Smt. Santosh Sharma vs Union Of India (Uoi) And Ors. on 28 November 2003

Delhi High Court
Smt. Santosh Sharma vs Union Of India (Uoi) And Ors. on 28 November, 2003
Equivalent citations: 2004IAD(DELHI)202, 108(2003)DLT510, 2003(71)DRJ788
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT

A.K. Sikri, J.

1. This writ petition raises an interesting question. To put succinctly, land of the petitioner was subject matter of Notification dated 13.11.59 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act’) proposing to acquire Khasra No. 410/1 in Village Malikpur Cantt., Delhi. After inviting objections, Declaration under Section-6 was issued vide Notification dated 20.9.1962 for acquiring the said land. This acquisition was challenged by filing CWP. No. 581-D/63.

During the pendency of this writ petition another Notification dated 24.2.1965 under Section 4 was issued for acquisition of certain land in Village Malikpur Cantt., Delhi including Khasra No. 409 owned by petitioner’s father. After completing the formality of inviting objection, the Declaration under Section 6 was issued by Notification dated 16.11.66. Interestingly no challenge was made to this acquisition by the father of the petitioner (predecessor- in- interest).

Writ Petition No. 581-D/63 was decided vide order dated 16.12.70 and was allowed. Interestingly although acquisition of land comprising Khasra No. 409 (Acquisition No. 2) was not under challenge, in the said judgment dated 16.12.70 the acquisition qua Khasra No. 409 was also quashed. The question that arises for consideration is as to what is the effect of the judgment even when the acquisition process relating to Khasra No. 409 was not challenged. There are other related questions also. 2. In order to appreciate the entire controversy, we may take note of the facts in some detail.

3. Late Shri Raja Ram Sharma, father of the petitioner, was a displaced person from Sialkot who came to India in 1947 on the partition of the country. On 6.6.1958, in a public auction held in pursuance to the power under Section 20 of the Displaced Persons Compensation and Rehabilitation Act, 1954, the petitioner’s father purchased land bearing Khasra Nos. 409 and 410 measuring 6 bighas, 16 biswas and 15 biswas respectively in Village Malikpur Cantt. Delhi. This bid was accepted and provisional possession was handed over to the petitioner’s father, thereafter, on 23.10.1958. Certificate of Sale in respect of these lands was also issued on 31.8.1961 whereby petitioner’s father became absolute owner in possession of the land.

4. Both these lands came to be acquired by issuing two separate sets of Notifications, particulars whereof are as under:

(i) Notification dated 13.11.59 under Section 4 of the Act was issued in respect of vast area including Khasra No. 410/1 owned by petitioner’s father. Acquisition, however, was not proceeded with under this Notification as at that time the land still vested under Central Government and was exempted from acquisition. Other Notification under Section 4 of the Act was issued on 20.7.1962 in respect of certain land including Khasra No. 410. The petitioner filed objections under Section 5-A of the Act. Thereafter Declaration dated 20.9.62 was issued under Section 6 of the Act. Petitioner’s father challenged the same by filing Writ Petition on 30.5.63 being CWP. No. 581-D/63. This acquisition relating to Khasra No. 410/1 is termed hereafter as Acquisition No. 1.
(ii) Vide Notification dated 24.2.65 issued under Section 4, certain other lands in Village Malikpur, including Khasra No. 409 belonging to petitioner’s father, was proposed to be acquired. Petitioner’s father submitted objections under Section 5A of the Act on 1.4.1965. However, brushing aside these objections, Declaration under Section 6 of the Act was issued on 16.11.66. As noted above, no challenge was made to this acquisition which would be referred to as Acquisition No. 2 hereinafter.
5. Writ Petition relating to Acquisition No. 1 was decided by a Single Bench of this Court vide judgment dated 16.12.70. A perusal of this judgment would show that petitioner’s father had challenged this acquisition primarily on the ground that Declaration under Section 6 was made without complying with the mandatory provisions of Section 5 of the Act as no opportunity was afforded to the petitioner’s father to raise objections or to be heard against the Government’s intention to acquire the land as notified by Gazette Notification. Learned Single Judge held that even as per respondent’s own showing the petitioner’s objections under Section 5A of the Act filed well before the Declaration under Section 6 of the Act issued on 10.9.62 were not considered inasmuch as the date for hearing was fixed by Land Acquisition Collector(LAC) as 3.10.62 and before this date of hearing, Declaration under Section 6 was issued. For the reasons stated in the judgment, learned Single Judge quashed Notification dated 20.7.62 under Section 4 as well. A reading of the judgment would clearly demonstrate that the entire case was dealt with qua Notification dated 20.7.62 under Section 4 and Notification dated 20.9.62 under Section 6 relating to Khasra No. 410. Admittedly, there was neither any challenge to Acquisition No. 2 relating to Khasra No. 409 nor is there any discussion in respect of these Notifications in the said judgment. In fact there is no reference to the Notifications issued qua Khasra No. 409, subject matter of second acquisitions. However, after holding that Notification dated 20.7.62 under Section 4 and Notification dated 20.9.62 under Section 6 were bad in law, the concluding portion of the judgment reads as under:

“The result is that both the impugned notifications under Sections 4 and 6 of the Land Acquisition Act and the land acquisition proceedings vis-a-vis the petitioner and his land bearing Khasra Number 409 and 410/1 located in village Malikpur Chhawni are quashed and a writ to that effect is issued. The petitioner will also be entitled to his costs.”
6. As per the aforesaid observations acquisition proceedings vis-a-vis the petitioner not only of land bearing Khasra No. 410/1 but also qua Khasra No. 409, were quashed.

7. The respondents filed LPA NO. 109/71 against the aforesaid judgment on 10.5.1971. During the pendency of this appeal, the father of the petitioner expired. His Legal Representatives were not brought on record. In any case LPA No. 109/71 was dismissed by a Division Bench of this Court on 31.3.1980. A perusal of this judgment would show that the matter was argued in respect of first acquisition relating to Khasra No. 410 and the judgment of learned Single Judge was upheld as the contention of the respondent-Government challenging the judgment of the learned Single Judge did not find favor with the Division Bench.

8. After the dismissal of this LPA, Government issued fresh Notification under Section 4 of the Act on 3.6.1980 qua Khasra No. 410/1. Thereafter Declaration under Section 6 in respect of this land was issued on 16.2.1981 (hereinafter terms as ‘Acquisition No. 3’). On 8.8.1986 notices under Section 9(1) and (3) were issued. However, the same were issued to the Rehabilitation Officer, Jamnagar House, New Delhi asking him to appear before the LAC and submit any objection that he may have to the compensation to be awarded. Thereafter, Award was pronounced on 18.9.1986 by respondent No. 4 and notice thereof was issued to Rehabilitation Officer, Jamnagar House, New Delhi. In the present petition these proceedings are challenged. The case of the petitioner is that notices of this acquisition were sent to wrong person, namely, Rehabilitation Officer, Jamnagar House, New Delhi whereas the petitioner was the owner of the land and the petitioner was kept in dark and she never came to know about the purported acquisition. According to her, the provisions of Section 12 were not complied with as notice was not given to persons interested in the Award. The petitioner had no knowledge of the Award as a result no compensation had ever been paid or claimed by her against the Award. Only paper possession was taken on 23.9.1986 without knowledge of the petitioner who continues to be in physical possession through other occupants/tenants.

9. In respect of second acquisition it is stated that after the judgment dated 16.12.1970 quashing acquisition proceedings belonging to Khasra No. 409 also no fresh Notification was issued. However, suddenly respondent No. 4 issued notice under Section 9 of the Act in the year 1986 proceeding on the basis of Notifications issued earlier (Acquisition No. 2) although they were quashed by the High Court. Again no notice was sent to the petitioner in respect of her being the owner of the property and Award No. 234/86-87 in respect of Khasra No. 409 was made on 19.9.1986. No notice of making this Award was sent to the petitioner. It is also mentioned in the writ petition that one CWP. No. 2714/86 was filed by the occupants against aforesaid Award No. 234/86-87 which was admitted and interim stay of dis-possession and demolition of any structure was granted by this Court on 25.3.1987.

10. As far as knowledge of the passing of the aforesaid Awards is concerned, the case of the petitioner is that when she made written request dated 20.4.1999 to the Revenue Authorities to mutate the land in her name, followed by another reminder dated 21.5.1999, she for the first time came to know of the impugned acquisition proceedings when informed by Revenue Authorities that land could not be mutated in her name. She thereafter, inspected the record of the CWP. No. 2714/86 on 18.1.2000 and immediately thereafter filed CM.588/2000 under Order 1 Rule 10 CPC. However, subsequently she withdrew said CM on 21.1.2000 as she was advised to challenge the acquisition proceedings in relation to both Khasra Nos.409 and 410/1 by filing substantive petition as CWP. No. 2714/86 belonging to Khasra No. 409 only. In these circumstances she filed present petition in March,2000.

11. Narration of the aforesaid facts would show that the acquisition proceedings are challenged on the following grounds:

A. Insofar as land covered by Khasra No. 409 is concerned, contention is that Notification in this respect (second acquisition) was quashed by learned Single Judge vide judgment dated 16.12.1970 in CWP. No. 581-D/63 which was upheld by Division Bench. Thereafter no fresh Notification was issued seeking to acquire this land and, therefore, passing of the Award subsequently on 19.9.1986 and thereafter acting on the basis of aforesaid notifications by issuing notice under Sections 9 and 12 of passing of the Award were clearly illegal and without jurisdiction.
B. The common question is being raised qua Khasra Nos.409 and 410/1 to the effect that notices under Sections 9 and 12 of the Act were never served upon the petitioner who was kept in dark and thus the proceedings are liable to be quashed.
12. At the time of arguments also aforesaid twin contentions only were pressed into service. We deal with these contentions now:

A. Whether acquisition proceedings qua Khasra No. 409 can be treated to have been quashed by this Court in CWP. No. 581-D/63?
We have already highlighted the facts relating to Acquisition No. 2. Admitted position which emerges from those facts is as under:
(i) Notification dated 24.2.1965 under Section 4 of the Act and Declaration dated 16.11.66 under Section 6 of the Act relating to Khasra No. 409 were not challenged by the father of the petitioner (predecessor- in- interest). This is in spite of the fact that notifications relating to first acquisition were challenged by filing Writ Petition on 30.5.1963 which was pending at the time when second acquisition proceedings were initiated qua Khasra No. 409.
(ii) Subject matter of CWP. No. 581-D/63 was challenged to first acquisition proceedings alone.
(iii) In the judgment dated 16.12.1970 learned Single Judge considered notifications relating to first acquisition only. There is no reference to the notifications qua second acquisition comprising Khasra No. 409, much less discussion regarding those notifications.
(iv) Specific question of fact dealt by learned Single Judge was that objections dated 31.8.1962 to the proposed acquisition of land bearing Khasra No. 410 owned by petitioner’s father were not dealt with as LAC had fixed date of hearing in respect of said objections for 3.10.1962 whereas Section 6 Declaration came to be issued before that, namely, on 20.9.1962. Similarly while quashing Notification under Section 4, discussion pertains only to Notification dated 20.7.1962. Whether objections under Section 5A filed qua second acquisition proceedings were considered was neither the subject matter of challenge nor any finding was arrived at by the learned Single Judge in the said judgment. Even LPA filed by the Government against the judgment of the learned Single Judge related to first acquisition proceedings. The discussion of the Division Bench also relates to Notifications in respect of first acquisition specifically mentioning Khasra No. 410.
13. From the aforesaid, it is clear that when second acquisition was not challenged nor any finding recorded that notifications in respect of second acquisition were invalid, mere mentioning of Khasra No. 409 in the concluding portion of the judgment of the learned Single Judgment was clearly a typing error. It appears to be bona fide mistake which crept in the said judgment. It further appears that even the parties did not realise this mistake and that is the reason that no application for correction of that error was made before the learned Single Judge and the Government filed appeal only qua the findings relating to the first acquisition. We are of the opinion that merely because of such a mistake whereby Khasra No. 409 is also mentioned in Judgment dated 16.12.1970, it would not ensure to the benefit of the petitioner and it would not be open to her to contend that the Notifications dated 24.2.1965 and 16.11.1966 qua second acquisition proceedings also stood quashed. It is trite law that no person can take advantage of such a mistake when the petitioner or her predecessor-in-interest had not even challenged the second acquisition proceedings. It does not lie in her mouth to contend that notifications relating to second acquisition also stood quashed.

14. The condition precedent for getting a relief is that petition or proceedings have to be filed for the purpose . Such condition precedent must be fulfillled before the effect can follow (Condition praecedens adimpleri debet priusquam sequatur effectus). Claim that Notifications qua Khasra No. 409 be treated as quashed without even challenging the same, would be asking for too much. Such a consequence in law is clearly impermissible. The mentioning of Khasra No. 409 in the judgment which was not the subject matter of the petition was clearly without jurisdiction (Coram non-judice) and, therefore, even on this account no benefit thereof can be given to the petitioner.

15. Therefore, we are of the opinion that second acquisition qua Khasra No. 409 was never quashed. Thus there was no question of issuing any further or fresh notifications under Section 4 and 6 qua this land and on the basis of the earlier Notification under Section 4 and Declaration under Section 6, LAC was competent to proceed ahead. Earlier there was no limitation prescribed within which Award was necessarily to be made. Section 11A was added by means of Amendment Act 1984 effective from 24.9.1984 which prescribes two years limitation for passing the Award from the date of Declaration under Section 6 and in respect of pending Declaration within two years of the said amendment. Award made on 19.9.1986 qua Khasra No. 409 would thus be within the prescribed period and cannot be challenged on this ground. This question has to be, therefore, answered against the petitioner.

B. Re: Validity of notices under Section 9 and 12 of the Act: Before answering this question, one has to take note of some significant facts as per petitioner’s own showing. After the death of her father on 29.10.1978 she never applied for mutation of land in question in her name. Such a request was made by her for the first time only on 20.4.1999 and at that time she was informed about the acquisition proceedings by the Revenue Authorities. Thus in the year 1986 when two Awards were made, namely, Award dated 19.9.1986 qua Khasra No. 410 and Award dated 19.9.1986 qua Khasra No. 409, the father of the petitioner had already died and the petitioner had not taken any steps to bring her name on the record of Revenue Authorities. It was a clear case of Res Nullius i.e. A thing which has no owner. Approach of the LAC was perfectly justified in the given circumstances. The name of the petitioner in the Revenue record was Sine Qua Non for a right to get notice of proceedings under Sections 9 and 12 of the Act. As far as petitioner’s father is concerned, he had died much before. In these circumstances, LAC had no alternative but to issue the notice to the person as per the Revenue record at the relevant time, namely, Rehabilitation Officer, Jamnagar House, New Delhi. We had summoned the original record and perused the same. We are convinced that in the given circumstances there was no other alternative for the LAC. Admittedly, the petitioner was not even living with her father. Counsel also admitted at the Bar that land in question was transferred and she was not in possession. On pertinent query posed by us at the time of arguments, learned counsel for the petitioner informed that she got married much before the death of her father and had been living with her husband, away from her father. Furthermore, land in question has been transferred to third persons and it appears that such transfer is after the Notification under Section 4 of the Act. The transferees have raised construction and are running their factories there from. It is thus clear that present litigation is filed by the petitioner at the behest of those transferees as the petitioner is not even interested.

16. Thus we do not find any merit in the petition which is dismissed with costs quantified at Rs. 10,000/-.