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Prabhudayal Bhai Gava Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 202D of 1965
Judge
Reported in11(1975)DLT261
ActsLand Acquisition Act, 1894 - Sections 4, 9 and 9(3)
AppellantPrabhudayal Bhai Gava
RespondentThe Union of India and ors.
Advocates: D.D. Chawla,; C.L. Choudhry and; A.B. Saharia, Advs
Cases ReferredMahanta Sri Sukh Dev v. Ram Ntipendra Narayan
Excerpt:
property - acquisition - sections 4, 9 and 9 (3) of land acquisition act, 1894 - petitioner challenged acquisition of land under section 4 as illegal and mala fide - petitioner contended that he is carrying on industry of fruit canning and preserving on land in dispute which is permissible use under master plan - alleged that displacement of petitioner from same is illegal and mala fide - land acquired for planned development of delhi - government would act according to law - notification for acquisition publicly published as required - absence of notice will not vitiate acquisition proceeding - mere fact that petitioner is carrying on some industry on land in dispute which is no ground for holding acquisition to be illegal and mala fide. - - planned development of delhi has..........not had any opportunity ^ to raise objections under 5a of the act or to make a claim before the land acquisition collector and eventual reference to the district court in respect of the compensation. it may at this stage be mentioned that in the writ petition, the petitioner has not claimed any relief in respect of the award of the collector made on 25th september, 1962. the relief claimed is issuance of an appropriate writ in respect of the section 4 notification dated 13th november, 1959 on various grounds mentioned in the writ petition. a counter-affidavit to the writ petition has been filed by shri jagmehan, the then secretary (land and building). delhi administration, and a rejoinder to the same has also been filed on behalf of the petitioner. (4) the petitioner also applied for.....
Judgment:

B.C. Misra, J.

(1) This writ petition is directed against the acquisition of 2 Bighas and 2 bids was of land bearing Khasra No. 333/1 situated in village Bahapur, opposite okhla Railway Station, New Delhi. The notification under section 4 of the ' and Acquisition Act was issued on l8th November, 1969 and declaration under section 6 was issued on 24th March, 962. The award for compensation has been made by the Collector on 25th September, 1962.

(2) The petitioner has challenged the acquisition by this writ petition on the ground that Basant Lal and Manohar Lal were previously two owners of the land in dispute. On 10th February, 1958, Manohar Lal sold his land in dispute along with other pieces of land to the petitioner for a sum of Rs. 7500 .00 and Basant Lal sabsequently on 25thFebruary,1958 sold his share in the land to the petitioner for another sum of Rs. 75,000.00 . In this way the petitioners become owner of the land in dispute along with other land for Rs.l,50,000.00 . The petitioner alleges that the sale was concluded under a registered sale- deed. It, however, appears that the mutations of the sale in the revenue records were made late in 1964.

(3) It appears that in February, 1958, the Collector issued notices for requisition or the superstructures standing on the land in dispute under the Requisitioning and Acquisition of Immoveable property Act 30 of 1951 These notices were issued not to the petitioner but to the previous owners. The petitioner, however, filed objections (copy Annexure 'D') In this he stated that he had purchsed the property in dispute from Manohar Lal and Basant Lal under two sale deeds which had been registered in the office of the Sub-Registrar, New Delhi, He raised a number of objections why the requsition should not be made. It appears that the requisition was thereafter amended. The land in dispuce was, however, sought to be acquired in pursuance of the section 4 notification made on 13th November, 1959 and section 6 declaration made on 24th March, 1962. I his notification and declaration were both duly published in the Gazette. The counter-affidavit of the respondents states that the notification under section 4 had also been published in the locality. The grievaince of the petitioner is that this notification should have been issued specifically to him since by the time the notification was issued, he had become the owner in possession of the land in dispute to the knowledge of the Collector, Delhi. The petitioner further alleges that notice under section 9 of the Act had also not been served on him and he has not had any opportunity ^ to raise objections under 5A of the Act or to make a claim before the Land Acquisition Collector and eventual reference to the District Court in respect of the compensation. It may at this stage be mentioned that in the writ petition, the petitioner has not claimed any relief in respect of the award of the Collector made on 25th September, 1962. The relief claimed is issuance of an appropriate writ in respect of the section 4 notification dated 13th November, 1959 on various grounds mentioned in the writ petition. A counter-affidavit to the writ petition has been filed by Shri Jagmehan, the then Secretary (Land and Building). Delhi Administration, and a rejoinder to the same has also been filed on behalf of the petitioner.

(4) The petitioner also applied for amendment of the writ petition for addition of certain grounds of challenge which have been allowed by my order dated 1st March, 1974 on payment of costs. The respondents indicated that they did not want to file any further counter affidavit and they prayed that the counter-affidavit already filed be treated as a reiurn to the amended writ petition.

(5) MR.D-D.CHAWLA,COUNSEL for the petitioner, has raised the following contentions, namely :-

1.The notification under section of the Act is vague and void for the reasons given ni paragraph l3of the amended writ petition.

2.No individual notice of the acquisition had been given to the petitioner who was the owner of the land in dispute as required by sections 9, 11 and 45 of the Act.

3.The acquisition was not bona-fide for the reasons mentioned in paragraphs 3 to 7 of the writ petition.

(6) The notification under section 4 is Annexure 'E The object of the acquisition is a public purpose, namely, planned development of Delhi. The objection of the counsel is that the expression ^planned developmert of Delhi' is vague and he relies upon a decision of the Supreme Court reported as Munshi Singh v Union of India. and a decision of this Court in Friends Housing. Society and others v. The Delhi Administration. It may be pointed out that a Division Bench of this Court consisting of Tatachari, J. and myself have in Jai Ram. Dass v. U. O. I. decided on 1st March,1974 considered the point over again. Planned Development of Delhi has uniformally been considered a good public purpose by the previous authorities of the Circuit Bench of the High Court of Punjab as well as this Court. In Friends Housing Society's case, I had found the purpose to be vague on account of paucity of material placed before me and in this decision, I also held that the petitioner-Sociery had fulfilled the requirements of claiming exemption from acquisition. The Division Bench in a later judgment to which I was a party has distinguished Munshi Singh's case as well my judgment in Friends Housing' Society's case and has recorded a finding that planned development being a public purpose is not vague and is valid. I respectfully agree with the view of the Division Bench and find that there is no force in the submission of the counsel for the petitioner,

(7) The next grievance of the petitioner is that the notification under section 4 ought to have been served on the petitioner. Section 4 of the Land Acquision Act provides that whenever it appears to the appro- priate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. , object of the notification under section 4 is public announcement by the Government and a public notice by the Collector in respect of the land needed or likely to be needed by the Government for a public purpose. This enables the parties interested in the land to raise objections under section 5A oftheAct. Secondly the notification authorizes the departmental authorities to survey and do all other acts in entering upon the land. This notification also fixes the date on which market value of the land is to be determined for purposes of awarding compensation in case '. the land is ultimately acquired. The provision, however, does not require a Special notice to. be served on the owners. The legal requirement is publication in the Gazette and public notice of the substance of such notice to be given at convenient places in the locality. This public notice has been sworn on behalf of the respondents to have been given in the instant case. I have no reason to disbelieve the statement contained in the counter-affidavit. The notice has, thereforee, been validly given. The grievance of the petitioner is that the notice should have been given to him specifically since he had become the owner of the property in dispute and had given this information to the Collector in the matfer of the requisition of the property mentioned above. The answer on behalf of the respondents' firstly that no special notice is required by law to be given and secondly the Collector dealing with the requisition and the Collector dealing with the acquisition were different. I also find that the notice of requisition had not been issued to the petitioner, but had been issued to the previous owners and still the petitioner filed objections against the same. The mere fact that the notice had been issued to the predecessors of the petitioners, did not prevent the petitioner from raising objections against the requisition- when he wanted to do so. In fact if the petitioner had purchased the land and the superstructures and had entered upon its possession, he would be well aware of the notification issued under section 4 of the Act. Apart from the fact that this notification had, according to law, been published in the Official Gazette and had been publicly published in the locality, it may be noticed that the instant notification dated, 13th November, 19'9 had attented unusual notoriety and publicity since an extremely large area of 34,076 acres of land and in fact practically the whole of the available vacant land had been notified, it had also- received wide comments in Delhi. It is, thereforee, impossible to con- cede that the petitioner had not come to know of this notification if he had entered into the possession of the land in dispute.

(8) The declaration under section 4 is again required to bs published only in the Official Gazette and there is no provision of law requiring it to be published in the locality. The declaration in the instant case had undoubtedly been published in the Gazette and no in firmity ran, thereforee, be found with the declaration. Consequently I hold that the notification under section 4 and the declaration under section 6 of the Act are both valid and have been published according to law.

(9) Notice under section 9 of the Act is, however, required to be not only publicity given at convenient places or near the land, but subsection (3) also requires special notices to be served on the occupiers and on all such persons who are known or believed to be interested in the land This notice has not been served on the petitioner while it ought to have been so served. The reply of the respondents is that the name of the petitioner had not been entered in the revenue records and so notice had been issued only to those persons whose names were duly entered in the revenue records which, in this case, happened to be the predecessor of the petitioner. The contention of the petitioner that the sale in his favor had become valid and effective on the execution and registration of the sale-deeds is correct ; the fact that the name of the petitioner had not been entered in the revenue records will not deflect from the efficacy of the sale. The notice should, thereforee, have been served on the petitioner.

(10) The question now arises what is the effect of the absence of a valid notice issued to the owner under section 9 of the Act. The scheme of the Land Acquisition Act is that under section 4, the appropriate Government determines that a land in any locality is needed or is likely to be needed for any public purpose. Thereupon it undertakes a preliminary survey Under section 5A, any person interested in the land has the option to file objections against acquisition which are heard by the Collector and the Collector makes his report to the Government which finally decides the matter. After considering the objections and other circumstances of the case, the Government finally decides to acquire the land and then it publishes a declaration under section 6 of the Act. This is what is known as declaration of acquisition. The effect of the declaration is that the fact that the land is needed for a public purpose becomes conclusive. Thereafter proceedings are instituted for actually acquiring the land. Under section 9 of the Act, notices are issued to the public as well as to the owners and occupants who are entitled to lodge their objections and claims in respect of the measurements of the land, the amount of compensation payable and its apportionment. These matters are decided by the Collector who makes an award under section of the Act and gives its notice to the persons interested. After the award has been made the Collector takes possession of the land and thereafter the land becomes vested in the Government absolutely free from all encumbrances by the force of section 16 of the Act. Section 12 of the Act further provides that the award made and filed in the office of the Collector shall be final and conclusive evidence as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, in respect of the true area and value of the land and the apportionment of the compensation among the persons interested. I his finality is of course subject to the decision of the Court upon reference. There is a provision in section 17 of the Act for immediately taking possession of the land wihtout waiting for the making of the award.

(11) So far as the parties are concerned; if they feel dissatisfied with the award made by the Collector, they are under section 18(I) of the Act entitled to ask for reference being made to the District Court for enhancement of the compensation as well as for its apportionment and the Collector thereupon makes a reference according to law to the District Court which decides the matter finally subject to right of appeal to the High Court under section 54 of the Act. An important provision is contained in section 25 and sub-section (2) of sectin 18 of the Act. Section 25 provides that where the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11. Sub-section (2) provides that when the applicant has refused to make such claim or has omitted without sufficient reason to be allowed by the Judge to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector and where the applicant under sub-section (3) has omitted for a sufficient reason to be allowed by the Judge to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector. Sub-section (2) of section 18 provides that the application by a person interested who has not accepted the award, shall be made, if the person makinig it was prevent or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award and in other cases within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire.

(12) A perusal of the aforesaid provisions of law indicates that a person who has not received the notice from the Collector under section 9 of the Act and has, thereforee, not filed his claim under section 11 of the Act, cannot be visited with the handicaps provided by clause (a) ofsub-section(2)of scction 18 and the provisions of section 25 of the Act. Consequently absence of service of a notice under section 9 constituies a sufficient reason for the petitioner not submitting his claim under section 11 and, thereforee, he can claim the amount of cocapensation irrespective of the amount awarded by the Collector and be can claim reference to be made under clause (e) of sub section (2) of section 18 of the Act. Absence of this notice will, in my view, not make the land acquisition proceedings or the notification under section 4 of the Act or the declaration under section 6 of the Act to be invalid,

(13) With regard to nature of land and acquisition proceedings subsequent to section 9 notice, the Judicial Committee in Erza vs. Secretary of State of India, observed on page 629 that the proceedings resulting in the award by the Collector were administrative and not judicial and that the award in which the enquiry resulted was merely a decision binding only on the Collector as to what sum should be tendered to the owner of the land and that if a judicial ascertainment of value was desired by the owner, he could obtain it by requiring the matter to be referred by the Collector to the Court and the duty of the Court in making the award was to avail himself of all the information that was available at the enquiry, but it was not his ultimate duty to conclude the owner by his., so called award but to fix the sum which, in his best judgment, was the value and should be offered, n Kasturi Pillai v. Municipal Council, Erole a Division Bench of the High Court held that where a notice had not been served in acoordance with section 9(3) and section 48, the subsequent proceeding and the award were not void and the declaration under section 6 of the Act was conclusive evidence that the land.was needed for 4 public purpose, and that the award made) under section 11 was, by force of section, final, irrespective of the persons who had or had not appeared. The Court observed that the party who had not received the notice under section 9 could only agitate the-matter under section 18 of the Act, but the absence of notice under section 9 .did not invalidate the acquisition or the award or the vesting of the property in the Government under section 16 of the Act. )n Mahanta Sri Sukh Dev v. Ram Ntipendra Narayan it was held that absence of issuance and service of the notice under section 9(3) of the Act on the land did not invalidate the proceedings for acquisition. A more recent judgment of a Division Bench of the High Court of patna(V..Ramaswami,C.J.andN.L. Untwaiia,J.)in Shivdev singh v. The State of Bihar', after considering the authorities on the subject held that assuming that the petitioner was the person fully entitled to a specific notice under section 9(3) of the Act and the same had not been served on him by the Collector, the proceedings for acquisition of the land and the award could not be held to be illegal and uiira vires, the Court further observed that in response to the notice under section 9, the only matter which could be agitated before the Collector by any person interested related more or Jess to the question of compensation in respect of the land sought to be acquired, but the order of acquisition or the act of taking possession could not be challenged in a reference to a Court either under section 18 or under section 30 cf the Land Acquisition Act and thereforee, if the petitioner had not been served with a notice under section 9 of the Act, be could only claim compensa- tion, if he was entitled to any, by asking the Collector to make a refernce to the Court under section 18 of the Act which he could do within six months from the date of the award provided by section 18(2)(b) of the Act, although if he were not served with the notice, he would not be bound by the limitation provided by clause (b) of subsection (2) of section 18 of the Act. Finally, the Court observed that the proceedings and the award in relation to acquisition could not be held to be illegal or void or without jurisdiction for non service of notice under section 9(3) of the Land Acquisition Act. The aforesaid decisions support the view I am taking. As aresult, I find that the absence of notice under section 9 of the Act on the petitioner does net invalidate the notification under section 4 or the declaration under section 6 of the Act and the acquisition is not il'egal or void. As noticed above, the petitioner has not challenged the award in the writ petition and so no relief can be granted to him in its respect by this Court in this writ petition.

(14) The last contention of the learned counsel for the petitioner is that the acquisition is not bona-fide. The main reason advanced by him is that the petitioner is carrying on the industry of fruit canning and preserving on the land in dispute which is a permissible user under the master plan and as such the displacement of the petitioner from the 'same is illegal and mala-fide The argument is, however, without any force. The land has been acquired by the appropriate Government for planned development of Delhi. There is no doubt that the Government will act according to law However, the mere fact that the petitioner is carrying on some industry on the land in dispute which he may ultimately be permitted to do is no ground for holding the acquisition to be illegal or mala fide. After taking possession of the land the Government would be free to consider as to how it would put the land to use for the public purpose. It may transfer its possession to the Delhi Development Authority or may it self use it for the public purpose for which it has required it.lf the Delhi Development Authority takes possession of the land in suit, it will certainly be required to act according to the statutory provisions and rules and regulations governing it. In case the petitioner feels that the action of the Delhi Development Authority or the Government in using the acquired land in dispute is contrary to law, it will be open to him to pursue his remedy according to law. At the moment, this plea is premature. However, as at present advised I am unable to accept it as a rule of law that the carrying of an industry by a private party on a land, which use may be permissible under the master plan, constitutes sufficient compliance with the ^object of acquisition, namely, the planned development of Delhi. In ' fact, this may or may not be so. In accordance with law, the user may be changed or the requisite authorities may allow the land to be used for an industry to be run by a private party or the Government may prefer to run the industry itself or may allow it to be carried on by a co-operative society instead of an individual and etc. Its legality and bona fides will depend upon the circumstances of each case and the particular use made of the land, but the acquisition at the moment cannot be struck down on an in cohate ground as to what use the land. in dispute may, consistently with the object of acquisition, be put to, The contention of the petition fails.

(15) Before I part with this case I wish to make an observation for the consideration of the Government. In Delhi, large areas of land havbeen acquired or are sought to be acquired. The relevant notifications are invariably published in the Gazette and they are supposed to be publicly notified in the locality. To what extent this provision is in fact complied with, I am unable to answer, except on the materials brought out in particular cases. However, unless and un il the fact of section 4 notification is brought home to the parties, they may not be able to exercise their right to file objections or they may be led into entering into transactions of sale in respect of such lands and thereby suffer considerable injury and loss when the land is eventually fouo out to be under acquisition. It is, thereforee, suggested that the Government may ^^ 'direct that the factum, the number, the date and brief reference to, the section 4 notification as well as section 6 declaration, may, as soon as they are available, be, in addition to other modes of publication, entered in the revenue records against the Khasras of the particular lands affected: they may also bs entered in the municipal house tax records in respect of lands and properties which are subject to assessment of house-tax. Very frequently, the purchasers of the ands in Delhi, in order to satisfy themselves of the title of the transferor, do inspect the records of the registration office, the house-tax records of the Municipal Committee and the revenue records, but they are not able to know or lay theif hands at the particular issues of the Gazette containing section 4 and section 6 notifications Considerable mischief will be avoided if a brief reference of the notifications is entered in the revenue records against the particular lands sought to be acquired. A copy of this judgment may be sent to Chief Secretary, Delhi Administration, for information and such action as he may think fit to take.

(16) In the result,the petition is dismissed, but the parties will bear their respective costs.


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