Rehabilitation Ministry ... vs Sushila Devi And Ors.
1999 Latest Caselaw 137 Del

JUDGMENT

Devinder Gupta, A.C.J.

1. The order (Annexure P3) dated 4.8.1992 passed by respondent No. 12 in exercise of his powers of Appellate Officer under the Evacuee Interest (Separation) Act, 1951 (Act No. 65 of 1951) is under challenge in this petition by the petitioner Society.

2. On 20.10.1959, the petitioner Society was duly registered at Serial No. 2007 under the provisions of Bombay Co-operative Societies Act, as extended to Delhi and now it is a Co-operative Society, deemed to have been duly registered under the Delhi Cooperative Societies Act, 1972 (Act No. 35 of 1972).

3. The dispute pertains to a piece of land admeasuring 2 bighas comprised in Khasra No. 167, situated in Village Begampur, Delhi. The facts as are relevant and as emerge from pleadings of the parties, may be stated :

The petitioner Society made a request to the Ministry of Rehabilitation for allotment of suitable land for construction of residential houses for rehabilitation of its members. Pursuant to that request, 60 acres of land was allotted to the petitioner Society out of compensation pool, in accordance with the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act No. 44 of 1954). A letter dated 6.6.1972 (Annexure P5) to that effect was addressed by the Settlement Commissioner, Department of Rehabilitation to the President of the petitioner Society. Physical possession of the allotted land was handed over to the petitioner Society on 13.6.1972 and mutation in revenue records was also effected in the name of Society. Annexure P6 is the document to that effect. Land in question forms part of the allotted land.

4. On 7.5.1979, allotment was cancelled and orders to resume possession were issued by the "Government. This led to the petitioner approaching this Court and filing Writ Petition No. 654/1979. On 1.9.1980 by judgment (Annexure P7), the writ petition was allowed by learned Single Judge. A writ was issued quashing the order dated 7.5.1979 and it was directed that the respondents in the said writ petition should complete the process of transfer of land within a period of three months. Letters Patent Appeal No. 254/1980 against the decision of learned Single Judge was dismissed on 5.1.1981. Delhi Development Authority approached Supreme Court. A compromise was arrived at on 5.5.1982 between the petitioner Society and the Ministry of Rehabilitation. In view of the compromise filed in Supreme Court on 6.5.1982, the said appeal [SLP (Civil) No. 3762/81] preferred by Delhi Development Authority was dismissed as withdrawn. Annexure P8 is the copy of the order of Supreme Court alongwith the compromise. As per terms of the compromise, allotment in petitioner's favour was

reduced from 60 acres to 45 acres. In order to give effect to the terms of compromise, a formal letter of allotment was issued on 7/9.6.1982 mentioning details of the land allotted, which was followed by delivery of possession, as evidenced by document (Annexure P10). Needless to add that the land in question comprised of Khasra No. 167 also form part of this allotment. Perpetual lease (Annexure P11) was executed by President of India on 28.8.1989.

5. It is the petitioner's case that the entire land is in its possession during the last couple of years, it had executed a large number of sub-leases in favour of its members. A full colony, complete with development has come up, after approval of the Delhi Development Authority with regard to the lay-out plan and the members are building their houses after obtaining due sanction of their building plans.

6. It is alleged by the petitioner that Custodian, Evacuee Properties, Delhi on 11.2.1958 lodged Information No. 2303 before the Competent Officer, appointed under the Evacuee Interest (Separation) Act, 1951 (Act 64 of 1951) for separating the evacuee interest from that of evacuee in the composite property bearing Khasra Nos. 359/170, 167, 363/72, 186 and 334/206, measuring 10 bighas 13 biswas', situated in Village Begampur, New Delhi. Originally no claims were lodged within the time prescribed in the notices, which were sent by registered post, therefore, on 29.5.1958 order (Annexure R2) was passed by the Competent Officer directing that the evacuee share in the property stand vested in the Custodian, free from all encumbrances and liabilities. On 12.7.1958, respondent Nos. 8 to 10 lodged Claims No. 1959 (Annexure R7, p-73) under Section 7(1) of Act 64 of 1951 claiming that their father Sharauddin was owner having one third share in the land, estimate value whereof was Rs. 16,000/-. They prayed that after declaring their share in the property to be one-third, the property be put to sale/auction and they may be allowed their share in the auction price. Another similar Claim No. 1958 with respect to a different part of land was also filed. These two Claims No. 1958 and 1959 were dealt with jointly with the two separate informations, which had been laid by Custodian, Evacuee Properties before the Competent Officer, who on 10.10.1958 passed order (Annexure R3), holding that the claimants being sons of Mohd. Sharauddin, who had since expired were entitled to claim their father's one-third share. Further orders were deferred pending receipt of valuation report and partition scheme from Naib Tehsildar Consolidation.

7. On 26.2.1959, order (Annexure R5) was passed by the Competent Officer accepting the partition scheme for separating the share of claimants (non-evacuees) (respondents Nos. 8 to 10) to the extent of one-third share from that of evacuees stating that the share of evacuees, to the extent of two-third will go to the Custodian. The case accordingly was disposed of.

8. Respondent No. 8 filed an application before the Competent Officer for setting aside of the Orders dated 26.2.1959 stating that part of the land allotted to him, pursuant to the order dated 26.2.1959, already stands acquired by the Government, therefore, in lieu thereof, he should be allotted some other land. This prayer of respondent No. 8 was rejected by the Competent Officer by order dated 13.1.1961 (Annexure RIO) observing that acquisition of the property, allotted to the heirs of Sharauddin, cannot be a ground for setting aside the order of partition.

9. The matter did not rest at that stage. Gopal Dass, the predecessor-in-interest of respondent Nos. 1 to 6, after a lapse of almost 20 years, made an attempt to have the

orders passed on 10.10.1958 and 26.2.1959 (Annexures R3 and R5 respectively) set aside, when he preferred Revisions 1 and 2 of 1978 before the Appellate Officer, Delhi. Both the revisions were allowed by orders (Annexures R11 and R12) dated 30.4.1979. The order says that Gopal Dass had placed on record a photocopy of registered Sale Deed dated 18.5.1958 showing that Mohd. Sharauddin, father of respondent Nos. 8 to 10 had sold the land comprised in Khasra No. 167 measuring 2 bighas to him. Without expressing any opinion about title of the parties qua the land in question, the Appellate Officer observed that Gopal Dass appeared to be a person, who may have a claim in the land comprised in Khasra No. 167 and since no notice is alleged to have been issued to him, the order dated 10.10.1958 was liable to be set aside alongwith the order dated 26.2.1959.

10. After setting aside both the orders, the case was remanded to the Competent Officer for deciding it afresh, after affording an opportunity to Gopal Dass also to submit his claim. The parties were directed to appear before the Competent Officer on 16.5.1979. On receipt of the file, the Competent Officer proceeded to hear the affected parties, namely, Gopal Dass, the heirs of Sharauddin and the Additional Custodian of Evacuee Properties and proceeded to pass his orders on 6.6.1980 (Annexure R13) declaring respective shares of Gopal Dass, the evacuee as also of the legal heirs of Sharauddin and directed the parties to appear again on 11.6.1980 and submit a partition scheme. This order was challenged in appeal by the Custodian. The Appellate Officer by his order (Annexure R15) dated 7.2.1981 allowed the appeal and set aside the order (Annexure R13) with a direction to the Competent Officer to look into the entire matter again,-keeping in view the material, which had been placed before the Appellate Officer, namely, that the land in question already stood acquired, for which award had already been made as far back as on 7.7.1962. The parties were directed to appear before the Competent Officer on 23.1.1981.

11. During the pendency of the proceedings before the Competent Officer, Gopal Dass had moved an application claiming interim order against the petitioner Society restraining it from erecting boundary, fencing around land comprised in Khasra No. 167 measuring 2 bighas. The said application was dismissed on 28.2.1983 by the Competent Officer by order (Annexure R14) holding that the Competent Officer, while exercising his powers under Act 64 of 1951 has no jurisdiction to grant such relief even with respect to composite property. Revision of Gopal Dass against the said order was also dismissed on 23.7.1998 by Appellate Officer by order (Annexure R16).

12. It is revealed from record that simultaneously Gopal Dass also filed Suit No. 336/1983 against the petitioner Society claiming a decree for injunction restraining the petitioner Society from interfering with his possession over Khasra No. 167. An application under Order XXXIX Rules 1, and 2, CPC was also filed for temporary injunction. The said application was dismissed by S.N. Gupta, Sub-Judge First Class, Delhi on 6.8.1983. Appeal against the said order (MCA 244/83) filed by Gopal Dass was dismissed by P.S. Sharma, Additional District Judge, Delhi on 5.12.1984.

13. Pursuant to the order (Annexure R15), which was passed on 7.2.1981 by the Appellate Authority remanding the matter to the Competent Officer for fresh decision, order (Annexure P4) (also Annexure R17) was passed on 30.5.1986 by Smt. Aruna Suresh, exercising the powers of Competent Officer, Delhi holding that the land comprised in Khasra No. 167 already stood acquired, pursuant to issuance of notification

dated 13.9.1948 under the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Act LX of 1948) and as the Custodian was not aware of the fact of acquisition of land, the information under the Evacuee Interest (Separation) Act, 1951 was mistakenly filed before the Competent Officer. The Competent Officer also held that possession of the land in question had already been handed over to the Society. The only right, which Gopal Dass had, pursuant to the purchase made by him from Sharauddin was to receive the amount of compensation. Competent Officer proceeded to hold that when land in question also stood acquired by the Government and its possession had already been taken up, Competent Officer had no jurisdiction to hear against the legality or illegality of acquisition proceedings. It was further held that Gopal Dass and others had only a right to get compensation, to the extent of their share in the property, from Collector, Land and Acquisition after the same are complete. Claims were accordingly disposed of.

14. Feeling aggrieved against the order (Annexure R17). Gopal Dass and the subsequent transferees from him preferred an appeal before the Appellate Officer. By the impugned order (Annexure P3) (also Annexure R18) dated 4.8.1992 the Appellate Officer set aside the order (Annexure R17) and again remanded the case to the Competent Officer for deciding it afresh. According to the Appellate Officer though the land stood acquired under the Resettlement of Displaced Persons (Land Acquisition) Act, 1948, the present situation was anomalous and an anomaly was resulting from the fact that there are two enactments, which according to him were contradictory in scope. As per the Appellate Officer, non-abs ante clause in Section 10 of the Act 64 of 1951 place the award not in a better position than that of a decree of a Civil Court. According to him, vesting can also not be treated to be in a better position. Therefore, according to him, the Competent Officer, while exercising his powers under Act 64 of 1951 and while considering the claim for separation of interest under Section 10 of the said Act had to ignore the acquisition of property. It is this order, which is under challenge in the instant petition.

15. Another fact, which deserves to be noticed is about acquisition of the property. On 13.9.1948, notification (Annexure P12) was issued by the Chief Commissioner, Delhi under Section 3 of Resettlement of Displaced Persons (Land Acquisition) Act, 1948. Possession of the land, which was the subject matter of the said notification, was taken over in two stages. Firstly, on 4.7.1949 and of the remaining area of 70 bigha 15 biswas on 20.9.1949. The Award (Annexure P13) was made on 7.5.1962 by Collector, Land and Acquisition (I), Delhi. The land in question comprised in Khasra No. 167 form part of that property, possession of which was taken over on 4.7.1949 and it is also included in the award made on 7.5.1962. Gopal Dass claims to have purchased land comprised in Khasra No. 167 from Sharauddin through sale deed dated 5.2.1955 (date of sale deed in some documents is also mentioned as 18.5.1955).

16. In the light of the aforementioned facts, the question that arises for determination is about the effect of issuance of notification (Annex0ure P12) dated 13.9.1948 under Section 3 of Resettlement of Displaced Persons (Land Acquisition) Act, 1946 and taking over of possession on 4.7.1949 of the land in question, pursuant to the said notification dated 13.9.1948.

17. Learned Counsel for the parties were heard at length. Learned Counsel for the petitioner vehemently contended that the land in question stood acquired before Gopal

Dass claims to have acquired interest in the land on getting registered sale deed executed in his favour from Sharauddin. No objection was raised to the acquisition of the property by Sharauddin or his heirs. The only right, which Gopal Dass can be said to have acquired under the sale deed, would be a claim to the amount of compensation with respect to the land in question. No other right, title or interest in the property vested in favour of Sharauddin or his heirs on the property having been acquired. Sharauddin could not have transferred a better title in favour of Gopal Dass. The property stands vested in the petitioner, who was granted a perpetual lease. The order dated 30.5.1986 (Annexure P4) passed by the Competent Officer was just, legal and valid order, which was not liable to be interfered with in the appeal. The order (Annexure P3) being contrary to law is liable to be quashed and set aside.

18. Learned Counsel for the respondent vehemently contended that pursuant to the information, which was laid before the Competent Officer by the Custodian of Evacuee Properties, the Competent Officer under Section 10 of the Act 64 of 1951 and rules made thereunder, was obliged to partition the land and then deliver possession to the non-evacuee. Before the Competent Officer parties entitled to represent can be the custodian and the person whose interest is to be separated. Any third party could not have laid any claim before the Competent Officer. Only the interest of Sharauddin represented by Gopal Dass had to be separated. Sharauddin was not an evacuee. He was a non-evacuee. All rights, title and interest of Sharauddin were purchased by Gopal Dass through a registered sale deed for valuable consideration. As such, non-evacuee, namely Dr. Gopal Dass ought to have been delivered actual physical possession of the land.

19. Mr. Talwar next contended that the property being of a non-evacuee could not have been acquired. As valid title had been acquired by Gopal Dass, who is now represented by his heirs, their title cannot, stand extinguished on the basis of notification, stated to be issued on 13.9.1949. Service of notice under Section 4 of Act LX of 1948 was obligatory. In the absence of notice on the owner or occupier, title in the land would not vest. As no notice was served, either on the respondents or on their predecessors, the property did not vest in Government. Without payment, possession could not be taken over Competent Officer had no jurisdiction vis-a-vis Act 60 of 1948 or to hold that the property stood acquired.

20. In the alternative it was contended that only such other property could have been transferred to the petitioner, as is envisaged under Section 20 of the Act. As the petitioner claims that the property was transferred to it in exercise of powers under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, under the said Act property of an evacuee only could be acquired and that also for the purposes of the said Act. No property of a non-evacuee could be transferred. Mr. Talwar contended that though the transfer made in petitioner's favour through the perpetual lease was bad in law, but he was not interested in challenging the same except in protecting the interest of the respondent qua land comprising Khasra No. 167 only.

21. Though the facts stated above are a bit complicated and arguments were elaborate, but the point for determination, as noticed above, is a short one. Act LX of 1948 was enacted to acquire the land for resettlement of displaced persons. As an aftermath of the partition of India, thousands of persons were uprooted from their habitats, who had to be resettled. There was an urgent necessity to acquire land for resettlement. In order to circumvent the time consuming procedure laid down under the provisions of

Land Acquisition Act, 1894, Act LX of 1948 was enacted to urgently acquire land, preamble of which says :

"An Act to provide for the speedy acquisition of land for the resettlement of displaced persons."

The object of the Act obviously being to acquire the land for the purposes of rehabilitation of displaced persons on permanent basis, special provisions were made for effecting service of notices, for vesting of the property, date of vesting, as also the method of determining compensation. Act LX of 1948 is a pre-constitution statute. It was inserted in the Ninth Schedule of the Constitution by the Constitution (4th Amendment) Act, 1955, Ninth Schedule was added by the Constitution (1st Amendment) Act, 1951, which simultaneously added Article 31-B to the Constitution. As the Act finds mention in the Ninth Schedule, neither the Act, nor any provision made thereunder shall be deemed to be void or ever to have become void on the ground that the said Act or any provision thereof is inconsistent with, or takes away or abridges any of the rights conferred by any provision of Part-in of the Constitution. Reference may be made to the decision of Supreme Court in Ram Nath v. Union of India, AlR 1984 SC 1178.

22. Section 3 of the Act says that whenever it appears to the Government that it is necessary or expedient to acquire speedily any land for the settlement of displaced persons, a notification to that effect shall be published in the Official Gazette stating the area and boundary of the land proposed to be acquired and the date on which such acquisition will be made. It reads :

"3. Notice of acquisition of land :

(1) Whenever it appears to the Provincial Government that it is necessary or expedient to acquire speedily any land for the resettlement of displaced persons, a notification to that effect shall be published in the Official Gazette stating the area and the boundaries of the land proposed to be acquired and the date on which such acquisition will be made, and the Competent Authority shall cause public notice of the substance of such notification to be given at convenient places on or near the land to be acquired.

 (2)     Nothing in Sub-section (1) shall empower the Provincial Government to acquire any land which is being used for the purpose of a school, orphanage or hospital or is being used exclusively for the purpose of religious worship."  
 

 23. The notification in the instant case was issued on 13.9.1948, which admittedly included land comprised in Khasra No. 167. The notification was issued under the Resettlement of Displaced Persons (Land Acquisition) Ordinance, 1948 (XX of 1948). The Ordinance was replaced by Act No. LX of 1948. Without quoting the specifications of the land, the notification is reproduced as :  
  

 "CHIEF COMMISSIONER OF DELHI PROVINCE.  
DELHI 

NOTIFICATION  
 

Dated Delhi, 

the 13th September, 1948  
 

 F.1 (72)/48-LSG (II): Whereas it appears to the Chief Commissioner of Delhi that

it is necessary to acquire speedily land for the resettlement of displaced persons by the Government at public expense it is hereby notified that the land specified below is to be acquired for the above purpose on the (sic) day after the date of publication of this notification. This notification is made under the provisions of Section 3 of the Resettlement of Displaced Persons (Land Acquisition) Ordinance, 1948 (XX of 1948) to all whom it may concern. Any person interested in the land who has any objection to acquisition may file an objection in writing before the (sic) officer, Deli Improvement Trust, New Delhi who has been authorised to perform all the functions of a Competent Authority under the said Ordinance."

24. Section 4 of the Act deals with the manner of serving notice on the owner of occupier, affected by notice of acquisition and says :

"4. 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 stating the particulars specified in Sub-section (1) of Section 3."

Two modes are provided for effecting service of notice. Notice is required to be served by registered post on the owner of the land and also on the occupier, in case where owner is not in occupation. It also says that where the person to be served is not readily traceable or the ownership of the land is in dispute, the same shall be published in Official Gazette. At this stage, we may take notice of the fact that admittedly neither Sharauddin, nor his heirs ever questioned the legality and validity of the acquisition proceedings. They never raised any objection that no notice was ever served upon Sharauddin of acquisition or that Sharauddin was not aware of acquisition. The property was situated in Village Begampur, Delhi and was recorded in Revenue records as Rosli. It was lard capable, of cultivation, but was not being cultivated. There was no direction made in the notice or in the award made subsequently as regards the crops, if any, standing upon the land. Mohd. Sharauddin was not resident of Begampur. His address in one of the documents (Annexure R1) is shown as Sh. Mohd. Sharauddin s/o Imam Khan, r/o Pilikhara, Tehsil Happar, Distt. Meerut (U.P.). Sharauddin is stated to have expired on 15.4.1958. His heirs preferred claim (Annexure R7) on 11.7.1958. Orders dated 11.10.1958 and 26.2.1959 (Annexures R3 and R5 respectively) passed by the Competent Officer were sought to be set aside by the heirs of Sharauddin on the ground that the property on separation, which was sought to be allotted, had already been acquired by the Government and they prayed that they deserve to be allotted some other property, in lieu of the acquired property. Such a claim was negated by the Competent Officer by order (Annexure RIO) dated 13.1.1961 holding that the fact that the property is acquired would not be a ground to set aside the order.

25. In case Sharauddin did not challenge the legality and validity of the acquisition proceedings during his life time on the grounds, which could be known to him personally, it will not be permissible for a person acquiring title through him to raise the issue of non-service of notice and that also after a lapse of more than 20 years. Such an objection of non-service of notice was taken only when Gopal Dass for the first time filed Revision Nos. 1/78 and 2/78 seeking the setting aside of the orders dated 10.10.1958 and

26.2.1959. In the absence of any other material, it will be but reasonable, in the facts and circumstances of the case, to raise the statutory presumption under Section 114 [Illustration (e)] of Evidence Act that all official acts will-be deemed to have been rightly and regularly performed. Applying the said presumption, it must be presumed that the requisite notice, which was required to be served under Section 4 of Act LX of 1948 was duly served on the person concerned, in the manner as provided therein.

26. Vesting and taking over of possession of the property are dealt with in Section 5 of Act LX of 1948 that when notice of acquisition is served or published under Section 4, the land shall vest absolutely in the Government, free from all encumbrances, on the date the notice is so served or published in the Official Gazette. Section 5 reads :

"5. Vesting and taking possession of land :--

 (1)      When a notice of acquisition is served or is published under Section 4, the land shall vest absolutely in the Provincial Government free from all encumbrances on the date the notice is so served or published in the Official Gazette.  
 

 (2)      The Competent Authority may, at any time after the land has become so vested, proceed to take possession thereof :  
 

 Provided that such authority shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience."  
 

27. In CW 2870/92 decided on 14.9.1994. (Rehabilitation Ministry Employees Cooperative House Building v. Union of India and Ors.) one of us (Devinder Gupta, J.) had an occasion to deal with the same notification dated 13.9.1948 and the provisions of Act (Act No. LX of 1948). It was held that after notification under Section 3 is published in the Official Gazette, stating the date on which acquisition will be made, on service of the notice, in the manner, as provided in Section 4, the land vests absolutely in the Government, free from all encumbrances, on the date of the notice, so served or published in the Official Gazette and on vesting of the property in question, the Competent Authority becomes entitled to obtain possession of the land. This is the reasonable interpretation which has to be put to Section 5 of the Act.

28. Award was made on 7.5.1962. The possession was taken over on 4.7.1949 and 29.9.1949. Award also records Sharauddin as one of the owners and interested person. Award further states that the offer was made to interested persons, but they refused to accept the offer of compensation. Learned Counsel for the respondents referred to decision of learned Single Judge of this Court in Abdul Wahid and Ors. v. Union of India and Ors., urging that service of notice on the owner or occupier is a sine qua non, in the absence of which the land will not vest in the Government.

29. There can be and there is no doubt on the proposition of law stated in the said decision that only on service of the notice, in the manner, as provided in Section 4 of the Act that the land vests in the Government. The onus was on the respondents to have shown that the notice was not served, in the manner, as provided in Section 4 of the Act. In view of the number of circumstances noticed above, namely, non-challenge to the acquisition proceedings by Sharauddin (who alone could have challenged the same),

which he did not during his life time and the recital in the Award that despite notice interested persons declined to accept offer made, it would be legitimate to raise the statutory presumption that Section 4 was duly complied with.

30. In Abdul Wahid's case (supra), it was held as a matter of fact that the notice was not served on the owner or occupier, but was served on Custodian of Evacuee Properties, who was taken as an agent of the owner. The Court held as a matter of fact that the notice was not served in the manner, as envisaged under the Act. In view of this finding, it was held that valid acquisition had not taken place thereby lawfully vesting the property in the Government. In so far as the instant case is concerned, Gopal Dass was neither the owner, nor occupier of the land. He claims to have purchased the land subsequent to the acquisition from Sharauddin. The right so acquired by him cannot amount to anything else except a right to receive compensation under the provisions of Act LX of 1948. Sharauddin during his life time, did not challenge the acquisition. As such, it has to be held in this case that valid acquisition had taken place, thereby vesting the land absolutely in the Government and possession was also taken on the dates mentioned in the Award (Annexure P13).

31. On the basis of the facts, as have been stated above, we are prone to accept what has been stated in para 5 of the order (Annexure P4) passed by the Competent Officer that the information, was mistakenly supplied under Section 6 of Act 64 of 1951, without verification. The land stood already acquired. Relying on the information, an order was passed on 10.10.1958 declaring that the interest of the non-evacuee, co-sharer is one-third in the land Khasra No. 167 belonged to the heirs of Sharauddin. This order obviously would be deemed to be an order for the benefit of Gopal Dass and thus, there was no occasion for Gopal Dass to have again got the proceedings revived by preferring Revisions Nos. 1/78 and 2/78.

32. The Appellate Officer, while hearing the appeal against the order (Annexure P4), set aside the same of interpretation of Section 10 of Act 64 of 1951, which reads :

"10. Separation of the interests of evacuees from those of claimants in composite-property--Notwithstanding anything to the contrary in any law or contract or any decree or order of a Civil Court or other authority, the Competent Officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interests of the evacuees from those of the claimants in any composite property, and in particular may,

(a) in the case of any claim of a co-sharer or partner-

 (i)      direct the Custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a Civil Court having jurisdiction over such property, and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the Civil Court; or  
 

 (ii)     transfer the property to the claimants on payment to him of the amount of money assessed in respect of the share of the evacuee in the property; or  
 

 (iii)    sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or  
 

 (iv)    partition the property according to shares of the evacuee and the claimant

and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respectively;   
 

 (b) in the case of any claim of a mortgagor or a mortgagee,--  
  

 (i)      pay to the Custodian or the claimant the amount payable under mortgage debt and redeem the mortgaged property; or  
 

 (ii)     sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof; or  
 

 (iii)    partition the property between the mortgagor and the mortgagee having regard to the share to which the mortgagee would be entitled in lieu of his claim;  
 

 (a) adopt a combination of all or some of the aforesaid measures;  
 

 Provided that before taking any measure under this section, the Competent Officer shall take into account the order of preference filed by the claimant under Clause (f) of Sub-section (2) of Section 7; and in any case where the claimant is a mortgagor and tenders the amount due, the Competent Officer shall accept the same in full satisfaction of the mortgage debt.  
 

 33. As per his interpretation put forth in the impugned order due to the non-abs ante clause, award made by the Collector, Land Acquisition will have to be treated as null and void and consequently, the acquisition of property or vesting of property will also be void and as such, the Officer was entitled to physically separate the interest of the evacuee from that of non-evacuee.  
 

34. There can be no doubt that the only authority appointed under a valid piece of legislation to separate the interest of an evacuee from that of non-evacuee, with respect to the property in which non-evacuee is also interested is the Competent Authority, appointed by the State Government under Section 4 of Act 64 of 1951, who has to pass appropriate orders separating the interest of evacuee from that of a non-evacuee in the composite property. Such separation of the interest of evacuee from that of non-evacuee has to be effected by the Competent Officer notwithstanding anything to the contrary in any law, contract or any decree or order of the Civil Court. Obviously it will include the acquisition proceedings also. In other words, irrespective of acquisition, the Competent Officer had jurisdiction to order separation of the interest of evacuee from that of non-evacuee. But this provision does not have the effect of nullifying the vestment of the property, which had otherwise lawfully vested in the Government, pursuant to a valid piece of legislation. The legal effect of the separation of interests of evacuee from that of non-evacuee by the Competent Officer, in such a case, would be a declaration of the extent of the right of a non-evacuee in the property, which on acquisition of the property obviously would be his entitlement to receive compensation. The Competent Officer, therefore, under Section 10 had to say that whether it is one-third or any other share or proportion of the interest, which a non-evacuee had with the evacuee in the property. The Competent Officer rightly in her order dated 30.5.1986 (Annexure P4) observed that after acquisition proceedings were complete, there could be no actual partition of the property, as was claimed on behalf of Gopal Dass or any person acquiring title through him and that on such declaration actual partition and delivery of possession could not be ordered. After acquisition the owners or occupiers were left only with a right to receive compensation for the separated portion of their share. It would be clear from the language of Section 10 of the Act, when it says that the Competent Officer may take "all such measures", "as the may consider necessary for he purpose of separating the interest of evacuee". Such measures, in a situation like this would naturally mean a declaration to the effect of defining shares in the property. Such declaration then would entitle the person to receive compensation to the extent of the declared share.

35. The Appellate Officer thus was wrong in observing that the Competent Officer had to ignore the acquisition and had to actually partition the property and make an attempt to deliver possession. There are various modes laid down in Clauses (a) and (b) of Section 10 of Act No. 64 of 1951 for effecting separation of interest of a non-evacuee from that of evacuee. Rule 11 (b) has also been made for the said purpose. Under the said rule, no doubt, Competent Officer is first required to make an effort to have a partition, as provided in Sub-clause (iv) of Clause(a) of Section 10, but this would only be in such a situation where the property had not already passed hands or vested in some other authorty. This power would be exercised only in case the property is actually available for partition. As on acquisition, the property did not remain available for partition, the only mode for separation of interest would be to declare the interest. On declaration of interest, the person concerned would be entitled for realisation of the amount of compensation of the separated share, which was rightly ordered by the Competent Officer in her order (Annexure P4). The Appellate Officer, in this view of the matter, ought not to have interfered with a just, lawful and valid order of the Competent Officer. The impugned order of the Appellate Officer on erroneous interpretation on Section 10 is this liable to be set aside.

36. The objection raised by learned Counsel for the respondent that only property of an evacuee could be acquired and not that of non-evacuee, also deserves to be answered in negative, inasmuch as Act LX of 1948 nowhere placed that restriction that only property of an evacuee could be acquired and not that of a non-evacuee. Any property could be acquired for the purposes of the Act, which is obvious by use of the words "any land" in Section 3 of the said Act. On the property vesting in Government, it was for the Government to deal with the same, in any manner, it so liked. The question whether the property could or could not be allotted to the petitioner for achieving the objectives of the Society, is a matter which does not arise for consideration in the instant petition and cannot be allowed to be raised by the respondents, when such a matter was duly considered in appropriate proceedings by this Court in the writ petition, filed by the petitioner Society, wherein Union of India, Chief Settlement Commissioner and Delhi Development Authority were parties. Legality and validity of allotment was upheld by Supreme Court and the appeal of Delhi Development Authority was dismissed, in view of the compromise, which was arrived at, when the extent of allotment was reduced. The respondents otherwise had no locus standi to be imp leaded as parties to the said petition. They cannot thus be permitted in this petition at this late stage to challenge the legality and validity of allotment. For that reason, we need not go into that question.

37. As a result of the above, the writ petition is allowed. The impugned order dated 4.8.1992 (Annexure P3), passed by the Appellate Officer in Appeal No. 47/86 is quashed and set aside holding the petitioner to be a lessee of the land in question and the respondents having no right, title or interest therein except a right to receive the amount of compensation. The petitioner is held to be in possession of the property. The

respondents are restrained from interfering with petitioner's possession in any manner whatsoever.