http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

CASE NO.: Appeal (civil)  4722 of 1997

PETITIONER: Delhi Administration and Ors.                   

RESPONDENT: Madan Lal Nangia and Ors.                       

DATE OF JUDGMENT: 08/10/2003

BENCH: S. N. VARIAVA & H. K. SEMA.

JUDGMENT: JUDGMENT

S. N. VARIAVA, J.

This Appeal is against a portion of the Judgment dated 14th  December 1995 (passed by a Full Bench of the Delhi High Court)   whereunder Writ Petition 1543 of 1982, filed by the Respondents, has  been allowed.

Briefly stated the facts are as follows: Large tracts of land were acquired for the planned development of  Delhi. A large number of Writ Petitions were filed challenging the  acquisition. By the Judgment dated 14th December 1995 the  acquisition proceedings were upheld. Appeals against this judgment  have been dismissed by this Court.  However in this judgment a few  Writ Petitions, where the lands were evacuee properties, were allowed  and the acquisition in respect of those lands was set aside on the  following reasoning:

"Civil Writ Petition No. 783/81         In this Petition, the notification under Section 4 is  dated 13th November 1959 and declaration under Section 6  is dated 2nd January 1969.  The award had been given on  17th January 1983.  The land use prescribed in the Master  Plan is zonal park and in the revised plan is District Park.   In the original notification dated 13th November 1959, it is  mentioned that it would not cover the evacuee land.  The  petitioner had purchased this property from its previous  owner on 6th August 1962.  However, on the date of  notification issued under Section 4 of the Act, this land was  evacuee property and vested in the Custodian and stood  excluded from the said notification.  The name of the  previous owner is Kailash Chand Gupta.  

       Reliance is placed on a judgment of Single Bench of  this Court given in Civil Writ Petition No. 155/83, Harbans  Kaur vs. Land Acquisition Collector decided on August 12,  1991 in which, on similar facts, it was held that as the  original notification issued under Section 4 excluded its  application to the evacuee land, mere fact that the land  ceases to be evacuee after the issuance of notification  under Section 4 of the Act would not validate the  subsequent proceedings taken under Sections 6 and 11 of  the Act for acquiring the land as notification under Section  4 did not pertain to the evacuee land.

       It is quite evident that if there is no notification  issued under Section 4 of the Act pertaining to a particular

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

land, then any declaration issued under Section 6 would be  by itself not valid in respect of the land which was not  subject matter of notification issued under Section 4 of the  Act.

       It has been urged before us that the writ petition has  been brought belatedly as Section 6 declaration had been  issued in 1969 whereas the writ petition had been filed in  1981.   It is not the case where any defect in the Section 4  notification is being highlighted like that the same was not  published in accordance with the provisions of the Act.    What has been pointed out is that the notification issued  on 13th November 1959 did not at all pertain to the land in  question as it was evacuee land at that time.  If the  notification on the face of it is not applicable to the land in  question, the same is nonest and any proceedings taken  for acquiring the land on the basis of such a notification  issued under Section 4, which did not pertain to the land in  question, would be void ab initio and without jurisdiction.   

       In our view, once it is shown that there was no  notification issued under Section 4 pertaining to the  particular land, the subsequent proceedings being void, the  petitioner would not be debarred from challenging such  proceedings even belatedly.  So, this Petition is liable to be  allowed.  

C.W.P. Nos. 377/83, 2256/83 & 1543/82

       In the first two cases, the notification under Section  4 had been issued on 13th November, 1959 while in C.W.P.  No. 1543/82, the notification had been issued on 23rd  January 1965 but notifications themselves excluded the  evacuee lands.   It is evidence that on the date of the  notifications, the land of these petitioners was evacuee  land and it is only later on that the land has been  auctioned or transferred by the competent officer in favour  of the petitioners.  It is, hence, evident that notification  issued under Section 4 could not possibly apply to the land  of these petitioners when at the time of the notification,  the land in question was evacuee land or composite land.   The land obviously belonged to the Government and in  case the Government needed the land for public purpose,  they could have easily retained the possession of the land  and there was no need to resort to Land Acquisition Act for  acquiring this land.  At any rate, when the land of the  petitioners, being evacuee land, was not covered by the  notifications issued under Section 4, any subsequent  proceedings of acquisition taken in respect of the said land  on the basis of the said notification under Section 4 were  on the face of it illegal.                  Hence, the acquisition proceedings in respect of the  land of these petitioners are liable to the quashed."

Thus these acquisitions were set aside on the grounds (a) They were  pursuant to a Notification dated 13th November 1959, under Section 4  of the Land Acquisition Act; (b) that this Notification did not cover  evacuee lands and therefore further proceedings would not be valid;  (c) that evacuee lands or composite lands belong to the Government  and in case the Government needed the land for public purpose they  could have easily retained the possession of the land and there was no  need to resort to Land Acquisition Act for acquiring this land; (d) that  once it was shown that there was no Notification issued under Section  4 pertaining to these lands, the subsequent proceedings being void,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

the Petitioners were not debarred from challenging such proceedings  even belatedly.

At this stage it must be noticed that the acquisition of Petitioners  lands was not under Notification dated 13th November 1959.  Petitioners lands were acquired under proceedings pursuant to Section  4 Notification dated 23rd January 1965. The Notification dated 23rd  January 1965 did not exempt evacuee properties.  The High Court fell  in error in stating that a Notification dated 23rd January, 1965  exempted evacuee lands. Thus the factual basis on which acquisition  of other evacuee lands was set aside did not exist in this case. This  aspect appears to have not been noticed by the High Court. One  cannot blame the High Court as there were so many matters before it.  It is only natural that facts of this particular case may not have been  noticed.

Dr. Dhavan submitted that this Civil Appeal should be dismissed  because Delhi Development Authority had also filed a Special Leave  Petition against this portion of the Judgment whereby Writ Petition of  the Respondents had been allowed.   He pointed out that in that  Special Leave Petition the Union of India and Delhi Administration were  Respondent Nos. 10 and 13 respectively.  He submitted that that  Special Leave Petition was dismissed on 18th November, 1996.  He  pointed out that the Review filed by Delhi Development Authority was  also dismissed on 7th November, 2000.  He submitted that in this  Special Leave Petition the Union of India and the Delhi Development  Authority have not been made parties obviously with an intention of  hiding the fact that the Delhi Development Authority’s Special Leave  Petition had been dismissed.  We are unable to accept this submission.   We have seen the Orders dated 18th November, 1996 whereby the  Delhi Development Authority’s Special Leave Petition was summarily  dismissed.  It is settled law that if a Special Leave Petition is  summarily dismissed such a dismissal does not bar other parties from  filing a Special Leave Petition against the same Judgment.   No  authority is required for this proposition but if any is required, then the  cases of Kunhayammed and Ors. v. State of Kerala reported in (2000)  6 SCC 359 and S. Shanmugavel Nadar v. State of Tamil Nadu reported  in (2002) 8 SCC 361 may be looked at.  Even otherwise, the order  dated 7th November, 2000 is very clear.  On this date Delhi  Development Authority’s Review Petition is being dismissed, but this  order specifically delinks this Civil Appeal along with two other Civil  Appeals.   Once this Court has specifically chosen to keep this Appeal  alive,  we do not consider it correct or proper to now dismiss this  Appeal only on the ground that the Special Leave Petition and Review  Petition of the Delhi Development Authority have been dismissed.

Mr. Rohtagi submitted that the Writ Petition should have been  dismissed on the grounds of delay and latches.   He pointed out that  Section 4 Notification was issued on 23rd January, 1965 and Section 6  Notification was issued on 13th January, 1969.  He submitted that this  Writ Petition was filed only in 1982.  He pointed out that the High  Court in the Judgment dated 14th December, 1995 has held as follows:

"It is evident that if challenge is made belatedly to  such notifications obviously it would become difficult for  the authorities to meet such a challenge as the records of  such old notifications may not be available and also if  challenge had been made expeditiously and some  deficiencies were found in publicizing the notifications, the  notifications could have been withdrawn and fresh  notifications could have been issued.  By allowing such  notifications to remain unchallenged for years together the  petitioners had allowed the authorities to proceed on the  basis that there would not be any challenge to such  notifications.  Mere fact that in some cases acquisition

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

proceedings have not been completed and possession had  not been taken would not entitle the petitioners to get the  notifications set aside on such a ground.  Even if there is  no counter filed in some of the cases rebutting the factual  averments with regard to notifications being not published  in the locality as required by law even then the  respondents are not debarred from taking the plea in  arguments that the writ petitioners in challenging these  notifications belatedly are guilty of laches and delay.   In  the case of Ramjas Foundation & others Vs. Union of  India & Others, 50(1993) DLT 23 (SC) , on similar  grounds the belated challenge was negatived.  So there is  no merit in such a plea and such challenge has to be  negatived."

Mr. Rohtagi submitted that the High Court has thus negatived the  challenge to the acquisition proceedings on grounds of delay and  latches and yet thereafter given relief to the Respondents.   He  submitted that in view of the High Court’s own findings, on delay and  latches, the High Court should have dismissed this Writ Petition also.    Mr. Rohtagi relied upon the case of Ramjas Foundation v. Union of  India reported in (1993) Supp. (2) SCC 20, wherein this Court has  held that if there is no explanation for the delay or the explanation is  unacceptable then the Writ Petition challenging acquisition proceedings  must be dismissed on grounds of delay and latches.   He also relied  upon the case of Vashwas Nagar Evacuees Plot Purchasers Association  v. Under Secretary, Delhi Administration reported in (1990) 2 SCC  268, wherein again this Court has held that the Writ Petition must be  dismissed on grounds of delay and latches.   It must be mentioned  that both the above cases, relied upon by Mr. Rohtagi, were in respect  of the same Notifications.

 On the other hand, Dr. Dhavan submitted that whether there is  delay and/or latches is a question of fact.  He submitted that so far as  evacuee lands are concerned the High Court, in its Judgment dated  14th December, 1995, has held that once the Notification under  Section 4 did not cover evacuee lands then all subsequent proceedings  are void and that the Respondents were thus entitled to challenge the  acquisition proceedings even belatedly.   He submitted that the factual  aspect is not before this Court, the submissions of Mr. Rohtagi should  not be accepted.

In our view, it is not necessary for us to decide this point as, for  reasons set out hereinafter, we propose to remit the matter back to  the High Court for a fresh hearing in respect of some of the lands.  It  will be open to the parties to urge their respective contentions before  the High Court. The High Court shall decide this question on merits.

       Dr. Dhavan then took this Court through the provisions of the  Administration of Evacuee Properties Act, 1950; the Evacuee Interest  (Separation) Act, 1951, and the Displaced Persons (Compensation and  Rehabilitation) Act, 1954 and the averments made in the Writ Petition  which are as follows: "5.     That the Petitioners are the actual owners and  occupants with physical possession of the land bearing  Khasra Nos. 322(2-17), 323(2-16), 329/1/1(0-14),  318/2(3-12), 324(4-12) 319/3(2-13) and 321(2-17), total  measuring 20 Bighas, 2 Biswas situated in the Revenue  Estate of Village Pul Pehlad, Tehsil Mehrauli in the Union  Territory of Delhi, hereinafter referred to as "the said  lands".  The petitioners are in actual physical possession of  the said land and are running their stone hot-mix plants on  the said lands for the last about 10 years.  The name of  the petitioners has been duly entered in the Revenue  record.  True English translation of the latest Khasra

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

Girdawari are filed herewith and marked as Annexure ’F’.

xxx                     xxx                     xxx

8.      That on the partition of the country in the year 1947,  certain muslims of village Pul Pehlad, Delhi went to  Pakistan and left their land and property.  Thus, the whole  of the said land was declared as Evacuee Land.  In fact,  there was a joint Khewat of land of many persons in village  Pul Pehlad, the interests of evacuee and non-evacuee were  composited under the Evacuee Interest (Separation) Act,  1951.  In the year 1950-51, Hamdard Dawakhana (Wakf),  Delhi purchased the said land and thus the interest of Non- evacuee and evacuee were composited.  Thus, the said  land was initially being a composite evacuee property  under the Evacuee Interest (Separation) Act and when the  Displaced Persons (Rehabilitation & Compensation) Act,  1954, by the Govt. of India on 7-7-1955 by a Notification  No. S.R.O. 1535 dated 7-7-1955, issued by the Ministry of  Rehabilitation and such the interest of the Evacuee vested  in the Government.   The Hon’ble Supreme Court of India  in Collector of Bombay v/s Naussorwanji reported as AIR  1955 S.C. 298 held that "When Govt. possesses an  interest in the land which is the subject of acquisition  under the Act, that interest is itself outside such  acquisition, because there can be no question of Govt.  acquiring what is its own."

9.      That the said land of the petitioner continued to be  evacuee acquired composite property under the Evacuee  Interest (Separation) Act, vide orders dated 24-8-1959 of  the Competent Officer, Delhi in Case No. 735/C.O. passed  according to the order of Chief Commissioner of Delhi  dated 23-12-1958 in Case No. 262 of 1957.

       It is respectfully submitted that the interest of  evacuee and non-evacuee were finally separated by the  Court of Competent Officer, Delhi appointed u/s 4 of the  Evacuee Interest (Separation) Act, 1951, by an Order  dated 16-5-1968.  A true copy of the said Order is  Annexed herewith and marked as Annexure ’G’. Thus till  16-5-1968, the said land remained as composite evacuee  property or acquired land vesting in Government on the  date of issue of Sec.4 Notification i.e. 23.1.1965,  therefore, the said land could not be legally acquired on  the basis of the said Notification dated 23.1.1965 and as  such, any declaration u/s 6 of the Acquisition Act is illegal,  invalid and inoperative and void- ab initio."

He pointed out that in reply to these averments all that was  stated was as follows: "Para 5:  The contents admitted in respect of Petitioner No.  1 to 6.   Petitioner No. 7 to 9 are neither the owner nor  occupant of the Land under petition.  Petitioners No. 1 to 6  are the occupant of Kh. Nos. 322, 323/2.  Petitioner No. 6  is owner in possession of Kh. No. 321(2-14), (2-17) (2- 16), petitioner No. 3 is owner in possession of Kh. No.  324/2 (4-13).  Petitioner No. 2 is occupant of Kh. No.  318/2 (3-12) on behalf of Gaon Sabha.  Petitioner No. 1 is  owner in possession of Kh. No. 329/1//1(0-4) and  petitioners No. 4 & 5 are the owners in possession of Kh.  No. 319/3(2-12) possession of the petitioners has been  entered in Kh. No. 1980 according to Revenue record.  

       xxx                     xxx                     xxx

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

Para 8:  In reply to the contents of this part, it is  submitted that Kh. No. 304, 305 & 306 belongs to  Ham  Dard Dawakhana Waqf & Kh. No. 310 to Gaon Sabha Pul  Pahlad as owner according to the record and tenants have  been discussed in Para 5.  The legal submissions are  denied.  These shall, however, be suitably replied at the  time of arguments.

Para 9:  The contents being mis-conceived are, therefore,  denied.   There is no provision in the notification u/s. 4  made on 23-1-1965 that the said notification is not  applicable on the evacuee or any other specific property.   The legal submissions shall be suitable replied at the time  of arguments."

He submitted that therefore there was no denial to the averments in  the Petition.  He submitted that the composite lands were required to  be separated under the provision of Evacuee Interest (Separation) Act,  1951.  Dr. Dhavan showed to this Court a copy of an Order dated 16th  May, 1968 in support of his submission that this separation of interest  only took place on that date.  It must immediately be mentioned that  a perusal of this Order shows that except for Khasra Nos. 321 and  322, none of the other lands set out in Para 5 of the Writ Petition are  covered by this Order.         Dr. Dhavan submitted that even though the Notification under  Section 12, was issued such a Notification did not put an end to rights  which were pre-existing.  He submitted that the rights of the  Respondents continued to exist until there was a separation of interest  under Section 10 of the Evacuee Interest (Separation) Act, 1951 on  16th May, 1968.   In support of this preposition he relied upon the case  of State of Punjab  v. Suraj Parkash Kapur reported in 1962 (2) SCR  711, wherein the question was whether on an acquisition under  Section 12 of the Displaced Persons (Compensation and Rehabilitation)  Act, 1954 the pre-existing rights came to an end.  The facts of this  case were that under a Draft scheme, framed by the Consolidation  Officer, certain lands allotted to the Respondents therein were  substituted by poorer lands. Thus a Writ Petition challenging the  Scheme was filed.  Pending the Writ Petition a Notification under  Section 12 of the Displaced Persons (Compensation and Rehabilitation)  Act was issued, wherein all evacuee properties were acquired.   The  question before the Court was whether the Writ Petition challenging  the consolidation scheme was maintainable after the Notification under  Section 12 had been issued.  It was held that even though there was  no right to property but still there was an interest in the land which  enabled Respondents (therein) to maintain the Writ Petition.  The  observation that the interest in land continued was based on Section  10 of the Displaced Persons (Compensation and Rehabilitation) Act,  1954 which specifically provided that even after an acquisition under  Section 12 the displaced person to whom the property was leased or  allotted could continue in possession of that land.  Thus the  observation relied upon are based on the provision of Section 10 which  permitted retention of possession.  There is no such provision in the  Land Acquisition Act.  Thus once an acquisition takes place under the  Land Acquisition Act all prior rights would stand terminated.  The  principles laid down in Suraj Kapur’s case could thus have no  application.    

Dr. Dhavan further submitted that there was no denial that on  7th July, 1955 there was a Notification under Section 12 of the  Displaced Persons (Compensation and Rehabilitation) Act, 1954.  A  copy of this Notification was also shown to this Court.  Dr. Dhavan  submitted that by virtue of the Notification dated 7th July, 1955 the  Central Government became the owner of these lands.  He submitted  that there could then be no acquisition by the Central Government of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

its own lands.  In respect of the submission that the Central  Government cannot acquire its own land reliance was placed on the  following observations made in the case of Sharda Devi V. State of  Bihar reported in (2003) 3 SCC 128: "27â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦ The State does not acquire its own land for  it is futile to exercise the power of eminent domain for  acquiring rights in the land, which already vests in the  State.  It would be absurdity to comprehend the provisions  of the Land Acquisition Act being applicable to such land  wherein the ownership or the entirety of rights already  vests in the State.  In other words, the land owned by the  State on which there are no private rights or  encumbrances is beyond the purview of the provisions of  the Land Acquisition Act.  The position of law is so clear as  does not stand in need of any authority for support.  Still a  few decided cases in point may be referred since available.

       28.     In Collector of Bombay v. Nusserwanji Rattanji  Mistri [AIR 1955 SC 298] this Court held that when the  Government acquires lands under the provisions of the  Land Acquisition Act, it must be for a public purpose, and  with a view to put them to that purpose, the Government  acquires the sum total of all private interests subsisting in  them.  If the Government has itself an interest in the land,  it has only to acquire the other interests outstanding  thereof so that it might be in a position to pass it on  absolutely for public user.  An interesting argument was  advanced before the Supreme Court.   It was submitted  that the right of the Government to levy assessment on  the lands is an "encumbrance" and that encumbrance is  capable of acquisition.  The Court held that the word  "encumbrance" as occurring in Section 16 can only mean  interests in respect of which a compensation was made  under Section 11 or could have been claimed.  It cannot  include the right of the Government to levy assessment on  the lands.   The Act does not contemplate the interest of  the Government in any land being valued or compensation  being awarded therefor.

       29.     In Secy. of State v. Sri Narain Khanna [AIR  1942 PC 35] it was held that where the Government  acquires any property consisting of land and buildings and  where the land was the subject matter of the government  grant, subject to the power of resumption by the  Government at any time on giving one month’s notice,  then the compensation was payable only in respect of such  buildings as may have been authorized to be erected and  not in respect of the land.

       30.     In the matter of the Land Acquisition Act:  Govt. of Bombay v. Esufali Salebhai [ILR (1910) 34 Bom  618] ILR (AT P. 636) Batchelor, J. held that the  Government are not debarred from acquiring and paying  for the only outstanding interests merely because the Act,  which primarily contemplates all interests as held outside  the Government, directs that the entire compensation  based upon the market value of the whole land must be  distributed among the claimants.  The Government was  held liable to acquire and pay only for the superstructure  as it was already the owner of the land.

       31.     In Dy. Collector, Calicut Division v. Aiyavu  Pilay [9 IC 341: (1911) 2 MWN 367: 9 MLT 272] Wallis, J.  observed that the Act does not contemplate or provide for  the acquisition of any interest which already belongs to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

Government in land which is being acquired under the Act  but only for the acquisition of such interests in the land as  do not already belong to the Government.

       32.     In Collector of Bombay v. Nusserwanji Rattanji  Mistri  the decisions in Esufali Salebhai case and Aiyavu  Pillay case were cited with approval.  Expressing its entire  agreement with the said views, the Court held that when  the Government possesses an interest in land which is the  subject of acquisition under the Act, that interest is itself  outside such acquisition because there can be no question  of the Government acquiring what is its own.  An  investigation into the nature and value of that interest is  necessary for determining the compensation payable for  the interest outstanding in the claimants but that would  not make it the subject of acquisition.  In the land  acquisition proceedings there is no value of the right of the  Government to levy assessment on the lands and there is  no award of compensation therefor.  It was, therefore,  held by a Division Bench of Judicial Commissioners in  Mohd. Wajeeh Mirza v. Secy. of State for India in Council  [AIR 1921 Oudh 31: 24 Oudh Cas 197] that the question  of title arising between the Government and another  claimant cannot be settled by the Judge in a reference  under Section 18 of the Act. When the Government itself  claims to be the owner of the land, there can be no  question of its acquisition and the provisions of the Land  Acquisition Act cannot be applicable.  In our opinion the  statement of law so made by the learned Judicial  Commissioners is correct."

       There can be no dispute with this proposition.  The only question  is whether it has any application to facts of this case.           At this stage it is necessary to set out that none of these  documents were shown to the High Court or considered by the High  Court.  However, as they had been referred to in the Writ Petition we  looked at the documents.  The picture which emerges is that by  Notification dated 7th July 1955 the Central Government acquired all  evacuee properties in the State of Delhi, under Section 12 of the  Displaced Persons (Compensation and Rehabilitation) Act, 1954,  except the following categories of properties, viz;         "(1) any such property.

(i)     in respect of which proceedings are pending  before any authority at the date of this  notification under the Administration of  Evacuee Property Act, 1950 (XXXI of 1950)  in which the question of issue is whether  the property is or is not evacuee property;  or (ii)    in respect of which the period of limitation,  if any, fixed for an appeal or revision under  the said Act for disputing to vesting of the  property in the Custodian as evacuee  property has not expired.

(2)     any such property in respect of which an application  for the grant of a certificate under sub-section (1) of  Section 16 of the Administration of Evacuee Property  Act, 1950 (XXXI of 1950) is pending at the date of  this notification or in respect of which the period of  limitation fixed for making such application has not  expired:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

(3)     any such property which has been restored under  section 16 of the Administration of Evacuee Property  Act, 1950 (XXXI of 1950) or in respect of which an  application under sub-section (2) of that section for  its restoration is pending at the date of this  notification, or in respect of which a certificate under  sub-section (1) of that section has been granted but  no application under sub-section (2) of that section  for its restoration has been made;

(4)     any such property which before the date of this  notification has been transferred and the transfer is  effective under section 40 of the Administration of  Evacuee Property Act, 1950 (XXXI of 1950) or in  respect of which any proceedings are pending at the  date of this notification under that section:

(5)     any such property which is a composite property  within the meaning of the Evacuee Interest  (Separation) Act, 151 (LXIV of 1951);

(6)     any such property in respect of which any  proceedings are pending in a Civil Court wherein the  question at issue is whether the property is evacuee  property or not:

(7)     any such property which at the date of this  notification is being treated or is being managed as a  trust property for a public purpose of a religious or  charitable nature under sub-section (1) of section 11  of the Administration of Evacuee Property Act, 1950  (XXXI of 1950)."

As per the averments of the Petitioner, which as Dr. Dhavan  pointed out, are not controverted, all the lands claimed by the  Respondents  were composite properties.  If that is so then none of  the properties mentioned in para 5 of the Writ Petition (reproduced  hereinabove) were covered by the Notification dated 7th July, 1955.   They were thus not acquired by this Notification.

Faced with this situation, Dr. Dhavan submitted that evacuee  properties vest in the Custodian.  He submitted that the Custodian was  appointed by the Central Government.  He submitted that properties  which vest in the Custodian are properties belonging to the Central  Government.  He pointed out that the High Court has accepted this  submission. He submitted that this Court should not interfere with the  finding.

We are unable to accept the submission of Dr. Dhavan.  Merely  because a property is an evacuee property does not mean that it vest  in the Central Government.  The Custodian is a statutory authority  appointed under the Acts.  The Custodian is a distinct person from the  Central Government.  Merely because a property vests in the  Custodian does not mean that the property vest in the Central  Government.  It must be noted that the Custodian is appointed for  each State.   Further, if, as contended, the property vests in the  Central Government then there would be no question of Section 12 of  the Displaced Persons (Compensation and Rehabilitation) Act providing  that the Central Government could acquire such property.  The Central  Government can never acquire its own property. Thus the very fact  that Section 12 of the Displaced Persons (Compensation and  Rehabilitation) Act provides for acquisition by the Central Government  clearly indicates that evacuee properties are not properties of the  Central Government.  As they are not properties of the government  they can be acquired, not just under Section 12 of the Displaced

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

Persons (Compensation and Rehabilitation) Act, 1954, but even under  the Land Acquisition Act.   

Even if the Notification dated 7th January, 1955 applied to these  lands, what was acquired was the interest of the evacuee.   A property  is a composite property because a private party has an interest in that  property.  The scheme of separation, to be framed under Section 10 of  the Evacuee Interest (Separation) Act, is for purposes of separating  the interest of the evacuee from that of the private party.  Therefore,  even if the evacuees interest was acquired under Section 12, the  interest of the private person could have been acquired under the Land  Acquisition Act.  Further if the land stood acquired by the Notification  dated 7th January, 1955 then the question would arise as to how the  Respondents acquired title to these lands.  If they purchased after the  date of Notification dated 7th January, 1955, they would get no title.   They then would not be able to maintain the Writ Petition.   Dr.  Dhavan submitted that the Appellants had admitted the title of the  Respondents and thus this question would not arise.  We are unable to  accept the submission.  It is only a person, who has an interest in the  land who can challenge acquisition.  When a challenge is made, to an  acquisition, at a belated stage, then even if the Court is inclined to  allow such a belated challenge, it must first satisfy itself that the  person challenging acquisition has title to the land.  Very significantly,  in their Writ Petition the Respondents do not state when they acquired  title.  

       Dr. Dhavan next submitted that properties which are evacuee  properties vest in the Custodian for the purposes of distribution as per  the provisions of the various Acts.  He submitted that considering the  historical background and the partition of the country the properties  were vested in the Custodian with the intention of serving a public  purpose, i.e. rehabilitation of persons, who had come to India after  leaving all their properties behind in Pakistan.   He submitted that this  was a very important public purpose and as the properties were vested  for a public purpose there was no question of the Government  acquiring these properties for some other public purpose.   He  submitted that it is for this reason that in the Notification dated 13th  November, 1959 evacuee properties were excluded.  He submitted  that the Government while issuing the Notification on 13th November,  1959 recognized the fact that evacuee properties were required for a  public purpose.  He submitted that the same position continued even  when the Notification dated 23rd January, 1965 was issued.  He  submitted that there is no reason to distinguish the cases of evacuees  arising out of the 1959 Notification from the cases of evacuees arising  out of the 1965 Notification.  He submitted that they were similar  cases which should be treated alike in order to avoid suspect  classification.   He submitted that thus it must be held that the  evacuee properties were impliedly excluded from the Section 4  Notification dated 23rd January, 1965.  We are unable to accept this  submission of Dr. Dhavan.  Undoubtedly, the evacuee properties  vested in the Custodian for the purposes of distribution as per the  provisions of the various Acts.  However, it is to be noted that under  the various Acts in lieu of properties, compensation in terms of money  can also be paid.    Thus merely because the properties vest in the  Custodian as evacuee properties does not mean that the same cannot  be acquired for some other public purpose.  The moment that the  property is acquired for another public purpose the compensation  payable under the Land Acquisition Act would be paid to the Custodian  who would then distribute it under the provisions of the various Acts.    

       We see no substance in the submission that the cases of  evacuees under the 1959 Notification and under the 1965 Notification  must be treated similarly.  It is not possible to accept the submission  that impliedly evacuee properties were excluded by the Notification  dated 23rd January, 1965.  There can be no such implied exclusion.   

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

In our view, it is for the Government to decide whether or not an  evacuee property is to be left with the Custodian for the purposes of  distribution under the various Acts or whether some other public  purpose is more important.  It would be open to the Government to  acquire evacuee property and give to the Custodian compensation for  such acquisition.  Section 4 Notification dated 23rd January, 1965 not  having excluded evacuee properties the Respondents can get no  benefit from the fact that in the 1959 Notification evacuee properties  had been excluded.

       Dr. Dhavan next submitted that it was not very clear whether all  the properties mentioned in the Writ Petition were composite  properties or acquired properties .  He drew the attention of this Court  to Para 9 of the Writ Petition wherein it is averred as follows: "â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦.. the said land remained as composite  evacuee property or acquired land vesting in  Governmentâ\200¦â\200¦â\200¦."

He submitted that it was for the Government to clarify the position as  all the documents would be available with the Government.  He  submitted that this Court should therefore remit the matter back to  the High Court and let the High Court decide whether these were  composite properties which remained vested in the  Custodian and/or  whether they were acquired properties under the Notification dated 7th  January, 1955.  Mr. Rohtagi submitted that since the challenge was at  a very belated stage and since there were a large number of Writ  Petitions it was not possible for the Government to deal with each case  at its own merits.  He submitted that old records would now be not  available.  He submitted that this Court should act on the averments of  the Respondents in their Writ Petitions which averments had not been  denied by the Government.  He submitted that on the basis of those  averments this Court must take it that all these properties were  composite properties and therefore Notification under Section 4 could  be issued.

       As has been set out hereinabove, in the Writ Petition, the  Respondents themselves are not very clear as to whether these lands  remained as composite properties or became the acquired lands  vesting in the Government.  We have, however, seen the Order dated  16th May, 1968.  That Order contains Khasra Nos. 321 and 322.  This  Order makes it very clear that Khasra Nos. 321 and 322 were  composite properties.  As they were composite properties right upto  16th May, 1968 they could have been acquired under the Notification  dated 23rd January, 1965.  Thus, so far as these two Khasras are  concerned the principles enunciated in the impugned Judgment dated  14th December, 1995, wherein the acquisition proceedings have been  upheld, must apply and the Writ Petition challenging their acquisition  must stand dismissed.           In the case of  Murari & Ors.  Vs.  Union of India & Ors.  reported in  (1997)  1 SCC 15,  in respect of this very acquisition this  Court  has held as follows:- "In  the present case as stated earlier after issuance of the  notifications  and notices under Sections 9 and 10 of the  Act not only a large number of objections were filed by the  landowners whose land was sought to be acquired but a  number of writ petitions were filed in the Delhi High Court  challenging the validity of the notification  under Section 4  as well as the declaration under Section 6 in which interim  orders of stay were passed by the High Court which  resulted in considerable delay.  Thus the authorities alone  were not responsible for the delay but the landowners  were equally responsible for the same.  In such  circumstances and on consideration of several decisions of  this Court including those rendered in the case of  Bihar  State Housing  Board V. Ban Bihari Mahato and Ujjain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

Vikas Pradhikaran V. Raj Kumar Johri  this Court in the  case of  Ram Chand V. Union of India  took the view that  in any case there was no justification for the authorities to  make the award in 1980/1981/1983 when the declaration  under Section 6 was made in 1966-69, but at the same  time, in view of the facts of delay caused by the  landowners themselves in approaching the courts and the  developments already made on the lands for public use,  quashing of acquisition proceedings would not be   appropriate.  But at the same time in the said decision this  Court also took the view that the landowners alone were  not responsible for the entire delay that was caused in  completing the acquisition proceedings.  This court in the  said decision pointed out that all those writ petitions were  dismissed by this Court on 23.8.1974 in the case of   Aflatoon V.  Lt. Governor of Delhi  yet no effective steps  were taken by the respondents till 1980-81 and in some  cases even till 1983 for which the respondents till 1980-81  and in some cases even till 1983 for which the respondents  could give no justification for that delay on their part in  completing the acquisition proceedings even after the  judgment of this Court in  Aflatoon case.  this Court having  regard to the fact that the Delhi Administration and Delhi  Development Authority after taking possession of the lands  various developments have been made and third party  interest have also been created and, therefore, having  regard to the larger public interest declined to quash the  acquisition proceedings on the ground of delay but at the  same time having regard to the interest of the landowners   who were likely to suffer loss in rating the price of the land  with reference to the date of notification under Section 4,  directed payment of an additional amount of compensation  to be calculated at the rate of 12 per cent per annum after  expiry of two years from 23.8.974, the date of judgment of  this Court in Aflatoon case  till the date of the making of  the awards by the Collector to be calculated with reference  to the market value of the lands in question on the date of  notification under Section 4 (1) of the Act.  We do not find  any inconsistency in the said decision (Ram Chand case),  and find ourselves in respectful agreement to the view  taken by this Court in the case of  Ram Chand.  The same  principle has to be applied in those cases in which the  possession is not taken and there is no reason to  distinguish such cases from  the application of the  principles laid down in  Ram Chand case  merely on  the  ground that possession is not taken from some of the  landowners.  In this connection the fact could not be lost  sight of that the landowners have enjoyed possession all  these years and have taken the  benefit of the usufruct  and other advantages out of the said land and, therefore,  they stand even in an advantageous position than those  landowners from whom the possession was taken earlier.   â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦  After overall consideration of the issues  involved in these transfer cases and the appeals we find no  ground to take a different view than the one taken by the  High Court in the impugned judgment.  Consequently, the  acquisition proceedings could not be quashed on any  grounds.  We also find ourselves in respectful agreement  with the view taken by this Court in the case of  Ram  Chand. Consequently, the appeals fail and are hereby  dismissed.  The transfer cases are allowed in terms of the  order made in the case of  Ram Chand  directing that the  transfer petitioners and the appellants shall be paid an  additional amount of compensation to be calculated at the  rate of 12 per cent per annum, after the expiry of two

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

years from the date of decision of  Aflatoon case  i.e.  23.8.1974 till the date of making of the awards by the  Collector, to be calculated with reference to the market  value of the land in question on the date of notification  under Section 4 (1) of the Act."

As this order is in respect of the same acquisition proceedings,  we consider it fair and proper that the Respondents also get the  benefit on the same basis.  We therefore direct that the Appellants  shall pay to the Respondents who are owners of Khasras Nos.321 and  322 an additional amount of compensation to be calculated at the rate  of 12% per annum, after the expiry of two years from the date of  decision of Aflatoon case i.e. 23rd August, 1974 till date of making of  Award by the Collector, to be calculated with reference to the market  value of these Khasras on the date of Notification under Section 4(1)  of the Land Acquisition Act.  

So far as the other Khasras are concerned, i.e. Khasra Nos. 313,  319, 323, 324 and 329, there appears to be a doubt as to whether  they were, on the date of Notification dated 23rd January, 1965,  composite properties and/or whether they were acquired properties by  Notification dated 7th January, 1955.  If these are acquired properties  under this Notification, a further question would arise as to whether  Respondents had acquired title to these lands before this date or  thereafter.   In our view, this is a matter which should have been  considered by the High Court.  Therefore, so far as these Khasra  numbers are concerned, the Writ Petition is sent back to the High  Court.   

We clarify that it will be open for the parties to file additional  affidavits/documents and urge all contentions available to them in law.  The High Court to decide on the principle set out above.          The Civil Appeal stands disposed of accordingly.  There will be no  order as to costs.