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CASE NO.: Appeal (civil)  7105 of 1999

PETITIONER: A.P. NAYAR & ORS.                                                

RESPONDENT: REHA. MIN. EMP. COOP. HOUSE BLDG. SOC. LTD. & ORS.                                

DATE OF JUDGMENT: 24/04/2006

BENCH: B.P.  SINGH & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

 1.              This appeal is by the contesting respondents in  C.W. No.3786 of 1992 on the file of the High Court of Delhi.   The Rehabilitation Ministry Employees Cooperative Group  Housing Society Limited (for short "the society"), respondent  No.1 herein, filed the said writ petition challenging an order of  the Appellate Officer under the Evacuee Interest (Separation)  Act, 1951 (for short "the Separation Act") by which the  Appellate Officer allowed an appeal filed by the contesting  respondents under Section 14 of that Act and set aside the  order of the competent officer rejecting an application made by  the contesting respondents under Section 10 of the Act.   The  Appellate Officer had set aside the order of the competent  officer dated 30.05.1986 and remanded the matter back to the  competent officer for deciding the claim of the contesting  respondents afresh in accordance with law.   The High Court  allowed the writ petition filed by the first respondent\027society  and set aside the order of the Appellate Officer dated 4.8.1992,  by holding that the society was a lessee of the land in question  and the contesting respondents before it, the appellants  herein, have no right, title or interest in the land in question  except a right to receive compensation under the Resettlement  of Displaced Persons (Land Acquisition) Act, 1948, hereinafter  called "the Acquisition Act".   The possession of the writ  petitioner\027society was also upheld.    The contesting  respondents were restrained from interfering with the  possession of the society.   Feeling aggrieved by the said  decision, this appeal is filed by the contesting respondents  before the High Court, hereinafter referred to as "the  appellants".

2.              It is claimed by the appellants that their  predecessor in interest one Gopal Dass had purchased the  land in question, being two bighas in Khasra No.167 Village  Begampur, Delhi from one Mohd. Sharauddin by means of a  registered sale deed dated 07.05.1955 pursuant to which  possession was delivered over to Gopal Dass.   According to  them, the rights that Gopal Dass thus acquired still survive  and they were entitled to have the right and possession of  Gopal Dass and of themselves as his successors in interest  recognized and upheld.  This claim is resisted on the plea that  the land in question stood vested in the Government in the  year 1949 itself much before the alleged sale deed was taken

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by Gopal Dass from Sharauddin; that the said deed conferred  no right on Gopal Dass or on his successors and that the  appellants have no claim, right or possession over the  property.   The land had subsequently been leased to the  Society and the Society was in possession thereof.  This  defence was upheld by the High Court which held that the  appellants had only a right to receive compensation for the  acquisition and it is the correctness thereof that is in question  in this appeal.

3.              The land in question, according to the appellants,  was held in co-ownership by one Mohd. Sharauddin and  others.  The co-owners migrated to Pakistan on partition.  But  Mohd. Sharauddin continued to be a non-evacuee.  On  13.09.1948, a Notification under Section 3 of the Acquisition  Act was issued, which took in Khasra No. 167, the property  involved herein.  It is the appellants’ case that no further  action was taken pursuant to that Notification, no notice has  been issued to the owner Sharauddin and possession was  never taken by the acquiring authority.   It was while so that  the property was sold to Gopal Dass, the predecessor of the  appellant by deed of sale dated 7.5.1955.  In the year 1958,  the custodian of Evacuee Property laid information before the  competent officer under the Separation Act with a claim that  one out of three shares in the composite property belonged to  the non-evacuee.  The competent officer after directing issue of  notice to all interested persons including the non-evacuee, by  order dated 29.5.1958, declared that the entire land had  vested in the custodian free from all encumbrances and  liabilities.  On 12.07.1958, Najmuddin, Mohinuddin and  Wahabuddin, the sons of Sharauddin filed a claim before the  competent officer pleading that their father Sharauddin was a  co-owner of the land in question; that Sharauddin had died on  15.04.1958; that the order dated 29.05.1958 be set aside and  their claim be allowed.  The competent officer by his order  dated 10.10.1958 held that one-third of the properties  involved, including Khasra No. 167, belong to the heirs of  Sharauddin and the two-third was evacuee share and framed  a partition scheme and subsequently adopted it by order dated  26.02.1959.   According to the appellants, on 4.4.1964, Gopal  Dass sold one-fourth share in Khasra No. 167 to one Ved  Prakash and on 19.5.1964 another one-fourth share to one  Giyan Chand.  It is the claim of the appellants that mutation  in respect of the land was effected in favour of Dr. Gopal Dass  on 30.05.1972.  

4.              Meanwhile, the Society was formed in the year  29.10.1959 and the Society was allotted 60 acres of land  including the two bighas in Khasra No. 167, out of the  compensation pool created under the Displaced Persons  (Compensation and Rehabilitation) Act, 1954 (hereinafter  referred to as "the Rehabilitation Act"). That allotment was  made on 6.6.1972.  According to the Society, physical  possession of the allotted land was handed over to it on  13.6.1972 and mutation was also effected in the name of the  Society.  On 7.5.1979, the allotment to the Society was  cancelled and orders to receive compensation were issued by  the Government.  The Society thereupon approached the High  Court challenging the cancellation.  On 1.9.1980, a learned  Single Judge of the High Court allowed the Writ Petition filed  by the Society and quashed the order of cancellation.  The  respondents in the Writ Petition were also directed to complete  the process of transfer of land within a period of three months.   The Letters Patent Appeal, LPA No. 254 of 1980 filed against  that decision, was dismissed by the Division Bench on

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5.1.1981.  The Delhi Development Authority challenged the  decision further in this Court.  In this Court, a compromise  was entered into by the Society and the Ministry of  Rehabilitation.  Accepting the compromise, this Court on  6.5.1982 disposed of the appeal filed by the Delhi  Development Authority as withdrawn.   The compromise was  annexed to the order.  As per its terms, the allotment in favour  of the Society was reduced from 60 acres to 45 acres.  To give  effect to the terms of the compromise decree, a letter of  allotment dated 7/9.6.1982 was issued to the Society giving  the details of the allotted land and the same was followed up  by delivery of possession.  The land so delivered over as can be  seen from the relevant document produced in the High Court  as Annexure P-10 included Khasra No. 167.  A perpetual lease  in respect of the 45 acres in favour of the Society was executed  on 28.8.1989.  Thus, it is the case of the Society that it was in  possession of the land pursuant to such allotment and that  the appellants have no right or possession over the same.  5.              It may be seen that the properties were separated,  as per the order dated 26.2.1959 and the share of Sharauddin  allotted to his sons.  Such allotment to them did not take in  Khasra No. 167.  It is seen that Gopal Dass on 30.4.1979, 20  years after the separation order, purported to file revision  petitions under the Separation Act challenging the order of  separation.  That revision was entertained and allowed by the  Appellate Officer apparently without a proper application of  mind to the relevant aspects that arose for decision in such a  belated challenge.  The order of separation was set aside and  the matter was remanded to the competent officer.  The  competent officer by order dated 30.5.1986 held that the land  in question was acquired by the Government under the  Acquisition Act and the award was passed on 7.5.1962. The  acquisition of the land was complete before Sharauddin, the  non-evacuee co-sharer transferred his rights in favour of the  Gopal Dass.  Consequently, Gopal Dass could succeed only to  that much interest in the property which his predecessor in  interest had at the time of the transfer in his favour.  He held  that since the acquisition was complete, there could be no  partition.  Gopal Dass and others challenged the said order by  way of an appeal under Section 14 of the Separation Act.  By  Order dated 04.08.1992, the Appellate Officer set aside the  order passed by the competent officer and remanded the  matter to the competent officer for deciding the matter afresh.   It was this order that was challenged by the Society in the  Delhi High Court, which resulted in the judgment under  appeal upholding the claim of the Society that the successors- in-interest of Gopal Dass could not claim any title, interest or  possession over the Khasra No. 167, other than the  compensation that was awarded for the acquisition.

6.              At the hearing, the learned Senior Counsel for the  appellants contended that the documents produced and the  additional affidavit filed in this Court clearly indicate that the  land in question was not the subject matter of acquisition  under the Acquisition Act and consequently, the very basis of  the claim of the Society and the other objectors stood removed.   The learned counsel submitted that if so, Sharauddin had a  right to convey his share to Gopal Dass and Gopal Dass in his  turn could deal with the property thus obtained by him.   Since, there was no acquisition, there was no question of loss  of title or possession of Gopal Dass and his successors-in- interest.  On the other hand, learned counsel for the Society  and for the Union of India submit that the documents clearly  show that the land was acquired; that acquisition proceedings  were complete and the allotment to the society thereof was

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made and under the circumstances, the High Court was fully  justified in holding that the appellants herein were at best only  entitled to compensation for the acquisition and were not  entitled to anything more.

7.              It may be indicated here that even in the  memorandum of appeal in this Court, there was no specific  contention that there was no acquisition under the Acquisition  Act.  But, learned Senior Counsel for the appellants explained  that the position emerged in view of the further pleadings in  this Court and the records produced and the omission of  Khasra No. 167 from the list of lands acquired.  He submitted  that in that context, the point was being urged especially in  view of the fact that the case of the Society was that the rights  of Sharauddin had been acquired under the Acquisition Act.   

8.              We have perused the relevant documents produced,  including the Notification dated 13.9.1948, the record relating  to taking over of possession dated 4.7.1949 and 29.9.1949,  the award dated 7.5.1962 the pleadings of the parties and the  reasons given by the High Court for coming to the conclusion  that the land was in fact acquired under the Acquisition Act.   On the basis of the materials available, it is not possible to  accept the contention of learned Senior Counsel, that the land  in question has not been acquired as claimed by the  appellants.  It is seen that as per the Notification dated  13.9.1948, an extent of 505.3 acres were notified for  acquisition for the resettlement of displaced persons.   The  land in Khasra No. 167 was included in the Notification.  The  notices by the Special Land Acquisition Collector were  published in the Gazette of India on 25.7.1949.  It is seen that  by Notification dated 16.6.1949, the Additional Custodian of  Evacuees’ Property in exercise of his power under Section 6(1)  of the East Punjab Evacuees (Administration of Property) Act,  1947 assumed possession of or control over all rights and  interests in the land and houses in the rural areas of the  Province of Delhi belonging to all the Muslims except those  mentioned in the Schedule annexed to the notification.  In that  Schedule, the names of Muslims present in the Village  Begampur have been listed.  The names of Mohd. Sharauddin  and his co-owner do not appear in the Schedule.  It was  therefore apparent that the land in Khasra No. 167 was taken  over by the Addl. Custodian of Evacuees Property on  16.6.1949.   

9.              It is also not possible, on a proper advertence to the  documents relating to the acquisition, to accept the contention  of the learned Senior Counsel for the appellants that Khasra  No. 167 was not the subject matter of acquisition.  On the  facts and in the circumstances of the case, the High Court, in  our view, is right in holding that the land in question was  acquired under the Acquisition Act and it had vested in the  Authority under that Act.   It is also seen from the separation  order earlier made that two bighas in Khasra No. 167 was not  set apart to the share due to Sharauddin.  It formed part of  the two-third share that belonged to the evacuees.  The same  had therefore vested in the Custodian of Evacuee Property.  It  may be noted that one of the sons of Sharauddin was present  before the competent officer on 26.2.1959 and had not  objected to the scheme of partition.  Thus the subsequent  conduct of one of the sons of Sharauddin in applying for the  allotment of some other land on the basis that a part of the  property had been acquired, also supports the position that  the land was part of the land acquired under the Act. We may  also notice, that the award passed as early as on 7.5.1962 was

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not challenged by the heirs of Sharauddin.  They also accepted  the separation and Gopal Dass attempted to get the position  unsettled only in the year 1979.  If as he claims he had  obtained title and possession of this land by virtue of the sale  dated 18.5.1955, it is difficult to imagine that he took no  attempt to assert his rights in it till the year 1979.    Thus, on  the whole, the finding that Khasra No. 167 was part of the  land acquired under the Acquisition Act is not shown to be  incorrect and hence it does not call for any interference.  10.             Once that position is accepted, it is clear that the  land was subsequently allotted to the society and granted on  perpetual lease to that Society, though by way of a  compromise decree passed in this Court.  But once the  completion of the acquisition in respect of the land is found, it  is clear that the right, if any, of Gopal Dass and his successors  can only be to the compensation that was awarded under the  Acquisition Act, 1948.  No other right or possession could be  claimed by Gopal Dass and his successors since the conveying  of the right in favour of the Gopal Dass in respect of the  Khasra No. 167, was only after the same had been acquired  under the Acquisition Act.   

11.             Thus, on an anxious reconsideration of the relevant  aspects, in the light of the relevant documents brought to our  notice in great detail by learned Senior Counsel appearing in  the case, we are satisfied that the decision of the High Court  does not call for any interference in this appeal.   Consequently, we confirm the decision of the High Court and  dismiss this appeal.  In the circumstances, we direct the  parties to suffer their respective costs.