Delhi High Court
Oruj Ahmed vs Rashiduddin & Ors on 30 September, 2014
$~10.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: September 30, 2014
+ CS(OS) 2310/2011
ORUJ AHMED ..... Plaintiff
Through : Mr.Y.D. Nagar, Adv.
versus
RASHIDUDDIN & ORS ..... Defendants
Through : Mr.Anwarali Khan, Adv. for D-1.
Mr.Ashok Bhasin, Sr. Adv. with
Mr.Tamin Dadri, Adv. for defendants
no.2 and 3.
Mr.Siddharth Panda, Adv. for Mr.Yeeshu
Jain, Adv. for LAC.
Ms.Manpreet Kaur, Adv. for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J.,(Oral)
1. Present suit has been filed by the plaintiff with the following prayers:
(a) pass a decree for declaration that the plaintiff is the owner of
the plot measuring 400 sq. yards, comprising Khasra
No.378/172, (measuring 2 bighas 3 biswas), Khewat
Jamabandi No.93 (Min) Khatauni No.243, as per Jamabandi
for the year 1960-61 of Revenue Estate of Village Okhla
Distt. Delhi, and as per site plan attached herewith;
(b) pass a decree for possession against the defendants and in
favour of the plaintiff in respect of the above said land/plot
as detailed in (a) above and site plan attached herewith;
(c) to pass decree for permanent injunction for restraining the
defendants from dispossessing the plaintiff from the above
said plot forcibly and illegally.
2. This is an application filed by defendants no.1 and 2/applicants under
Order VII Rule 11 CPC for rejection of the plaintiff.
CS(OS) 2310/2011 Page 1 of 12
3. The present suit pertains to a plot bearing no.33, measuring 400 sq. yards,
located in Khasra No.378/172, measuring 2 Bighas, 3 Biswas, situated at
Johri Farm, Okhla, New Delhi, (hereinafter referred to as "the suit
property") recorded in the revenue record under the ownership of
Sh.Abdul Rehman.
4. Before the rival submissions of counsel for the parties can be noticed the
facts of the case are that one, Sh.Abdul Rehman, executed a Power of
Attorney in favour of Sh.Rashiduddin, defendant no.1 herein, who
entered into physical possession through his maternal grand-father,
Sh.Abdul Rehman, and was represented by the General Power of
Attorney holder, defendant no.1 in various litigations in this Court and
subordinate Courts.
5. Admittedly, as stated in the plaint, the property was notified under the
Land Acquisition Act. Section 4 Notification was issued in the year 1964.
Thereafter Section 6 Notification was issued in the year 1966. Finally an
award was made in the year 1983-84 being Award No.95/83-84 and
publication was carried out. However, physical possession of the suit
property was neither taken over by the Land Acquisition Collector nor the
LAB, nor the DDA as it was a built up area.
6. While, it is the case of the plaintiff and defendant no.1, who supports the
case of the plaintiff, that as neither the acquisition proceedings cannot be
treated as concluded, the compensation was paid nor the possession was
taken over, however, it is the case of the Land Acquisition Collector that
on account of disputes the compensation stands deposited with the
Revenue Department under Sections 30/31 of the Land Acquisition Act.
The plaintiff claims to be the owner of the land in question having
purchased the same from defendant no.1 in the year 2009.
CS(OS) 2310/2011 Page 2 of 12
7. While defendant no.1, who is the initial owner, supports the case of the
plaintiff, the present application for rejection of the plaint has been filed
by defendants no.2 and 3. Since it was unclear as to whether the
possession of the land had been taken or not and also whether any land
had been de-notified a direction was issued to the LAC and DDA to file
their affidavits.
8. As per the affidavit filed by DDA, the subject property, was initially
under the Development Area No.127 with the DDA, however, the said
Development Area has been de-notified and now the South Delhi
Municipal Corporation is looking after all the building activities in the
said Development Area. Paras 1, 2 and of this affidavit read as under:
"1. It is submitted that concerned Khasra i.e. Khasra
No.378/172, Gali No.1, Johri Farm, Noor Nagar Extension, Jamia
Nagar, Okhla, New Delhi was initially under the Development
Area No.127 with the DDA. However, vide Notification
No.F12(49)/09/L&B/Plg/516 dated 19.04.2011, the said
Development Area has been de-notified and now the South Delhi
Municipal Corporation is looking after all the building activities in
the said Development Area.
2. Furthermore, as per the record of the Land Revenue
Department, the said Khasra No.378/172 had been acquired by the
LAC vide Award No.95/83-84. Howeever, the said Khara was
since the built up area, therefore, the possession was not handed
over by the LAC to the DDA.
3. In view of the submissions made hereinabove, since the
Khasra No.378/172, Gali No.1, Jhori Farm, Noor Nagar Extension,
Jamia Nagar, Okhla, New Delhi was neither in the possession of
the DDA nor the same is under the Development Area of DDA,
therefore, in these circumstances, the DDA has no role in the
present matter. It is further respectfully submitted that since the
South Delhi Municipal Corporation is looking after all the building
activities of the said area, therefore, the name of Delhi
Development Authority may kindly be deleted from the array of
parties."
CS(OS) 2310/2011 Page 3 of 12
9. Para 2 of the affidavit filed by LAC reads as under:
"2. That as per the available records, Khasra No.378/172 (2-3),
Okhla, had been notified under Section 4 of the LA Act, 1894 vide
Notification dated 04.04.64 and declaration U/s 6 dated 07.12.66.
An Award being Award No.95/83-84, Village Okhla has been
made and as per the Award Register there are no possession
proceedings in respect of the aforesaid Khasra Numbers.
Possession has not been taken over or handed over to the
requisition deptt. And as per the record available, Compensation
has not been paid/taken by any one due to dispute and the said
compensation amount has been sent to RD."
10. Learned counsel for the plaintiff submits that since the possession of the
land in question was not taken over by the Government the acquisition
proceedings would have no effect in view of Section 16 of the Land
Acquisition Act and further it was open for the owner to deal with the
land in any manner he may so choose.
11. Reliance is placed on The Special Land Acquisition Officer, Bombay
and Others v. M/s Godrej and Boyce, reported at AIR 1987 SC 2421,
more particularly para 5, which read as under.
"5. We are of opinion that the High Court erred in striking down
the order under s. 48 and compelling the State Government to
acquire the lands of the respondent. Under the scheme of the Act,
neither the notification under section 4 nor the declaration under
section 6 nor the notice under section 9 is sufficient to divest the
original owner of, or other person interested in, the land of his
rights therein. Section 16 makes it clear beyond doubt that the title
to the land vests in the Government only when possession is taken
by the Government. Till that point of time, the land continues to be
with the original owner and he is also free (except where there is
specific legislation to the contrary) to deal with the land just as he
likes, although it may be that on account of the pendency of
proceedings for acquisition intending purchasers may be chary of
coming near the land. So long as possession is not taken over, the
mere fact of a notification under section 4 nor declaration under
section 6 having been made does not divest the owner of his rights
in respect of the land or relieve him of the duty to take care of the
land and protect it against encroachments. Again, such a
notification does not either confer on the State Govt. any right to
interfere with the ownership or other rights in the land or impose
on it any duty to remove encroachments therefrom or in any other
way safe-guard the interests of the original owner of the land. It is
in view of this position, that the owner's interests remain unaffected
until possession is taken, that section 48 gives a liberty to the State
Government to withdraw from the acquisition at any stage before
possession is taken. By such withdrawal no irreparable prejudice is
caused to the owner of the land, and if at all he has suffered any
damage in cor quence of the acquisition proceedings or incurred
costs in relation thereto, he will be compensated therefor under s.
48(2). In this view of the matter, it does not matter even if there is
lapse of considerable time between the original notification and the
withdrawal under section 48 as held in Trustees of Bai Smarth Jain
Shvetambar Murtipujak Gyanodhyaya Trust and others v. State of
Gujarat and another., AIR 1981 Gujarat 107. It also follows that
the State can be permitted to exercise its power of withdrawal
unilaterally and no requirement that the owner of the land should
be given an opportunity of being heard before doing so should be
read into the provision."
12. Mr.Bhasin, learned senior counsel for the applicants, submits that the
present suit is not maintainable as there is an absolute bar under Section
3 of Delhi Lands (Restrictions on Transfer) Act, 1972, as per which no
person shall transfer by sale, mortgage, gift or else or otherwise any land
or part thereof, which has been acquired by the Central Government.
Mr.Bhasin further submits that there are catena of judgments, which
have held that any transfer after Sections 4 and 6 Notifications are null
and void. Reliance is placed by learned senior counsel for the applicants
in the case of Meera Sahni v. Lt. Governor of Delhi & Ors., reported at
[2008] 10 SCR 1012.
13. Another argument, which has been raised by Mr.Bhasin is that defendant
no.1 claims to be the owner of the land, who had sold the same to the
plaintiff, had filed a suit in Delhi High Court, being CS(OS)2855/1996,
on an application made under Order VII Rule 11 CPC, the said suit was
dismissed on 29.8.2001.
14. I have heard learned counsel for the parties and perused the plaint and the
documents filed along with the plaint. Defendants 1 & 2 seek rejection of
the plaintiff on the ground that the plaintiff has no locus standi to file the
present suit as he is not the owner of the land with regard to which
declaration is sought for the reason that any sale after section 4 and 6 is a
nullity. In the case of Meera Sahni v. Lt. Governor of Delhi & Ors.,
reported at [2008] 10 SCR 1012, the Supreme Court has held as under:-
"11. The said contentions of the appellants were refuted by Shri
Parag P. Tripathi, the learned Additional Solicitor General,
appearing for the respondents drawing our attention to the various
records including the contents of the notifications. It was submitted
that the possession of the land in question has already been taken
over by the Land Acquisition Officer on 27.01.2000, although the
said fact is refuted by the appellants. On appreciation of the records
placed before us and also the aforesaid contentions which are
raised we now proceed to dispose of these appeals by recording our
findings and conclusions.
12. When a piece of land is sought to be acquired, a notification
under Section 4 of Land Acquisition Act is required to be issued by
the State Government strictly in accordance with law. The said
notification is also required to be followed by a declaration to be
made under Section 6 of the Land Acquisition Act and with the
issuance of such a notification any encumbrance created by the
owner, or any transfer made after the issuance of such a
notification would be deemed to be void and would not be binding
on the government. A number of decisions of this Court have
recognized the aforesaid proposition of law wherein it was held
that subsequent purchaser cannot challenge acquisition proceedings
and also the validity of the notification or the irregularity in taking
possession of the land after the declaration under Section 6 of the
Act. In U.P. Jal Nigam, Lucknow through its Chairman and
another vs. Kalra Properties (P) Ltd., Lucknow and others reported
in (1996) 3 SCC 124 it was stated by this Court that:
"3. ............Having regard to the facts of this case, we were
not inclined to further adjourn the case nor to remit the case
for fresh consideration by the High Court. It is well settled
law that after the notification under Section 4(1) is published
in the Gazette any encumbrance created by the owner does
not bind the Government and the purchaser does not acquire
any title to the property....."
In Sneh Prabha (Smt) and others vs. State of U.P. and another
reported in (1996) 7 SCC 426 at 430 it is stated as under:
"5. ......It is settled law that any person who purchases land
after publication of the notification under Section 4(1), does
so at his/her own peril. The object of publication of the
notification under Section 4(1) is notice to everyone that the
land is needed or is likely to be needed for public purpose
and the acquisition proceedings point out and an implement
to anyone to encumber the land acquired thereunder. It
authorizes the designated officer to enter upon the land to do
preliminaries etc. Therefore, any alienation of the land after
the publication of the notification under Section 4(1) does
not bind the government or the beneficiary under the
acquisition. On taking possession of the land, all rights, title
and interests in land stand vested in the State, under Section
16 of the Act, free from all encumbrances and thereby
absolute title in the land is acquired thereunder......"
The said proposition of law was also reiterated in the cases of Ajay
Kishan Shinghal & Ors. vs. Union of India reported in (1996) 10
SCC 721 and Star Wire (India) Ltd. vs. State of Haryana and others
reported in (1996) 11 SCC 698.
13. In view of the aforesaid decisions it is by now well settled law
that under the Land Acquisition Act the subsequent purchaser
cannot challenge the acquisition proceedings and that he would be
only entitled to get the compensation."
15. Since it is not in dispute that Section 4 Notification was issued on
4.4.1964 and a declaration under Section 6 was issued on 7.12.1966.
Thereafter an award was made in the year 1983-84 and having regard to
the settled position of law as detailed in Meera Sahni v. Lt.Governor of
Delhi & Ors (supra) any sale in favour of the plaintiff would be a nullity
as the plaintiff purchased the suit property in the year 2009 after sections
4 & 6 notifications and accordingly the plaintiff has no locus standi to file
the present suit.
16. The argument of the learned counsel for the plaintiff that since the
possession of land has not been taken over and no compensation paid the
land would automatically stands de-notified is without any merit.
Reliance is placed on the affidavit of DDA is misplaced and without any
force, as the affidavit only shows that the land in question was in a
development area No.127 with the DDA and as per the DDA the
developing area stands de-notified.
17. In Shanti Sports Club and Anr. V. Union of India & Ors.: AIR 2010
Supreme Court 443, the Supreme Court has held that in case of
withdrawal of a notification of acquisition, the withdrawal has to be
notified, which read as under:
"28. The requirement of issuing a notification for exercise of power under
Section 48(1) of the Act to withdraw from the acquisition of the land can
also be inferred from the judgments of this Court in Municipal
Committee, Bhatinda v. Land Acquisition Collector and others (1993) 3
SCC 24 (para 8), U.P. State Sugar Corporation Ltd. v. State of U.P. and
others (1995) Supp 3 SCC 538 (para 3), State of Maharashtra and another
v. Umashankar Rajabhau and others (1996) 1 SCC 299 (para 3) and State
of T.N. and others v. L. Krishnan and others (1996) 7 SCC 450 (para
7). In Larsen & Toubro Ltd. v. State of Gujarat and others (1998) 4 SCC
387, the Court considered the question whether the power under Section
48(1) of the Act can be exercised by the Government without notifying
the factum of withdrawal to the beneficiary of the acquisition. It was
argued that in contrast to Sections 4 and 6, Section 48(1) of the Act does
not contemplate issue of any notification and withdrawal from the
acquisition can be done by an order simpliciter. It was further argued that
power under Section 21 of the General Clauses Act can be exercised for
withdrawing notifications issued under Sections 4 and 6. While rejecting
the argument, the Court observed:
"..... When Sections 4 and 6 notifications are issued, much has been
done towards the acquisition process and that process cannot be
reversed merely by rescinding those notifications. Rather it is
Section 48 under which, after withdrawal from acquisition is made,
compensation due for any damage suffered by the owner during the
course of acquisition proceedings is determined and given to him.
It is, therefore, implicit that withdrawal from acquisition has to be
notified.
31. Principles of law are, therefore, well settled. A notification in
the Official Gazette is required to be issued if the State
Government decides to withdraw from the acquisition under
Section 48 of the Act of any land of which possession has not been
taken. An owner need not be given any notice of the intention of
the State Government to withdraw from the acquisition and the
State Government is at liberty to do so. Rights of the owner are
well protected by sub-section (2) of Section 48 of the Act and if he
suffered any damage in consequence of the acquisition
proceedings, he is to be compensated and sub-section (3) of
Section 48 provides as to how such compensation is to be
determined. There is, therefore, no difficulty when it is the owner
whose land is withdrawn from acquisition is concerned. However,
in the case of a company, opportunity has to be given to it to show
cause against any order which the State Government proposes to
make withdrawing from the acquisition. Reasons for this are not far
to seek. After notification under Section 4 is issued, when it
appears to the State Government that the land in any locality is
needed for a company, any person interested in such land which
has been notified can file objections under Section 5-A(1) of the
Act. Such objections are to be made to the Collector in writing and
who after giving the objector an opportunity of being heard and
after hearing of such objections and after making such further
enquiry, if any, as the Collector thinks necessary, is to make a
report to the State Government for its decision. Then the decision
of the State Government on the objections is final. Before the
applicability of other provisions in the process of acquisition, in the
case of a company, previous consent of the State Government is
required under Section 39 of the Act nor (sic) unless the company
shall have executed the agreement as provided in Section 41 of the
Act. Before giving such consent, Section 40 contemplates a
previous enquiry. Then compliance with Rules 3 and 4 of the Land
Acquisition (Company) Rules, 1963 is mandatorily required. After
the stage of Sections 40 and 41 is reached, the agreement so
entered into by the company with the State Government is to be
published in the Official Gazette. This is Section 42 of the Act
which provides that the agreement on its publication would have
the same effect as if it had formed part of the Act. After having
done all this, the State Government cannot unilaterally and without
notice to the company withdraw from acquisition. Opportunity has
to be given to the company to show cause against the proposed
action of the State Government to withdraw from acquisition. A
declaration under Section 6 of the Act is made by notification only
after formalities under Part VII of the Act which contains Sections
39 to 42 have been complied and the report of the Collector under
Section 5-A(2) of the Act is before the State Government who
consents to acquire the land on its satisfaction that it is needed for
the company. A valuable right, thus, accrues to the company to
oppose the proposed decision of the State Government
withdrawing from acquisition. The State Government may have
sound reasons to withdraw from acquisition but those must be
made known to the company which may have equally sound
reasons or perhaps more, which might persuade the State
Government to reverse its decision withdrawing from acquisition.
In this view of the matter it has to be held that Yadi (memo) dated
11-4-1991 and Yadi (memo) dated 3-5-1991 were issued without
notice to the appellant (L&T Ltd.) and are, thus, not legal."
(emphasis added)
18. The affidavit filed by the LAC shows that the land stands acquired. The
plaintiff has failed to place on record any notification that the land stands
de-notified.
19. This court cannot also loose track of the fact that an earlier suit
[CS(OS)No 2855/1996 filed by defendant no.1 also stands dismissed on
application made under Order VII Rule 11 CPC by an order dated
29.8.2001. Operative part of order dated 29.8.2001 reads as under:-
"The defendants have filed IA No.3087/98 under Order VII Rule 11
CPC stating that the plaintiffs cannot be the owners of the land as
the land in question stands acquired by the Government for which
notification was issued way back in the year 1964. In order to
ascertain this fact, notice was issued to DDA and DDA has filed
affidavit affirming the aforesaid position stating that the disputed
land was acquired vide Notification under Section 6 of the Land
Acquisition Act on 7th December, 1966 and thereafter the Award
dated 95/83-84 was made and land in question stands acquired vide
aforesaid Notification in the year 1984. Learned counsel for the
plaintiffs does not dispute this position. However, his submission is
that the custodian, way back in December, 1961, declared the
plaintiffs to be the owners of the land which is in illegal possession
of the defendants. It may so. However, after that the land was
acquired by the Government vide the aforesaid Notification and now
vests with the DDA, thereafter, the plaintiffs cannot be given the
declaration to the effect that they are the owners of the land. Once
that is the position in law, their prayer for possession of the suit
property also is not maintainable, as they have, as of today, no locus
standi to file the suit with such a prayer. If the plaintiffs are
aggrieved against the order of acquisition and their case is that it is
wrongly passed and since there cannot be acquisition of land which
was given to them under rehabilitation scheme, appropriate remedy
for the plaintiffs is to challenge the Notification. The position
which stands as of today is that the plaintiffs ceased to be the owners
of the land after the same was acquired even if it is presumed that
they are the owner earlier. This suit is therefore not maintainable.
The IA No.3087/98 is allowed. Plaint is rejected."
20. It is admitted position that the plaintiff purchased the land, in question,
from defendant no.1 vide an Agreement to Sell and other supporting
documents in the year 2009, much after the proceedings under Sections 4,
6 and 9 were initiated and an award was rendered.
21. In view of Section 3 of Delhi Lands (Restrictions on Transfer) Act, 1972,
as per which no person shall be entitled to transfer by sale, mortgage, gift
or else or otherwise any land or part thereof, which has been acquired by
the Central Government, the sale made by defendant no.1 in favour of the
plaintiff is null and void. Thus, in my view the present suit is not
maintainable and no declaration can be granted to the plaintiff that he is
the owner of the plot measuring 400 sq. yards, comprising Khasra
No.378/172, (measuring 2 bighas 3 biswas), Khewat Jamabandi No.93
(Min) Khatauni No.243, as per Jamabandi for the year 1960-61 of
Revenue Estate of Village Okhla Distt. Delhi and plaint is rejected.
22. Application stands disposed of in view of above.
G.S.SISTANI, J
SEPTEMBER 30, 2014
msr
