. Land Acquisition Collector and ors., 2003 (70) DRJ 601 (DB).

 

4. It is important to note that while dismissing the first writ petition, this Court held that what was constructed on the acquired land was not a farm-house but a hospital. It was also noted by the Court that an award had been made in respect of the acquired land under Section 11 of the Act.

 

5. The Petitioner filed a petition in the Supreme Court for special leave to appeal being SLP (C) No. 18080/2003 against the decision of this Court dated 4th September, 2003 but that SLP was dismissed on 9th October, 2003.

 

6. The Respondents then sought to take possession of the acquired land some time in December, 2003. However, on the oral request of the Petitioner, the Vice Chairman, Delhi Development Authority (DDA) reconsidered the matter and agreed to grant some time to the Petitioner to vacate the acquired land. On 6th January, 2004 the Petitioner submitted a formal request to the DDA seeking six months time to decide its immediate future and take steps to rehabilitate its patients. The Respondents apparently agreed to the extension of time sought by the Petitioner and did not take any steps to take physical possession of the acquired land.

 

7. On 19th March, 2004 the Petitioner again made a request to the DDA seeking 12 months time to make alternative arrangements and vacate the acquired land. This request was partially acceded to by the DDA and it was agreed to give the Petitioner time till June, 2004 to vacate the acquired land.

 

8. On 26th May, 2004 the Petitioner made a request to the Lt. Governor to denotify the land under Section 48 of the Act. This was in continuation of a similar request made on 28th March, 2002 and 12th March, 2004.

 

9. On 3rd June, 2004 the Petitioner filed a second writ petition in this Court being WP (C) 9743/2004 in which it was prayed that the Petitioner be allotted an alternate piece of land to run and manage its institute or in the alternative to direct the Respondents to decide the representations made by the Petitioner under Section 48 of the Act.

 

10. The second writ petition was considered by this Court and by a judgment and order dated 3rd March, 2005, it was dismissed with costs of Rs.10,000/-.

11. While dismissing the second writ petition, the allegation of the Petitioner that it was discriminated against vis- -vis some other similarly placed persons was considered and rejected. It was also held that the Petitioner is not entitled to an alternate plot and that though possession of most of the acquired land was taken way back in August, 2002, the Petitioner had some how or the other stalled development of the acquired area by approaching this Court.

 

12. In the meanwhile, on 8th January, 2005 the Lt. Governor rejected the representation of the Petitioner to denotify the land under Section 48 of the Act, but since the validity of the decision of the Lt. Governor was not involved in the second writ petition, it was left open by this Court. Though the Petitioner says it has not received the rejection, a complete inspection of the relevant file was given to learned counsel for the Petitioner during the hearing of the present writ petition and now there is no doubt that the Lt. Governor has taken a decision not to denotify the land under Section 48 of the Act.

 

13. The challenge in the present (third) writ petition is to the refusal of the Lt. Governor to denotify the land under Section 48 of the Act.

 

14. Learned counsel for the Petitioner raised two principal contentions. It was firstly submitted that the Respondents have framed policy guidelines on 2nd December, 1998 for denotification of land notified for acquisition under the Act. These guidelines, bearing No. F.7(18)/97/L&B/LA/12092-12106, prepared under the signatures of the Secretary (Revenue/Land) were said to be binding upon the Respondents and if they are correctly given effect to, the Respondents would have little option but to denotify the land of the Petitioner.

15. Secondly, it was contended that a committee called the Denotification Committee, constituted under the policy guidelines, took irrelevant material into consideration while considering the case of the Petitioner for denotification of its land. The Denotification Committee also failed to take relevant material into consideration and, therefore, incorrectly advised the Lt. Governor not to denotify its land. Consequently, the decision of the Lt. Governor was vitiated.

 

16. Learned counsel for the Respondents, of course, denied the contentions of learned counsel for the Petitioner and additionally contended that the conduct of the Petitioner is such that it is not entitled to any discretionary relief. It was submitted that on the one hand the Petitioner requested for time to vacate the acquired land (which was favourably considered) while on the other it filed writ petitions to stall the acquisition process. It was submitted that the Petitioner abused the leniency shown by the Respondents. It was also submitted that Section 48 of the Act has been completely misunderstood by the Petitioner and the scope of Section 48 does not permit the Petitioner to apply for a writ of mandamus directing the Respondents to denotify the land.

 

Scope of Section 48 of the Act and effect of the guidelines

 

17. Section 48 of the Act reads as follows: -

48. Completion of acquisition not compulsory but compensation to be awarded when not completed. (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

 

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

 

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.”

 

18. In Special Land Acquisition Officer, Bombay v. M/s Godrej & Boyce, (1988) 1 SCC 50 the Supreme Court, while considering the scope of Section 48 of the Act noted in paragraphs 5 and 6 of the Report, that

Section 48 gives liberty to the State Government to withdraw from the acquisition at any stage before possession of acquired land is taken.

The State Government can exercise the power of withdrawal unilaterally.

 

There is no requirement that the owner of the acquired land should be given an opportunity of being heard before the State Government withdraws from the acquisition.

 

A decision of the State Government to withdraw from acquisition need not necessarily be backed by reasons. [In that case, the Court assumed that even if reasons should be given, the decision was not vitiated in any manner whatsoever].

 

19. What is of seminal importance for the purposes of the present case (and indeed this appears to have been overlooked) is that Section 48 of the Act does not confer any right on a landowner, but gives liberty to the State to withdraw from acquisition. Consequently, can it reasonably be said that under Section 48 of the Act, a landowner has a right to compel the State to exercise the liberty granted to it; or can it reasonably be said that a Court can issue a mandamus to the State to exercise a liberty granted to it.

 

20. Liberty granted to the State under Section 48 of the Act is extremely wide and it is only to channelize that liberty that the Secretary (Revenue/Land) has issued policy guidelines dated 2nd December, 1998. By these guidelines, a Committee called the Denotification Committee is constituted to examine denotification proposals and submit its recommendations to the Lt. Governor. The guidelines lay down only a framework within which the Denotification Committee may operate and cases that may be considered for denotification. A recommendation of the Denotification Committee is only a recommendation and, therefore, not binding on the Lt. Governor, who may take a decision on each recommendation at his discretion. The guidelines are not intended to cabin, crib or confine the discretion of the Lt. Governor – he may add to or subtract from the cases for denotification if he thinks it appropriate. Also, the power of the Lt. Governor to take his own decision, which may involve a departure from the recommendation of the Denotification Committee, or not to strictly adhere to the views of the Denotification Committee, is untouched. The terms of the policy guidelines do not entitle a landowner, as of right, to petition the Court to direct the Lt. Governor to stick only to the guidelines, more particularly if any departure therefrom does not affect any right of the landowner or arbitrarily discriminate against him.

 

21. Learned counsel for the Petitioner relied upon Home Secretary, U.T. of Chandigarh & anr. v. Darshjit Singh Grewal & ors, (1993) 4 SCC 25 to contend that an executive authority is bound to adhere to policy guidelines framed by it, until they are changed (paragraph 14 of the Report). Ranadey Micronutrients v. Collector of Central Excise, (1996) 10 SCC 387 was referred to, to contend that even in excise matters, a circular issued by the Central Board of Excise and Customs is binding upon the Revenue and it cannot plead its invalidity (paragraph 15 of the Report). To the same effect is the view expressed in Delhi Development Authority v. Vijaya C. Gurshaney, (2003) 7 SCC 301 wherein it is said that a policy decision or guidelines framed by an authority (in that case the Delhi Development Authority) will have binding effect on the parties, in the absence of any rules to the contrary (paragraph 10 of the Report).

 

22. But, is this a rule of absolute and universal application? To answer this, it is necessary to know the various kinds of guidelines, and this was specifically discussed by the Supreme Court in Narendra Kumar Maheshwari v. Union of India & ors, 1990 (Supp) SCC 440 in paragraphs 106 and 107 of the Report.

 

23. Broadly speaking, guidelines may be statutory or non-statutory. Whether the guidelines that we are concerned with are statutory or non-statutory is, therefore, the first question that needs to be considered.

 

24. In this context, it must be noted that the guidelines dated 2nd December, 1998 are not framed in pursuance of any statutory mandate or any authority conferred by any statute. No doubt, the guidelines have reference to Section 48 of the Act, but they do not trace their source or origin to that section. Moreover, the guidelines have not been framed by the appropriate Government (in this case the Lt. Governor) but by and under the signatures of the Secretary (Revenue/Land) of the Delhi Administration. Consequently, the guidelines appear to be administrative instructions penned by the Secretary (Revenue/Land) to streamline the work of his department and make it easier to craft a correct and proper recommendation to the Lt. Governor. The object of the guidelines seems to be limited only to this exercise because it has clearly been mentioned in them that the recommendations made by the Denotification Committee are not binding on the Lt. Governor and he may still take a decision at his discretion.

 

25. The guidelines are not a published document and have not been issued for the information of the general public – the guidelines are only for the information and guidance of the Denotification Committee set up by the Secretary (Revenue/Land). This is another factor that suggests that the guidelines are not intended to confer any legal enforceable rights on the general public and are nothing more than mere instructions issued by the executive for its own guidance in making recommendations to the Lt. Governor.

 

26. In this context, it may be mentioned that even a far more formal policy statement such as the Import Control Policy has been held by the Supreme Court to be not a statutory document. “No person can merely on the basis of such a [policy] Statement claim a right to the grant of an import licence, enforceable at law. Moreover, such a Policy can be changed, rescinded or altered by mere administrative orders or executive instructions issued at any time.” [M/s Andhra Industrial Works vs. Chief Controller of Imports & ors., (1974) 2 SCC 348, paragraph 11]. These words, particularly the latter sentence, apply with full force to the guidelines dated 2nd December, 1998.

 

27. Applying this law laid down by the Supreme Court, there is no escape from the conclusion that the guidelines relied upon by learned counsel for the Petitioner are non-statutory in character. As has been clearly held by the Supreme Court in Narendra Kumar Maheshwari such non-statutory guidelines cannot be enforced in a Court of law. “A policy is not law. A statement of policy is not a prescription of binding criterion.”

 

28. In Narendra Kumar Maheshwari, the Supreme Court also dealt with the classification of enforceable (though non-statutory) guidelines, which include such guidelines:

That can become enforceable on the application of persons if it is shown that they had created a legitimate expectation in their minds that the authority would abide by such a policy/guideline.

 

That are intended to clarify or implement the conditions and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation therefrom directly affects the rights so vested.

That control the choice of persons competing with one another for the grant of benefits, largesse or favours and, if the guidelines are departed from without rhyme or reason, an arbitrary discrimination may result which may call for judicial review.

 

That may prescribe certain standards or norms for the grant of certain benefits and a relaxation of, or departure from, the norms may affect persons, not directly but indirectly, in the sense that though they did not seek the benefit or privilege as they were not eligible for it on the basis of the announced norms, they might also have entered the fray had the relaxed guidelines been made known. In other words, they would have been potential competitors in case any relaxation or departure was to be made.

 

 

29. The case of the Petitioner does not fall in any of the categories mentioned above. It is not the case of the Petitioner anywhere that when it purchased the farmhouse or converted it into a hospital, there was an expectation, legitimate or otherwise, that it would not be acquired or would be exempted from acquisition for that reason alone. There is no condition precedent that the Petitioner is required to fulfill, nor is there any alleged deviation from the guidelines or any relaxation thereto that puts the Petitioner at any disadvantage. The Petitioner has not shown any such enforceable right and to this extent, therefore, the Petitioner cannot ask for a mandamus to the Lt. Governor to enforce or abide by the guidelines of 2nd December, 1998.

 

30. That there should not be any element of arbitrariness, even in land acquisition matters, has been held by the Supreme Court in Amarnath Ashram Trust Society & anr v. Governor of U.P. & ors, (1998) 1 SCC 591. In that case, the Supreme Court held in paragraph 10 of the Report that the discretion to withdraw from acquisition, though wide, cannot be exercised arbitrarily. “Though the State cannot be compelled to acquire land compulsorily for a company its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner.” However, the converse proposition (with which we are concerned) is not necessarily valid – it cannot be said that if the appropriate Government does not withdraw from the acquisition, then that refusal to withdraw can also be challenged as being arbitrary.

 

31. The reason for this is that a landowner already has a subsisting right to challenge a decision of the appropriate Government to go ahead with the acquisition process. Indeed, this is the very reason why the Courts have permitted a challenge to a Notification under Section 4 of the Act and a challenge to a declaration under Section 6 thereof. To say that an additional or further right is given to a landowner to challenge the continuance of the same acquisition process, by challenging a decision of the appropriate Government not to withdraw from the acquisition process by resorting to Section 48 of the Act, is a singularly different proposition altogether, and is really the subject matter of debate in this case.

 

32. The scheme of the Act suggests to us that an inquiry under Section 5-A thereof and a challenge to a Section 6 declaration inherently take within their fold an application of mind by the appropriate Government to discontinuing the acquisition process or denotification of the land. If objections raised by a landowner under Section 5-A of the Act are upheld, the effect would be that the acquisition process would come to a halt and the land would not be acquired. Similarly, if a challenge to a Section 6 declaration were upheld, the acquisition process would come to a halt and the land would not be acquired. An exercise of power under Section 48 of the Act by the appropriate Government does not lead to any other or different result. In other words, what is sought to be achieved by resort to a challenge to Notifications under Sections 4 and 6 of the Act is the same as what is sought to be achieved by resort to Section 48 of the Act, and vice versa. In so far as the present case is concerned, what the Petitioner is seeking to achieve by invoking Section 48 of the Act is something that it has already tried to achieve (but failed) in its first writ petition wherein a challenge was laid to the declaration under Section 6 of the Act. We are of the view that a repeated challenge is not only impermissible, but amounts to an abuse of the judicial process.

 

33. Additionally, we may note that the Petitioner is now trying to have the acquisition indirectly set aside, something that it was unsuccessful in doing directly through its first writ petition.

 

34. Attention may also be drawn to Section 48(2) of the Act, which also makes it clear (apart from Godrej & Boyce) that liberty to withdraw from the acquisition process granted to the appropriate Government is unilateral. This is because this sub-section puts a liability on the appropriate Government should it withdraw from the acquisition, which liability can be enforced by a landowner as a matter of right. There is nothing in this sub-section [or sub-section (1)] that can be read to mean that the appropriate Government can be compelled to withdraw from the acquisition and also be made statutorily liable to compensate the landowner after such withdrawal. Such a relief cannot be granted under the Act even if the acquisition is struck down by a Court of law.

 

35. What is it that a landowner (such as the Petitioner) can say in its representation under Section 48 of the Act (assuming such a representation is maintainable as a matter of right) that it cannot say in its objections under Section 5-A of the Act or in its challenge to a declaration under Section 6 thereof?

 

36. The Supreme Court has said in Delhi Administration v. Gurdip Singh Uban, (2000) 7 SCC 296 that objections in a Section 5-A inquiry can be specific or generic. A specific objection can be of two types, namely, one relating to the land of the objector which is to say that the landowner can raise a specific objection to his parcel of land being acquired and the other relating to the landowner/objector himself meaning thereby that in the case of that particular landowner, the land should not be acquired. A generic objection would be a challenge to the very purpose for which the land is being acquired by raising a contention that either the purpose of acquisition is not a public purpose or even otherwise there is no public purpose in acquiring the land. As far as a challenge to acquisition of land post a Section 6 declaration is concerned, it can only be generic and that challenge can be decided only by an appropriate Court of law.

 

37. A representation made by a landowner under Section 48 of the Act really cannot say anything more or different from what has already been indicated above. Therefore, even if it is held that a representation under Section 48 of the Act is maintainable, all that a landowner can do is to repeat and reiterate the objections taken by him at the stage of the Section 5-A inquiry and at the stage of challenging the Section 6 declaration. This being the position, we are of the view that the Act does not give repetitive or unlimited opportunities to a landowner to challenge the acquisition process. The right of a landowner, in the event of compulsory acquisition, is not like a double-barreled gun – one salvo to be fired challenging the Notifications under Section 4 and 6 of the Act (either simultaneously or separately), and another to be fired a little later to achieve the same end result, by demanding denotification under Section 48 of the Act.

 

38. For the reasons given by us above, we are of the view that the guidelines dated 2nd December, 1998 are non-statutory and, therefore, not legally enforceable. These guidelines do not confer any enforceable right on any landowner. Consequently, a landowner has no enforceable right to make a representation under Section 48 of the Act nor are the Respondents obliged to consider such a representation even if a landowner has made it, more particularly when the acquisition is upheld by a court of law, as in the present case. However, if there is any deviation from the these guidelines resulting in any discriminatory treatment against a landowner, then and only then could a landowner seek enforcement of the guidelines, which may even then be declined, if sufficient cause is shown. The right of a landowner in respect of the applicability of the guidelines is limited only to this extent.

 

39. In so far as the present case is concerned, it must, therefore, be held that the representations made by the Petitioner under Section 48 of the Act are not maintainable and ought to have been summarily rejected. It may be noted that the Petitioner had agitated and argued the question of alleged discrimination in the second writ petition and that issue cannot now be reopened.

 

40. We must, however, enter a caveat here. Learned counsel for the Petitioner drew our attention to Om Prakash and anr. v. State of U.P. and ors., (1998) 6 SCC 1 to contend that a landowner is entitled to make a representation under Section 48 of the Act. We do not read the decision of the Supreme Court in the catch-all manner suggested by learned counsel for the Petitioner.

 

41. In paragraph 11 of the Report, the Supreme Court stated the four points that arose for its determination. These are as follows:-

1. Whether the State authorities were justified in invoking Section 17(4) of the Act for dispensing with inquiry under Section 5-A of the Act.

 

2. In any case, whether the appellants' lands have to be treated as immune from acquisition proceedings on the ground that they were having abadi thereon and were, therefore, governed by the policy decision of the State of U.P. not to acquire such lands.

 

3. Whether this Court should refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India in the facts and circumstances of the case.

 

4. What final orders.

 

42. The first point was answered in the negative, in favour of the appellants therein and against the contesting respondents. The second point was left open for being considered by the appropriate authorities as was to be indicated by the Supreme Court while considering points 3 and 4.

 

43. Point 3 was answered in the affirmative, against the appellants therein and in favour of the contesting respondents. While answering this point, in the light of the decision arrived at by the Supreme Court in respect of point 1 to the effect that the State Government was not justified in dispensing with the Section 5-A inquiry, it was noted that it would not be feasible to put the clock back after a lapse of more than six years. This was particularly so in view of the limited grievance of the appellants therein that their land could not have been acquired since they were having abadi thereon and were governed by the policy decision of the State of U.P. for not acquiring such lands. Such a grievance could have been more appropriately addressed in a Section 5-A inquiry but since that inquiry was dispensed with, the Supreme Court was of the view that the appellants therein could be vindicated by enabling them to make a representation under Section 48 of the Act. The Supreme Court noted in paragraph 30 of the Report that it would not be appropriate to upset the entire apple-cart of acquisition of 500 acres of land at the behest of 1/10th of landowners whose land was sought to be acquired. It is these factors that weighed with the Supreme Court in permitting the appellants therein to make a representation under Section 48 of the Act limiting it to the sole grievance they had raised before the Supreme Court.

 

44. While answering point No.4, the Supreme Court noted that whether there was any abadi or not on the acquired land is a vexed question of fact which needed a decision but instead of relegating the appellants therein to the remedy under Section 5-A of the Act, the Supreme Court deemed it fit to relegate them to the remedy of making a suitable representation before the appropriate State authorities under Section 48 of the Act. The Supreme Court observed that quashing the Notifications issued under Sections 4, 17(4) and 6 of the Act for non-compliance of the provisions of Section 5-A of the Act, would “open a Pandora's box and those occupants who are uptil now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities.” It is under these special facts and circumstances of the case that the Supreme Court permitted the appellants therein to invoke the provisions of Section 48 of the Act.

 

45. It would be seen from the above discussion that the issue that has been squarely raised in the present writ petition did not really arise for consideration before the Supreme Court in Om Prakash.

 

46. Moreover, the liberty given by the Supreme Court to the appellants therein to invoke Section 48 of the Act was on certain special facts and circumstances, particularly since the landowners did not have the opportunity of having their say in a Section 5-A inquiry, which was in fact wrongly dispensed with. That is not the position in the present case in which a Section 5-A inquiry has, in fact, been held. Om Prakash will not, therefore, salvage the situation for the Petitioner in this case. It may be permissible (and this is the exception that may be made) to enable a land owner to make a representation only in a case where a Section 5-A inquiry has been unjustifiably dispensed with. We do not, however, express any final opinion in this regard because this question does not arise for our consideration.Consideration of material

 

47. M/s Hochtief Gammon v. State of Orissa & ors, (1975) 2 SCC 649 was relied upon by learned counsel for the Petitioner to contend that in law, irrelevant material should not be taken into consideration by an executive authority while taking a decision, nor should relevant material be left out. In that case, the Supreme Court quoted extensively from Padfield v. Minister of Agriculture, Fisheries and Food, 1968 AC 997 and held, in paragraph 13 of the Report,

 

The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.

 

48. Similarly, learned counsel made reference to Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579 (paragraphs 13 to 19) which contains an illuminating discussion on judicial review of administrative decisions as explained in Council for Civil Service Unions v. Minister for Civil Service, (1984) 3 All ER 935 and Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223.

 

49. Satpal & anr v. State of Haryana & ors, (2000) 5 SCC 170 referred to by learned counsel for the Petitioner is not all applicable since that dealt with a constitutional power, under Article 161, of the Governor of a State to grant pardon. It is nobody’s case that a statutory power of the appropriate Government can be equated with a constitutional power – the principles applicable to both are entirely different.

 

50. There is no doubt about the legal position that while taking a decision, an administrative authority should eschew consideration of any irrelevant material and should consider all relevant material. But what were the materials before the Denotification Committee?

 

51. According to the learned counsel for the Petitioner, though letters were sent on 6th April, 2004 and 30th June, 2004 to the land acquiring agency and DDA, their report had not been received by the time the Denotification Committee met on 30th September, 2004. According to learned counsel, the Denotification Committee wrongly went ahead and considered the representation of the Petitioner despite non-receipt of these two reports. The contention urged was that there was complete non-application of mind by the Denotification Committee to important and relevant facts.

 

52. We are not at all impressed by this contention. It is entirely for the Denotification Committee to regulate its own procedure, and if the land acquiring agency and the DDA did not respond to the letters sent by the Denotification Committee on 6th April, 2004 and 30th June, 2004, the said Committee was entitled to proceed with its deliberations as if these two agencies have nothing to say. It is not that the Committee becomes incapacitated from taking a decision in the absence of any comments from these two agencies. Apart from this, the Secretary of the land acquiring agency chaired the meeting and a representative of the DDA was a member of the Denotification Committee. Surely, it can reasonably be assumed that they were aware of the relevant facts and would have apprised the Denotification Committee of all the correct facts.

 

53. Learned counsel for the Petitioner, having inspected the file, informed us that there was a letter dated 3rd November, 2004 issued by the DDA to one of the Respondents in which it was mentioned that the Petitioner owns a building constructed on 125 sq. yds. land in Rajinder Nagar, New Delhi. The contention of learned counsel was that while this may be true, it is absolutely irrelevant in so far as the issue of denotification is concerned. The construction in Rajinder Nagar was not only inadequate for the hospital which the Petitioner was running and could not be an effective substitute, but that property was actually used for residential purposes by Dr. Raheja and it could not have been used for running the kind of hospital that the Petitioner was running in village Bhartal. It was submitted that this information was wholly irrelevant and ought not to have been considered by the Committee or the Lt. Governor while rejecting the request of the Petitioner for denotification of the acquired land.

 

54. This contention is also liable to be rejected. In the first place, it may be noted that the letter dated 3rd November, 2004 could not have been before the Denotification Committee, which met about a month earlier on 30th September, 2004. As far as influencing the Lt. Governor is concerned, we fail to see how that is possible. All that the Lt. Governor was required to decide was whether the acquired land should be denotified or not. This decision was required to be taken within the parameters laid down by Section 48 of the Act and keeping the policy guidelines dated 2nd December, 1998 in mind. There is nothing on record to suggest that the Lt. Governor travelled beyond his jurisdiction or that the letter dated 30th November, 2004 influenced him in any way. In fact, it appears that the Lt. Governor took into consideration only the recommendation of the Denotification Committee while arriving at his independent decision, and the recommendation of the said Committee reads as follows:-

“The committee went through the representation dated 26.05.2004 for denotification of land bearing Kh. No. 24/22(1-09), 23/1(3-07), 24/1(2-09) 25/2(5-01), 3(4-02), 8/2(1-03), 9(4-10) of village Bharthal made by Dr. H.C. Raheja in accordance with the direction issued by the Hon'ble Delhi High Court vide its order dated 14.6.2004 in CWP No. 6939/2004 titled as Raheja Hospital & Research Institute vs. L.G. of Delhi. The petitioner has requested the concerned authority to release the land of the Raheja Hospital and Psychiatric Research Institute from acquisition proceedings u/s 18 and if not possible then alternative land for the hospital be directed to be allotted for medical facilities/purpose.

 

The Hon'ble High Court dated 14.06.2004 in CM 6939/2004 in WP(C) 9743/2004 Raheja Hospital & Research Institute vs. LG of Delhi has stayed the demolition of the structure in question until a decision on the recommendations/representation of the petitioner for allotment of an alternative site is taken either way. No application regarding the allotment to plot has been received in Land & Building Department.

 

Keeping in view the fact that this land is required by DDA for Dwarka Sub City under Planned Development of Delhi, the committee recommends rejection of the representation for denotification. Further, allotment of alternative plot is not within the purview of Land & Building Department/Denotification Committee. As such, the Committee decided that applicant may approach DDA for allotment of alternative plot.

 

55. The final contention of learned counsel for the Petitioner was that as per the policy guidelines dated 2nd December, 1998 if there is an existing hospital before the issuance of a Notification under Section 4 of the Act, the case may be considered for denotification. In conjunction with this argument, it was submitted that as per the plan prepared by the Respondents for Dwarka Phase-II, the hospital of the Petitioner was to remain in a green area and retaining the hospital in such an area would not have disturbed the plan of the Respondents.

 

56. That a comparative assessment of the purpose for which the land of the Petitioner is being used or can be used, as against the overall public purpose is really for the appropriate Government to decide. There is nothing to suggest that the Lt. Governor was not aware that the Petitioner was running a hospital or about the development plan of the area. It is difficult to say, on merits, and under these circumstances that the Lt. Governor did not take a correct decision. It is not possible, or even advisable for us to substitute our opinion for that of the Lt. Governor. Indeed, learned counsel for the Petitioner did not even seriously argue this. Consequently, we are not inclined to entertain this contention on behalf of the Petitioner.

57. It may be mentioned, as noted in the beginning of this judgement, that the land owned by the Petitioner is only 0.76 % of the total acquired land. We have not been told of any other challenge having been made to the acquisition of land in village Bhartal except perhaps for a stray petition or two while the second writ petition was argued before us. For the sake of this 0.76% of the total acquired land, the process of development in Dwarka has been delayed and perhaps costs have escalated. This is rather unfortunate. While it may not be possible to compensate the Respondents for the loss caused to them, we are of the view that some deterrent costs should be imposed on the Petitioner. Accordingly, while dismissing the writ petition, we do so with costs of Rs. 25,000/- that should be paid by the Petitioner to the DDA within four weeks from today.

 

 

 

Sd./- ( Madan B. Lokur )

Judge

 

( Swatanter Kumar )

Judge

July 7, 2005