BRIJBHUSHAN DECD Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) This petition under Articles 226 of the Constitution of India by a land-owner challenges the proceedings for the acquisition of the aforesaid land and seeks to quash the Notifications made under Sections 4, 6 and 17 of the Land Acquisition Act, 1894, hereinafter referred to as "the Act" and the notices under Sections 9 and 10 of the Act.

(2.) The facts and circumstances leading to the petition may he briefly stated. In May, 1960 the then Chief Commissioner of Delhi issued a Notification under Section 4 of the Act to the effect that land in the village of Kilokri was likely to be required for a public purpose, namely, the construction of a Fire Station pursuant to the request made by the Municipal Corporation of Delhi under Section 199 of the Delhi Municipal Corporation Act, 1957, hereinafter to be referred to as "the Corporation Act". By the same Notification the provision of sub-section (1) of Section 17 of the Act was invoked and it was declared that by virtue of the provisions of sub-section 4) of the said Section the provision of Section 5-A shall not be applicable. This was followed by a Notification under Section 6 of the Act to the effect that the land in dispute belonging to the petitioner was required for the aforesaid public purpose. Notices were also issued under Sections 9 and 10 of the Act to the petitioner and the other land owners. The petitioner and certain other land owners, who were similarly affected, filed a petition in this Court challenging the validity of the Notifications under Sections 4 and 6 on various grounds but eventually at the hearing of the petitions the attack was confined to the ground that any acquisition for the purpose of the Corporation could be procured only if the Corporation was satisfied that a negotiated sale of the land in question was not possible. The petitions were heard by a Division Bench of this Court and were dismissed by an order of the Division Bench made on November 26, 1969 in C.W. 857 of 1960. The Division Bench repelled the contention and held, following a decision on a similar question by the Gujarat High Court, that there was nothing in the aforesaid provision of the Corporation Act which rendered it necessary that the Corporation must make an attempt for a negotiated purchase of the property and could move the appropriate Government for acquisition only if it was. unable to purchase the land in that manner. This judgment has since become final as it was not challenged by the petitioner. It appears that meanwhile the public purpose for which the land was sought to be acquired had already been satisfied by the acquisition of another piece of land and by the construction on the piece of land of the Fire Station, for which the present land was sought to be acquired. On account of this change while the Notifications under Sections 4 and 6, as indeed, under Section 12(1), were left in tact notices under Sections 9 and 10 issued pursuant thereto were withdrawn and fresh notices dated November 16, 1971 were issued under Section 9 and 10 purporting to continue the acquisition proceedings for a public purpose different than the one envisaged by the two notifications. The notices envisaged the acquisition of the land for the construction of staff quarters for Delhi Administration. By the present petition the petitioner assails the two notifications and the fresh notices under Sections 9 and 10 of the Act. Respondent No. 1 to the petition is the Delhi Administration while respondents 2, 5 and 4 are the Lt. Governor of Delhi, the Municipal Corporation of Delhi and the Land Acquisition Collector, Delhi, respectively. Union of India is respondent No. 3. The petition is opposed on behalf of the respondents.

(3.) Before considering the various contentions raised on behalf of the petitioner it would be proper to deal with a preliminary objection raised on behalf of the respondents. It is urged that the petitioner, having unsuccessfully challenged the notifications under Sections 4 and 6 of the Act in the earlier proceedings, would not be entitled to assail the aforesaid notifications in the present proceedings on account of the principles of res judicata even though the grounds that the petitioner canvassed in the earlier petition had related only to the limited question if the acquisition could be resorted to until the Corporation had failed to acquire property by mutually negotiated sale as envisaged by Section 199 of the Corporation Act. On behalf of the petitioner an attempt was made to get over the legal bar on the ground that the notifications were being assailed by the present petition on wholly different grounds which were neither raised nor decided in the earlier proceedings. It is difficult to accept this contention of the petitioner. Explanation 4 to Section II of the Code of Civil Procedure would be a complete reply to such a contention. The petitioner is, therefore, not entitled to assail the validity of the two notifications in the present proceedings. It was, however, not disputed on behalf of the respondents that the petitioner was nevertheless entitled to assail the fresh notices under Sections 9 and 10 of the Act because these notices were issued subsequent to the decision in the earlier proceedings. The only question that, therefore, survives for consideration is a,s to the validity of notices under Sections 9 and 10 of the Act. These notices were sought to be voided on the ground that these could not be said to be pursuant to the two notifications and were wholly inconsistent with them in that the notifications were based on the requirement of the land for the purpose of construction of a Fire Brigade while according to the notices the land in dispute was required for the purpose of construction of quarters for the staff of the Delhi Administration. It was further urged that the two notifications had authorised the acquisition of land for a specified public purpose, namely, the construction of a Fire Brigade by the Municipal Corporation of Delhi and that the purpose having been admittedly achieved long before the impugned notices were issued the effect of the two notifications had been exhausted and no further proceedings pursuant to them could be legitimately taken. It was further contended that the requirement of the land for the alleged purpose of constructing staff quarters for the staff of the Delhi Administration was an entirely new purpose and effect could not be given to it unless fresh notification under Sections 4 and 6 were issued in relation to the new purpose and the competent authority has had opportunity to apply its mind to the question whether land was required for that purpose and as to the propriety of initiating acquisition proceedings. A further contention was also raised on behalf of the petitioner that the notices under Sections 9 and 10 had not been served on the petitioner.