Jagjeewan Co-Operative House ... vs Union Of India And Ors.
1997 Latest Caselaw 784 Del

JUDGMENT

Arun Kumar, J.

(1) This writ petition the petitioner has challenged the action of respondents 3 and 4 dated 5th August, 1997 with regard to taking over the symbolic possession of the land alleged to be in occupation of the petitioner,Society. Further the petitioner has sought direction from this Court to restrain the respondent from taking over physical possession of the land in question under Section 16 of the Land Acquisition Act (hereinafter referred to as the Act).

(2) In reply to show cause notice issued with respect to the writ petition respondent No. 4, i.e. the Delhi Development Authority has filed a counter affidavit. The petitioner has filed rejoinder thereto. It is the case of the petitioner-Society that it purchased the land in question from the erstwhile owners through an agreement to sell dated 21st July, 1990. The other undisputed facts in this case arc that a notification under Section 4 of the Land Acquisition Act with respect to the land in question was issued on 23rd January, 1965 which was followed by a declaration under Section 6 of the said Act dated 6th September, 1966.

(3) An award with respect to certain lands covered in the said notification under Section 4 was made in the year 1980. However, it appears that the petitioner's land was left out of the said award. In 1983 the erstwhile owners filed a writ petition in this Court being Civil Writ No. 1282 of 1983 challenging the acquisition. This writ petition also stands dismissed in view of the Full Bench decision in the Court in Roshanara Begum v. U.O.I. 1996 (1) Apex Decisions (Delhi) 6=61 (1995) Dlt 206 (FB).

(4) The petitioner claims to have purchased the land from the erstwhile owners on 21st July, 1990. It appears from the counter affidavit filed on behalf of the Delhi Development Authority that an award was made with respect to the land involved in the present writ petition in the year 1986.

(5) The grievance of the petitioner is that the said award was never brought to the notice of the petitioner and the respondents are threatening to take actual physical possession of the land in question with compliance of the provisions of Section 12(2) of the Land Acquisition Act wherein a notice of the award is required to be given to the owners.

(6) Mr. Ravinder Sethi, learned Counsel appearing for the Delhi Development Authority submitted that the petitioner-Society purchased the land in question admittedly long after the 1986 award with respect to the land. Therefore, it is not open to the petitioner to raise the question of notice under Section 12(2) of the Act. The Authorities under the Act could hardly be aware of the alleged agreement to sell between the erstwhile owners of the land and the petitioner-Society and therefore, the question of giving notice to the petitioner did not arise.

(7) Secondly, it is submitted that even erstwhile owners of the land from whom the petitioner-Society claims title never raised the question of notice of award under Section 12(2) of the Act in their writ petition or elsewhere and therefore, it did not lie in the mouth of the petitioner-Society to raise such a question. The erstwhile owners had applied for amendment of their writ petition on 24th April, 1996 vide C.M. No. 3026 of 1996. In the said application also this point was never taken.

(8) Thirdly, it was argued that notice under Section 12(2) of the Act is not mandatory as held by the Full Bench decision of this Court referred to above which was upheld by the Supreme Court. This being the sole ground of challenge in the petition the petition is liable to be dismissed, according to the learned Counsel for the respondents.

(9) The petitioner-Society was aware of the pendency of the previous writ petition filed the erstwhile owners of the lands wherein the notifications under Sections 4 and 6 of the Act were challenged. The petitioner-Society had applied for leave to continue the petition on behalf of petitioners in view of the purchaser of the land by them vide C.M. No. 3800 of 1991 on 15th July, 1991. The application was dismissed as not pressed on 19th September, 1995. Thus the point regarding notice under Section 12(2) of the Act was never agitated before the Court so far as the previous petition is concerned. The petitioner-Society has stepped into the shoes of the erstwhile owners and therefore, I am of the view that the Society is estopped from raising this question. Even otherwise, in view of the decision of this Court in Roshanara Begum's case (supra), the law is settled that the notice under Section 12(2) of the Act is not mandatory. The said notice is really material for computation of the period of limitation for purposes of making reference to the District Judge under Section 18 of the Act. The notice under Section 12(2) of the Act does not have any relevance so far as the question of acquisition of the land or taking over its possessions by the Government is concerned.

(10) The learned Counsel for the petitioner relied upon State of Punjab v. Mst. Qaisar Jahan Begum & Anr., , to urge that notice of award .was essential and since no notice of the award was given in the present case the action of the respondents was illegal and unjustified. The learned Counsel for respondent No. 4 distinguish the said judgment on the basis that it was given in the context of an application under Section 18 of the Act and was not in context of acquisition of land as such having perused the said judgment and also having considered the relevant observations contained in the Full Bench decision of this Court in Roshanara Begum's case (supra), I am of the view that the reliance placed by the learned Counsel for the petitioner on Mst. Qaisar Jahan Begum (supra), is misplaced. In the present context the said judgment has no application. I am of the view that the ratio in Roshanara Begum (supra), is fully attracted in the facts under consideration. Therefore, absence of notice under Section 12(2) of' the Act does not debar the respondents from taking possession of the land in the present case.

(11) All this is considered in the light of the law fact that the petitioner-society came in the picture only in July, 1990, i.e., long after the award had been made in this case in the year 1986. It is not open to the petitioner to raise such argument at all. The petitioner Society was not entitled to the notice envisaged under Section 12(2) of the Act.

(12) For all these reasons this writ petition is liable to be dismissed. The same is dismissed with costs. Counsel fee Rs. 10,000.00 to respondent No. 4 only.