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Abdul Waffid and ors. Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 603 of 1967
Judge
Reported inAIR1982Delhi290; 21(1982)DLT29; ILR1982Delhi423; 1982RLR196
ActsResettlement of Displaced Persons (Land Acquisition) Act, 1948 - Sections 4
AppellantAbdul Waffid and ors.
RespondentUnion of India
Advocates: Ravinder Sethi,; Deepak Gupta,; B.N. Lokur and;
Cases Referred(Liveraidge v. Anderson
Excerpt:
property - acquisition of land - section 4 of resettlement of displaced persons (land acquisition) act, 1948 - respondent by its order under act of 1948 acquired land of appellant - appellant filed suit against respondent's action - under section 4 after serving notice of acquisition to land owner land will vest in state government and competent authority entitle to take possession - whether valid notice served to appellants in accordance with law under section 4 - what relief should be given to appellants - notice given to custodian not to owners - custodian not empowered to accept notice - no notice given under section 4 - entire acquisition proceedings illegal - held, appellant entitled to rs. 2000000 with interest at 6% per month from date of suit till realisation. - - (1) this..........1954 3. whether the plaintiffs can challenge the validity of resettlement of displaced persons (land acquisition) act, 1948, because the same is contained in schedule ix to the constitution of india 4. in case issue no. 3 is decided in favor of the plaintiffs then whether the resettlement of displaced persons (land acquisition) act, 1948 is ultra virus on the grounds metioned in sub-para (c) and (d) of para 9 of the plaint 5. whether the property in dispute is evacuee property in spite of the order passed by mr. v. s. jaitley, authorised deputy custodian on 4th november, 1953 and mr. s. s. govil, assistant custodian, on the 30th march, 1968? 6. whether a valid notice has been served on the plaintiff in accordance with law u[s4of displaced persons (land acquisition) act, 1948 7......
Judgment:

Avadh Behari Rohatgi, J.

(1) This case is a good example of law's delays. We have taken 15 years to decide this suit. So many years in the court of first instant. How many more years it will take in the appellate courts no one 'knows.

(2) Abdul Wahid, Mohd. Umar and Mohd. Sadiq sons of Mohd. Hassan are admittedly owners of extensive lands comprised in Khasra Nos. 5361182, 5381189, 185, 188, 177, 176, 180, 183,. 184, 187,6311535(182, 186, , 178 and 5371189 admeasuring 39 bighas, 4 bids was (=39,514sq.yds. or thereabout) situated in village Rajpur Chawni, Tehsil and District Delhi. The area where the lands were situated is called Gur Ki Mandi. The owners were in possession of the land.

(3) In the wake of partition the Parliament passed an Act in 1948 called The Resettlement of Displaced Persons (Laid Acquisition) Act, 1948 (Act No. Ix of 1948) (the Act). The- object of this legislation was 'to provide for speedy acquisition of land for the resettlement of displaced persons', as the preamamble stated. The Government was empowered to acquire land for providing homes to those who had been rendered homeless. 1947 was the year of the Great Divide. India was split in two dominions Dominion of India and Dominion of Pakistan. There was a great migration of population the greatest in history. Millions moved into India. 'They were all children of the midnight. The midnight of August 15, 1947. At the stroke of the midnight hour India awoke to freedom, as Nehru said. Freedom at midnight. But the transfer of populations brought untold suffering. Gandhi had given the clarion call of freedom. Now he said : 'we will wipe every tear from every eye.' Millions had left their hearths and homes behind. They had been uprooted from the land of their birth. They all had to be resettled. New abodes had to be found. This was a great and sudden emergency. Everything had to be done on a war footing to give relief. So the Parliament passed the Act for the 'speedy acquisition of land.'

(4) This was the historical setting. Now these are the relevant provisions of the Act. Section 3 says whenever it appears to the State Government; that it is necessary or expedient to acquire speedily any land for the resettlement of displaced persons, a notification shall be published in the Official Gazette, staling the area and the boundaries of the land proposed to be acquired. After the publication of the notification under section 3, the competent authority under the Act was required to serve by registered post on the owner of the land a notice of acquisition under section 4 of the Act. When a notice of acquisition was served the land vested absolutely in the State Government free from all encumbrances. After the land had become so vested, the competent authority was entitled to fake possession thereof. (S.5). Under section 6 any pelson interested in the land which had become vested in the State Government under Section was entitled, within one month from the vesting thereof, to file his objections to the acquisition before the competent authority and such authority was empowered to dismiss the objections or to release the land. If the land was released from acquisition it revested in the owner. If the land was acquired the Act provided for payment of compensation. The method of determining compensation was laid down in section 7.

(5) In the purported exercise of the statutory powers conferred on the Government by the Act the Delhi Administration took possession of the owners' land and built quarters on it for the resettlement of displaced persons.

(6) On 16th March, 1966 the plaintiffs Abdul Wahid Mohd. Umar and Mohd. Sadiq brought a suit for possession and mesne profit against the Union of India. The Union of India contested the suit. The pleas of contest are reflected in the following issues framed on 11th May, 1970 : 1. Whether the suit is barred by time 2. Whether this Court has no jurisdiction to try the present suit because of Evacuee Property Act (Act Xxxi of 1950) and Displaced Persons (Compensation and Rehabilitation) Act, 1954 3. Whether the plaintiffs can challenge the validity of Resettlement of Displaced Persons (Land Acquisition) Act, 1948, because the same is contained in Schedule Ix to the Constitution of India 4. In case issue No. 3 is decided in favor of the plaintiffs then whether the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 is ultra virus on the grounds metioned in sub-para (c) and (d) of para 9 of the plaint 5. Whether the property in dispute is evacuee property in spite of the order passed by Mr. V. S. Jaitley, Authorised Deputy Custodian on 4th November, 1953 and Mr. S. S. Govil, assistant Custodian, on the 30th March, 1968? 6. Whether a valid notice has been served on the plaintiff in accordance with law u[s4of Displaced Persons (Land Acquisition) Act, 1948 7. Whether defendant No. 1 is liable to render accounts of the mesne profits of the land in suit If so, for what period and to what amount 8. Relief.

(7) Though as many as 8 issues were claimed the questions for decision are only two. One is about the service of a valid notice on the owners under section 4 of the Act. This is the central question in the case. It is put in issue No. 6. The other question is about the remedy. The plaint was amended in 198 In the amended plaint the plaintiffs in addition to a decree for possession have claimed in the alternative a decree for Rs. 20,00,000.00 on account of the value of the property, if the court found that for any reason it was not feasible to order delivery of possession of the land to the plaintiffs. In other words, the question is what relief should be given to the plaintiffs if they succeed in the suit Are they entitled to possession Or a decree for Rs. 20,00,000.00 , as- claimed in the alternative. Mr. Lokur on behalf of Union of India agreed that these are the only two questions which required decision. He did not press issues No. 1 to 5. He confined his arguments only to issue No. 5. The plaintiffs did not press issues NO. 3 and 4. The result is that the only two questions survive for decision. Validity Of NOTICE. 7. Section 4 of the Act requires the competent authority to serve notice of acquisition on the owner of the land. Section 4 says :

'SERVICE on owner or occupier affected by notice of acquisition. As soon as may be after the publication of the notification under section 3 the competent authority shall cause to be served by registered post on the owner of the land and also on the occupier in cases where the owner is not in occupation of the land or, where the person to be served is not readily traceable or the ownership of the land is in dispute, shall publish in the Official Gazette, a notice staling the particulars specified in sub-section ( 1 ) of section 3.'

(8) Admittedly no notice was served.. on the owners. The Govemment's case is that the plaintiffs were evacuees and thereforee a notice under section 4 was served on the Custodian of Evacuee Property, Mr. Lokur argued that the Custodian is the statutory agent of the evacuee and service of notice on the Custodian is service of notice on the owners. He referred me to Mohd. Ali Hasan Khan v. Bhagirathlal, : AIR1964AP126 (1) and Harbans Singh v. Custodian of-Evacuee. Property, : AIR1970Delhi82 (2). It is the validity of this argument that I have to examine.

(9) It is a startling proposition. I cannot accept it. Sec. 4 contemplates service on notice on the owner or occupier affected by notice of acquisition. Sec. 3 provides for notice of acquisition of land. Sec. 4 says that after the publication of the notification under section 3, the competent authority shall cause to be served by registered post on the owner of land a notice staling the particulars specified in sub-section (1) of Section 3, namely, the area and the boundaries of the land proposed to be acquired. If the owner is not in occupation of the land, then notice is also to be served on the occupier. Where the person to be served is not readily traceable or the ownership of the land is in dispute, the notice was required to be published in the Official Gazette. Because service by registered post on the owner or occupier was not possible. The section does not contemplate service of the notice on the agent. The notice has to be served on the owner. 'If he is not readily traceable' the notice may be published in the Official Gazette. The statutory power to take possession of the land of the subject for a public purpose is s-ubject to these conditions. These must be strictly complied with before the land can be compulsorily acquired. The service of notice on the owner is a pre-condition of acquisition of land. This is clear from sections 5 and 6. Section 5 says :

'WHEN a notice of acquisition is served or is published under section 4, the land shall vest absolutely in the State Government free from all encumbrances on the date the notice is so served or published in the Official Gazette.'

(10) Unless the notice, of acquisition is served on the owner there is no acquisition of the land under the Act, Possession of the land can be taken only after the land has become vested in the government. If notice is not served on the owner in terms of section 4, the land does not vest in the Government under section 5. Nor can the Government take possession. This logically follows from these provisions. Section 6 gives another valuable right to the owner. After the vesting of the land in the Government under Section 5, the owner may within one month from vesting, file his objections to the acquisition before the competent authority. The competent authority then makes an enquiry. It may dismiss the objections or release the land. If the land is released 'it shall be deemed to revest in the person originally entitled thereto and any encumbrance, which may have been extinguished under section 5, shall revive'. Now section 6 has been frustrated in this case. The owners were deprived of their right to file objections'. Because they were not served with notice under section 4. If the Parliament authorised the taker of the land to acquire the property of the subject it also provided safeguards for the expropriated owner. But in this case all safeguards were thrown to winds,

(11) The Act ensured that no individual was to suffer the condemnation of his property for the public use without receiving a notice of acquisition. If there is no service of notice on the owner as required by section 4, the entire acquisition proceedings are illegal. This is the inevitable conclusion.

(12) Nor do I agree that Custodian is the statutory agent of the evacuee. Rajamannar, C. J. used this expression loosely in M. B. Namazi v. Deputy Custodian of Evacuee property, Madras, : AIR1951Mad930 . The term. 'statutory agent.' is a misnomer. Like the term 'statutory tenant', it is 'a Jurisprudential curiosity.' It has been coined by the judges. The Administration of Evacuee Property Act nowhere uses it. That Act provides for custodian preservation of the property of the evacuee. It does not provide for confiscation of his property. Evacuee's title as such is never affected. When a person ceases to be an evacuee he is reinstated in his original position and his property is restored to him. As the Supreme Court has said, 'The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.' (Ebrahiim Aboobakar v. Tck Chand Dolwani, : [1953]4SCR691 ) (4).

(13) The Castodian has the care, control and management of the evacuee property. Nothing more. He is the custodian and not a statutory agent. The expression 'statutory agent' is not only unhappy but also inaccurate.

(14) Suppose the Custodian is a stalutory agent. Now the Custodian is a creature of the statute. He enjoys only such powers as the statute confers on him. Before a notice under section 4 can be served on him, it must be shown that he is empowered to accept service of notice as an agent. The statute must clothe him with the power to accept notice as an agent of the owner in case of compulsory acquisition of land. The Administration of Evacuee Property Act nowhere gives that power to the Custodian. Even if it be assumed that the Custodian was a 'statutory agent' he had no power to accept service of notice under section 4. The service of notice by the Government on the Custodian must thereforee be held to be illegal.

(15) There is another important point in this case. The notice said to have been sent by the competent authority is Ex. D17 dated 23rd March, 1960. It is addressed to Azizuddin etc. It is not a notice to the owners, the present plaintiffs. There names are not given in 'the notice anywhere. A notice which says the said Sh. Azizuddin etc. and all other persons interested in the said land' are called upon to submit their objections, if any, to the acquisition of the land within one month of the issue of this notice, is no notice in the eye of law. It must be addressed to the owners by name. 'Etcetera' is a word of the vaguest description. The words 'and all other persons interested in the land' mean nothing. The owner must be named specifically. We must not forget that these are acquisition proceeding and the Government is taking a subject's property.

(16) When the executive is authorised by a statute to take the property of a subject for a public purpose this must be done in accordance with the statutory provisions. A minutely defined procedure is set out in the Act. Whether that procedure is elaborate or abridged it must be followed. The Land Acquisition Act of 1894 provides for an elaborate procedure. In the Act of 1948. the procedure was abridged and curtailed. Because the necessity was urgent. It did not admit of delay. The Parliament empowered the executive to act with utmost expedition. Full power of accomplishing the desired acquisition was given by the Act of 1948. But the Parliament conferred statutory powers authorising the Government to acquire land on certain terms. A notice of acquisition had to be published under section 3. This of course was done. in this case. Then the notice of acquisition had to be served on the owners and if they were not 'readily traceable' it had to be published under section 4. Only on the service of notice the land vcsted in the government. On vesting the Government was authorised to take possession and no otherwise. The owners had a right to file objections. The competent authority was bound to make an enquiry. It was given the power to dismiss the objections or release the owners land. So the right to seize, take and use the property is exercisable on service of the notice of acquisition. The right to .take the property of the subject in terms of necessity for public good is exercisable only on the fulfillment of conditions, limitations and restrictions that the statute imposes. There is no power to dispense with the formalities prescribed by the Act. The Act imposes restrictions and limitations and attaches conditions to the exercise of the power of acquisition. These are protective restrictions and are enacted as safeguards against the arbitrary exercise of power. Even the dispossessed owner is given the right to file objections by Section 7 of the Act.

(17) The docirine of eminent domain, no doubt, is an aspect of sovereignty. But this power to take property is regulated by statute. The Government cannot take the powers without fulfillling the conditions that the statute imposes on the use of such powers. In my opinion it is a sound inference from the language of sections 3 to 7 that the notice of acquisition on the owner is a sine qua non of compulsory acquisition. 'This lies at the heart of acquisition proceedings.

(18) The constitutional principle is that when the power of the executive to interfere with the property of the subjects has been placed under parliamentary control, and directly regulated by statute, the executive detives its authority from the Parliament, and that in exercising such authority the executive is bound to observe the restrictions which Parliament has imposed in favor of the subject. The Parliament makes them for the advancement of justice and to prevent injury and wrong. The Act cannot be construed to enable .the land of a particular individual to be confiscated without serving a notice of acquisition on him. Where the matter has been directly regulated by a statute as here, the statutory regulation must be obeyed. (Attorney General v. De Kevser's Royal Hotel, 1920 AC 508.

(19) Apply these principles here. There was no notice to the owners. The seizure and appropriation of private property was in complete disregard to statutory provisions. For the course adopted by the Government there was no statutory sanction. The Custodian was' not empowered to accept notice. Notice itself was seriously defective. On these facts to hold that there was service of notice on the owners is a sheer impossibility. I thereforee hold that notice under S. 4 was not given and the entire acquisition proceedings were illegal. Relief And REMEDY.

(20) The other point is as to the remedy. A decree for pussession is not possible in this case. The reason is two fold. Firsty. the government has built quarters after spending huge amounts and a colony has sprung where hundreds and thousands of displaced persons have been resettled in the wake of partition. It is not possible to displace them again. Secondly the plaintiffs themselves have asked in the alternative for a decree for Rs. 20,00,000.00 . I think a decree for money should be passed in this case.

(21) The possession of the land. was taken by the Government in 1957. The suit was brought in 1966. Mr. Lokur .says that at best the plaintiffs are entitled to the value of the property in 1957 and not 1966. This question arose in this way. The plaintiffs when they filed the suit on 16th March, 1966 valued the suit for possession at Rs. 1881- being ten times of Rs. 18.80. the annual land revenue payable. They paid court fee on Rs. 188. The Union of India raised objection to this valuation. They said that the value of the land is Rs. 20,00,000- and described it as 'a very valuable property'. It was said in the written statement that 'the plaintiffs ought to have valued the land on its market price on the date of the filing of the suit. The market price of the land on the 'date of the suit is at least Rs. 20,00,000.00 and the plaintiffs ought to have paid court fee of Rs. 21.8641- on the plaint.' The plaintiffs accepted this contention. They valued the suit at Rs. 20,00,0001-. They paid .a court fee of Rs. 21.864. The Government now, in my*judgment, is estopped from contending that they are not bound by this valuation or that the plaintifs are .not entitled to this value of the 'valuable' property. There was a representation by the Government. This was regarding the value of the property. The plaintiffs acted to their detriment. They paid court fee on Rs, 20.00,000. If the representee acts to his detriment the representor is estopped from contending to the contrary. This is the equitable doctrine of estopped . It must be applied against the Government. I see no escape from this legal position.

(22) The basic principle is that a person who makes an unambiguous representation by words, or conduct, of an existing fact, and causes another party to act to his detriment in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. The respondent could not subsequently allege in dealing with the representee that the facts were different from those represented. The Government represented that the value of the property of which possession was claimed was Rs. 20,00,000. The plaintiffs paid court fee accordingly. They altered their position in reliance ort it. Now the representation because by so doing the representee will be pre the representation because by so doing the representee will be prejudiced. In a way it was a representation of promise. So the doctrine of promissory estoppel which came into prominence with the decision of Denning J. in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) Kb 130 will apply. In the end 'the court must look at all the circumstances in each case to decide in what way the equity can be satisfied'. (Hanbury and Mandsley Modern Equity (1981) 11th ed. p. 743). But whether it be called an 'equity' or an 'estoppel', the fact remains that the Government is bound by its representation.

(23) But Mr. Lokur says that the value of the land should he awarded as it prevailed in 1957 and not 1966. I do not agree The plaintiffs have brought the suit for possession. It is a possessory action by the proprietors. They are entitled to possession. If the court does not order delivery of possession it must give them the value of the lands as on the date of the suit. As a general rule, all remedics have one basic goal and that is to put the plaintiff in the position he would have been in had the injury not occurred. A defendant' cannot enrich himself at the expense of the plaintiff. The wrong doer must pay the full value of the land if he refused to deliver possession for one reason or another.

(24) There is no question of awarding value of 1957. The taking was not in accordance with the provisions of the Act. Taking itself was illegal. Because the statutory procedure was not followed. The owners were divested by physical force. True it is that the executive action was purported to be taken under statuory powers. But the main statutory provisions which regulated the rights of the subject and the obligations of the executive when lands are taken on the occasion of a public exigency were all disregarded. So it was naked application of force under the thin guise of statutory powers. The Government went Into possession by force of a paramount power. The plaintiffs were thus left in no position but that of the sufferers of a wrong. The Government must thereforee make full restitution. There is a duty on the Government to compensate citizens in respect of injuries which it inflicted on them. It is the duty of those who fill and empty the public purse to make reparation where a public functionary does not follow the procedure for the compulsory acquisition ef land outlined in the statute. If the Government does not, like to pay the full value it can jolly well give back the possession of the land. But in truth here it is a Hobson's choice.

(25) The date of 1957 when the Government dispossessed the plaintiffs cannot be the measure of damages. To hold that the plaintiffs are entitled only to the value as in 1957 is to allow the wrong doer to take advantage of his own wrong. The Government will be enriching itself and impoverishing the subject. This is neither justice nor equity.

(26) Mr. Lokur referred me in this connection to Nannapaneni Narasingaravudu v. Naimapaneni Ankineedu, Air 1962 AP 192 (7) ; (Yella) Ramayya v. (Chakkapalli) Kotayya : AIR1930Mad748 and Jai Kishan Das v. Arya Priti Nidhi Sabha, Air 1921 Lah 357. In my judgment, these authorities do not help him. They were all cases where the purchaser was dispossessed due to defect in vendor's title. It was held that the measure of damages is the price- of the land af the time of eviction. But the present case is not a case of voluntary sale. It is a case of compulsory acquisition. case of 'compulsory purchase', as called in English Law, or 'compulsory sale', as called in American Law. The acquisition here was illegal. So possession of the owners' land was illegal. They were dispossessed in a manner not authorised by the statute. It was a wrongful act. The present case approximates more to a case of confiscation of property than of. expropriation. It is true that in the power of eminent domain the government can take property of the citizen for the public good. But that power must be exercised subject to the conditions imposed by the statute which authorises the government to take the property of the subject on payment of compensation.

(27) Mr. Lokur then said that it. was a case in which there was no malafide intention on the part of the government and the government must not be asked to pay the value of 1966. I do not agree. Sentiment is a poor guide to decision. So when in 1401 the defendant was about to be held liable for the escape of his fire, his counsel argued that he would be 'undone and impoverished all his days if this action is to be maintained against him ; further twenty other such suits will be brought against him', but met with the reply : 'What is that to us It is better that he should be utterly undone than that the law should be changed for him.' (Beaulieu v. Finglem (1401) 2 Hen 18. Quoted in Salmond and Houston on the Law of torts (1981) ed. 3. The same answer would be given today. The law cannot be changed. It is true that the plaintiffs'' lands were taken during the time of a great and sudden emergency. But wars and emergencies do not impose silence on the laws. 'Amid the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace'. (Liveraidge v. Anderson 1942 Ac 206, per Lord Atkin).

(28) Counsel for the plaintiffs argued that the plaintiffs were never evacuees and, thereforee, the argument of the Union of India must be rejected. The material facts so far relevant to this question are these. On 4th November, 1953 the plaintiffs were declared non-evacuees. (See Ex. P/8). On 21st January, 1954, the plaintiffs received a communication from the Custodian saying that they were not evacuees. (See Ex. P/7). In complete ignorance of these orders the plaintiffs were declared evacuees by the Assistant Custodian (Judicial) on 30th August, 1955. (See Ex. DW4/1). But the plaintiffs were not aware that they had again been declared evacuees. They came to know from the written statement of the Union of India filed in 1967 that as long ago as 1955 they had been declared, evacuees. So they filed an appeal to the Deputy Custodian General in 1967 against the order of 1955 declaring them evacuees. On 14th November, 1967 the Deputy Custodian General set aside the order and remanded the case. On 30th March, 1968, the Assistant Custodian (Judicial) held that the plaintiffs were non- evacuees.

(29) But the Government had taken possession of owners' lands in 1957. But before possession was taken the government issued a notification dated 21st November, 1953 which was published in Delhi Gazette Part 5 dated 3rd December, 1953 purporting to be a notice of acquisition under section 3 of the Act of the plaintiffs' lands with the exception of Khasra No. 181. That notification was, however, superseded by another notification dated 11th March, 1957 published in the Gazette of Delhi Administration, Part Iv dated 28th March 1957. In both the notifications Khasra No. 181 was not included. By a third notification published in the Gazette dated 11th March, 1957 it was notified that Khasha No. 181 was also being acquired under the Act. When the plaintiffs came to know of the first notification dated 21st November, 1953 they served on the Secretary, Ministry of Rehabilitation and Collector, Delhi notice dated 2nd January, 1954 by registered post challenging the proposed acquisition on the ground that the Act under which the land was sought to be acquired was ultra.-.vires the Constitution. The plaintiffs did not receive any reply. Nor did they receive any notice under section 4 of the Act. Finally they made an application dated 27th August, 1963 to the Land Acquisition Collector, complaining of non-receipt of the notice under section 4. On the application the Collector made this order on September 7, 1963 :

'THESE Khasra Numbers were evacuee and were to be taken by book transfer according to offer No. 1101. They should move the custodian for their redress now. Nothing can be done here.'

(30) From this order the plaintiffs came to know for the first time that they had been declared evacuees. On 16th March, 1966 they brought the present suit. In view of my finding that the notice served on the custodian is not a notice on the owners as required by section 4 of the Act, it is unnecessary for me to go into the question whether the plaintiffs were declared evacuees properly or improperly.

(31) For these reasons the plaintiffs succeed. I grant the alternative prayer. A decree for Rs. 20,00,000 with interest @ 6 per cent p.a. from the date of the suit till realisation with costs is passed in favor of the plaintiffs against the Union of India, defendant No. 1. The suit against defendants No. 2 to 5 is dismissed with no order as to costs.


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