A.P. Nayar
& Ors Vs. Reha. Min. Emp. Coop. House Bldg. Soc. Ltd. & Ors [2006] Insc
223 (24 April 2006)
B.P.
Singh & P.K. Balasubramanyan P.K. Balasubramanyan, J.
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This appeal is
by the contesting respondents in C.W. No.3786 of 1992 on the file of the High Court
of Delhi.
The
Rehabilitation Ministry Employees Cooperative Group Housing Society Limited
(for short "the society"), respondent No.1 herein, filed the said
writ petition challenging an order of the Appellate Officer under the Evacuee
Interest (Separation) Act, 1951 (for short "the Separation Act") by
which the Appellate Officer allowed an appeal filed by the contesting
respondents under Section 14 of that Act and set aside the order of the
competent officer rejecting an application made by the contesting respondents
under Section 10 of the Act. The Appellate Officer had set aside the order of
the competent officer dated 30.05.1986 and remanded the matter back to the
competent officer for deciding the claim of the contesting respondents afresh
in accordance with law. The High Court allowed the writ petition filed by the
first respondentsociety and set aside the order of the Appellate Officer dated
4.8.1992, by holding that the society was a lessee of the land in question and
the contesting respondents before it, the appellants herein, have no right,
title or interest in the land in question except a right to receive
compensation under the Resettlement of Displaced Persons (Land Acquisition)
Act, 1948, hereinafter called "the Acquisition Act". The possession
of the writ petitionersociety was also upheld. The contesting respondents were
restrained from interfering with the possession of the society. Feeling
aggrieved by the said decision, this appeal is filed by the contesting
respondents before the High Court, hereinafter referred to as "the
appellants".
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It is claimed by
the appellants that their predecessor in interest one Gopal Dass had purchased
the land in question, being two bighas in Khasra No.167 Village Begampur, Delhi from one Mohd. Sharauddin by means
of a registered sale deed dated 07.05.1955 pursuant to which possession was
delivered over to Gopal Dass. According to them, the rights that Gopal Dass
thus acquired still survive and they were entitled to have the right and
possession of Gopal Dass and of themselves as his successors in interest
recognized and upheld. This claim is resisted on the plea that the land in
question stood vested in the Government in the year 1949 itself much before the
alleged sale deed was taken by Gopal Dass from Sharauddin; that the said deed
conferred no right on Gopal Dass or on his successors and that the appellants
have no claim, right or possession over the property. The land had subsequently
been leased to the Society and the Society was in possession thereof. This defence
was upheld by the High Court which held that the appellants had only a right to
receive compensation for the acquisition and it is the correctness thereof that
is in question in this appeal.
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The land in
question, according to the appellants, was held in co-ownership by one Mohd. Sharauddin
and others. The co-owners migrated to Pakistan on partition. But Mohd. Sharauddin continued to be a non-evacuee. On
13.09.1948, a Notification under Section 3 of the Acquisition Act was issued,
which took in Khasra No. 167, the property involved herein. It is the
appellants' case that no further action was taken pursuant to that
Notification, no notice has been issued to the owner Sharauddin and possession
was never taken by the acquiring authority. It was while so that the property
was sold to Gopal Dass, the predecessor of the appellant by deed of sale dated
7.5.1955. In the year 1958, the custodian of Evacuee Property laid information
before the competent officer under the Separation Act with a claim that one out
of three shares in the composite property belonged to the non-evacuee. The
competent officer after directing issue of notice to all interested persons
including the non-evacuee, by order dated 29.5.1958, declared that the entire
land had vested in the custodian free from all encumbrances and liabilities. On
12.07.1958, Najmuddin, Mohinuddin and Wahabuddin, the sons of Sharauddin filed
a claim before the competent officer pleading that their father Sharauddin was
a co-owner of the land in question; that Sharauddin had died on 15.04.1958;
that the order dated 29.05.1958 be set aside and their claim be allowed. The
competent officer by his order dated 10.10.1958 held that one-third of the
properties involved, including Khasra No. 167, belong to the heirs of Sharauddin
and the two-third was evacuee share and framed a partition scheme and
subsequently adopted it by order dated 26.02.1959. According to the appellants,
on 4.4.1964, Gopal Dass sold one-fourth share in Khasra No. 167 to one Ved Prakash
and on 19.5.1964 another one-fourth share to one Giyan Chand. It is the claim
of the appellants that mutation in respect of the land was effected in favour
of Dr. Gopal Dass on 30.05.1972.
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Meanwhile, the
Society was formed in the year 29.10.1959 and the Society was allotted 60 acres
of land including the two bighas in Khasra No. 167, out of the compensation
pool created under the Displaced Persons (Compensation and Rehabilitation) Act,
1954 (hereinafter referred to as "the Rehabilitation Act"). That
allotment was made on 6.6.1972. According to the Society, physical possession
of the allotted land was handed over to it on 13.6.1972 and mutation was also
effected in the name of the Society. On 7.5.1979, the allotment to the Society
was cancelled and orders to receive compensation were issued by the Government.
The Society thereupon approached the High Court challenging the cancellation.
On 1.9.1980, a learned Single Judge of the High Court allowed the Writ Petition
filed by the Society and quashed the order of cancellation. The respondents in
the Writ Petition were also directed to complete the process of transfer of
land within a period of three months.
The
Letters Patent Appeal, LPA No. 254 of 1980 filed against that decision, was
dismissed by the Division Bench on 5.1.1981. The Delhi Development Authority
challenged the decision further in this Court. In this Court, a compromise was
entered into by the Society and the Ministry of Rehabilitation. Accepting the
compromise, this Court on 6.5.1982 disposed of the appeal filed by the Delhi
Development Authority as withdrawn. The compromise was annexed to the order. As
per its terms, the allotment in favour of the Society was reduced from 60 acres
to 45 acres. To give effect to the terms of the compromise decree, a letter of
allotment dated 7/9.6.1982 was issued to the Society giving the details of the
allotted land and the same was followed up by delivery of possession. The land
so delivered over as can be seen from the relevant document produced in the
High Court as Annexure P-10 included Khasra No. 167. A perpetual lease in
respect of the 45 acres in favour of the Society was executed on 28.8.1989.
Thus, it is the case of the Society that it was in possession of the land
pursuant to such allotment and that the appellants have no right or possession
over the same.
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It may be seen
that the properties were separated, as per the order dated 26.2.1959 and the
share of Sharauddin allotted to his sons. Such allotment to them did not take
in Khasra No. 167. It is seen that Gopal Dass on 30.4.1979, 20 years after the
separation order, purported to file revision petitions under the Separation Act
challenging the order of separation. That revision was entertained and allowed
by the Appellate Officer apparently without a proper application of mind to the
relevant aspects that arose for decision in such a belated challenge. The order
of separation was set aside and the matter was remanded to the competent
officer. The competent officer by order dated 30.5.1986 held that the land in
question was acquired by the Government under the Acquisition Act and the award
was passed on 7.5.1962. The acquisition of the land was complete before Sharauddin,
the non-evacuee co-sharer transferred his rights in favour of the Gopal Dass.
Consequently, Gopal Dass could succeed only to that much interest in the
property which his predecessor in interest had at the time of the transfer in
his favour. He held that since the acquisition was complete, there could be no
partition. Gopal Dass and others challenged the said order by way of an appeal
under Section 14 of the Separation Act. By Order dated 04.08.1992, the
Appellate Officer set aside the order passed by the competent officer and
remanded the matter to the competent officer for deciding the matter afresh.
It was
this order that was challenged by the Society in the Delhi High Court, which
resulted in the judgment under appeal upholding the claim of the Society that
the successors- in-interest of Gopal Dass could not claim any title, interest
or possession over the Khasra No. 167, other than the compensation that was
awarded for the acquisition.
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At the hearing,
the learned Senior Counsel for the appellants contended that the documents
produced and the additional affidavit filed in this Court clearly indicate that
the land in question was not the subject matter of acquisition under the
Acquisition Act and consequently, the very basis of the claim of the Society
and the other objectors stood removed.
The
learned counsel submitted that if so, Sharauddin had a right to convey his
share to Gopal Dass and Gopal Dass in his turn could deal with the property
thus obtained by him.
Since,
there was no acquisition, there was no question of loss of title or possession
of Gopal Dass and his successors-in- interest. On the other hand, learned
counsel for the Society and for the Union of India submit that the documents
clearly show that the land was acquired; that acquisition proceedings were
complete and the allotment to the society thereof was made and under the
circumstances, the High Court was fully justified in holding that the
appellants herein were at best only entitled to compensation for the
acquisition and were not entitled to anything more.
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It may be
indicated here that even in the memorandum of appeal in this Court, there was
no specific contention that there was no acquisition under the Acquisition Act.
But, learned Senior Counsel for the appellants explained that the position
emerged in view of the further pleadings in this Court and the records produced
and the omission of Khasra No. 167 from the list of lands acquired. He
submitted that in that context, the point was being urged especially in view of
the fact that the case of the Society was that the rights of Sharauddin had
been acquired under the Acquisition Act.
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We have perused
the relevant documents produced, including the Notification dated 13.9.1948,
the record relating to taking over of possession dated 4.7.1949 and 29.9.1949,
the award dated 7.5.1962 the pleadings of the parties and the reasons given by
the High Court for coming to the conclusion that the land was in fact acquired
under the Acquisition Act.
On the
basis of the materials available, it is not possible to accept the contention
of learned Senior Counsel, that the land in question has not been acquired as
claimed by the appellants. It is seen that as per the Notification dated
13.9.1948, an extent of 505.3 acres were notified for acquisition for the
resettlement of displaced persons. The land in Khasra No. 167 was included in
the Notification. The notices by the Special Land Acquisition Collector were
published in the Gazette of India on 25.7.1949. It is seen that by Notification
dated 16.6.1949, the Additional Custodian of Evacuees' Property in exercise of
his power under Section 6(1) of the East Punjab Evacuees (Administration of
Property) Act, 1947 assumed possession of or control over all rights and
interests in the land and houses in the rural areas of the Province of Delhi
belonging to all the Muslims except those mentioned in the Schedule annexed to
the notification. In that Schedule, the names of Muslims present in the Village
Begampur have been listed. The names of Mohd. Sharauddin and his co-owner do
not appear in the Schedule. It was therefore apparent that the land in Khasra
No. 167 was taken over by the Addl. Custodian of Evacuees Property on
16.6.1949.
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It is also not
possible, on a proper advertence to the documents relating to the acquisition,
to accept the contention of the learned Senior Counsel for the appellants that Khasra
No. 167 was not the subject matter of acquisition. On the facts and in the
circumstances of the case, the High Court, in our view, is right in holding
that the land in question was acquired under the Acquisition Act and it had
vested in the Authority under that Act. It is also seen from the separation
order earlier made that two bighas in Khasra No. 167 was not set apart to the
share due to Sharauddin. It formed part of the two-third share that belonged to
the evacuees. The same had therefore vested in the Custodian of Evacuee
Property. It may be noted that one of the sons of Sharauddin was present before
the competent officer on 26.2.1959 and had not objected to the scheme of
partition. Thus the subsequent conduct of one of the sons of Sharauddin in
applying for the allotment of some other land on the basis that a part of the
property had been acquired, also supports the position that the land was part
of the land acquired under the Act. We may also notice, that the award passed
as early as on 7.5.1962 was not challenged by the heirs of Sharauddin. They
also accepted the separation and Gopal Dass attempted to get the position
unsettled only in the year 1979. If as he claims he had obtained title and
possession of this land by virtue of the sale dated 18.5.1955, it is difficult
to imagine that he took no attempt to assert his rights in it till the year
1979. Thus, on the whole, the finding that Khasra No. 167 was part of the land
acquired under the Acquisition Act is not shown to be incorrect and hence it
does not call for any interference.
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Once that position is accepted, it
is clear that the land was subsequently allotted to the society and granted on
perpetual lease to that Society, though by way of a compromise decree passed in
this Court. But once the completion of the acquisition in respect of the land
is found, it is clear that the right, if any, of Gopal Dass and his successors
can only be to the compensation that was awarded under the Acquisition Act,
1948. No other right or possession could be claimed by Gopal Dass and his
successors since the conveying of the right in favour of the Gopal Dass in
respect of the Khasra No. 167, was only after the same had been acquired under
the Acquisition Act.
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Thus, on an anxious reconsideration
of the relevant aspects, in the light of the relevant documents brought to our
notice in great detail by learned Senior Counsel appearing in the case, we are
satisfied that the decision of the High Court does not call for any
interference in this appeal.
Consequently,
we confirm the decision of the High Court and dismiss this appeal. In the
circumstances, we direct the parties to suffer their respective costs.
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