JUDGMENT
B.C. Patel, C.J.
1. This petition is filed challenging the action of the respondents, taking possession of land which vest in Government in view of the award made by Land Acquisition Collector vide award No. 1925, copy of which is placed on record (Annexure-C) dated 12.1.1967.
2. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) was issued on 13.11.1959 to acquire 34070 acres of land situate in various villages of Union Territory of Delhi including village Tihar. After following the procedure laid down in the Act, declaration under Section 6 of the Act was made on 10.12.1961 and subsequently award came to be made on 2.1.1967. There is no dispute that the proceedings were challenged by filing writ petition and subsequently by filing Letters Patent Appeal and Special Leave Petition before the Apex Court by the land owners but without success. Therefore, the question of the acquisition is not required to be gone into by this Court.
3. Learned counsel for the petitioner contended that in the year 1977 Government announced a policy for regularizing unauthorized colonies in Delhi and in view of this policy the petitioner should not be disturbed. It is further contended that since 1980 no action has been taken by the respondents, the proceedings should be deemed to have been withdrawn more particularly when proceedings were not stayed by any Court . It is submitted that in view of the policy framed by the Government, the lands must be regularized. It was submitted that in view of the judgment of the Apex Court reported in The Special Land Acquisition Officer, Bombay and others v. M/s . Godrej and Boyce unless and until possession is taken it cannot be said that the land vests in the Government.
4. It was further submitted by the petitioner that merely because in a proceedings initiated against the petitioner by Municipal Corporation of Delhi where a statement is made that lands have been acquired and is not liable to pay any tax, which has been accepted by the Court, would not come in the way of the petitioner. It is submitted that Municipal Corporation of Delhi came out with the case that the petitioner has encroached upon the land by constructing boundary wall, as indicated in the plan vide letter dated 15.5.1991 (Annexure-H) i.e. a dispute between the Municipal Corporation of Delhi and the petitioner and that has nothing to do with the acquisition proceedings.
5. By filing application (CM.9368/2003) for an order Delhi Development Authority (for short DDA) has prayed to dismiss the writ petition and to vacate the order of stay immediately on the grounds stated in the application. It is in view of this it was submitted by the applicant, DDA that the land is required for Planned Development of Delhi for housing scheme. An application of the petitioner for de-notification was rejected on the said ground and now the Delhi Development Authority has come out with the case that the lands are urgently needed for Delhi Metro Rail Corporation for implementation of that project for Line No. 3 from Barakhamba Road via Connaught Place, Patel Nagar to Dwarka Corridor. The list of lands required for the purpose are indicated in Annexure-III to the application submitted by DDA. The property in question is indicated at Sr. No. 17. In view of the project which is of great importance for the citizens of Delhi, request is made by Delhi Metro Rail Corporation for availability of land free from encroachment.
6. On behalf of the petitioner, it was submitted that as colony of Meenakshi Garden was approved by the Municipal Corporation of Delhi and the plot of land of the petitioner has been assigned Municipal No. WZ-117, Meenakshi Garden, hence purpose of acquisition has been frustrated. Therefore, direction should be given to the respondents not to take possession of this land.
7. So far as the prayers are concerned, the petitioner has prayed that on account of inaction, the Court should declare that the respondents have withdrawn the acquisition proceedings for the land of the petitioner comprised in khasra Nos.321, 322/1, 323/1 and 324/1 situated in the revenue estate of Tihar, which is now known as property No. WZ-117, Meenakshi Garden, New Delhi or in the alternative the petitioner requested the Court to direct the respondents to denotify and to withdraw the acquisition proceedings. He has also prayed that the notification dated 13.11.1959 under Section 4 of the Act, declaration under Section 6 of the Act dated 10.12.1961 and award No. 1925 dated 2.1.1967 in respect of the land of the petitioner mentioned hereinabove be quashed and set aside.
8. So far as the action taken by the Municipal Corporation of Delhi in converting the plot by giving No. WZ-117 is concerned, it may be stated that the Land Acquisition Collector has nothing to do with the scheme. Even if other plots of Meenakshi Garden have not been taken in possession is of no relevance and cannot be taken into consideration while deciding this petition. In the absence of Municipal Corporation, as rightly pointed out by the respondents in the affidavit, such contention cannot be taken into consideration.
9. With regard to delay in making use of the parcels of these lands, it is the case of the respondents that the land is required for a public purpose, as indicated in the notification and the purpose has been conclusively held to be public purpose. It was submitted that filing of representation for denotification does not create any enforceable right in favor of the petitioner. Merely because application was given does not confer any right on the petitioner to sought the relief for denotification. It was also submitted that the lands are acquired for the purpose of Planned Development of Delhi and the beneficiary of the land is the Delhi Development Authority. The Delhi Development Authority is in need of possession of land for the purpose of Rail Project. It cannot be said that lands are not required. The affidavit filed by the Delhi Development Authority earlier clearly reveals that time and again request was made to hand over the possession of the land. The representation for denotification was rejected much earlier and thereafter in 2000 by various letters demand was made for physical possession of the land in question but it could not be handed over.
10. It may be noted that the Court directed to maintain status quo by an order dated 15.9.2000 and thereafter on 16.3.2001 learned Single Judge directed the petitioner to maintain status quo qua its construction and possession. It is in view of this, possession could not be taken after the order was made by the Court. It is contended by the respondents that original owner on the date of notification was one Deewan Ganga Ram Chopra and others and the land was used for the purpose of cultivation. A factory was constructed by Tirath Ram. So far as the notices are concerned, Deewan Ganga Ram Chopra could not be served on account of incomplete address but notices have been served by affixing at the site and no claim has been filed by any interested person. Once the award is made acquisition proceedings have become final. In the instant case, earlier for the land in question petition was filed which was dismissed against which Letters Patent Appeal being LPA.No. 172 of 1976 was preferred, which was also dismissed on 4.3.1980 and Special Leave Petition being SLP.6134 of 1980 was dismissed on 11.9.1980 and, therefore, as stated earlier the acquisition proceedings are not required to be re-opened. It was submitted in this behalf that while making a request for release of land to the Hon’ble Lt. Governor the applicant has made it clear that he has made a reference under Section 18 of the Land Acquisition Act. Therefore, it was submitted that the Court should not interfere at this stage.
11. With regard to the contention raised by learned counsel for the petitioner that the constructed property cannot be acquired has been considered in detail by this Court in Shanti Sports Club and another v. Union of India and others . Learned counsel for the respondent submitted that policy decision has been taken to regularise the colonies was examined by the Division Bench in Shanti Sports Club’s case (supra) as under:-
“The contentions that there is any policy to regulate unauthorized colonies or there is a policy decision not to acquire built up area, are concluded against the petitioner by a Division Bench decision of this Court in the case of Attar Singh v. DDA (CW 3110 of 1991) decided on 10th August, 1992 In Attar Singh’s case also it was alleged that the petitioner had a godown built up area situatd in village Haiderpur on private land and no action can be taken by the respondents against the petitioner. In that case too, the Bench referred in the judgment of the same Award No. 50/80-81 made on 18th July, 1980. The contention that there was a policy of Government to regularise the unauthorized colonies and also not to acquire built up area was rejected and it was observed that:
“It was further contended that unauthorized colonies on Government land are sought to be regularized. It is possible that a political decision to this effect may be taken with regard to some of the colonies but as far as this land is concerned, there have been valid proceedings for acquisition under the provisions of the Land Acquisition Act. If there was any built up area as on the date when Section 4 notification was issued, the claimants would be entitled to receive compensation in accordance with law. As far as the petitioner is concerned, we do not find that the petitioner is entitled to any compensation and in fact it is one Udai Singh who has already received the compensation. Be that as it may, merely because some of the colonies are going to be regularized cannot be of any assistance to the petitioner specially when, in the writ petition, there is no challenge to the acquisition proceedings. The proposal of excluding the land from the award which was there is 1968 has apparently been given a go-by and this has resulted in, first Notification under Section 6 being issued on 2nd January, 1969, followed by the award in 1980.”
12. There is ample material placed on the record that the lands are required for Metro Rail and demand is made by Delhi Development Authority for allocation to the Metro Rail for the purpose of track, as indicated earlier. Learned counsel for the petitioner submitted that as per the Master Plan, the lands vest in residential zone and, therefore, cannot be used for any other purpose. If use is for any other purpose, it would be contrary to the Master Plan. It is required to be noted that the requirement of land for the purpose of Metro rail is a public purpose. When Metro Rail is to be provided in the city itself, it cannot be said that the land cannot be used for the purpose of Metro Rail. In Bhagat Singh v. State of U.P. and others the Apex Court has pointed out that the 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. If the purpose is changed then it will be for the Competent Authority under Act to consider the change of land use. Merely because now the land is to be used for Metro Rail, the acquisition proceedings cannot be termed as bad.
13. On behalf of the respondents, it was submitted that the petitioner, in the instant case, had made a statement before the other authority that after the writ petition filed by him was dismissed on 14.3.1980 finally, and the land in question vested in the Union of India and is exempted from property tax under Section 119 of the Delhi Municipal Corporation Act. By making such statement, he invited the Court to deliver verdict that the property having vested in the Union of India, the appellant (the petitioner herein) is not the owner of the property in question, therefore, he is not liable to pay any property tax. It was submitted that in view of this, the property vests in the Government and now the petitioner cannot take a different stand altogether.
14. So far as the vesting is concerned, it must be mentioned here that an Award is nothing but an offer and giving right to the Collector to take possession of the lands in view of the award made by him. The owner is free to accept the offer or to reject the offer and claim for higher amount. It is under this award the Land Acquisition Collector is entitled to take possession of the land. If the owner is accepting the offer in toto, then nothing further is required to be done, but, if the owner is not accepting the offer then he has a right to make reference under Section 18 of the Act for higher compensation. The moment the possession is taken, the land would vest absolutely in the Government free from all encumbrances. In absence of provision in the Act about automatic termination of acquisition proceedings, the petitioner’s contention cannot be accepted that on account of delay in taking possession, the proceedings be deemed to have been withdrawn. Section 6 of the Act is required to be perused at this juncture. Proviso to sub-section (1) of Section 6 reads as under:-
“Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1) –
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
Explanation 1. – In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded.
Explanation 2 – Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.”
15. Thus reading the provision, it is very clear that the declaration is required to be made within the stipulated period under Section 6 and if the declaration is not so made it would not be valid. Section 11A is also required to be perused at this stage:-
“11A. Period within which an award shall be made – (1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Explanation – In computing the period of two years referred to in this section the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.”
16. The acquisition proceedings shall lapse in view of the aforesaid provision if the award is not made within period of two years from the date of publication of the declaration. Legislature has made provisions in the Act itself as to when the proceedings either under Section 4 or under Section 6 followed by Section 9 will be terminated automatically on expiration of period mentioned in Sections 6 and 11A. However, Legislature has made no provision with regard to the lapse of acquisition proceedings after making an award. If the provision would have been made that if the possession is not taken of the land within a period of specified time then award will be inoperative or the proceedings shall lapse, the petitioner’s contention could be considered. But in the absence of such provision, once the award is made it continues to be operative, date of possession may be differed. At the same time if the possession is taken later on, the person would be entitled to get benefit as indicated in the Act.
17. Section 16 of the Act empowers the Collector to take possession, which reads:-
“16. Power to take possession – When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.”
18. There must be a notification under Section 48 of the Act. Therefore, withdrawal of acquisition with regard to the lands covered by notification or with regard to certain parcels of land is a must. It may be noted that Section 48 of the Act would not apply to the proceedings covered under Section 36 of the Act. As indicated earlier, the application of the petitioner for withdrawal from acquisition having been rejected and the lands being required for a public purpose, this Court is of the opinion that the petition deserves to be dismissed, which is hereby dismissed.