Mange Ram & Anr vs Union Of India & Ors
2015 Latest Caselaw 8768 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 26th November, 2015.

+              W.P.(C) No.6313/2010 & CM No.12515/2010 (for stay)

       MANGE RAM & ANR                                           ..... Petitioners
                   Through:                 Mr. Ravi Gupta, Sr. Adv. with Mr.
                                            Ajay Gulati, Mr. Sachin Jain and Mr.
                                            Bhoomija Verma, Advs.

                                   Versus

       UNION OF INDIA & ORS                                     ..... Respondents

                    Through:                Mr. Vivek Goyal, CGSC for UOI and
                                            Mr. Rasheed Ansari, Adv. for R-
                                            2&3/GNCTD.
                                            Mr. L.B. Rai and Mr. Mohit Kumar
                                            Sharma, Advs. for applicant.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition seeks mandamus to the Union of India (UOI) as well as

Govt. of NCT of Delhi (GNCTD) to make allotment and give possession of

65 bighas and 9 biswas of land to the two petitioners in terms of allotment

letter dated 28th June, 2005.

2. Notice of the petition was issued and pleadings have been completed.

3. The senior counsel for the petitioners and the counsels for the

respondents were heard on 23rd November, 2015 as well as today.

4. It is the case of the petitioners:

(i) that the two petitioners i.e. Sh. Mange Ram and Sh. Ram Mehar

are displaced persons and in lieu of their properties / land left behind

in Pakistan, the Ministry of Rehabilitation, Govt. of India on 30th

September, 1966 issued them a „Sanad' bearing No.D-914 (Hadbust

No.22) with respect to acquired evacuee land admeasuring 71 bighas

and 5 biswas in Village Jharoda Mazra, Burari, Delhi;

(ii) however physical possession of the said land could not be

handed over by the respondents to the petitioners since the said land

was in illegal unauthorised occupation of others;

(iii) that the petitioners at that time were given to understand that

legal proceedings with regard to the said land were pending and they

should await till conclusion of the said proceedings;

(iv) however, even those proceedings were decided in favour of the

occupants who were declared as Bhumidars of those lands;

(v) that vide letter dated 20th April, 1989, the work relating to

administration, management and disposal of the remaining urban

evacuee built up property, urban evacuee plots, rural evacuee

agricultural land etc. was transferred by the Govt. of India to the Delhi

Administration;

(vi) that from 1974 till 2005, the petitioners kept on visiting the

Evacuee Property (EP) Cell for redressal of their grievance and also

made written representations for allotment of alternative land

somewhere else in Delhi, but to no avail;

(vii) that ultimately vide official note dated 19 th May, 2005, it was

proposed that some other lands in piece-meal, available and belonging

to the Custodian of Evacuee Property be allotted to the petitioners;

(viii) that on examination of official records it was found that six

parcels of land in revenue Villages Civil Station, Sheikh Sarai,

Rithala, Haiderpur and Hameerpur total admeasuring 65.09 bighas

were available;

(ix) that vide letters dated 2nd May, 2005 and 13th June, 2005, the

Tehsildar, GNCTD and the Managing Officer, EP Cell sought present

status of the said lands from the local Tehsildars and it was found that

the said lands belonged to and were in possession of the Government;

(x) that accordingly, vide letter dated 28th June, 2005, the Managing

Officer, EP Cell, GNCTD informed the petitioners of allotment of six

parcels of land aforesaid total admeasuring 65.09 bighas and asked the

petitioners to meet the officers in this regard;

(xi) that the petitioners agreed to accept the aforesaid lands in lieu of

71 bighas and 5 biswas of land earlier allotted to them and requested

for a new Sanad and physical possession thereof;

(xii) that though further steps were taken in this respect as evident

from the contemporaneous office notings but in the meanwhile, the

Displaced Persons Claim and Other Laws Repeal Act, 2005 (Repeal

Act) was notified on 6th September, 2005 repealing the Displaced

Persons (Compensation & Rehabilitation) Act, 1954;

(xiii) that the petitioners on 22nd December, 2006 lodged a complaint

with the Public Grievances Commission of not getting formal

possession and allotment of the land;

(xiv) though the Public Grievances Commission also found in favour

of the petitioners but observed that since there was no saving clause in

the Repeal Act, no direction could be given;

(xv) thus, the allotment of 65.09 bighas of land made in favour of the

petitioners did not fructify.

This petition was filed contending that notwithstanding the

Repeal Act, the petitioners were entitled to be put into possession of

the said 65.09 bighas of land and be awarded title with respect thereto.

5. Vide order dated 17th September, 2010 in this petition, status quo was

directed to be maintained with respect to the 65.09 bighas of land which was

allotted / proposed to be allotted to the petitioners.

6. One M/s Maha Maya Dwelling Private Limited filed CM

No.13471/2011 for impleadment in this petition averring that the petitioners

had entered into an agreement with it for transfer of rights in the lands to be

allotted to the petitioners. Vide order dated 17th November, 2011, though the

said M/s Maha Maya Dwelling Private Limited was not impleaded as a

party, but permitted to intervene in the matter only by making submissions.

The same order also records the denial of the petitioners of having entered

into any agreement with the said M/s Maha Maya Dwelling Private Limited.

7. The respondents UOI as well as GNCTD filed counter affidavits and

to which rejoinders were filed by the petitioners. Vide order dated 17 th

November, 2011, the respondents were permitted to file sur-rejoinder and

which has been filed by GNCTD.

8. The respondent No.1 UOI in its counter affidavit has inter alia

pleaded that the work regarding administration, management and disposal of

evacuee, urban and rural properties and lands situated in Delhi was

transferred to Delhi Administration in 1989 and at present GNCTD is

managing all the affairs and that vide Notification dated 6 th September, 2005.

The Administration of Evacuee Property Act, 1950 has been repealed

without any saving clause and thus UOI is not a necessary or property party

to the present proceedings.

9. GNCTD in its counter affidavit has pleaded:

(a) that the petitioners have not approached the Court with clean

hands and have suppressed material facts and made wrong and

misleading statements;

(b) that the petitioners had taken actual physical possession of 71

bighas and 5 biswas of land allotted to them;

(c) that the documents show that the petitioners had taken actual

physical possession of land about four decades ago and the petitioners

have sold the land to the present occupants thereof or their

predecessors; particulars of documents of the time of allotment of land

are given and it is stated that, the land therein is described as vacant,

directions therein are contained for making revenue entries in name of

petitioners, the petitioners therein have acknowledged allotment and

transfer of land in their favour, the petitioners therein made no

grievance of land or any part thereof being encroached, and the

petitioners therein have acknowledged receipt of possession of land

and satisfaction of their claims;

(d) that the petitioners, after a gap of about four decades since the

last communication with the Office of the Assistant Settlement

Commissioner, had stated that there was encroachment on the said 71

bighas and 5 biswas of land and that they could not take possession

thereof;

(e) that the petitioners have tried to take the land a second time;

(f) that issue of Sanad is the culmination of the entire process

beginning from filing of claim for evacuee property;

(g) that after a gap of about 38 years since the last letter to the

Managing Officer, Delhi, the petitioners came up with a fresh dispute

in 2005 that there were illegal occupants on the land;

(h) that the petitioners, after accepting the Sanad, cannot contend so

and even if there are any illegal occupants, it is the petitioners who

have to take steps for removal thereof;

(i) that the responsibility of the Evacuee Property Cell / Office of

the Settlement Commissioner abates on issue of Sanad;

(j) that if the petitioners were dissatisfied, they should have

agitated the same before accepting the Sanad;

(k) that in fact the petitioners, prior to accepting the Sanad, had

made several claims and which were all taken care of;

(l) that thus the repeal of the Displaced Persons Act is irrelevant;

(m) that the petitioners took actual physical possession of the land at

the site on 8th / 9th July, 1962;

(n) that the Sanad dated 30th September, 1966 implies that the

petitioners accepted the land allotted to them and the title of the land is

transferred to their names;

(o) that all the subsequent disputes are extraneous to the issue; the

visits of the petitioners from 1974 to 2005 are denied;

(p) that the letter dated 4th May, 2005 is the first communication,

after a gap of about 38 years;

(q) that the case of the petitioners was completed to the satisfaction

of the petitioners in or about the year 1966 and the file was consigned

to the Record Room;

(r) that no new rights were created in favour of the petitioners in

the year 2005.

10. The petitioners have filed a rejoinder:

(I) denying having taken physical possession of the land in the year

1962;

(II) pleading that the office notings of the respondents show that

possession of the land had not been taken; reliance in this regard is

placed on documents received through the medium of Right to

Information Act, 2005 (RTI Act);

(III) that though a decision had been taken in the year 2005 to allot

alternate land to the petitioners but the same could not be fructified

owing to the repeal aforesaid;

(IV) that after the filing of the petition, vide Notification dated 19 th

August, 2010, powers have been delegated for disposal of pending

claims under the Displaced Persons Act, notwithstanding repeal

thereof;

(V) denying that the grant of Sanad is the culmination of the

process;

(VI) pleading that the petitioners were serving in the Indian Army

and posted outside Delhi since 1965 till January, 2002 when they

retired and hence could not take any steps, though kept on

corresponding during that time also;

(VII) relying on the office notings of the respondents of the year

2005.

11. The respondents GNCTD in the sur-rejoinder has pleaded:

(A) that though the petitioners along with the writ petition had only

placed the documents pertaining to the year 2005 and thereafter on

record, the petitioners along with the rejoinder had brought documents

of prior to the year 2005 on record and of which no mention was made

in the petition;

(B) that all the letters of different dates ranging from 1967 onwards

filed with the rejoinder had been submitted by the petitioners to the

respondents together, in or about the year 2004-2005, and the

petitioners later on, by an RTI application, had taken copies thereof;

(C) that none of the said letters bear any acknowledgement in

receipt thereof from the respondents;

(D) denying that the said letters / representations of the year 1967

onwards were received in the office of the respondents at the

contemporaneous time;

(E) that even if it were to be believed that the petitioners were

making representations from time to time, the petition is still highly

belated;

(F) that mere making of the representations does not extend the

period of limitation; reliance in this regard is placed on C. Jacob Vs.

Director of Geology and Mining Indus. Est. (2008) 10 SCC 115,

Naresh Kumar Vs. Department of Atomic Energy (2010) 7 SCC 525,

Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar (2011) 5

SCC 607, Karnataka Power Corporation Ltd. Vs. K. Thangappan

(2006) 4 SCC 322 and M/s Samant Vs. Bombay Stock Exchange

(2001) 5 SCC 323;

(G) that the office notings of the year 2005 relied upon by the

petitioners are merely indicative of the process undertaken on the basis

of the representations then received from the petitioners; some of the

observations made by some of the officers are without any basis and

no rights can accrue to the petitioners on the basis thereof; reliance is

placed on Jasbir Singh Chhabra Vs. State of Punjab (2010) 4 SCC

192 in this regard.

(H) that the repeal of the Displaced Persons Act and the

modification thereof by Notification dated 19th August, 2010 only

applies to cases which were pending finality;

(I) that Section 22 of the Displaced Persons Act provides appeal to

the Settlement Commissioner; the said statutory remedy has not been

availed of by the petitioners;

(J) that the petitioners on 30th September, 1980 wrote to the Deputy

Commissioner, Delhi Administration for correction of revenue records

and in which the petitioners referred to the occupants of the land as

their tenants;

(K) that the petitioners were therefore earning the fruits of the land

which was allotted to them and with respect whereof Sanad has been

executed in favour of the petitioners.

12. The senior counsel for the petitioners:

(i) drew attention to the letter dated 28th June, 2005 of the Land &

Building Department of the respondent GNCTD to the petitioners on

the subject of "Allotment of alternative land in respect of land already

allotted in Jharoda Mazra Burari vide Sanad No.D-914 (Hadbust

No.22)" and informing that the matter was being processed for

allotment of 65.09 bighas of land in the Villages aforesaid;

(ii) drew attention to the file noting dated 18th August, 2005 of the

Tehsildar, EP Cell observing that the claim of the petitioners was quite

genuine, though "bluntly delayed";

(iii) drew attention to the file notings dated 13th September, 2005 to

the effect that though possession of the land of which the Sanad was

executed was delivered to the petitioners on paper but no actual

physical possession of the allotted land could be given either because

the land was encroached by other persons or because the land had

been given to other persons or due to conferment of Bhumidari Rights

by the Revenue Officers;

(iv) contended that the process aforesaid was however held up

owing to the Repeal Act which did not contain any saving clause;

(v) drew attention to the file noting dated 16th December, 2005 of

the Tehsildar, EP Cell to the effect that the claims of the petitioners

remained unsatisfied and that it is the duty of the Government

Department to hand over actual physical possession of the allotted

land to the petitioners;

(vi) drew attention to Section 20 of the Displaced Persons Act and

Rules 34-G, 10-A and 58 of the Displaced Persons (Compensation and

Rehabilitation) Rules, 1955 framed thereunder;

(vii) contended that the respondents have not shown anything to the

effect that the petitioners accepted the Sanad;

(viii) contended that since inspite of file notings aforesaid, the final

decision remained to be taken owing to the intervention of the Repeal

Act and which was modified in 2010 during the pendency of this

petition, the matter should be remanded to the respondents for taking a

final decision;

(ix) contended that there is no delay, since the respondents from

2005 to 2010 were considering the claim of the petitioners.

13. The counsel for the respondents GNCTD, besides the arguments /

contentions already noted above, drew attention to the letter dated 30 th

September, 1980 of the petitioner No.1 to the Deputy Commissioner, Delhi

Administration to the effect that he was the owner of the land mentioned

therein and owing to his employment with the Army at different places had

assigned the work of cultivation thereof to tenants on yearly basis and had

learnt that the tenants had got the said land mutated in their names and

asking for appropriate orders to be passed in that respect and clearance of

unauthorised structure over his land. It was argued that the claim in the

present petition is directly contradictory thereto.

14. The senior counsel for the petitioners does not controvert the letter

dated 30th September, 1980 supra but contends that part of the land

mentioned therein is not the land subject matter of the Sanad of the year

1966.

15. The counsel for the applicant M/s Maha Maya Dwelling Private

Limited adopted the arguments of the senior counsel for the petitioners.

16. I have during the hearing of the petition repeatedly enquired from the

senior counsel for the petitioners, whether not the plea of the petitioners that

the possession of the land with respect whereto Sanad of the year 1966 was

admittedly executed in favour of the petitioners was not given to the

petitioners and the contention of the respondents that the possession was so

delivered, raises a disputed question of fact which cannot be conveniently

adjudicated in writ jurisdiction and whether not the petitioners had invoked

wrong remedy.

17. However the senior counsel for the petitioners contends that the file

notings of the year 2005 show that the respondents have admitted the factum

of possession having not been so delivered. It is further argued that the

respondents have been unable to show that the possession was delivered in

the year 1962 and without which it follows that the claim of the petitioners

as displaced persons remains unsatisfied.

18. The counsel for the respondents GNCTD, though without any

pleading, also suggested that the petitioners, in the year 2005, were in

collusion with some of the officials of the Land & Building Department of

the GNCTD and had devised the present scheme to grab valuable land of

GNCTD. It was also suggested that the petitioners had by devising such

means already taken possession of another 71 bighas and 5 biswas of land.

However, the said contentions being without any basis and pleadings, cannot

be considered.

19. I am however unable to find the petitioners entitled to relief.

20. It cannot be lost sight of that the plea raised by the petitioners before

this Court for the first time in the year 2010 by way of this writ petition, of,

notwithstanding the transfer of title in the land to them in the year 1966, they

had not been delivered possession of the land, is by it‟s inherent nature a

factual plea and adjudication whereof cannot be in exercise of powers under

Article 226 of the Constitution of India.

21. My this opinion is enforced in view of the admission by the senior

counsel for the petitioners, under instructions, during the hearing also of the

petitioner No.1 having written the letter dated 30th September, 1980 supra.

Even if it were to be believed and held that only a part of the land referred to

therein is the land with respect to which Sanad of the year 1966 was

executed (though the petitioners have not filed any documents to show

ownership / title to the other land which they claim to be not part of the

Sanad and more so in view of the Khasra numbers changing from time to

time), the fact still remains that the petitioners in the year 1980 were

admitting having been put into possession of the land of which the Sanad

was executed in their favour in the year 1966 and were further admitting that

they had allowed their said land to be cultivated by tenants on yearly basis.

The claim of the petitioners in the writ petition is of having not been put into

possession of any part of the land with respect to which the Sanad was

executed in their favour. The letter dated 30th September, 1980 clearly

falsifies the stand of the petitioners in the writ petition, disentitling the

petitioners from any equitable relief under Article 226 of the Constitution of

India.

22. Supreme Court recently in State of Assam Vs. Bhaskar Jyoti Sarma

(2015) 5 SCC 321 also observed that "the question whether actual physical

possession was taken over remains a seriously disputed question of fact

which is not amenable to a satisfactory determination by the High Court in

proceedings under Article 226 of the Constitution of India. ......Remand to

the High Court to have a finding on the question of dispossession, therefore,

does not appear to us to be a viable solution".

23. Not only so, even if it were to be believed that the petitioners were not

put into possession of the land of which the Sanad was executed in their

favour in 1966, the claim of the petitioners for the first time in 2005 i.e. after

nearly 30 years, for land in lieu thereof was also highly belated. Anyone not

delivered possession of land inspite of being conferred with title thereof is

expected to act with promptitude. The contention of the petitioners, of

having made representations therefor, from 1967 till 2005 also, is highly

suspect and at best also raises disputed question of fact. The senior counsel

for the petitioners has been unable to meet the contentions of the

respondents, of the representations even if made by the petitioners from 1967

onwards, being not capable of keeping the said claim alive.

24. I am of the view that the file notings and / or the letter dated 31 st

August, 2005 could not have ignited a claim which was already dead. The

petitioners, independently of their claims as displaced persons and which

stood satisfied on execution of Sanad in the year 1966, had no new right to

allotment of any land in the year 2005 and which claim can be agitated by

way of this writ petition filed in the year 2010. Also, even if it were to be

believed that the petitioners could not pursue their claim owing to the Repeal

Act of the year 2005, the petition filed in the year 2010 i.e. after five years

therefrom would also be barred by time, delay and laches. Any officer of the

Government, even if makes admission of a claim against the Government

and which claim is otherwise barred by law / limitation and thus not valid,

cannot bind the Government therewith. I am, from a reading of the file

notings of the year 2005 relied upon by the petitioners, indeed surprised;

they undoubtedly are without regard to protecting the interest of the State /

Government, which its‟ officers are expected to, and are intended to part

with valuable land worth hundreds of crores of rupees, obviously detrimental

to public interest and by way of enriching the petitioners. The principle

enshrined in Section 18 of the Limitation Act, 1963, of the acknowledgement

in writing of liability or right extending the period of limitation, can be

invoked only if such acknowledgment is made prior to expiry of period of

limitation. It is not the case of petitioners that there was any such

acknowledgement of liability towards the petitioners or of right of petitioners

at any time prior to the year 2005.

25. I have in this context examined the provisions of the Displaced

Persons Act to gauge whether the provisions thereof permitted the Sanad

aforesaid to be executed without delivery of possession and if so to what

effect and what was the remedy of petitioners thereagainst and what was the

limitation provided for availing thereof.

26. The Sanad dated 30th September, 1966 is titled "Permanent Allotment

of Acquired Evacuee Property in Rural Areas". It provides, (a) that the

evacuee land subject matter thereof was acquired vide Notification under

Section 12 of the Displaced Persons Act; (b) that the said property was being

transferred to the petitioners for the purpose of compensation payable to

petitioners under the Displaced Persons Act; (c) "The President is hereby

pleased to transfer the right, title and interest acquired by Central

Government in the said property" to the petitioners. A reading thereof,

which as a government grant is to be interpreted as per its terms, does not

show that after the execution thereof there was any obligation remaining of

the grantor thereof to put the petitioners into vacant peaceful possession of

the land with respect whereto it was granted. The whole claim of the

petitioners in this petition is premised on the respondents being under an

obligation to put the petitioners into vacant, physical possession of the land

and having not fulfilled the said obligation. However, on a reading of the

Sanad, no such obligation is made out.

27. The said Sanad is preceded by (i) a document dated 9th July, 1962 of

handing over of possession of total land admeasuring 71.5 bighas to allottee

i.e. petitioners herein recording that the petitioners were present on the spot,

that demarcation had been done in presence of petitioners, that with respect

to a part of land there was a stay granted by the Court, that on another part

two persons were doing cultivation and there were illegal occupants who had

no right for compensation and that acknowledgement had been done on the

spot; (ii) a document dated 16th July, 1962 of the Court of Allotment cum

Managing Officer, Delhi recording handing over possession of land to

petitioners on the spot on 8th July, 1962 and directing sending of records to

Tehsildar for declaring the petitioners as owners of the allotted 71.5 bighas

of land; (iii) order dated 30th September, 1966 of the Court of Managing

Officer / Settlement Officer Delhi recording that the petitioners were allotted

71.5 bighas of land on 4th May, 1961 in satisfaction of their remaining land

claim, that possession of the land was delivered to them on 8 th July, 1962,

that no rent was due from them and directing execution of Sanad of

permanent allotment of said land in favour of petitioners and forwarding

copy of order to Tehsildar for incorporation in Revenue Records.

28. I have next examined the provisions of the Displaced Persons Act and

the Displaced Persons Rules. Section 12 of the Act empowers the Central

Government to acquire any evacuee property for a public purpose being a

purpose connected with the relief and rehabilitation of displaced persons.

Vide sub-section (2) thereof, on publication of Notification thereunder, the

right, title and interest of any evacuee in the property specified in the

Notification stands extinguished and the evacuee property vests absolutely in

the Central Government free from all encumbrances. Vide sub-section (4),

all evacuee property acquired thereunder was to form part of the

compensation pool. Section 15 of the Act exempts property forming part of

compensation pool from being proceeded against for any claim in any

manner whatsoever in execution of any decree or by other process of any

Court or authority. Finally, Section 20 of the Act empowers the Managing

Officer to transfer any property out of the compensation pool inter alia by

allotment of such property to a displaced person.

29. The Displaced Persons Rules, in Chapter II lays down the procedure

for submission of compensation application, in Chapter III lays down the

procedure to be followed by the Settlement Commissioner on receipt of

compensation application, in Chapter IV deals with determination of

compensation and in Chapter V deals with payment of compensation and

transfer of acquired evacuee property. Chapter V(A) deals with allotment of

evacuee agricultural lands situated in urban areas; Chapter VI deals with

payment of compensation by transfer of Government built property; Chapter

VII deals with payment of compensation for rural houses and the shops left

in West Pakistan and finally Chapter VIII deals with compensation in respect

of verified claim for agricultural land situated in rural areas. The Sanad in

favour of the petitioners being titled "Permanent Allotment of Acquired

Evacuee Property in Rural Areas", the Chapter of the Displaced Persons

Rules applicable to the petitioners would be Chapter VIII, Rule 49

whereunder provides that a displaced person having verified claim in respect

of agricultural land shall as far as possible be paid compensation by

allotment of agricultural land. The other Chapters as aforesaid deal with

agricultural land in urban areas, government built up property, etc. Chapter

V, vide Rule 22 thereunder provides for allotment of residential properties in

occupation of displaced persons, shops in occupation of displaced person and

industrial concerns in occupation of displaced person and would also have no

application to the allotment in favour of the petitioners. Rule 34G to which

reference was made by the senior counsel for the petitioners, is under

Chapter V(A) dealing with allotment of evacuee agricultural lands in urban

areas and would also have no application.

30. Rule 50 under Chapter VIII which as aforesaid is applicable, provides

for the Settlement Commissioner to fix the value of any agricultural land

intended for allotment. Thereafter, Rule 58 to which also reference was

made by the senior counsel for the petitioners provides that where any

person is allotted agricultural land under the Rules, he shall be granted

vacant possession of such land. Rule 60 provides that where any person is

offered allotment of agricultural land under the Rules, he shall communicate

his acceptance of the allotment to the Settlement Commissioner and if no

reply is received within the period fixed, the allotment shall be deemed to

have been accepted. Rule 61 provides that where any person refuses to

accept the allotment of any agricultural land offered to him, the claim for

compensation shall be deemed to have been satisfied to the extent the value

of the allotted land and such allotted land shall be available for allotment to

any other claimant. Thereafter, Rule 68 provides for execution of the Sanad

in favour of the allottee.

31. From the scheme of the Rules aforesaid, it is borne out that the

allotment of agricultural land and delivery of possession thereof precede the

execution of Sanad. That is also how the documents relied upon by the

petitioners show the transaction to have taken place. In the light of the

scheme of the Rules, the suggestion of the senior counsel for the petitioners

that there was nothing to show that the petitioners had accepted the Sanad

inasmuch as the same is not signed by them, is of no avail. Under the Rules,

if the petitioners had not accepted the land allotted to them and / or had

refused the same, their claim for compensation would have stood

extinguished. The petitioners after more than 35 years cannot contend that

they had not accepted the Sanad. The said stand is also falsified from the

letter dated 30th September, 1980 supra admittedly written by the petitioner

No.1.

32. What also emerges from the Act and the Rules is that the acquisition

under Section 12 of the evacuee property is free from all encumbrances.

Thus, upon the lands which were allotted and with respect whereto Sanad

was executed in favour of the petitioners being acquired, no right or claim of

any person with respect thereto persists or survives for the petitioners to say

that others had claimed as Bhumidhars with respect to the said lands.

33. Coming back to the aspect of limitation, even if the petitioners were

aggrieved from the allotment by the Settlement Officer of the land to them

on which others had possession, the remedy of the petitioners was to appeal

to the Chief Settlement Commissioner under Section 22 of the Act and the

limitation whereof was of 30 days. The petitioners admittedly did not

appeal. The only inference can be that either they had no grievance or the

grievance urged after decades is an afterthought and mala fide or even if had

a grievance, the limitation for agitating the same has expired. Reference in

this regard also can be made to Shankara Co-op Housing Society Ltd.

supra.

34. In this context I have also wondered, whether after the petitioners had

accepted the Sanad which is a document of transfer of title of the land to the

petitioners, the petitioners under the Civil Law can have a claim for

alternative land on the ground that the possession of the land of which Sanad

was granted in their favour was not delivered to them.

35. I am unable to find any such proposition in law.

36. Though the Sanad is a Government grant and the Transfer of Property

Act, 1882 is not applicable thereto and is governed by its own terms but I

have, as a proposition of law, wondered the remedy of a purchaser of

immovable property who is not delivered the possession of the property sold.

It is found that delivery of possession is not essential to complete a sale.

Section 55 of the Transfer of Property Act laying down the rights and

liability of buyer and seller of immovable property, in the absence of a

contract to the contrary, inter alia provides that the seller is bound to give,

on being so required, the buyer, or such person as he directs, such possession

of the property as its nature admits. Therefrom, it is evident that delivery of

possession is not essential for completion of transfer and there can be

situations where transfer is complete without delivery of possession.

Following this logic also, the remedy of the petitioners, even if were not put

in possession of the land inspite of conveyance of title thereof in their

favour, cannot be to seek alternate land but can only be to recover possession

of the same land or seek compensation.

37. A Division Bench of this Court as far back as in Hari Chand Vs.

Gordhan Das AIR 1957 P&H 238 (Circuit Bench at Delhi) held that mere

non-delivery of possession or stipulation to delivery of possession at a later

date does not prevent the sale from being complete. The High Court of

Madhya Pradesh also in Sayyed Ibne Hasan Mazhar Husain Vs. Mst.

Mehtab Latafat Husain AIR 1960 MP 237 held that the only three requisites

to complete transfer by sale are (i) an agreement to transfer; (ii) price; and,

(iii) the competency to contract and further held that the requirement in

delivery of possession is a procedural matter.

38. Even if it were to be believed that though by the Sanad of the year

1966, the land admeasuring 71 bighas and 5 biswas stood transferred to the

petitioners but the possession thereof was not delivered by the Government

of India to the petitioners, the senior counsel for the petitioners was unable to

explain, as to how the same would entitle the petitioners to claim alternative

land. The remedy, if any of the petitioners for such a situation was to claim

against the Government of India as the transferor to deliver possession and

which claim could have been made within the period of limitation provided

therefor and/or to have the transfer annulled or to claim back the sale

consideration i.e. compensation in lieu of which the land was given to the

petitioners. The petitioners cannot after 36 years, without having annulled

the transfer, claim another plot of land in lieu thereof. Supreme Court, in

Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jajoo (2009) 5

SCC 713 held that right of possession over a property is a facet of title; as

soon as a deed of sale is registered, the title passes to the vendee; the vendor,

in terms of the stipulations made in the deed of sale, is bound to deliver

possession of the property sold; if he does not do so, he makes himself liable

for damages. Here, not only is there no stipulation in the Sanad that the

grantor thereof will deliver vacant, physical possession of the land with

respect whereto it was executed, to the petitioners but on the contrary the

reading thereof shows that the transfer was complete, with the right, title and

interest acquired by the Central Government in the property being

transferred to the petitioners, thereby also vesting in the petitioners the right

to recover possession from whosoever may have been in possession of the

land.

39. There is thus no merit in the petition, whichsoever way it may be examined.

40. Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 26, 2015/bs (corrected & released on 25th May, 2016)

PS: Since there has been a long delay in correcting and releasing this judgment, the Court Master to inform the counsels.