S. Sohan Singh vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 555 Del

JUDGMENT

A.K. Sikri, J.

1. The question which requires to be determined in this case is as to whether the property/land, subject matter of this writ petition, was an evacuee property as on 23rd January, 1965 when Notification under Section 4 of the Land Acquisition Act, 1894 (for short `the LA Act') was issued proposing to acquire this land? Since in the said Notification evacuee properties were excluded from acquisition, if the subject property was an evacuee property as on that date it would not be part of the acquisition. On the other hand, if the ownership of the property stood transferred to the petitioner before the said date then it was an evacuee property and was covered by Section 4 Notification dated 23rd January, 1965. In order to appreciate the controversy, necessary facts may first be noted.

2. The land in question measuring 100 bighas situate in village Lado Sarai, Mehrauli, New Delhi and comprised in Khasra No. 357 (58 bighas 16 biswas) and Khasra No. 358 (41 bighas 4 biswas). A Notification dated 28th October, 1957 was issued by the Central Government under Section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as `the Displaced Persons Act') to acquire the subject land as an evacuee property. Thereafter it was mutated in favor of the Central Government in the revenue records. This land was put to auction on 28th December, 1960. The petitioner also participated in the auction and was declared the highest bidder. His bid was for Rs.2,200/- and 10 per cent thereof was paid by him as auction money on the same date.

3. It may be noted that when the subject land was put to auction, one Khazan Singh, allegedly in possession of the land, was declared as `bhumidar' under Section 13(1) of the Delhi Land Reforms Act. However, order dated 23rd January, 1961 was passed by the Revenue Assistant cancelling the said bhumidari rights in favor of Khazan Singh on the ground that as it was hill area, it could not be subject matter of bhumidari rights. Appeal filed by Khazan Singh against this order in the court of Additional Collector was dismissed on 10th August, 1961. Thereafter Khazan Singh and Khyali filed CWP No. 127-D/1961 in March 1961 challenging public auction held on 28th December, 1960 in which the petitioner was the highest bidder. The said writ petition was dismissed by this Court on 19th May, 1965.

4. While these proceedings were going on, the bid of the petitioner was accepted and he was asked to make payment. The petitioner made the payment of balance sale price amounting to Rs.1,980/- on 21st February, 1964. Thereafter Sale Certificate was issued in favor of the petitioner in respect of subject land on 9th June, 1965.

5. In so far as acquisition proceedings are concerned, a Notification was issued by the Central Government under Section 4 of the LA Act on 23rd January, 1965 covering vast area of land, including land in village Lado Sarai measuring 1386 bighas 11 biswas. The subject land of the petitioner was also specifically mentioned in the said Notification by Khasra Nos. Thereafter Declaration under Section 6 was issued on 7th December, 1966 covering subject land as well. Award was passed on 16th October, 1989 being No. 21/89-90. After the passing of the Award, present writ petition was filed in April, 1990. It may be noted that during the pendency of the writ petition the petitioner died and his legal heirs were brought on record who are pursuing this writ petition.

6. Significantly main ground of challenge, as initially taken in the Award, was that Section 6 Declaration issued on 7th December, 1966 was not made within a period of two years from the date of issuance of Notification under Section 4 of the LA Act which was illegal in view of proviso to Section 11A of the Land Acquisition (Amendment) Act, 1984. However, thereafter amendment in the writ petition was sought which was allowed and the petitioner took the ground that the subject land was an evacuee property and, therefore, could not be acquired vide Notification dated 23rd January, 1965 issued under Section 4 of the LA Act. As noted above, this is the only submission which was pressed before us, at the time of arguments, abandoning the challenge to the acquisition, as originally made in the writ petition.

7. As noted above, in the Notification dated 23rd January, 1965 issued under Section 4 and Declaration dated 7th December, 1966 issued under Section 6 of the LA Act, land of the petitioner was specifically included. However, the case of the petitioner is that the subject land was evacuee land as on the date of the Notification. Being evacuee land it was Government land as on that date Government was the owner of the land. Government could not have acquired its own land and therefore the subject land be treated as excluded from the acquisition. It is on this submission the question which is required to be determined has been stated in the opening part of the judgment.

8. It is a matter of common knowledge that when India attained independence on 15th August, 1947 there was partition of the country as well and Pakistan was created as independent nation. Many Muslims residing in this part of the country migrated to Pakistan and the properties/lands left by them became evacuee properties. The subject land was one such property. It became part of the compensation pool pursuant to Notifications issued under Section 12 of the Displaced Persons Act. Section 20 of the Displaced Persons Act gave power to the Managing Officer of Managing Corporation to transfer any property out of compensation pool to displaced persons. It is because of this provision that this property was put to auction on 28th December, 1960, wherein the petitioner emerged as the highest bidder.

9. From the aforesaid narration, following dates in respect of the auction are material:

(i) 28th December, 1960 - When the property was auctioned and the petitioner was declared as the highest bidder.

(ii) 21st February, 1964 - After the bid was accepted by the competent authority, he was asked to make the payment of balance amount, the petitioner paid the balance amount on this date.

(iii) 9th June, 1965 - Sale Certificate issued in respect of the property in favor of the petitioner.

10. As noted above, Notification under Section 4 for acquisition of property was issued on 23rd January, 1965. Thus if one has to take into consideration the date of auction or date of making payment of amount as the dates when property stood transferred in favor of the petitioner, then the petitioner became the owner of the property prior to Section 4 Notification. On the other hand, if determinitative date is the date when Sale Certificate was issued, then the petitioner became owner of the property only after 23rd January, 1965 and as on that date it was an evacuee property, it would be excluded from acquisition.

11. Before determining this question, we may mention that this writ petition was filed only in the year 1990 after the Award was made in the year 1989. The land of the petitioner was specifically included in the Notification under Section 4 as well as Declaration under Section 6 of the LA Act. There is no averment that the petitioner was not issued any notices under Sections 9 and 10 of the LA Act before passing the Award. One can, therefore, infer that valid notices under Sections 9 and 10 were also given. Therefore, Award was passed which covered the land in question. It is only after the passing of the Award that the petitioner filed the instant writ petition challenging Declaration under Section 6 and Award under Section 11 of the LA Act on the ground that it was not made within statutory period prescribed under Section 11A of the LA Act. Not only there is no force in this contention, the petitioner in fact gave up this ground and only by seeking amendment in the year 1995 vide CM No. 4803/95 took up the plea that it was an evacuee property. This amendment was allowed on 16th August, 1996 subject to just exceptions. Since the petition was filed belatedly after passing of the Award, this writ petition can be dismissed on this short ground having regard to the law laid down by Constitutional Bench judgment of the Supreme Court in the case of Aflatoon and others Vs. Lt.Governor of Delhi and others . It may also be noted that although the land of the petitioner was specifically included in the Notification under Section 4 as well as Declaration under Section 6, no contention was ever taken that it could not be acquired as it was an evacuee property. This remained the position till the passing of the Award. However, we are entertaining the petition on merits only because of the reason that the issue relating to the `evacuee property' goes to the root of the matter.

12. However, having considered this contention on merits, we do not find any substance therein. The question as to when transfer of an evacuee property takes places, as per the provisions of the Displaced Persons Act and the Rules framed there under has come up for consideration before the Courts on a number of occasions. The matter has been dealt with exhaustively by a Division Bench of this Court in Civil Writ No. 1400/86 entitled Sh. M.S. Dewan Vs. Union of India and Others decided on 6th February,2003. In that case after taking note of the previous judgments as well as the relevant statutory provisions, the Division Bench observed as under:-

"11. In Jaimal Singh and another v. Smt. Gini Devi AIR 1964 Punjab 99, a Division Bench of Punjab and Haryana High Court considered the provisions of 1954 Act and also the Rules framed there under. It was noticed that Rule 90 lays down in detail the procedure with regard to the sale of evacuee property by public auction. The expression "confirmation of sale" does not occur in it. Therefore, in order to deal with the question as to the date of acquiring right, title or interest by the purchaser, reference was made to the Rules framed under the said Act. It was held that title in the property passes to the auction purchaser with effect from the date of confirmation of sale. It was held that after the balance price is paid and the purchase is approved by the officer concerned, the said date will be the date from which the auction purchaser will be deemed to have become the owner of the property. It was further held that the auction sale of evacuee property, even if sale certificate was issued later on, relates back to the date when sale is confirmed in favor of the auction purchaser.

12. In Collector of Bombay v. Nusserwanji Rattanji Mistri and others, , relying upon the aforementioned decision of Supreme Court position was further clarified that title to the evacuee property sold in auction passes to the auction purchasers when full price is paid by him.

13. In M/s.Bombay Salt and Chemical Industries v. L.J. Johnson and others the question arose as to the date on which the auction sale under 1954 Act must be deemed to be complete. It was held:-

"It is clear from the rules and the conditions of sale set out above that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the Commissioner is not bound to give, the auction-purchaser has no right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchase has yet to pay the balance of the purchase money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence.

14. In State of Punjab and another v. Suraj Prakash Kapur etc. , it was held that notwithstanding the notification under Section 12 of the Acts of 1954, an evacuee has a valuable right in the property allotted to him and, therefore, was held to be having right to challenge the proceedings, which were initiated to consolidate the said property which by virtue of notification under Section 12 of the Act stood vested in the Government free from all encumbrances. In the said case, there was no auction but only a provisional allotment. A sanad was issued in favor of the petitioner subsequently conferring upn him the absolute right and it was held that whatever rights the petitioner acquired on provisional allotment, the same blossomed into a full-fledged property rights.

15. In Mohd. Yusuf v. Union of India 1970 (72) (Delhi) PLR, 241 it was held that sale having taken place under the provisions of 1954 Act, property no longer formed part of Compensation pool.

16. In Amar Das v. Lt. Governor of Delhi 1971 R.L.R. (Note) 73 (CW No. 189 of 1969 decided on 26.7.1971 the petitioner was held to be having title in the property though sale certificate had not been issued in his favor. In the said case the question had arisen as to whether the petitioner had become owner of the property by virtue of verified claims having been adjusted in respect of the properties allotted to him. It was not disputed that no sale deed had been executed in favor of the petitioner in the requisite form, as provided under the Rules framed under the Evacuee Property (Officers) Act, 1951 and though verified claim had been adjusted against the property allotted to him it was necessary to issue a sale deed yet it was held that title would pass when full price is realized.

17. The view of Division Bench of Punjab High Court in Jaimal Singh's case (supra) was approved by Supreme Court in Bishan Paul v. Mothu Ram holding that title to the property auctioned under 1954 Act passes when sale becomes absolute and not when certificate is issued. In paragraph 16 the Apex Court observed that the intention behind the Rules appears to be that title shall pass when full price is realized.

18. Relying upon these decisions and the pleadings on record, it stands established that full price stood paid on 14.11.1961. This fact has not specifically been denied by the petitioner though specifically asserted by the respondents that title passed on to the petitioner on 14.11.1961 and not on 22.7.1963. The mere fact that the sale certificate recites that the petitioner has been declared to be purchaser of the property with effect from 22.7.1963 will not make any difference, in view of the decisions of Supreme Court aforementioned, which hold that title to the property would pass on bid being approved and payment of full price being made. In this view of the matter, irrespective of the fact that the sale certificate was not issued in petitioner's favor as on the date when notification under Section 4 of the Act was issued, the petitioner had by that date acquired title to the property, and therefore there was no embargo in the Government acquiring the said property."

13. The Division Bench also considered the matter from another angle, namely, when the property was put to auction and the petitioner in that case was declared the highest bidder and the entire consideration was paid by him, it went out of compensation pool and the petitioner alone had interest in the property. This interest could definitely be acquired pursuant to the notification issued under Section 4 of the LA Act. Thus, as per this decision, material date when the property is transferred or interest in that property is transferred will not be a date when the said property is put to auction or when the bid is accepted. On the other hand, it also will not be a date when sale certificate is issued, but the crucial date would be when after accepting the bid entire sale consideration is paid and only then it can be said that the bidder had acquired interest in the property.

14. The result of the aforesaid discussion would be that transfer of interest in the property in question in favor of the petitioner took place when complete consideration was paid on 21st February, 1964. Thus, when the Notification under Section 4 was subsequently issued on 23rd January, 1965 the property belonged to the petitioner and, therefore, it was not an evacuee property and could be acquired.

15. Mr. Rahul Gupta, learned counsel for the petitioner, conscious of the aforesaid legal position, tried to distinguish his case by contending that in the instant case in CWP No. 127-D/1961 filed by Khazan Singh and Khyali, orders dated 14th April, 1961 and 5th April, 1962 were passed on the stay application, whereby dispossession of those persons from the suit premises was stayed which stay remained in operation till 19th May, 1965 when the writ petition was dismissed. Thus there was an impediment for transfer of this land to the petitioner which was removed only on 19th May, 1965 and therefore it is the Sale Certificate, issued on 9th June, 1965, which should be treated as the determinitative date, of which subject land should be treated to have been transferred in favor of the petitioner. However, we do not agree with this submission. As far as transaction between the Government and the petitioner is concerned, they went ahead with the matter; the bid of the petitioner was accepted and he even paid the balance consideration even when the aforesaid proceedings were pending and order of stay of dispossession was operative. Thus as far as transfer of title in favor of the petitioner is concerned, it was effective on 21st February, 1964 when the payment was made. At the most it can be said that it was subject to the outcome of the pending writ petition. The writ petition having been dismissed ultimately that impediment was also over and it therefore could not be said that transfer took place only when Sale Certificate was issued. There was only a stay of dispossession, the result of which could only be that the petitioner could not be given possession of the land which he purchased. However, as far as the title or interest of the petitioner in the subject land is concerned, that stood transferred, in view of the aforesaid legal position, on 21st February, 1964.

16. The writ petition is accordingly dismissed with costs quantified at Rs.10,000/-. Rule is discharged. Interim order stands vacated.