DELHI ADMINISTRATION AND ORS. v. MADAN LAL NANGIA AND ORS

Citation: [2003] SUPP. 4 S.C.R. 360

Court: Supreme Court of India

Bench: S.N. VARIAVA, H.K. SEMA

Judgment text

DELHI AOMINISTRATION AND ORS. ·v. MADAN· LAL NANGIA AND· ORS. O~_TOBER. 8, 2093 B. [S. N. VARIAVA AND HJ{. ;SEMA; JJ. ] ·Land Acquisition : ... ,_ . . 1 LandAcquisitiOn'Act: 1894-Seclion 4. :... :. Larid acquisition-High C; Court- setting aside the acquisition·in respect ofthose lands which were evacuee properties-High Court proceeding on the ground that acquisition was pursuant to Notification dated 13-11~1959 which excluded evacuee properties-Held, High Court fell in error as petitioners lands were acquired by Notification dated 23-1-1965 which did not exempt evacuee properties-Factual basis on which acquisition ofevacuee lands was set aside did not exist-Administration of Evacuee Properties Act, 1950.

Displaced Persons (Compensation andRehabilitation) Act, 1954- Sections 10 and 12-Evacuee properties being vested in the Custodian- Held, merely because a property vests in the custodian does not mean that the property vests in the Central Government, Custodian being a distinct person from the Central Government-Evacuee properties vested in the custodian not being properties ofthe Governme. _nt, can be acquireq notjust under Displaced Persons (Compensation and Rehabilitation) Act, 1954 but even under the Land Acquisition Act. Evacuee ln_terest (Separation) Act, 1951-Section 10-. Composite property-Interests ofEvacuee and non-evacuee being composited under the Act-By notification dated 7-7-1955, the Central Government acquired all evacuee properties in St;,,te of Delhi under Section 12 of Displaced Persons (Compensation ahlad as owner according to the record and tenants have been discussed in Para 5. The legal submissions are denied.

These shall, however, be suitably replied at the time of arguments. Para 9: The contents being mis-conceived are, therefore, denied. There is no provision in the notification u/s. 4 made on 23-1-1965 that the said notification is not applicable on the evacuee or any other specific property. The legal submissions shall be suitable replied at the time of arguments. " He submitted that therefore there was no denial to the averments in the Petition. He submitted that the composite lands were required to be separated under the provision of Evacuee Interest (Separation) Act, 1951. Dr. Dhavan showed to this Court a copy ofan Order dated 16th May, 1968 in support ofhis submission that this separation of interest only took place on that date. It must immediately be mentioned that a perusal ofthis Order shows that except for Khasra Nos. 321 and 322, none of the other lands set out in Para 5 of the Writ Petition are covered by this Order. Dr.

Dhavan submitted that even though the Notification under Section 12, was issued such a Notification did not put an end to rights which were pre-existing. He submitted that the rights of the Respondents continued to exist until there was a separatioa of interest under Section 10 of the Evacuee Interest (Separation) Act, 1951 on 16th May, 1968. In support of this preposition he relied upon the case of State of Purifab v. Suraj Parkash Kapur reported in [1962] 2 SCR 711, wherein the question was whether on an acquisition under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 the pre-existing rights came to an end. The facts of this case were that under a Draft scheme, framed by the Consolidation Officer, certain lands allotted to the Respondents therein were substituted by p_oorer lands. Thus a Writ Petition challenging the Scheme was filed.

Pending the Writ Petition a Notification under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act was issued, wherein all evacuee properties were acquired. The question before the Court was whether the Writ Petition challenging the consolidation scheme was maintainable after the Notification under Section 12 had been issued. It was held that even though there was no right to property but still there was an interest in the land which enabled Respondents (therein) to maintain the Writ Petition. The observation that the interest in land continued was based on Section 10 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954 which specifically provided that even after an acquisition under Section 12 the displaced person to whom the property was leased or allotted could continue in possession of that land. Thus the observation relied upon are based on the provision of Section 10 which permitted retention of possession.

There is no such provision in the Land Acquisition Act. Thus once an acquisition takes place under the Land. Acquisition Act all prior rights would stand tenninated. The principles laid down in Suraj Kapur's case'could thus have no application. Dr. Dhavan further submitted that there was no denial that on 7th July, 1955 there was a Notification under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. A copy of this Notification was also shown to this Court. Dr. Dhavan submitted that by virtue of the Notification dated 7th July, 1955 the Central Government became the owner ofthese lands. He submitted that there couldthen be no acquisition by the Central Government of its own lands. In respect of the submission that the Central Government cannot acquire its own land_ reliance was placed on the following observations made in the case of Sharda Devi v. State of Bihar reported in [2003] 3 SCC 128: "27... ,.................

The State does not acquire its own land for it is futile to exercise the power ofeminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of the Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vests in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview ofthe provisions ofthe Land Acquisition Act. The position of law is so clear as does not stand in need of any authority for support. Still a few decided cases in point may be referred since available. 28. Jn Collector ofBombay v.

Nusserwanji Rattanji Mistri, AIR ( 1955) SC 298 this Court held that when the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding thereof so that it might be in a position to pass it on absolutely for public user. An interesting argument was advanced before the Supreme Court. It was submitted that the right of the Government to levy assessment on the lands is an "encumbrance" and that encumbrance is capable of acquisition. The Court held that the word "encumbrance" as occurring in Section 16 can only mean interests in respect of which a compensation was made under Section 11 or could have been claimed. It cannot include the right ofthe Government to levy assessment on the lands.

The Act does not contemplate the interest of the Government in any land being valued or compensation being awarded therefor. 29. In Secy. ofState v. Sri Narain Khanna, AIR (1942) PC 35 it was held that where the Government acquires any property consisting of land and buildings and where the land was the subject matter of the government grant, subject to the power of resumption by the Government at any time on giving one month's notice, then the compensation was payable only in respect ofsuch buildings as may have been authorized to be erected and not in respect of the land. 30. In thy matter of the Land Acquisition Act: Govt. ofBombay v. Esufali Salebhai, ILR (1910) 34 Born 618 : ILR {ATP. 636) Batchelor, J.

held that the Government are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside the Government, directs that the entire compensation based upon the market value ofthe whole land must be distributed among the claimants. The Government was held liable to acquire and pay only for the superstructure as it was already the owner of the land. 31. In Dy. Collector, Calicut Division v. Aiyavu Pilay, [9 IC 341: (1911) 2 MWN 367: 9 MLT 272] Wallis, J. observed that the Act does not contemplate or provide for the acquisition ofany interest which already belongs to the Government in land which is being acquired under the Act but only for the acquisition of such interests in the land as do not already belong to the Government. 32. In Collector ofBombay v. Nusserwanji Rattanji Mistri the decisions in Esufali Salebhai case and Aiyavu Pillay case were cited with approval.

Expressing its entire agreement with the said views, the Court held that when the Government possesses an interest in land which is the subject of acquisition μnder the Act, that interest is itself outside such acquisition because there can be no question of the Government acquiring what is its own. An investigation into the nature and value ofthat interest is necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition. In the land acquisition proceedings there is no value of the right of the Government to levy assessment on the lands and there is no award of compensation therefor. It was, therefore, held by a Division Bench of Judicial Commissioners in Mohd. Wajeeh Mirza v. Secy. ofState for India in Council, AIR . (1921) Oudh 31: 24 Oudh Cas 197 that the question oftitle arising .

between the Government and another claimant cannot be settled by the Judge in a reference under Section 18 of the Act. When the Government itself claims to be the owner of the land, there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. Im our opinion the statement of law so made by the learned Judicial Commissioners is correct. " I ' There can be no dispute with this proposition. The only question is whether it has any application to facts of this case. At this stage it is necessary to set out that none of these documents were shown to the High Court or considered by the High Court. However, as they had been referred to in the Writ Petition we looked at the documents.

The picture which emerges is that by Notification dated 7th July 1955 the Central Government acquired all evacuee properties in ~e State of Delhi, under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, except the following categories ofproperties, viz; "(I) any such property. (i) in respect ofwhich proceedings are pending before any authority at the date of this notification under the Administration of Evacuee Property Act, 1950 (XXXI of 1950) in which the question of issue-is whether the property is or is not evacuee property; or (ii) in respect of which the period of limitation, if any, fixed for an appeal or revision under the said Act for disputing to vesting ofthe property in the Custodian as evacuee property has not expired. (2).

any such property in respect of which an application for the grant of a certificate under sub-section (1) of Section 16 of the Administration ofEvacuee Property Act, 1950 (XXXI of 1950) is pending at the date of this notification or in respect p of which the period of limitation fixed for making such application has not expired: (3) any such property which has been restored under section 16 ofthe Administration ofEvacuee Property Act, 1950 (XXXI of 1950) or in respect of which an application under subsection (2) ofthat section for its restoration is pending at the date of this notification, or in respect of which a certificate under sub-section (1) ofthat section has been granted but no application under sub-section (2) of that section for its restoration has been made; (4) any such property which before the date of this notification has been transferred and the transfer is effective under section 40 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950) or in respect of which any proceedings are pending at the date ofthis notification under that section: (5) any such property which is a composite property within the meaning of the Evacuee Interest (Separation) Act, 151 (LXIV of 1951); (6) any such property in respect of which any proceedings are pending in a Civil Court wherein the question at issue is whether the property is evacuee property or not: (7) any such property which at the date of this notification is being treated or is being managed as a trust property for a public purpose of a religious or charitable nature under subsection .

(l) of section 11 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950). " As per the avennents of the Petitioner, which as Dr. Dhavan pointed out, are not controverted, all the lands claimed by the Respondents were composite properties. If that is so then none of the properties mentioned· in para 5 of the Writ Petition (reproduced hereinabove)·were covered by the Notification dated 7th July, 1955. They were thus not acquired by this Notification. Faced with this situation, Dr. Dhavan submitted that evacuee properties vest in the Custodian. He submitted that the Custodian was appointed by the Central Government. He submitted that properties which vest in the Custodian are properties belonging to the Central Government. He pointed out that the High Court has accepted this submission. He submitted that this Court should not interfere with the finding. We are unable to accept the submission of Dr. Dhavan.

Merely because a property is an evacuee property does not mean that it vest in the Central Government. The Custodian is a statutory authority appointed under the Acts. The Custodian is a distinct person from the Central DELHI ADMINISTRATIONv. M. L. NANGIA [ VARIAVA, J. ] 379 Government. Merely because a property vests in the Custodian does not mean that the property vest in the Central Government. It must be noted that the Custodian is appointed for each State. Further, if, as contended, the property vests in the Central Government then there would be no question of Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act providing that the Central Government could acquire such property. The Central Government can never acquire its own property.

Thus the very fact that Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act provides for acquisition by the Central Government clearly indicates that evacuee properties are not properties of the C::entral Government. As they are not properties of the government they can be acquired, not just under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, but even under the Land Acquisition Act. Even if the Notification dated 7th January, 1955 applied to these lands, what was acquired was the interest of the evacuee. A property is a composite property because a private party has an interest in that property. The scheme of separation, to be framed under Section IO of the Evacuee Interest (Separation) Act, is for purposes ofseparating the interest of the evacuee from that of the private party.

Therefore, even if the evacuees interest was acquired under Section 12, the interest of the private person could have been acquired under the Land Acquisition Act. Further ifthe land stood acquired by the Notification dated 7th January, 1955 then the question would arise as to how the Respondents acquired title to these lands. If they purchased after the date of Notification dated 7th January, 1955, they would get no title. They then would not be able to maintain the Writ Petition. Dr. Dhavan submitted that the Appellants had admitted the title of the Respondents and thus this question would not arise. We are unable to accept the submission. It is only a person, who has an interest in the land who can challenge acquisition. When a challenge is made, to an acquisition, at a belated stage, then even ifthe Court is inclined to allow such a belated challenge, it must first satisfy itself that the person challenging acquisition has title to the land.

Very significantly, in their _ Writ Petition the Respondents do not state when they ~cquired title. Dr. Dhavan next submitted that properties which are evacuee properties vest in the Custodian for the purposes ofdistribution as per the provisions ofthe various Acts. He submitted that considering the historical background and the partition ofthe country the properties were vested in the Custodian with the intention ofserving a public purpose, i. e. rehabilitation ofpersons, who had come to India after leaving all their properties behind in Pakistan. He submitted that. this was a very important public purpose and as the properties were ve5ted for a public purpose there was no question of the Government acquiring these properties for some other public purpose. He submitted that it is for this reason that in the Notification dated 13th November, 1959 e_vac~ee properties were excluded. H~ submitted that the Government wfiJi~ lssufog the Notification on 13th November, 1959 recognized the.

,fact that evacuee properties were required for a public purpose. He submitted that the same position continued even when the Notification dated 23rd January, 1965 was issued. He submitted that there is no reason to distinguish the cases of evacuees arising out of the 1959 Notification from the cases ofevacuees arising out ofthe 1965 Notification. He submitted that they were similar cases which should be treated alike in q. rder to avoid suspect classification. He submitted that thus it must be ·h~ld that ~ evacuee properties were impliedly eyeiu,ded from the S~on 4 Notit¢,ition dated 23rd January, 1965. We are unable to accept 3 th~s Submission of Dr. Dhavan. Undoubtedly, the evacuee properties v~$ted in the Custodian for the purposes of distribution as per the provisions of the various Acts. However, it is to be . noted that under the vari. ous Acts in lieu ofproperties, compensation in terms ofmoney can also be paid.

Thus merely because the properties vest in the Custodian as evacuee properties does not mean that the same cannot be acquired_ for some other public purpose. The moment that the property is acquired for another public purpose the compensation payable under the Land Acquisition Act would be paid to the Custodian who would then distribute it under the provisions of the various Acts. We see no substance in the submission that the cases of evacuees under the 1959 Notification and under the 1965 Notification must be treated similarly. It is not possible to accept the submission that impliedly evacuee properties were excluded by the Notification dated 23rd January, 1965. There can be no such implied exclusion. In our view, it is for the Government to decide whether or not an evacuee property is to be left with the Custodian for the purposes of distribution under the various Acts or whether some other public purpose is more important.

It would be open to the Government to acquire evacuee property and give to the Custodian compensation for such acquisition. Section 4 Notification dated 23rd January, 1965 not having excluded evacuee properties the Respondents can get no benefit from the fact that in the 1959 Notification evacuee properties had been excluded. Dr. Dhavan next submitted that it was not very clear whether all the properties mentioned in the Writ Petition were composite properties or acquired properties. He drew the attention of this Court to Para 9 of the Writ Petition wherein it is averred as follows: "....................... the said land remained as composite evacuee property or acquired land vesting in Government.. ........ " He submitted that it was for the Government to clarify the position as all the documents would be available with the Government.

He submitted that this Court should therefore remit the matter back to the High Court and let the High Court decide whether these were composite properties which remained vested in the Custodian and/or whether they were acquired properties under the Notification dated 7th January, 1955. Mr. Rohtagi submitted that since the challenge was at a very belated stage and since there were a large number of Writ Petitions it was not possible for die Government to deal with each case at its own merits. He submitted iliat old records would now be not available. He submitted that this Court should act on the avennents of the'. Respondents in their Writ Petitions which averments had not been denied by the Government. He submitted that on the basis of those avennents this Court must take it that all these properties were composite properties and therefore Notification under Section 4 could be issued.

As has been set out hereinabove, in the Writ Petition, the Respondents themselves are not very clear as to whether these lands remained as composite properties or became the acquired lands vesting in the Government. We have, however, seen the Order dated 16th May, 1968. That Order contains Khasra Nos. 321 and 322. This Order makes it very clear that Khasra Nos. 321 and 322 were composite properties. As they were composite properties right upto 16th May, 1968 they could have been acquired under the Notification dated 23rd January, 1965. Thus, so far as 382 SUPREME COURTREPORTS[2003] SUPP. 4 S. C. R these two Khasras are concerned the principles enunciated in the impugned Judgment dated 14th December, 1995, wherein the acquisition proceedings have been upheld, must apply and the Writ Petition challenging their acquisition must stand dismissed. In the case of Murari & Ors. v. Union ofIndia & Ors.

reported in [1997] I SCC 15, in respect of this very acquisition this Court has held as follows:- "In the present case as stated earlier after issuance of $e notifications and notices under Sections 9 and I0 of the Act not only a large number of objections were filed by the landowners whose land was sought to be acquired but a number of writ petitions were filed in the Delhi High Court challenging the validity of the notification under Section 4 as well as the declaration under Section 6 in which interim orders of stay were ) passed by the High Court which resulted in considerable delay. Thus the authorities alone were not responsible for the delay but the landowners were equally responsible for the same. In such circumstances and on consideration of several decisions of this Court including those rendered in the case of Bihar State Housing Board v. Ban Bihari Mahato and Ujjain Vikas Pradhikaran v. Raj Kumar Johri this Court in the case of Ram Chand v.

Union of India took the view that in any case there was no justification for the authorities to make the award in 1980/1981/1983 when the declaration under Section 6 was made in 1966-69, but at the same time, in view of the facts of delay caused by the landowners themselves in approaching the courts and the developments already made on the lands for public use, quashing ofacquisition proceedings would not be appropriate. But at the same time in the said decision this Court also took the view that the landowners alone were not responsible for the entire delay that was caused in completing the acquisition proceedings. This court in the said decision pointed out that all those writ petitions were dismissed by this Court on 23. 8. 1974 in the case of Ajlatoon v. Lt.

Governor ofDelhi yet no effective steps were taken by the respondents till 1980-81 and in some cases even till 1983 for which the respondents till 1980-81 and in some cases even till 1983 for which the respondents could give no justification for that delay on their part in completing the acquisition proceedings even after the judgment of this Court in Ajlatoon case.

this Court having regard to the fact that the Delhi Administration and Delhi Development Authority after taking possession of the lands various developments have been made and third party interest have also been created and, therefore, having regard to the larger public interest declined to quash the acquisition proceedings on the ground of delay but at the same time having regard to the interest ofthe landowners who were likely to suffer loss in rating the price of the land with reference to the date of notification under Section 4, directed payment ofan additional amount ofcompensation to be calculated at the rate of 12 per cent per annum after expiry oftwo years from 23. 8. 1974, the date ofjudgment ofthis Court in Ajlatoon case till the date of the making of the awards by the Collector to be calculated with reference to the market value of the lands in question on the date ofnotification under Section 4 (1) ofthe Act.

We do not find any inconsistency in the said decision (Ram Chand case), and find ourselves in respectful agreement to the view taken by this Court in the case of Ram Chand. The same principle has to be applied in those cases in which the possession is not taken and there is no reason to distinguish such cases from the \ . application of the principles laid down in Ram Chand case merely on the ground that possession is not taken from some of the landowners. In this connection the fact could not be lost sight ofthat the landowners have enjoyed possession all these years and have taken the benefit of the usufruct and other advantages out ofthe said land and, therefore, they stand even in an advantageous position than those landowners from whom the possession was taken earlier. ............ ... ...

After overall consideration of the issues involved in these transfer cases and the appeals we find no ground to take a different view than the one taken by the High Court in the impugned judgment. Consequently, the acquisition proceedings could not be quashed on any grounds. We also find ourselves in respectful agreement with the view taken by this Court in the case of Ram Chand. Consequently, the appeals fail and are hereby dismissed. The transfer cases are allowed in terms of the order made in the case of Ram Chand directing that the 384 SUPREME COtlRt:REPORTS {2003] SUPP. 4 S. C. R. ...... transfer petitioners and the appepai:its shall be paid an additional amount ofcompensation to be calcblcit;d at the rate of 12 per cent per annum, after the expiry of two years from the date ofdecision of Ajlatoon case i. e. 23. 8.

1974 till the date of making of the awards by the Collector, to be calculated with reference to the market value of the land in question on the date of notification under Section 4 (1) of the Act. " As this order is in respect of the same acquisition proceedings, we consider it fair and proper that the Respondents also get the benefit on the same basis. We therefore direct that the Appellants shall pay to the Respondents who are owners of Khasras Nos. 32 l and 322 an additional amount of compensation to be calculated at the rate of 12% per annum, after the expiry of two years from the date of decision of Aflatoon case i. e. 23rd August, 1974 till date of making of Award by the Collector, to be calculated with reference to the market value of these Khasras on the date of Notification under Section 4(1) of the Land Acquisition Act. So far as the other Khasras are concerned, i. e. Khasra Nos.

313, 319, 323, 324 and 329, there appears to be a doubt as to whether they were, on the date ofNotification dated 23rd January, 1965, composite properties and/or whether they were acquired properties by Notification dated 7th January, 1955. If these are acquired properties under this Notification, a further question would arise as to whether Respondents had acquired title to these lands before this date or thereafter. In our view, this is a matter which should have been considered by the High Court. Therefore, so far as these Khasra numbers are concerned, the Writ Petition is sent back to the High Court. We clarify that it will be open for the parties to file additional affidavits/documents and urge all contentions available to them in law. The High Court to decide ·On the principle set out above. The Civil Appeal stands disposed of accordingly. There will be no order as to costs. M. P. Appeal disposed of.