A.K. Sikri, J.@mdashIn these two writ petitions the question of law to be decided is identical. The petitioners claim that the land which was acquired vide notification dated 13.11.1959 did not include their land as it was specifically exempted being evacuee land. Notwithstanding this fact, the respondent had issued declaration u/s 6 of the Land Acquisition Act (hereinafter referred to as ''the LA Act'') and thereafter Award was passed by the Land Acquisition Collector covering the land of the petitioners. The petitioners have sought quashing of the declaration/Award on the ground that when there was no notification u/s 4 of the LA Act covering their land, all subsequent proceedings are void. For better appreciation of this contention, we may note the facts of WP (C) No. 2677/81.
2. It is stated in this petition that the petitioner is the owner of the land covering 2 bigha 14 bids was situate in Khasra No. 206/2/1 in village Basai Dara Pur, Delhi. This property originally belonged to a Muslim owner, namely, Suleman Khan, who migrated to Pakistan and thus, it became an evacuee property. It became part of the compensation pool pursuant to notifications issued u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter referred to as ''the Act'') issued by the respondents, which is to the following effect:-
"12. Power to acquire evacuee property for rehabilitation of displaced persons.-
(1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose, connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance to this section.
(2) On the publication of a notification under sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.
(3) It shall be lawful for the Central Government, if it so considers necessary, to issue from time to time the notification referred to in sub-section (1) in respect of--
(a) all evacuee property generally, or
(b) any class of evacuee property, or
(c) all evacuee property situated in a specified area; or
(d) any particular evacuee property.
(4) All evacuee property acquired under this section shall form part of the compensation pool."
3. Thereafter it was dealt with by the Ministry of Rehabilitation under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It may be mentioned that Section 20 of this Act empowers the Managing Officer to transfer property out of the compensation pool to a displaced person. Section 20 is couched in following language:-
"20. Power to transfer property out of the compensation pool.--(1) Subject to any rules that may be made under this Act, the managing officer or managing corporation may transfer any property out of the compensation pool-
(a) by sale of such property to a displaced person or any association of displaced persons, whether incorporated or not, or to any other person, whether the property is sold by public auction or otherwise;
(b) by lease of any such property to a displaced person [or an association of displaced persons, whether incorporated or not, or to any person];
(c) by allotment of any such property to a displaced person or an association of displaced persons whether incorporated or not, or to any other person, on such valuation as the Settlement Commissioner may determine;
(d) in the case of a share of an evacuee in a company, by transfer of such share to a displaced person or any association of displaced person, whether incorporated or not, or to any other person.
[(1A) For the purpose of transferring any property out of the compensation pool under sub-section (1), it shall be lawful for the managing officer or the managing corporation to transfer the same to a displaced person jointly with any other person or an association of displaced persons or otherwise].
(2) Every managing officer or managing corporation selling any immovable property by public auction under sub-section (1) shall be deemed to be a Revenue Officer within the meaning of sub-section (4) of section 89 of the Indian Registration Act, 1908 (XVI of 1908).
(3) Whether the ownership of any property has passed to the buyer before the payment of the whole of the purchase money, the amount of the purchase money or any part thereof remaining unpaid and any interest on such amount or part shall, notwithstanding anything to the contrary contained in any other law, be a first charge upon the property in the hands of the buyer or any transferee from such buyer and may, on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue."
4. This property was put to auction by the Managing Officer (Rural), Ministry of Rehabilitation, Government of India, New Delhi on 6.8.1958. S/Sh.Amir Chand and Brij Lal, predecessors-in-interest of the petitioner, gave a bid of Rs.2,00,050/-, which was the highest bid. By letter dated 15.10.1958 this bid was accepted. The Regional Settlement Commissioner by this letter further asked the bidders to deposit the balance of purchase price, namely, Rs.2,70,045/- in the State Bank of India, New Delhi, under the ''Head'' (XLVI Misc. Receipts on account of acquired evacuee property) and produced receipted copy of the Challan to the Managing Officer at Gokhle Market within 15 days from the issue of intimation. It was also stated that if the bidders had a claim in the property left in Pakistan assessed in their name, they may get the purchase money adjusted against such verified claim. Thereafter vide letter dated 10.3.1959 the bidders were again informed that their bid was accepted and it was decided to give provisional possession to them. In this letter it was also stated that issue of the letter was only provisional and would not constitute transfer of complete title in the property, which cannot be sold or mortgaged until the final letter of adjustment of compensation is issued.
5. In view of the option given by the Regional Settlement Commissioner, the said bidders offered for adjustment of as many as 39 claims, the details whereof are given in para 8 of the writ petition. The respondents adjusted the claim of Ram Das (at Serial no. 27) for Rs.5,994/- on 1.2.1960, Mukan Lal Kapur (at Serial no. 7) for Rs.6,972/- on 7.3.1960 and Smt.Gian Devi (at Serial no. 18) for Rs.12,702/- on 30.11.1961. After adjustment of these claims certificate of sale under Appendix XXII under Rule 90(15) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereinafter referred to as ''the Rules'') was issued on 25.1.1962. The sale certificate was thereafter registered by the Sub Registrar, Delhi on 21.2.1962. At this stage we may reproduce Rule 90(15) of the aforesaid Rules:-
"90 . Procedure for sale of property by public auction-(15) When the purchase price has been realised in full from the auction purchaser, the Managing Officer shall issue to him a sale certificate in the form specified in Appendix XXXII or XXXIII, as the case may be. A certified copy of the sale certificate shall be sent by him to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the property to which the certificate relate is situated. If the auction purchaser is a displaced person and has associated with himself any other displaced person having a verified claim whose net compensation is to be adjusted in whole or in part against the purchase price the sale certificate shall be made out jointly in the name of all such persons [and shall specify the extent of interest of each in the property.]"
6. On the basis of the aforesaid facts the petitioner states that the bidders became owner of the land which stood transferred to them only when the certificate of sale was issued u/s 90(15) and registration thereof on 21.2.1962. Prior thereto it remained evacuee property even if it was put to auction on 6.8.1958 and the bid of the bidders was accepted on 15.10.1958.
7. It is a common case of the parties that vide notification dated 13.11.1959 issued u/s 4 of the LA Act vast tract of land came to be acquired. The land, subject matter of this notification, measured 34070. However, certain categories of land were excluded from acquisition and description of this exclusion can be found from the notification dated 13.11.1959, itself which is as under:-
a) Government land and evacuee land;
b) The land already notified, either u/s 4 or u/s 6 of the Land Acquisition Act for House Building Co-operative societies mentioned in Annexure III.
c) The land already notified, either u/s 4 or u/s 6 of the Land Acquisition Act, for any Government Scheme;
d) The land under grave yards, tombs, Shrines and the land attached to religious institutions and Waqf property; is likely to be acquired for the above purpose."
8. We are concerned with category (a), which includes evacuee land.
9. It is the case of the petitioner that since the land in question was an evacuee land, it was specifically excluded from acquisition and thus, notification u/s 4 of the LA Act did not cover this land. However, still declaration u/s 6 of the LA Act was issued in respect of this land on 6.1.1969 and thereafter notices under Sections 9 and 10 of the LA Act were issued to the petitioner on 10.1.1979. The petitioner, who in the meantime had purchased a land, sent replies dated 6.2.1979 to this notice and contended that his land was not covered by Section 4 notification and, Therefore, acquisition proceedings initiated were void ab initio. However, the respondent went ahead and passed Award dated 7.1.1981. At this stage present writ petition was filed on 20.11.1981 before possession of the land could be taken from the petitioner on 2.12.1981. While issuing notice to show cause in the writ petition, in the stay application status quo regarding possession was granted in favor of the petitioner on 25.3.1982. Subsequently, while issuing rule, it was directed that the aforesaid interim order shall continue. The upshot of these orders is that the possession continues to remain with the petitioner.
10. The questions, Therefore, which arise for consideration, in the aforesaid factual background, may be formulated as under:-
i) Whether the property in question was an "evacuee property" as on 31.11.1959 when notification u/s 4 of the LA Act was issued and thus, excluded from acquisition?
ii) If it was evacuee property, whether subsequent declaration u/s 6 of the LA Act and Award dated 7.1.1981 are null and void?
11. Before adverting to the aforesaid questions, it may be pointed out that in the counter affidavit filed on behalf of the respondent the aforesaid facts regarding property being evacuee property; its auction on 6.8.1959; issuance of sale certificate on 30.1.1962 are specifically admitted. The averments with regard to the adjustment of different claims against the balance consideration, which was payable by the bidders are also admitted as matter of record. However, it is contended that the land in question, which was an evacuee land, lost its status as evacuee land as and when the said land was purchased by the petitioner from the owner of the land in dispute, who received it with the status of evacuee land.
12. Re. Question No. 1
It is not in dispute that the land in question, subject matter of this writ petition, was an evacuee property. It was put to auction on 6.8.1959 and its bid was accepted on 15.10.1958. These events happened before notification u/s 4 of the LA Act was issued on 13.11.1959. However, the amount was not paid by the bidders immediately and instead request was made for adjustment of certain claims. Some of these claims were adjusted on 1.2.1960, 7.3.1960, 19.8.1960, 30.11.1961 and, thereafter this sale certificate was issued on 25.1.1962 and the sale deed was executed on 16.5.1962. Adjustment of claims, issue of sale certificate and registration of sale deed are the events which happened after 13.1.1959. The question, Therefore, which arises for consideration is as to when the property stood transferred to the bidders. If transfer took place on the date of action or when the bid was accepted, then it would be prior to 13.1.1959 and thus, it had ceased to be an evacuee property when notification u/s 4 of the LA Act was issued. On the other hand, if the transfer took place only when full payment was made or on the issue of sale certificate or the registration of sale deed, then even on 13.11.1959 it was an evacuee property and, Therefore, excluded from acquisition.
13. When transfer of an evacuee property takes places, as per the provisions of the Displaced Persons (Compensation and Rehabilitation) 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 6.2.2003. 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 P& h 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
13. In
"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
15. In Mohd. Yusuf v. Union of India 1970 (72) 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. 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
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 u/s 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."
14. 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 u/s 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.
15. The result of the aforesaid discussion would be that the transfer of interest in the property in question in favor of the bidders took place only when complete consideration was paid. As this consideration was paid only after 13.11.1959, it was an evacuee property on the date when notification u/s 4 of the LA Act was issued, i.e. on 13.11.1959. The inevitable conclusion would be that this being an evacuee property was excluded from the said notification and, Therefore, Section 4 notification covering the land in question.
16. Re Question No. 2.
Consequence would be obvious. As issuance of Notification u/s 4 is sine qua non of the acquisition proceedings, in the absence of such a Notification all further proceedings would be null and void and of effect. It is so held repeatedly that in the absence of notification u/s 4 subsequent acquisition proceedings initiated under Sections 6 and 11 of the Act are illegal and cannot be sustained [See
"The process of acquisition must start with the notification u/s 4 and the notification u/s 4 is sine qua non. In the absence of Section 4 notification no acquisition proceedings can subsist as neither the Collector can enter upon the property for the purposes mentioned in sub-section (2) of Section 4, nor can the Collector hear the objections u/s 5A, nor can it submit the report to the appropriate Government for consideration and issue of the declaration u/s. 6. The essential mandatory requirement of initiation of acquisition proceedings is the issuance of notification u/s 4 of the Act covering the land proposed to be acquired. The award of the compensation is on the basis of the market value as on the date of Section 4 notification. Where there is no notification u/s 4, the machinery provided by the Act for determination of compensation obviously cannot apply."
17. The Land Acquisition Act, a Central Statute, has conferred power on public authorities to acquire the land by imposing conditions about procedure. It starts with publication of Notification u/s 4 of the Act, wherein the persons whose land is sought to be acquired are given a notice to this effect. They are given valuable right to file objections u/s 5A of the Act. After consideration of these objections if the public authorities do not find any merit therein, Declaration u/s 6 is issued whereby the Government signifies its intention to acquire the said land. Condition of issuing notice u/s 4 of the Act is clearly mandatory and cannot be treated as directory. Non-observance of a mandatory condition would be fatal to the validity of the action. Procedural safeguards, which are so often imposed for the benefit of persons affected by the exercise of administrative powers, are normally regarded as mandatory, so that it is fatal to disregard them. Where there is a statutory duty to consult persons affected, this must genuinely be done and reasonable opportunity for comment must be given. Where a proposal or scheme is required to be public it must be accurately described and any one entitled to object must be allowed adequate time. All such procedural safeguards are treated as mandatory. [See: Grunwick Processing Laboratories Ltd.Vs. ACAS (1978) AC 277, Port Louis Corporation.Vs. Attorney.-General of Mauritius, (1965) AC 1111].
18. Once we find that there is no Notification issued u/s 4 of the Act qua the land of the petitioners any further action, namely, Declaration u/s 6 or passing of the Award would be without jurisdiction and thus ultra vires. An act or order which is ultra virus is a nullity, utterly without existence or effect in law. That is the plain meaning of `void'', the term most commonly used.
19. We are conscious of the fact that even in respect of acquisition proceedings on the basis of void orders, it has been held by the Supreme Court that there can be no challenge to the acquisition proceedings after possession of land is taken and the land is vested in the State. [Refer:
20. This subject has been explained by us in a recent judgment dated 26th March, 2004 passed in W.P.(C) No. 2361/1987 and after scanning numerous case law on this aspect, following principle was stated:-
"In view of the aforesaid pronouncements, including the recent judgment of the Supreme Court in the case of Delhi Development Authority Vs. Shyam Sunder Khanna (supra), the principle which can be deduced is that even in the case of void order, the aggrieved party has to approach before such an order is enforced. Till the order is enforced (in the instant case to mean that till possession is taken) the aggrieved party may challenge the order and at that stage the question of delay, laches or waiver would not come in his way. However, after the order is enforced, namely, possession is taken and the writ petition is filed thereafter, considerations like delay, laches or waiver would become relevant even when contention raised is that the impugned order was void."
21. However, in the instant case neither the possession has been taken and Therefore the Award is not enforced nor any objection is raised by the respondents to the maintainability of the writ petition on the ground of delay, laches or waiver as no return is filed. Therefore, those judgments shall not have any application in the present case particularly when the petitioners had approached this court before the possession could be taken and Award enforced.
22. Since the Declaration u/s 6 and Award made pursuant thereto is found to be void, in the absence of Notification u/s 4 of the Act, we hereby quash the same.
23. It may be of interest to note that another notification u/s 4 of the LA Act was issued on 6.1.1961 for total area of 85 bigha 9 bids was of same village Basai Dara Pur, Delhi, for which even declaration u/s 6 of the LA Act was issued on 17.5.1961 and an area of 30 bigha 6 bids was was acquired vide Award No. 1230 dated 7.12.1961. In this Award land of various owners was dealt with and entry at Serial No. 16 is described in the following manner:-
"Evacuee Property. 211/1 6-11 Bagh Nehri. Sh. Amir Chand XVI/716, 4-0 Gali Raghubir Singh, 2-11 Nehri Dr. Joshi Road, Karol 210/1 0-4 Bagh Nehri. Bagh, New Delhi and 206/1 11-10 " Brij Lal, 1982, Ashok 207/1 7-4 " Nagar, Faiz Road, New 208/1 4-17 Bagh Nehri & Delhi, Purchasers. Well."
24. It was not disputed that the total area, which was stipulated in notification dated 11.1.1959 issued u/s 4 of the LA Act included the aforesaid area. However, since it was an evacuee property, it got excluded because of this reason, as stated in the same notification and the respondents themselves treated this land to be an evacuee land as on 13.11.1959. That can be the only reason for issuing another notification dated 17.5.1961 for acquiring this land when it stood transferred to Amir Chand, the purchaser. On this reckoning also it can be concluded that the respondents themselves treated the present petitioner''s land also as an evacuee land on 13.11.1959.
25. WP (C) No. 697/83
In this case the land in question situate in village Basai Dara Pur, Delhi, was also an evacuee land. It was put to auction on 6.8.1958. The highest bidders were S/Sh.Amir Chand Brij Lal. Bid was accepted on 15.10.1960 by a letter in the similar terms as noted above in WP (C) No. 2677/81. Here also the bidders offered certain claims for adjustment, which were adjusted on 1.2.1960, 7.3.1960, 19.8.1960 and 30.11.1961. Sale certificate was issued on 25.1.1962 and sale deed on 16.5.1962. In this case also possession remains with the petitioner.
26. The notification u/s 4 of the LA Act is the same, namely, 13.11.1959 culminating into the same award. Thus, here also the transfer took place only on 30.11.1961 when entire consideration was paid i.e. after the notification u/s 4 of the LA Act dated 13.11.1959 was issued. Since as on that date i.e. on 13.11.1959 it as an evacuee land, it stood excluded from acquisition. Consequence, in view of the reasons given above, would be same, namely, all subsequent proceedings are null and void and, Therefore, declaration and award are hereby set aside.
27. Parties shall bear their respective costs in both these petitions.
