Ashok Kumar vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 1298 Del

JUDGMENT

B.C. Patel, C.J.

1. Notification Under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") was issued on 23.1.1965 followed by & declaration Under Section 6 of the Act on 7.12.1966. It is thereafter, the petitioner purchased the land in question from erstwhile owner Shri Subhash Chand Gupta vide sale deed dated 10.2.1993. On 18.3.1993, vide notification the area was declared as development area. Thereafter, in 1995 the petitioner filed a Suit No. 1586 of 1995 for permanent injunction before Civil Court, as according to the petitioner some of the employees of respondent No. 5 (DDA) came to the petitioner to dispossess hm without notice. Interim application (IA. 7226/95) was also filed by the petitioner on 12.7.1995 for restraining the said respondent from demolishing and dispossessing the petitioner as also from taking forcible possession of the suit land. Suit was Dismissed on 17.7.1996 against which Regular First Appeal No. 25/96 with CM. 1278/96 was filed by the petitioner. On 12.9.1996 injunction was granted. Thereafter on 8.11.1996 award in respect of land was made by the Land Acquisition Collector. On 30.4.1997, the appellate Court, hearing RFA No. 25/96 remanded the matter back for deciding the suit afresh, which is pending.

2. It is the case of respondent No. 5 DDA that vide notification, under Section 12 of the Delhi Development Act, the area has been declared as Development Area. The petition is filed to declare the notifications Under Section 4, Under Section 6 of the Act and an award made under the Act, null and void qua the petitioner's land and to issue a writ of mandamus, directing the respondents to permit the petitioner to use the land for commercial purpose in consonance with the development having taken place around the land of the petitioner. On 22.9.2000, on behalf of respondent No. 5, it was pointed out to the Court that predecessor in title, i.e., Subhash Chand Gupta, who was a party in the petition being CW. 789/85 titled Hem Chand Gupta and Ors. v. U.O.I, challenged these notifications acquiring the land. The said petition had been dismissed by this Court.

3. On 23.7.2002 Division Bench hearing this petition made the Order as Under:-

"Notification Under Section 4 of Land Acquisition Act 1894 (hereinafter referred to as the Act) is dated 23.1.1965. it was followed by declaration made Under Section 6 of the Act on 7.12.1966. Petitioner's predecessor had challenged the acquisition proceedings by filing CW. 789/85 Hem Chand Gupta v. UOI. According to the petitioner interim Order passed on 10.4.1985 in the said writ petition was against dispossession only. CW. 789/95 was dismissed on 10.11.1994 in default for appearance and consequently the stay order also stood vacated. The petitioner claims to have acquired title to the property on 10.2.1993. The only challenge in the writ petition is that the acquisition proceedings are non-est in view of provisions of Section 11-A of the Act since the notifications issued on 23.11.1965 and 7.12.1966 stood lapsed on expiry of period of two years from the date of commencement of the Land Acquisition (Amendment) Act, 1984. This is the only challenge now made by the petitioner though challenge is also on other grounds but we make it clear that on the other points it will not be permissible for the petitioner to challenge the acquisition proceedings being a subsequent purchaser. Accordingly we confine this petition only to the extent aforementioned. The stand of the respondents is that the impugned award has been made within the period of limitation since there was stay of proceedings operating.

Time allowed to the respondents to satisfy about the stay which is alleged to be operating by which the respondents were prevented from making the award in time. Four weeks time, as prayed, is allowed. List on 26th August, 2002

File of CW. 789/85 will also be sent to the Court."

4. The Court examined the file on 26.8.2002 and has noted that Civil Writ No. 789/85 was dismissed on 10.11.1994 and even application to have the writ petition restored was dismissed on 6.1.1995. Therefore, this Court is not required to examine the validity of the notifications issued under Sections 4, 6 and notice Under Section 9 of the Act. The only contention is to be examined whether the award is made in consonance with the provisions contained in Section 11A of the Act, which reads as under :-

"11 A. Period within which an award shall be made -- (1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.

Explanation - In-computing the period of two years referred to in this section the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded."

5. Before we deal with the contention, we are required to examine a preliminary submission raised by learned counsel for the respondents. It is urged that the petitioner has not filed any document to show that he is the owner of the acquired land and, therefore, this petition is not maintainable. We find merit in this contention. Though in the petition it is submitted that there is a registered sale deed, we find that it is not a registered one and no where date of execution of the document is mentioned. That apart on reading the document it transpires that Shri Hem Chared and 8 others on 18.8.1992 executed an agreement, for land admeasuring 1 bigha and 1 biswas out of khasra No. 408, admeasuring 6 bighas and 7 biswas situated in the area of village Mehrauli, Tehsil Mehrauli. The present writ petition is filed by one Shri Ashok Kumar son of Shri Wazir Chand in whose favor Shri Subhash Chand Gupta executed an agreement but as indicated hereinabove there is nothing to show that this sale deed is registered one. In sale deed day, month and year are not mentioned so as to know when it was executed. Therefore, it would not be prudent to rely on such document which is placed before the Court. So far as sale is concerned, under the Transfer of Property Act, 1882, transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Without a registered document immovable property cannot be transferred. Thus, when there is a sale of immovable property and the value of the same is Rs. 100 or more, the same must be by a registered document and only then such document is to be taken note and not otherwise.

6. In the alleged sale deed we find at typed page 14 (at page 32 of the paper book), statement to the effect that the land has not been notified Under Section 4 or 6 of the Land Acquisition Act, 1894 either for the Planned. Development of Delhi or for any other purpose. Therefore, this statement obviously has been made falsely and reading the Xerox copy of the document, it clearly transpires that, that has been subsequently inserted. It can be said so, as the typed letters are quite different and distinct. That apart, as indicated earlier, there is nothing to show that this is a registered document.

7. On such material, it would not be possible to accept the contention of the petitioner that they had acquired any right in the property. This finding is recorded on the basis of material placed on record.

8. Learned counsel for the respondent relying upon the decision of the Apex Court in case of Ajay Krishan Shinghal and Ors. v. Union of India and Ors. (1996) 10 S.C.C. 721 submitted that even if it is presumed for the sake of arguments that the present petitioner does not get any right since his title to property is void title, at best he has only right to claim compensation in respect of acquired land claiming interest in the land, which his predecessor-in-title had. Paragraph 13 of the said judgment reads as Under:-

"Another contention raised by Shri Ravinder Sethi is that the claimant in the first appeal had purchased the property after the declaration under Section 6 was published and that therefore he does not get any right to challenge the validity of the notification published Under Section 4(1). Since his title to the property is a void title, at best he has only right to claim compensation in respect of the acquired land claiming interest in the land which is predecessor-in-title had. Reliance was placed for this purpose on the reported decisions of Apex Court in the case of State of U. P. v. Pista Devi (1986) 4 S.C.C. 251 and Gian Chand v. Gopala (1995) 2 S.C.C. 528; Mahavir v. Rural Institute (1995) 5 S.C.C. 335 and Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 3 S.C.C. 583. We need not deal at length with this issue as is the settled legal position..................."

9. In Gian Chand v. Gopala and Ors. (1095) 2 S.C.C. 528 the Apex Court had-held that after the notification Under Section 4(1) even any encumbrance created by the owner of the land does not bind the Government. The agreement, if any, was frustrated by the publication of notification Under Section 4(1) and declaration Under Section 6. In Yadu Nandan Garg v. State of Rajasthan and Ors. (1996) 1 S.C.C. 334 the Apex Court has held that purchase after notification Under Section 4(1) published in Gazette is not lawful. According to the respondents the. contention can be raised by the land owners and not by a subsequent purchaser (even in the instant case as pointed out hereinabove the document being not registered cannot be relied upon for the purpose of sale).

10. However, even on merits, we do not find that provisions of Section 11A of the Act are attracted in this case. With regard to Notification No. F. 4(98 )/64 L&H dated 23.1.1965 issued Under Section 4 of the Act, it is pointed out that the same was issued to acquire the land for a public purpose, namely, Planned Development of Delhi. By the said notification, 4820 bighas of land was sought to be acquired, which is followed by a declaration under Section 6 of the Act, bearing No. F.4(98)/64-L&H dated 7.12.1966 published in Official Gazette on 22.12.1966. In view of different parcels of the lands, awards were required to be given separately. It is pointed out that the award could not be made on account of pendency of the writ petitions in this Court challenging the acquisition on the main ground that there is delay in making the award and the Government cannot issue several declarations. Writ petitions were also clubbed and heard together. It is pointed out by learned counsel for the respondents that the writ petitions were finally dismissed on 14.12.1995. The main case is reported as Roshnara Begum v. Union of India and Ors. 1996 (61) DLT 206. The said Judgment was challenged before the Apex Court unsuccessfully and the said Judgment delivered by the Apex Court is reported as Murari and Ors. v. Union of India and Ors. (1997) 1 SCC 15

11. On behalf of the respondents, it is further submitted that the civil writ petition No. 789 of 1985 filed by the predecessor in title and various other petitions being CW Nos. 10/81 titled as Shri Gai Ram and Ors. v. Union of India and Ors. No. 114 of 1981, Smt. Gur Iqbal Kaur and Ors. v. Union of India and Ors. No. 584 of 1982, Smt. Ved Rai v. Union of India and Ors. and Shri Chattar Singh and Ors. v. Union of India and Ors. No. 827 of 1983 were filed in this Court. These petitions were for the same notification impugned in this petition though pertaining to different parcels of land. According to the respondents, as stated in paragraph 6 of the additional affidavit in reply, the first petition was filed in the year 1981 and High Court vide Order dated 6.1.1981 directed the parties to maintain status quo. The said interim relief continued till disposal of the matter vide order dated 14.12.1995. It is submitted on behalf of the respondents that status quo order in respect of the same notification remained operative with effect from 6.1.1981 till 14.12.1995, when this Court dismissed the said writ petitions. It is submitted by the respondents that considering this date i.e. 14.12.1995 the award has been made within the statutory period of two years.

12. On behalf of the petitioner, it was submitted that in the instant case there was no order made by the Court with regard to the land in question. Relying on the decision of Apex Court in the case of Yusufbhai Noormohmed Nendoliya v. State of Gujarat and Anr. AIR 1991 S.C. 2153 this submission is made. The Apex Court in the said Judgment observed:-

"In Order to get the benefit of the said provision what is required is that the land holder who seeks the benefit must not have obtained any Order from the Court restraining any action or proceeding in pursuance of the declaration Under Section 6 of the said Act so that the explanation covers only the cases of those land holders who do not obtain any Order from a Court which would delay or prevent, the making of the award or taking possession of the land acquired."

13. The Apex Court in the case of Government of Tamil Naidu v. Vasantha Bai 1995 (Supp.) 2 SCC 423 held that stay of dispossession would tantamount to stay of further proceedings being taken Under Section 11 and Explanation to Section 11A covers such an Order and the entire period of stay has to be excluded in computing the period of two years prescribed by Section 11A of the Act. In case of Municipal Corporation of Delhi v. Lichho Devi and Ors. AIR 1997 S.C. 3474, the Court pointed out that the High Court, held that stay of dispossession of the writ petitioners could not, in any way, be interpreted to imply stay of acquisition of proceedings. The Apex Court pointed out that the question is no longer res Integra. The Apex Court has held that the stay order of the type that was granted, tantamount to stay of further proceedings being taken and, therefore, the entire period during which the stay order was in operation was to be excluded while computing the period of two years prescribed for making an award Under Section 11-A of the Act. Thus it is very clear that in view of the order made by the Court, the proceedings remained stayed and, therefore, in view of Section 11A of the Act as indicated in the Explanation benefit will go in favor of the acquiring authority.

14. In vase of Gandhi Grah Nirman Sahkari Samiti Ltd. etc. etc. v. State of Rajasthan and Ors. JT 1993 (3) S.C. 194 in paragraph 12 the Court pointed out:-

"It is thus obvious that the proceedings in pursuance to the impugned Judgment of the High Court remained stayed throughout Under the interim Orders of this Court."

The Apex Court further pointed out that Explanation to Section 11A of the Act is a complete answer to the argument raised by learned counsel for the appellants. Even otherwise it is a well established principle of judicial procedure that where any proceedings are stayed by an Order of a Court or by an injunction issued by any Court, that period should be excluded in computing any period of limitation laid down by law. This principle is normally followed unless the context of the statute provides otherwise. Thus, it appears that in view of the decisions of the Apex Court, even if Court orders stay of dispossession, the same would tantamount to stay of further proceedings being taken. Section 11A and Explanation to Section 11A of the Act covers such an Order and consequently entire period of stay against dispossession shall be excluded for computing the period of two years prescribed Under Section 11A of the Act. Even stay of dispossession need not be against passing of the award and such stay would operate against the Land Acquistion officer disabling him to take possession of the land.

15. In case of Roshnara Bagum v. Union of India and Ors. AIR 1996 Delhi 206 (FB) this Court has observed that when the stay of dispossession or Order of status quo has been obtained the authorities are inhibited from completing the acquisition proceedings, that law also requires that if the awards made the authorities have to deposit the amount of compensation with the Collector and that the amount shall remain unutilized for years together till the proceedings arising in the Court is decided and the stay is vacated and that once such an order is made by which constraint is put on the authority of whatever nature by an Order of the Court the period for which stay remains in operation has to be excluded for computing the period of two years prescribed by Section 11A of the Act. Ordinarily Order of stay of injunction operates between the parties to the Lis and with regard to the subject-matter. However, in the matters of land acquisition it has a different effect. Even if the Order of stay or Order of injunction is with regard to a portion of land, which is subject-matter of acquisition, the prohibition or stay has the effect on the entire proceedings to be taken pursuant to the notification Under Section 4 or Section 6 of the Act and the words used in the Explanation to Section 11A of the Act being of the widest amplitude Explanation to Section 11A of the Act would be attracted for computing the period of two years in respect of acquisition proceedings covered Under the notification.

16. This Court in the case of Balak Ram Gupta v. Union of India and Ors. (F.B.), AIR 1987 Delhi 239 examined similar contention. Generally speaking, an order made on an interim application in a suit or a writ petition is intended only to protect the interests of the parties to the suit or writ petition and will not ensure to the advantage, or operate to the prejudice, of any person not a party to the said proceedings. At the same time, it may be noted that this is not a universal application of the rule. It depends upon the nature of the proceedings and the terms of the stay Order. The Court pointed out as Under:-

"In other words, we have, therefore, to give full effect to the language of the section and the stay orders in question, in the above context and background. The use of the word "any" in the explanation considerably amplifies its scope and shows clearly that the explanation can be invoked in any case if some action or proceeding is stayed. It may be a complete stay of the operation of the entire notification or may even a partial stay-partial in degree or in regard to persons or lands in respect of whom it will operate. The words used in the explanation are of the widest amplitude and there is no justification whatever to confine its terms and operation only to cases is which the stay Order is actually obtained".

17. Whether the declarations Under Section 6 would be in time or not, after considering various submissions, in paragraph 39, the Court pointed out the period during which stay was operating and the Full Bench held:-

"We have, for the reasons stated above, come to the conclusion that the period during which stay orders were in force should be excluded in computing the validity of the declaration Under Section 6."

18. This decision has been examined by the Apex Court in case of Abhey Ram v. Union of India and Ors. (1997) 5 S.C.C. 421. In para 3, the Apex Court pointed out as Under:-

"The Full Bench in Balak Ram Gupta v. Union of India upheld the validity of the notification Under Section 4(1) and declaration Under Section 6 on the ground that some of the landowners whose land was covered Under the common notification Under Section 4(1) had already approached the High Court and obtained stay of further proceedings including publication of declaration Under Section 6. As a consequence, the stay obtained continuing in operation stood excluded by operation of Explanation II to Section 6(1) of the Act. Accordingly, the declaration published Under Section 6(1) was held valid in law."

The Apex Court in para 9 pointed out as under:-

"We proceed on the premise that the appellants had not obtained any stay of the publication of the declaration but since the High Court in some of the cases, has, in fact, prohibited them as extracted hereinbefore, from publication of the declaration, necessarily, when the Court has not restricted the declaration in the impugned Orders in support of the petitioners therein, the officers had to hold back their hands till the matters were disposed of. In fact, this Court has given extended meaning to the orders of stay or proceeding in various cases, namely, Yusufbhai Noormohmed Nendoliya v. State of Gujarat, (1991) 4 SCC 531, Hansraj H. Jain v. State of Maharashtra, (1993) 3 SCC 634, Sangappa Gurulingappa Sajjan v. State of Karnataka, (1994) 4 SCC 145, Gandhi Grah Nirman Sahkari Samiti Ltd. v. State of Rajasthan, (1993) 2 SCC 662, G. Narayanaswamy Reddy v. Govt. of Karnataka, (1991) 3 SCC 261 and Roshnara Begum v. Union of India, (1986) 1 AD 6, The words "stay of the action or proceeding" have been widely interpreted by this Court and mean that any type of the orders passed by this Court would be an inhibitive action on the part of the authorities to proceed further. When the action of conducting an enquiry Under Section 5-A was put in issue and the declaration Under Section 6 was questioned, necessarily unless the Court holds that enquiry Under Section 5-A was properly conducted and the declaration published Under Section 6 was valid, it would not be open to the officers to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf."

19. Thus, in view of the aforesaid decisions, the argument raised by learned counsel with regard to award Under Section 11A of the Act being time barred cannot be accepted, because the period is to be reckoned from the declaration made Under Section 6 of the Act. As pointed out earlier, there was stay from making an award in some of the cases. Therefore, in view of the aforesaid decisions, it cannot be said that there was delay in making an award or award was made beyond the prescribed period indicated in Section 11A of the Act.

20. Where large area is sought to be acquired and some of the land holders have approached the Court and has obtained stay order, then the Land Acquisition Officer is prevented by order of Court from taking further steps in pursuance of declaration. Land Acquisition Officer cannot be held responsible for delaying the proceedings and the acquisition proceedings would not lapse. Reading Section 11A of the Act it is difficult to consider that it has a restricted application only with regard to persons who have obtained the stay. Even if some have obtained the stay or status quo as to possession etc. it would not be proper and reasonable to hold that expect the land holders who got the proceedings stayed, the Land Acquisition Officer should have completed the acquisition proceedings. One has to read the language . of Explanation. Reading the language it becomes clear that period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an Order of the Court, then such period is to be excluded. When large area is sought to be acquired and belonging to various persons having different property numbers even if one has approached the Court and has obtained stay of the proceedings, the Land Acquisition Officer would not be in a position to complete the acquisition proceedings. The contention which has been raised herein by the petitioner was also raised before Punjab and Haryana High Court in the case of Devinder Kumar and Ors. v. Union Territory, Chandigarh through Adviser to the Chandigarh Administration and Ors. (1999-1) 121 P.L.R. 231 wherein the Division Bench held that it is wholly immaterial whether or not a particular individual has obtained stay quo aquisition of this land. The Division Bench was of the considered view that underlying idea of excluding the period for which the stay remained in vogue in completing the acquisition proceedings is through by virtue of stay granted by the Court. The concerned authorities could not possibly proceed to finally acquire the land and put to the public purpose for which it was sought to be acquired. The moment the Court grants stay, it becomes impracticable, if not impossible to execute the scheme for which lands notified for acquisition.

21. In view of what is discussed above, the petition is meritlessc and is required to be dismissed with cost, which is quantified at Rs. 7,500/-.

Ordered accordingly. Interim order stands vacated.