TMI Blog2003 (10) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petitions, where the lands were evacuee properties, were allowed and the acquisition in respect of those lands was set aside on the following reasoning: Civil Writ Petition No. 783/81 In this Petition, the notification under Section 4 is dated 13th November 1959 and declaration under Section 6 is dated 2nd January 1969. The award had been given on 17th January 1983. The land use prescribed in the Master Plan is zonal park and in the revised plan is District Park. In the original notification dated 13th November 1959, it is mentioned that it would not cover the evacuee land. The petitioner had purchased this property from its previous owner on 6th August 1962. However, on the date of notification issued under Section 4 of the Act, this land was evacuee property and vested in the Custodian and stood excluded from the said notification. The name of the previous owner is Kailash Chand Gupta. Reliance is placed on a judgment of Single Bench of this Court given in Civil Writ Petition No. 155/83, Harbans Kaur v. Land Acquisition Collector decided on August 12, 1991 in which, on similar facts, it was held that as the original notification issued under Section 4 excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the land in question was evacuee land or composite land. The land obviously belonged to the Government and in case the Government needed the land for public purpose they could have easily retained the possession of the land and there was no need to resort to Land Acquisition Act for acquiring this land. At any rate, when the land of the petitioners, being evacuee land, was not covered by the notifications issued under Section 4, any subsequent proceedings of acquisition taken in respect of the said land on the basis of the said notification under Section 4 were on the face of it illegal. Hence, the acquisition proceedings in respect of the land of these petitioners are liable to the quashed. Thus these acquisition were set aside on the grounds (a) They were pursuant to a Notification dated 13th November 1959, under Section 4 of the Land Acquisition Act; (b) that this Notification did not cover evacuee lands and therefore further proceedings would not be valid; (c) that evacuee lands or composite lands belong to the Government and in case the Government needed the land for public purpose they could have easily retained the possession of the land and there was no need t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and S. Shanmugavel Nadar v. State of Tamil Nadu reported in [2003]263ITR658(SC) may be looked at. Even otherwise, the order dated 7th November, 2000 is very clear. On this date Delhi Development Authority's Review Petition is being dismissed, but this order specifically de links this Civil Appeal along with two other Civil Appeals. Once this Court has specifically chosen to keep this Appeal alive, we do not consider it correct or proper to now dismiss this Appeal only on the ground that the Special Leave Petition and Review Petition of the Delhi Development Authority have been dismissed. 5. Mr. Rohtagi submitted that the Writ Petition should have been dismissed on the grounds of delay and latches. He pointed out that Section 4 Notification was issued on 23rd January, 1965 and Section 6 Notification was issued on 13th January, 1969. He submitted that this Writ Petition was filed only in 1982. He pointed out that the High Court in the Judgment dated 14th December, 1995 has held as follows: It is evident that if challenge is made belatedly to such notification obviously it would become difficult for the authorities to meet such a challenge as the records of such old notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court, in its judgment dated 14th December, 1995, has held that once the Notification under Section 4 did not cover evacuee lands then all subsequent proceedings are void and that the Respondents were thus entitled to challenge the acquisition proceedings even belatedly. He submitted that the factual aspect is not before this court, the submissions of Mr. Rohtagi should not be accepted. 7. In our view, it is not necessary for us to decide this point as, for reasons set out hereinafter, we propose to remit the matter back to the High Court for a fresh hearing in respect of some of the lands. It will be open to the parties to urge their respective contentions before the High Court. The High Court shall decide this question on merits. 8. Dr. Dhavan then took this Court through the provisions of the Administration of Evacuee Properties Act, 1950; the Evacuee Interest (Separation) Act, 1951, and the Displaced persons (Compensation and Rehabilitation) Act, 1954 and the averments made in the Writ Petition which are as follows: 5. That the Petitioner are the actual owners and occupants with physical possession of the land bearing Khasra Nos. 322(2-17), 323(2-16), 329/1/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68. A true copy of the said Order is Annexed herewith and marked as Annexure 'G'. Thus till 16-5-1968, the said land remained as composite evacuee property or acquired land vesting in Government on the date of issue of Section 4 Notification i.e. 23.1.1965, therefore, the said land could not be legally acquired on the basis of the said Notification dated 23.1.1965 and as such, any declaration Under Section 6 of the Acquisition Act is illegal, invalid and inoperative and void ab initio. He pointed out that in reply to these averments all that was stated was as follows: Para 5: The contents admitted in respect of Petitioner No. 1 to 6. Petitioner No. 7 to 9 are neither the owner nor occupant of the Land under petition. Petitioners No. 1 to 6 are the occupant of Kh. Nos. 322, 323/2. Petitioner No. 6 is owner in possession of Kh. No. 321(2-14), (2-17) (2-16), petitioner No. 3 is owner in possession of Kh. No. 324/2 (4-13). Petitioner No. 2 is occupant of Kh. No. 318/2 (3-12) on behalf of Gaon Sabha. Petitioner No. 1 is owner in possession of Kh. No. 329/1//1(0-4) and petitioners No. 4 and 5 are the owners in possession of Kh. No. 319/3(2-12) possession of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the Writ Petition challenging the consolidation scheme was maintainable after the Notification under Section 12 had been issued. It was held that even though there was no right to property but still there was an interest in the land which enabled Respondent (therein) to maintain the Writ Petition. The observation that the interest in land continued was based on Section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which specifically provided that even after an acquisition under Section 12 the displaced person to whom the property was leased or allotted could continue in possession of that land. Thus the observation relied upon are based on the provision of Section 10 which permitted retention of possession. There is no such provision in the Land Acquisition Act. Thus once an acquisition takes place under the Land Acquisition Act all prior rights would stand terminated. The principles laid down in Suraj Kapur's case could thus have no application. 10. Dr. Dhavan further submitted that there was no denial that on 7th July, 1955 there was a Notification under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. A copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty consisting of land and buildings and where the land was the subject matter of the government grant, subject to the power of resumption by the Government at any time on giving one month's notice, then the compensation was payable only in respect of such buildings as may have been authorized to be erected and not in respect of the land. 30. In the matter of the Land Acquisition Act: Govt of Bombay v. Esufall Salebhai ILR (1910) 34 Bom 618 ILR (AT P. 636) Batchelor, J. held that the Government are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside the Government, directs that the entire compensation based upon the market value of the whole land must be distributed among the claimants. The Government was held liable to acquire and pay only for the superstructure as it was already the owner of the land. 31. In Dy. Collector, Calicut Division v. Algarve Pilay 9 IC 341; (1911) 2 MWN 367 : 9 MLT 2721 Wallis, J. observed that the Act does not contemplate or provide for the acquisition of any interest which already belongs to the Government in land which is being acquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of issue is whether the property is or is not evacuee property; or (ii) in respect of which the period of limitation, if any, fixed for an appeal or revision under the said Act for disputing to vesting of the property in the Custodian as evacuee property has not expired. (2) any such property in respect of which an application for the grant of a certificate under Sub-section (1) of Section 16 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950) is pending at the date of this notification or in respect of which the period of limitation fixed for making such application has not expired; (3) any such property which has been restored under Section 16 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950) or in respect of which an application under Sub-section (2) of that section for its restoration is pending at he date of this notification or in respect of which at certificate under Sub-section 91) of that section has been granted but no application under Sub-section (2) of that section for its restoration has been made; (4) any such property which before the date of this notification has been transferred and the transfer is effective under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Persons (Compensation and Rehabilitation) Act provides for acquisition by the Central Government clearly indicates that evacuee properties are not properties of the Central Government. As they are not properties of the government they can be acquired, not just under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, but even under the Land Acquisition Act. 16. Even if the Notification dated 7th January, 1955 applied to these lands, what was acquired was the interest of the evacuee. A property is a composite property because a private party has an interest in that property. The scheme of separation, to be framed under Section 10 of the Evacuee Interest (Separation) Act, is for purposes of separating the interest of the evacuee from that of the private party. Therefore, even if the evacuees interest was acquired under Section 12, the interest of the private person could have been acquired under the Land Acquisition Act. Further if the land stood acquired by the Notification dated 7th January, 1955 then the question would arise as to how the Respondents acquired title to these lands. If they purchased after the date of Notification dated 7th January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under the various Acts in lieu of properties, compensation in terms of money can also be paid. Thus merely because the properties vest in the Custodian as evacuee properties does not mean that the same cannot be acquired for some other public purpose. The moment that the property is acquired for another public purpose the compensation payable under the Land Acquisition Act would be paid to the Custodian who would then distribute it under the provisions of the various Acts. 18. We see no substance in the submission that the case of evacuees under the 1959 Notification and under the 1965 Notification must be treated similarly. It is not possible to accept the submission that impliedly evacuee properties were excluded by the Notification dated 23rd January, 1965. There can be no such implied exclusion. In our view, it is for the Government to decide whether or not an evacuee property is to be left with the Custodian for the purposes of distribution under the various Acts or whether some other public purpose is more important. It would be open to the Government to acquire evacuee property and give to the Custodian compensation for such acquisition. Section 4 Notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. In the case of Murari and Ors. v. Union of India and Ors. reported in (1997)1SCC15 , in respect of this very acquisition this Court has held as follows:- In the present case as stated earlier after issuance of the notifications and notices under Sections 9 and 10 of the Act not only a large number of objections were filed by the landowners whose land was sought to be acquired but a number of writ petitions were filed in the Delhi High Court challenging the validity of the notification under Section 4 as well as the declaration under Section 6 in which interim orders of stay were passed by the High Court which resulted in considerable delay. Thus the authorities alone were not responsible for he delay but the landowners were equally responsible for the same. In such circumstances and on consideration of several decisions of this Court including those rendered in the case of Bihar State Housing Board v. Ban Bihari Mahato AIR1988SC2134 and Ujjain Vikas Pradhikaran v. Raj Kumar Johri AIR1992SC1538 this Court in the case of Ram Chand v. Union of India (1994)1SCC44 took the view that in any case there was no justification for the authorities to make the award in 1980/1981/1983 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the landowners. In this connection the fact could not be lost sight of that the landowners have enjoyed possession all these years and have taken the benefit of the usufruct and other advantages out of the said land and, therefore, they stand even in an advantageous position than those landowners from whom the possession was taken earlier. ..... After overall consideration of the issues involved in these transfer cases and the appeals we find no ground to take a different view than the one taken by the High Court in the impugned judgment. Consequently, the acquisition proceedings could not be quashed on any grounds. We also find ourselves in respectful agreement with the view taken by this Court in the case of Ram Chand. Consequently, the appeals fail and are hereby dismissed. The transfer cases are allowed in terms of the order made in the case of Ram Chand directing that the transfer petitioners and the appellants shall be paid an additional amount of compensation to be calculated at the rate of 12 per cent per annum, after the expiry of two years from the date of decision of Aflatoon case i.e. 23.8.1974 till the date of making of the awards by the Collector, to be calculate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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