W.P.(C) 2009/2014. Case: Kathuria Public School and Ors. Vs Union of India and Ors.. High Court of Delhi (India)
| Case Number | W.P.(C) 2009/2014 |
| Counsel | For Appellant: Sh. A.S. Chandhiok, Sr. Advocate with Sh. Vikas Mehta, Sh. Ritesh Kumar, Sh. Rajat Sehgal, Ms. Honey Kumari and Sh. Mayank Bamniyal, Advocates and For Respondents: Sh. Ripu Daman Bhardwaj, CGSC with Sh. T.P. Singh, Advocate, for UOI., Sh. Ajay Verma, Sr. Standing Counsel with Sh. Amit Mehra, Advocate, for DDA., Sh. Sanjay Poddar,... |
| Judges | S. Ravindra Bhat and R. K. Gauba, JJ. |
| Issue | Land Acquisition Act, 1894 - Section 4; Delhi Development Act - Section 22; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 24(2); Constitution of India - Article 226 |
| Judgement Date | April 28, 2015 |
| Court | High Court of Delhi (India) |
Judgment:
S. Ravindra Bhat, J.
1. By these proceedings under Article 226 of the Constitution of India, the Petitioners (hereafter compendiously referred to as "KPS") seek a declaration that with the enactment and coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereafter "Acquisition & Rehabilitation Act") the lands being occupied by the public school under their management were no longer subject to acquisition; they also seek an order enjoining or prohibiting the respondents from taking any action towards dispossessing them.
2. On 23.1.1965 a notification under Section 4, Land Acquisition Act 1894 ("old Act") was issued and on 26.12.1968 a declaration under Section 6 was issued in respect of land measuring 80 bighas 7 biswas comprised in Khasra Nos. 1726 (3-3), 1727 (4-16), 1728 (2-12), 1729 (6-14), 1747 (4-16), 1748 (4-16), 1749 (4-16), 1750 (4-16), 1751 (4-16), 1752 (4-16), 1753 (3-5), 1754 (6-2), 1755 (4-16), 1756/2 (3-4), 1757/2 (3-4), 1875 (4-16), 1876 (4-16) and 1877 (4-3) in village Rangpuri alias Malikpur Kohi (Vasant Kunj) Tehsil Mehrauli. The award in respect of these lands (hereafter "the suit lands") was made on 30-03-1981. In the meanwhile, late Shri R.P. Kathuria, acting as karta of a HUF consisting of himself and his sons- by a sale deed dated 18-04-1967- (executed by Smt. Saroopi Devi, Smt. Sarjo and Smt. Bartho in his favour) purchased the suit lands after the Section 4 notification under the old Act was issued. Claiming to be aggrieved by the acquisition proceedings, he approached this Court by filing Civil Writ Petition No.586/1981 alleging undue delay in the finalization of acquisition process. While issuing notice on 24.03.81, orders of status quo regarding possession was made by this Court. The status quo order was subsequently confirmed. The writ petition remained pending for a considerable period; eventually it was dismissed on 14-12-1995 along with a batch of writ petitions in a Full Bench decision reported as Roshnara Begum vs. Union of India 1996(61) DLT 206. The appeal by special leave, to the Supreme Court, preferred in that regard, was rejected in a reported judgment of that Court, i.e. Murari vs. Union of India 1997 (1) SCC 15 where validity of the acquisition proceeding was upheld.
3. The Supreme Court, even while dismissing the appeal against acquisition of the suit lands, permitted a representation to the State for withdrawal from acquisition in case the suit land was not required for any other purpose. Relying on that order R.S. Kathuria and the present petitioners represented to the Government of National Capital Territory (NCT) under Section 48 of the old Act which was rejected. R.P. Kathuria preferred WP(C) No. 233/97 challenging the decision of Govt of NCT rejecting the representation. Interim orders were made in the said writ petition not to dispossess Shri Kathuria. During pendency of those proceedings, Shri Kathuria also filed a civil suit, (C.S. (OS) No. 927/2002) before this Court; in that suit, he sought the relief of declaration that he was absolute owner of the suit lands and that the defendant, Delhi Development Authority (DDA) had no interest whatsoever in it. The suit claim was premised on the assertion that the plaintiff was a Bhumidar under the Delhi Land Reforms Act, 1954. The DDA resisted the suit stating that the Award relating to the suit lands had been made on 30th March, 1981 and possession was taken over on 31-03-1981. The suit lands were placed at the disposal of the DDA by Notification issued under Section 22 of the Delhi Development Act ("the Development Act") on 19-05-1981 and 17-06-1983.
4. A preliminary issue was framed by the learned single judge who tried the suit filed before the court; by a reasoned order dated 5-06-2007, it was held that the suit was maintainable and that the question of possession was to be decided by the court. Both the DDA and Govt. of NCT of Delhi preferred appeals against that decision, being FAO (OS) 313/2007 and FAO(OS) 27/2008. On 28-11-2008, by a common judgment a Division Bench allowed the appeals (of DDA and Govt. of NCT of Delhi).
5. In the pending writ petition, WP(C) 233/1997, the petitioners claimed that a school (called "Kathuria Public School") had been established and was functioning on the land in question since 1988. It was alleged that they constructed a school building along with staff quarters and boundary wall on the suit land. By a representation dated 01.01.1996, they had again sought release of the land from acquisition seeking parity with the case of Hamdard Public School land of which was de-notified by the Government. They represented again on 11.11.1996 for release of their land on the par with St. Xavier Society''s land (which was released from acquisition on 06.9.1996) and at par with the case of Hamdard Public School. A direction for de-notification of the suit lands at par with the other''s case, and a further direction to DDA and Govt. of NCT not to demolish any part of the building constructed on the suit lands and not to take physical possession, was sought. By judgment and order dated 09-11-2011, a Division Bench of this court rejected WP(C) 233/1997. A review proceeding, being R.P. 716/2011 was disposed of by the Division Bench on 02-12-2011.
6. A special leave petition (SLP (C) 20893/2011) was preferred before the Supreme Court against the said judgment dismissing WP(C) 233/1997 and the review petition. By order dated 09-12-2011, the Supreme Court rejected that writ petition, recording as follows:
"no ground is made out for our interference with a well reasoned judgment of the High Court. Accordingly, the Special Leave Petitions are dismissed.
At this stage, Mr. Rohatgi submits that since more than 600 students are studying in the school, being run in the building constructed on the subject land, petitioners may be granted some reasonable time to shift the school. He, however, fairly states that insofar as the portion of land allotted to the Indian Spinal Injuries Centre is concerned, the petitioners will have no objection if its possession is delivered by the DDA to the said institute.
Keeping in view the interest of the students, we accede to the prayer and direct that, except for the piece of land allotted to the aforesaid institute, all the parties shall maintain status quo in respect of nature, title and possession of the subject land till 30th April, 2013, subject to the petitioners and all others who claim to be in possession of the subject land, furnishing an undertaking to this Court to the effect that they will deliver vacant and peaceful possession of the land under their occupation on or before the said date. The time so granted shall not be extended under any circumstances. The requisite undertaking shall be filed within four weeks from today, failing which, it will be open to the DDA to take possession of the land forthwith. Insofar as the land allotted to the aforesaid institute is concerned, its possession may be delivered to them as and when the DDA decides to do so.
We further direct that no construction activity of any kind shall be undertaken on the entire land, subject matter of this petition."
In furtherance of the above order, Shri. Sunil Kathuria, son of R.S. Kathuria affirmed an affidavit (dated 06-01-2012 which was filed before the Supreme Court) undertaking to vacate the suit land in terms of the order dated 09-12-2011 and inter alia, stated:
"..The present undertaking is given in terms of the Order dated 9th December 2011 passed in the aforesaid SLP without prejudice to any rights of the Petitioner in terms of the policies of the Government."
7. The undertaking (to vacate the suit property) was not complied within the time indicated, i.e 30-04-2013. The present writ petition was filed on 26-03-2014, alleging, inter alia, that the DDA was planning to take over the suit lands; it was also importantly contended that in view of Section 24 (2) of the newly enacted Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereafter "Acquisition & Rehabilitation Act") the lands had to be released in their favour. The present writ petition was listed for admission on 27-03-2014, when, after elaborately noticing the background facts, the Court also recorded the submission of DDA that it had preferred a contempt petition before the Supreme Court for non-compliance with the order dated 09-12-2011 and the undertaking given (i.e failure to vacate the suit lands by 30-04-2013). The court then disposed of the writ petition, stating as follows:
"11. As noted above, the petitioners have miserably failed to abide by the aforesaid undertaking furnished by them to the Supreme Court and instead, they have held on to the subject land by the skin of their teeth, under the flimsy pretext of submitting representations to the respondent/DDA for releasing the same and curiously, for reasons best known to the respondent No.2/DDA, even after expiry of the time granted by the Supreme Court to the petitioners, it has elected not to take any steps for dispossessing them from the subject land. However, having regard to the fact that now the respondent No.2/DDA has finally decided to exert itself and has approached the Supreme Court for initiating contempt proceedings against the petitioners for breach of the undertaking given by them in terms of the order dated 9.12.2011 and this Court has been given an assurance that the said petition is likely to be listed in a couple of weeks, it is not inclined to entertain the present petition. It is however directed that as the respondent No.2/DDA has not taken any steps till date to dispossess the petitioners, they shall await appropriate orders from the Supreme Court in the contempt petition filed by them and till then, no coercive action shall be taken against the petitioners. In those...
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