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Munshi Lal and ors. Vs. Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 433D of 1961
Judge
Reported inILR1971Delhi113
ActsLand Acquisition Act, 1894 - Sections 4 and 48; General Clauses Act, 1897 - Sections 3(8)
AppellantMunshi Lal and ors.
RespondentDelhi Administration and ors.
Advocates: S.N. Chopra and; D.K. Kapur, Advs
Cases ReferredKhan Bahadur Chowkaran Keloth Mammad Koy v. Province of Madras Air
Excerpt:
.....such legitimate means as may be available to him to secure his property rights. section 48 of the land acquisition act in terms provides that the government may withdraw from the acquisition at any stage prior to it taking possession of the land. this, thereforee, envisages that a person interested or an owner may move the government by representation to release the property from the process of acquisition at any stage prior to possession being taken by the government, and in any case there can be no bar against it. no right in the property is created in favor of the government till it takes possession, and if it chooses to withdraw from the acquisition prior to taking possession the owner's rights are not affected one way or the other for he was never deprived of his ownership.; (ii)..........do so a notification dated 26-5-1960was published in the delhi gazette under section 4 of the landacquisition act, 1894 proposing to acquire the land. there is soniccontroversy as to the khasra numbers boundaries in area of the properties so notified for proposed acquisition. anyhow, the petitionersclaim they preferred objections under section 5a. of the land acquisition act to the proposed acquisition. the petitioners claim that they did not get full opportunity to substantiate their objections under section 5a of the land acquisition act and a notification under section 6 of the land acquisition act, 1894 in respect of the propertywas issued on 8-8-1961. it is contended that even in this notification under section 6 there was error in delineating the propertyand describing the.....
Judgment:

Prakash Narain, J.

(1) The petitioners (in this case) under thename and style of Friends Corporation purchased a plot of land measuring 14050 square yards in Khasra No. 408 with a bungalow builtthereon collectively known as premises No. 21 Rajpur Road, Delhi.The petitioners state that they had acquired this land to make independent residential houses for themselves, A lay out plan was submitted by the petitioners to the Municipal Corporation of Delhi forpermission to divide the property into 14 plots so as to provide eachof the petitioners with independent space for constructing residentialcottages for themselves. This lay out plan is stated to have been sanctioned by the Municipal Corporation of Delhi on 6-6-1961. The petilioners thereon proposed to submit building plans for their individual properties but before they could do so a notification dated 26-5-1960was published in the Delhi Gazette under section 4 of the LandAcquisition Act, 1894 proposing to acquire the land. There is soniccontroversy as to the khasra numbers boundaries in area of the properties so notified for proposed acquisition. Anyhow, the petitionersclaim they preferred objections under section 5A. of the Land Acquisition Act to the proposed acquisition. The petitioners claim that they did not get full opportunity to substantiate their objections under section 5A of the Land Acquisition Act and a notification under section 6 of the Land Acquisition Act, 1894 in respect of the propertywas issued on 8-8-1961. It is contended that even in this notification under section 6 there was error in delineating the propertyand describing the same correctly. Aggrieved, by this acquisition the petitioners filed a petition under section 226 of the Constitution ofIndia challenging the acquisition on various grounds. In the meantime, however, it is admitted, the petitioners continued their effortsat other levels to get their property released. It is contended by the petitioners that their effort was successful and the property wasactuallv released, but the Delhi Administration is acting mnla fidein withholding the cancellation of the notifications under section 4 and 6 of the Land Acquisition Act. In order to bring home thissubsequent development the petitioners moved C.M. 521-D of 1966setting out that on their representations seeking release of the propertythe then Chief Commissioner of Delhi, Shri Dharam Vira. I.C.S.appointed a Sub-Committee consisting of four persons, namely. Sarv-shri Shiv Charan Gupta, M.P. K. L. Rathi, the then Housing Commissioner, Delhi Administration, the then Vice Chairman of DelhiDevelopment Authority and K. Kishore, then Chief Secretary, DelhiAdministration to consider the representations made by the pefitionersand report if the property could be released from acquisition. It isalleged that the Committee under the Chairmanship of Shri ShivCharan Gupta examined the matter and came to the conclusion thatthe land in question should be released from acquisition and was notneeded for any public purpose. On a consideration of the report ofthe sub-committee, it was alleged, Shri Dharam Vira, the then ChiefCommissioner of Delhi, examined the entire matter himself andordered the release of the property from acquisition. It was alsoalleged that the order passed by the Chief Commissioner was communicated to the petitioners by him orally. In this view of the matterit was urged that the changed circumstances may be kept in view andthe respondents be directed to issue formal orders or notification denotifying the property and releasing it from acquisition.

(2) The respondents had contested the writ petition on merits anddisputed the contentions made by the petitioners in C.M. 521-D of1966. Thereupon the petitioners moved C.M. J409-J of 1968 praying that the additional facts pleaded by them earlier about releaseof the property may be allowed to be brought on record and the filepertaining to the property in dispute be summoned and placed beforethe court so that the contention about the release of the properly couldbe verified. Notice of this application was given to the respondentswho opposed the prayer and even claimed privilege in respect of thefile. This claim of privilege was negatived by me by my order dated 25/09/1970 and I directed that the respondents place on record the orders passed by Shri Dharam Vira, I.C.S. the then ChiefCommission of Delhi in November. 1964 and the orders stated tohave been passed by some competent authority on 20-7-1965. Thesewere duly placed on record and file No. F.15(107)/60-L.S.G.II(Part II) now forms part of this record.

(3) A perusal of this file shows that the contention of the etitionersabout the constitution of a Committee to consider heir representationregarding the release of 21-Rajpur Road, Delhi from the purview ofacquisition are correct. - A meeting of this Committee was held andits minutes are on record. Thereafter there are various notes ofofficers and other persons dealing with this representation at variouslevels until we come to the order of the Chief Commissioner which the petitioners claim was passed on 17-11-1964. It Is not necessary 10set out that order in detail but the purport of the order is quite clearand that is the property stood released from acquisition. The compliance of this order was then merely a procedural matter. It seemsthat on 20-7-1965 Mr. V, Vishwanathan the then Chief Commissionerof Delhi considered revision of the orders passed by Shri Vira andexpressed a view that the acquisition proceedinp. should not be dropped, but also stated that since the matter was pending in the HighCourt the result of the decision of the High Court may be awaited.How this order came to be passed is neither clear from the file norhas been made clear by the respondents in their affidavits. The question, thereforee, that now arises for decision in this case, is, what isthe effect of the order of Shri Dharam Vira passed on 17-11-1964 and whether something more was required to be done under the lawto make that order operative.

(4) The scheme of the Land Acquisition Act is that whenever the appropriate Government wishes to acquire land it publishes a notification under section 4 of the Land Acquisition Act, 1894 to the effectthat a particular land in a particular locality is needed or is likelyto be needed for a public purpose. The effect of this notificationis that on its publication it becomes lawful for any officer authorisedby the Government to enter upon and survey such land and do allacts necessary to ascertain whether the land can be adopted for thepurpose for which it is intended to be acquired. The owner of theland has a right to file objections under section 5A of the Act and show either that the land is not suitable for the public purpose orthat for other cogent reasons it should not be acquired. After carrying out its survey etc. and hearing the objections under section 5A the Government then issues a declaration of intended acquisitionunder section 6 of the Land Acquisition Act and this declaration isissued by means of a notification published in the Gazette. Thisnotification publishing the declaration has to state all the particulars of the land intended to be acquired in accordance with the provisions of the statute. The Government then directs some officer, usuallyknown as the Land Acquisition Collector, to make an order for theacquisition of such land. On receiving directions the Collector causesthe land so notified under -section 6 of the Act to be marked out anda plan to be made of the same. He also issues notices to nersonsinterested under section 9 of the Land Acquisition Act to come and prefer their claims for compensation. After holding an enquiry asto the compensation claimed the Collector then an award under section 11 of the Land Acquisition Act. After making such awardthe officer or the Land Acquisition Collector is required to file thesaid award in the Collector's office. The Collector then gives noticeof the award to the persons interested under section 12(2) of theAct. It is only after the, award has been made that the Government can proceed to take possession of the land and on takingpossession the acquisition is complete and the land thereupon vestsabsolutely in the Government free from all encumbrances. Thus IT is only when possession is taken that the acquisition is compte.Section 45 of the Land Acquisition Act provides that except in casesprovided in section 36 of the Act the Government shall be at libertyto withdraw from the acquisition of any land of which possession has not been taken. On such withdrawal the Collector is requiredto determine the amount of compensation due for the damage sufferedby the owner in consequence of the notice or any proccedings ofacquisition and shall pay such amount to the peron interested togetherwith all costs etc. There is no provision under which the Governnient can withdraw from the acquisition after it his taken possessionof the land. In the present case there is no dispute that possession had not been taken before the passing of the order dated 17-11 -1964.It is also not in dispute that the provisions of section 36 are notattracted in the present case.

(5) The scheme of the Act, as enumerated above, leaves no mannerof doubt that till the time of the taking of the possession theGovernment is free to withdraw from the acquisition at any stage whether ithe the stage of the publication of the notification under section 4 orthe publication of the notification under section 6 or even when theaward is made it is contended on behalf of the petitioners that in thepresent case the Government has withdrawn from the acquisitionprior to its taking possession of the land or offering compensationby the award made by the Land Acquisition Collector and it be declared that this is so. On the other hand the Government's contention is that it has not withdrawn from the acquisition and unless anoification is published releasing the land the acquisition proceedingscan be continued culminating in the making of the award, filing ofthe same with the Collector and taking possession of the property.The first point to be examined in the case, as it now stands, iswhether the petitioners had any right to claim release of their propertyafter the publication of the notification under section 6 of the Actand if so in what manner, could that right be exercised. The respondents' case on this aspect is that once a notification under section 6 of the Act has been published an owner of land or a person interested in land cannot agitate for release of the properly from acquisitionin as much as that right is available under the statute only under section 5A of the Act. I am not impressed by this contention..Section 5A of the Act gives a statutory right to oppose a declarationof intended acquisition. The notification published under section 6 is merely a declaration of intention to acquire and does not amountto acquisition itself. This aspect is quite clear on a reading ofsection 11 and 12 of the Act. There is no statutory bar to a personrepresenting against being deprived of his property. Indeed to holdproperty is a fundamental right guaranteed by the Constitution ofIndia and no statutory or other limitation can be placed against aperson such legitimate means as may be available to him to securehis property rights. Section 48 of the Land Acquisition Act in termsprovides that the Government may withdraw from the acquisition atany stage prior to it taking possession of the land. This, thereforee.envisages that a person interested or an owner may move theGovernent by representation to release the proprty from the process ofacquisition at any stage prior to possession being taken by theGovernment and in any case there can be no bar against it. This isexactly what happened in the present case and it is claimed that theGovernment did withdraw from the acquisition within the ambit ofsection 48 of the Act. A full Bench of the Allahabad High Court inBahori Lal v. Land Acquisition Officer and other : AIR1970All414 observed as under:-

'AFTERthe making of the declaration under section 6 of the Act, persons interested may not have any right toraise such objections as are open under section 5-A but IT is wrong to. say that they are left only with the right toreceive compensation. Under section 48(1) except in thecase provided for in section 36. the Government is atliberty to withdraw from the acquisition of any land ofwhich possession has not been taken. So, even after adeclaration under section 6 has been made, a person interested may raise objections or make representations m consequence of which the Government may ultimately withdrawfrom the acquisition of the land under Section 48(1). For raising such objections or making such representations nostatutory provision is needed under the circumstances statedin Section 49 of the Act, right of objection has been givenagainst partial acquisition. This right can be exercised bothafter the notification under section 4(1) and the declarationunder section 6(1) of the Act ......

I am in respectful agreement with the observation of their Lord-ship of the Allahabad High Court. No interest is created in the landnotified for acquisition under section 6 of the Land acquisition Actand so the contention that once a notification under section 6 has beenpublished a party cannot claim release of his land cannot be accepted.

(6) The next question that must be decided is whether the Government's withdrawal from acquisition has to be published by means of notification or communicated in any particular form. Section 48 byitself does not set out that a notification is necessary to be published.Indeed sections 4 and 6 of the Act in terms provide for notification tobe published while section 9 and 12 of the Act provide for notice beingsent. Nothing has been pointed out to me either in the statuteor in the rules which require a notification to be published or a notice to be issued on the Government deciding to withdraw from the acquisition under section 48 of the Act. In fact section 48 is an enablingsection and the mechanics of sending intimation after the exercise ofthat right may differ from case to case and circumstance to circumstance. An order will necessarily have to be passed by the Government withdrawing from the acquisition but whether that order requiresto be published by a notification or it requires to be communicated in. writing is a point which is not dealt with by the statute or the rules.Mr. Devinder K. Kapur, the learned counsel for the respondentsurged that unless such an order is communicated it cannot be effectiveand would amount to no order. He referred to a decision of theSupreme Court in State of Punjab v. Amar Singh Harika : (1966)IILLJ188SC and quoted from the speech of Gajendragadkar, C. J. that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officerconcerned. That was a case in which the services of a Governmentemployee were alleged to have been terminated and it was held thatthe order of termination of services cannot take effect till it is communicated. In my opinion, the ratio of that decision is not attracted to the facts of the present case at all. As already noticed by meearlier no right in the property is created in favor of the Government till it takes possession, and if it chooses to withdraw from the acquisition prior to taking possession the owner's rights are not affectedone way or the other for he was never deprived of his ownership.Mr. Devindra K. Kapur urged that till the order is communicatedthe Government was at liberty to change its mind and so a notificationwas necessary. For this purpose he relied on a Bench decision of theMadras High Court in Khan Bahadur Chowkaran Keloth Mammad Koy v. Province of Madras Air 1964 Mad 450 In my viewthat decision is not relevant at all inasmuch as it was based on consideration of the rules framed by the Madras Government under theLand Acquisition Act. Rule 5 of that Government's Rules providesfor a notification to be issued regarding the decision taken by theGovernment under section 48 of the Land Acquisition Act. In thatview of the matter it was held that prior to the publication of thenotification the Government could change its mind and continuewith the acquisition. As already observed by me earlier no ruleshave been brought to my notice which require publication of thedecision of the Government under section 48 in Delhi.

(7) That Shri Dharam Vira took this decision is apparent from thefile. The question that arises is whether his decision is the decisionof the Government. This point, however, need not detain us very longbecause in terms of section 3(8) of the General Clauses Act readwith section 3(60) of the same Act the then Chief Commissionerof Delhi would be appropriate Government for the purposees ofacquisition of land under the Land Acquisition Act, 1894 and hisdecision would be the decision of the Government within the meaningof section 48(1) of the Land Acquisition Act. I, thereforee, holdthat once the decision had been taken by Shri Dharam Vira theGovernment must be held to have withdrawn from the acquisitionunder section 48 of the Act. Whether that decision was communicated or not would be immaterial but in the present case it standsestablished on record that the decision was communicated by ShriDharam Vira himself to the petitioners and that fact has not beenrefuted or challenged. No formal communication was necessary andin that view of the matter the proposed acquisition of the propertyin dispute comes to an end. The revival of the acquisition proceedingsby Shri V. Vishwanathan if at all it amounts to revival is wholly illegalas once the Government has withdrawn from acquisition it can onlyreacquire the land in accordance with the provisions of Land Acquisition Act, namely, by issuing fresh notifications under sections 4 and 6 of the Act and taking the necessary proceedings thereafter culminatingin the award and taking of the possession.I, thereforee, issue a writ declaring that the intended acquisitionby the Government of the premises known as 21-Rajpur Road, Delhihas come to an end by the act of the Government withdrawing from the acquisition on 17-11-1964 and restrain the respondents from' proceeding to acquire the said property in pursuance of theearlier notifications under section 4 and 6 of the Land AcquisitionAct issued on 26-5-1960 and 8-8-1961 respectively. In the circumstances it is not necessary to advert to the other objections to theacquisition taken by the petitioners. The petitioners will also beentitled to their costs.


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