Gurbachan Singh and Ors. vs State of U.P.& Ors.

B. K. Roy and S. N. Tiwari, JJ.—Through this writ petition, which was filed on 2361988 i. e. during Summer Vacation, and it has been placed ''for Admission'' before us, the petitioners pray to (i) command the Respondents not to take physical possession of 2 big has 6 biswas of lands comprised in plot No. 1528, Mauza Basal Mustaqil, Tajganj, Agra pursuant to the Notification under Sections 4 and 6 of the Land Acquisition Act, dated 311983 and 2021985 respectively as contained in Annexure 1 and 2, (ii) declare the aforesaid Notifications as null and void, and (iii) alternatively, to quash the impugned notifications.

The petitioners assert that the lands in question are in their possession pursuant to an agreement to sale dated 121975 (as contained in Annexure 3 to the writ petition) executed in their favour by the owners. Than Singh, Tulli, Tej Singh, Pancham, Hukmi and Jhamman (who, however, were not made parties to this writ petition). Alongwith this writ petition, the petitioners also filed an application to stay their dispossession from the lands aforementioned. On 2361988 the learned Vacation Judge, before whom this writ petition was placed, passed an interim order to this effect:

"Meanwhile till further orders of this Court the petitioners shall not be dispossessed from the land in dispute, if not already possession has been taken from them, in pursuance of the impugned notification issued under Sections 4 and 6 of the Land Acquisition Act subject to the condition that the petitioners shall not made any further construction during this period."

A counter was filed by Respondent No. 3 challenging the correctness of the statements made in the writ petition. To this counter the petitioners filed a rejoinder. The Respondent No. 3 got filed a supplementary affidavit along with the report of D.P. and the valuation table of the disputed land. The petitioner filed a supplementary rejoinderaffidavit on 541989 and second supplementary rejoinderaffidavit and a supplementary application to the writ petition taking further grounds. Thereafter Respondent No. 3 filed a supplementary counteraffidavit. It maybe mentioned that Respondent No. 3 also filed an application for an earlier hearing of this writ petition as the petitioners obtained stay by suppressing the fact in regard to delivery of possession. The petitioners had admittedly filed a suit No. 1567 of 1987 for specific performance of the contract against the others in the Court of 1st Addl. Civil Judge, Agra. A copy of their plaint is on the record as SA1 to their own supplementary affidavit (filed on 3131995). In their plaint of the suit they have stated, inter alia, that the Urban Land Ceiling Act came into enforcement under the provisions of which the executants were bound to serve notice under Section 26 of the said Act upon the Urban Land Ceiling Collector (U.L.C.) Agra for the said transfer but they failed to do so ; there was a proposal of the acquisition of the said lands for Taj Nagari Scheme and that proposal has been concluded in the middle of December, 1987, when the Award in respect of the said lands has been prepared to which they filed objections being interested persons but their objections were not properly appreciated as such the plaintiffs have no other alternative remedy except to file the present suit; the compensation amount is to be disbursed as early as possible as the final award has been made and the defendants are in hot haste in withdrawing the said amount who could not withdraw the provisional amo tit of compensation due to objections put by them before the Special Land Acquisition Officer, Agra; that they are entitled to all the benefits arising out and all consequences of the suit property inducing the receipt of compensation in lieu of the said property either acquired under the provisions of the Urban Land Ceiling Act or under the provisions of Land Acquisition Act etc. The Notification under Section 6 of the Act (Annexure 2 to the writ petition) itself shows that action under Section 17(1) of the Act was also taken. The petitioners have also brought the award on the record as S.R.A. 8. From the award as well as the counter it is clear that the possession of the lands was delivered by the State in favour of the Respondent No. 3 on 15101986 and that recourse of compulsory acquisition under Section 17 of the Act was also taken and that 80% of the compensation amount was deposited by Respondent No. 3. AnnexureCA 1, filed by Respondent No. 3 is the delivery of possession report dated 15101986. Even though the suit filed by the petitioners was barred on account of 3 years limitation the 1st Additional Civil Judge, Agra proceeded to decree in ex pane. Theexparte order has been brought on the record by the petitioners as SA2. Pursuant to decree in their favour, the Civil Court, after refusal by the ownersdefendants, executed the saledeed dated 10111993 in favour of the petitioners, a copy of which has been brought on the record by the petitioners as

The submissions:

Sri R.P. Goyal, learned Counsel appearing in support of the petition, contended as follows:

(i) Since the proceedings were not completed within 2 years, as contemplated under Section 11Aof the Act, theacquisition proceeding itself lapsed, (ii) The acquisition was for a nonexistence purpose and, accordingly, the lands could not be acquired, (iii) Even though by the impugned notification under Section 4(1) of the Act more than 277 bighas of lands were sought to be acquired, in fact only a part thereof has been acquired. This was impermissible and for this reason also the impugned notifications under Sections 4(1) and 6 of the Act are liable to be quashed, (iv) After the alleged acquisition which is vitiated for the reason aforementioned, the Agra Development Authority (Respondent No. 3) proceeded to settle 53 bighas out of lands acquired for construction of Five Star Hotels. Thus, the purpose of acquisition mentioned in the notification under Section 4(1) of the Act was violated for using the lands for commercial purpose, (v) Some of the lands, which were acquired, were even returned back to the original tenure holders and, thus, the lands of the petitioners be also returned, (vi) The impugned award for the aforementioned reason stands vitiated as null and void. The impugned award itself shows that it was not in respect of the entire lands which were sought to be acquired by the notification under Section 4(1) of the Act. The Act does not permit the authority to make two awards or more, (vii) As possession of the disputed lands and the entire lands sought to be acquired was not taken by the State, there was no vesting. He placed strong reliance on the following decisions: (a) Himalaya Tiles and Marble (P) Ltd. v. Francis Victor Coutinaho (dead) by L.Rs., (1980) 3 SCC 223 ; (b) Choudhary Ram Harakh Chand v. State of U.P. and others, (1966) II Land Acquisition Laws 284 ; (c) Smt. Gunwant Kaur v. Municipal Committee, Bhatinda and others, AIR 1970 SC 802; (d) Union Sugar Mills Com. v. U.P. Govt. and others, AIR 1958 All 526 ; (e) The Central Govt. Servants Cooperative Housing Society Ltd., Agra v. Wahab Uddin and others, AIR 1981 SC 866 ; (f) Mohd. Akilkhan v. Premraj Jawanmal Surana and another, AIR 1972 Bom 217; (g) The State of Bihar \\. Dr. G.H. Grant and another, AIR 1959 Pat 343 and

Sri Swami Dayal, learned Counsel appearing on behalf of Respondent No. 3, the Agra Development Authority, for whom the lands in questions were acquired, on the other hands, contended that this writ petition be dismissed with exemplary cost for the following reasons: (i) The petitioners had not acquired any title to the lands in question on the strength of their agreement to sale or the pendent elite sale deed and in view of the several pronouncement of the Supreme Court they cannot challenge the validity of the acquisition proceedings and this writ petition is not maintainable, (ii) The petitioners are guilty of suggestion false and suppressive They obtained an interim order in their favour by concealing the fact that possession of the lands in question were taken as early as on 15101986 and the authority had also made the award on 10121987. the institution of the suit by them was also concealed by the petitioners which on the bare reading of the plaint was barred by limitation of 3 years rule and thus wrongly decreed. Tb this suit neither the State nor was Respondent No. 3 impleaded and thus the decision in this suit is not binding on the respondents. In fact it was only when Respondent No. 3 came up with counter, further affidavits have been filed by the petitioners bringing on the record the award, the plaint of the civil suit, the ex parte decree and their saledeed, (iii) There was no question of lapse of the proceedings under Section 11A of the Act inasmuch as the State has invoked the provisions of Section 17 of the Act and 80% of the compensation amount was also deposited. Since the notification under Section 4(1) of the Act was published on 751983, coupled with the fact that notification under Section 6 was made on 20121985, which was published on 821986, and though disputed by the petitioners incorrectly, possession was also taken on 15101986, the acquisition proceedings in which recourse to Section 17 was taken as 80% compensation amount was also deposited and the award was admittedly made on 10101987 it did not lapse. Receipts of payment of irrigation charges were procured as the sewerage authorities were interested in recovering water charges, (v) The acquisition was for public purpose. Section 4 notification itself recited "Acquisition of land for Tej Nagriya Housing Scheme for providing Residential Plots/Houses to the Public." Proposed construction of the Five Star Hotels over some portion of the lands was for earning more foreign revenue besides advantages to the local people as well and was thus a public purpose, (vi) The authority being satisfied had returned a fraction of the lands to the owners. In doing so it had not made any discrimination or illegality from which the petitioners could get any advantage who was also left out some lands purchased from others for the purposes of petrol pump, which is also a commercial purpose, (vii) Since some of the land owners came to this Court and obtained stay orders the authority correctly proceeded to acquire such lands for which there was no dispute and made the award. There was no question of preparation of two awards in regard to the lands of the petitioners.

Learned Standing Counsel Sri Yadav appearing on behalf of the State and the Special Land Acquisition Officer supported the contentions of Sri Swami Dayal.

In reply, Sri Goyal, learned Counsel for the petitioners, contended that his submissions have got merits whereas the submissions made by Sri Swami Dayal lack substance and the decision in Smt. Gunwant Kaur (supra) is binding on us in preference to the decisions relied upon by Sri Dayal.

Ourfindings:

It is settled law that an agreement to sale does not confer any title [Ram Baran v. Ram Mohit, AIR 1967 SC 744 (Para 11)]. In fact in this backdrop the petitioners moved the civil court for grant of a decree for specific performance of the contract or the ground that the defendants of the suit had refused to perform their part of the contract. In the civil proceedings they had come up with a categorical case asserting their rights to receive the compensation amount either under the provisions of the Land Acquisition Act. On their own case set forth in this writ petition they have got a reference made. Having acquiesced, thus, they cannot turn around and challenge the validity of the proceedings. It is true that they have come up with a claim that no possession of the lands in question was taken by the State. According to the petitioners the delivery of possession was not effected whereas according to Respondent No. 3 the delivery of possession was effected. The petitioners have brought on record the copy of Khasra as AnnexureSRA6 which shows the name of Khatedar as Taj Nagari. This shows that Taj Nagari Avasiya Yojna was the recorded Khatedar. This document does not show that the petitioners are in possession of the lands in question. The petitioners claim that they had grown eucalyptus trees whereas the Khasra mentions the name of the crop as Bajra which is nobody''s case. AnnexureSAV is a zerox copy of receipt No. 13 issued by Jal Sansthan, Agra, dated 20121993 to one of the petitioner. This document does not show that in regard to which year an amount of Rs. 300 has been paid. This receipt has been issued by Jal Sansthan which is a Corporation and not by the ''Tigation Department of the State. AnnexureSA VII which is aparcha Abpasi, sewage in relation to crops of Rabi 1395 Fasli shows the name of petitioner No. 1 as Kastkar and in respect of land of plot No. 1524 (area 5 biswas) and plot No. 1528 (area 2 bighas 6 biswas). It is true that this document appears to be in relation to plot No. 1528 but it is again by the Corporation and not by the Irrigation Department of the State. It is somewhat surprising as to how the name of the petitioner No. 1 was shown as Kastkar whereas the Khasra, which is a document of possession, shows Taj Nagari as the owner. AnnexureRA 1 which is another Parcha issued by Agra Jal Sansthan (sewage and pumping Station) is in respect of 5 big has of plot No. 1528 showing the name of petitioner No. 1, as its Kastkar and in relation to 1394 Fasli. It is not understandable as whereas the petitioners have claimed only 2 bighas 6 biswas of land of plot No. 1528 as theirs, in the said Parcha 5 bighas of land have been shown appertaining to plot No. 1528. The petitioners have also brought on record two photographs. The photographs do not by themselves show as to whether they are in relation to the plot in dispute. For the aforementioned reasons we do not feel persuaded to accept the claim of the petitioners that the delivery of possession was afarji one or that the lands in question are in possession of the petitioners. The aforesaid documents are also not binding on the State or Respondent No. 3, who are not parties to it. In view of the categorical statements in the award and the report of the delivery of possession, with which are attached the presumption of correctness and regularity, coupled with the statement made in the counteraffidavit as well as the petition seeking vacation of stay and the affidavit attached thereto, we refuse to place reliance or the selfserving statements of the petitioners that delivery of possession was not effected. From crystallization of the facts on the record, it is clear to us that the notifications under S. 4(1) and 6 were published on 751983 and on 20121985 respectively and the delivery of possession was effected on 15101986 and that the award of the lands of the petitioners was made on 10121987. We do not attach much significance to the submissions made by Sri Goyal mat since the award itself states that possession in part was only taken, therefore, we should hold that the possession of the lands of the petitioner was not taken. The petitioners claim to have purchased the lands of Khasra No. 1528 during the pendency of this writ petition. From the award it is clear that the objections preferred against the acquisition of Khasra No. 1528 in question filed by the respective owners as well as the petitioners were considered by the authority at more than one place. In fact the authority hadrejected the objection of the petitioner on the ground that they have failed to prove their title, and merely on the basis of agreement it will not be possible to determine the compensation in their favour though a reference was also made at the instance of the petitioner subsequently for higher compensation, which is alleged to be pending.

8, In U.P. Jal Nigam v. Kalra Properties (P) Ltd. Lucknow and others, (1996) 3 SCC 124, the Apex Court has laid down that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title over the property and the sale is void against the State and the purchaser has no right, title or interest in the land. Thus, the petitioners, who arependente lite purchasers, cannot challenge the validity of the notifications or the regularity in taking possession of the land in question. In Puttu Lal(dead) hyL.Rs. v. State of UP and another, JT (1996) 3 SC 53; 1996 (1) JCLR 817 (SC), the Apex Court held that having acquired the land under the provisions of the Land Acquisition Act and the possession having been taken there under, the right, title and interest of the person to whom the land belonged stood extinguished and vested in the State free from al encumbrances. In Sneh Prabha (Smt.) tind others v. State of UP and another, (1996) 7 SCC426:1996 (1) JCLR 323 (SC), the Apex Court again held that alienation of land after publication of notification under Section 4(1) of the Act is not binding on the Government or beneficiary under the acquisition. In Gian Chandv. Gopala and others, (1995) 2 SCC 528 : 19951(2) JCLR 176 (SC), the Apex Court held that by the notification under Section 4(1) of the Act, the owner of the land is prevented from encumbering the land and that such an encumbrance does not bind the Government and if ultimately declaration under Section 6 of the Act is published and acquisition is proceeded with, it would be conclusive evidence for the public purpose and the Government is entitled to Jiave the land acquired and take possession free from all encumbrances. Same is the ratio in General Manager Telecommunication and another v. Dr. Madan Mohan Pradhan, 1995 Suppl. (4) SCC268:1996 (1) JCLR 304 (SC) and My Star Wire (India) Ltd. v. The State of Haiyana, JT 1996 (9) SC 429, which are binding on us. At this stage we must consider the submission made by Sri Goyal that these judgments are per incur am in view of the earlier decision of the Supreme Court in Smt. GunwantKaur and others v. Municipal Committee, Bhatinda and others, AIR 1970 SC 802. In Paragraph 17 of this judgment it was observed as follows:

"It was urged by Mr. Hazarnavis on behalf of the Municipal Committee, Bhatinda, that the three appellants were purchasers of the lands claimed by them after the notification under Section 4 was issued and they had no right to challenge the issue of the notification. If, however, the notification under Section 4 was vague, the three appellants who are purchasers of the land had title thereto may challenge the validity of the notification. The appellants have spent in putting up substantial structures considerable sums of money and we are unable to hold that merely because they had purchased the lands after the issue of the notification under Section 4 they are debarred from challenging the validity of the notification, or from contending that it did not apply to their lands." (Emphasis added).

A bare perusal of the aforementioned observation shows that what was held by the Supreme Court that if the notification is vague then the appellants, who had title to, may challenge the validity of the notification, whereas in the instant case the notifications in question were not vague. There was merely an agreement to sale in favour of the appellants, from perusal of which it is clear that time was the essence of the contract. The petitioners obtained an ex pane decree and got saledeed executed through Court which appears to have not applied its mind, while decreeing the suit as to whether it could decree the suit filed on 23121987 for specific performance of contract of 1975 ignoring the three years rule of limitation, besides without recording any finding in regard to the plaintiff''s willingness "j.'' perform their part of the contract in the absence of any pleading in utter violation to Section 16(C) of the Specific Relief Act. This civil court decision is thus of no help to the petitioner visavis the Respondents in the peculiar facts and circumstances.

In Union of India and others v. Jaswant Rai Kocchar and others, JT (1996)

3 SC 671, it was laid down that it is settled law that the land sought to be acquired for public purpose may be used for another public purpose including commercial one. Construction of 5 Star Hotels for an international tourist place like Agra to have more foreign exchange will be a public purpose. The advertisement made by Respondent No. 3 has been brought on the record as SA5 the relevant part of which reads thus:

"Hotel plot for Auction in Taj Nagari

A TOURISM ORIENTED THE HEAVEN"

The impugned notification under Section

4 of the Act recites the purpose as follows:

"Acquisition of Land for Taj Nagriya Housing Scheme for providing Residential Plots/House to the public. This was apparently a public purpose. In Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800, a three Judges Division Bench of the Apex Court held that there is no principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to another public purpose. Similar was the view m Manpal Oheri v. Stale of Orissa, (1977) 2 SCC 46 and in State of Maharashtra v. Sheoman, (1990) 3 SCC 579. Accordingly, the submission of Sri Goyal that the acquisition was sought for a nonexistent purpose or change of user has voided the proceedings have got no merit and are rejected. In State of Tamil Nadu and othersv.L. Krishnan and others, (1996) 7 SCC 450 : 1996 (1) JCLR 277 (SC), the Apex Court has held that framing of a scheme is not a precondition for publication of a notification under Section 4(1) of the Act seeking acquisition of land for planned development of city and it does not suffer on account of any vagueness.

In Surendra PrasadJain v. State of U.P., (1993) 4 SCC 369, the Apex Court held that Section 11A has no application to cases of acquisition under Section 17 because the land has already vested in the Government and there is no provision in the Act by which the land statutorily vested can revert back to the owner. In its recent judgment Allahabad Development Authority v. Nasiruzzaman and others, JT (1996) 8 SC 429, the Apex Court held that Section 11A, as inserted in 1984, does not apply to cases of acquisition under Section 17 where possession was taken and the land stand vested in State free from all encumbrances and question of divesting it does not arise and question of lapse of notification under Section 11 or declaration under Section 6 does not arise.

From paragraph 9 of the judgment of the apex Court in State of Tamil Nadu v. Mahalakshmi Ammal, (1966) 7 SCC 269, it is clear that more than one award can be made. From the materials on the record it appears that some of the owners of land sought to be acquired have come up to this Court and have obtained stay in regard to their land. Naturally, therefore, the Land Acquisition Officer committed no wrong in proceeding further in regard to lands not covered by the stay orders of this Court and in making its award.

The ratio in Choudhary Ram Harakh Chand (supra) which was seriously pressed by Mr. Goyal is as follows:

"We are of the opinion that the Rule 4 of the Rules of 1963 which is mandatory has not been complied with. We are also of the view that possession has not been taken as no evidence has been placed on record in pursuance of the Notification made under Section 17 of the Act of 1984 or otherwise. We are also of the view that since the possession was not taken, as such land did not vest with the Government/Society and there is an interim order of the Court that possession if not taken would not be disturbed. We are also of the view that since the title has not been divested as it would have only been divested if the possession has been taken in pursuance of Section 17 read with Section 48 of the Act of 1894. In our considered opinion there is no compliance of Rule 4 of the Rules of'' %3. Even the objections under Section 5 of the Act of 1894, were not decided in view of the stay order of the Court. We are also of the opinion that there is no compliance of Section 4 of the Act of 1894 that agreement was published in the Gazette. Thus inbuilt safeguards provided in the Rules, and other provisions of the Act have not been observed and there is a complete prejudice to the rights of the petitioners and other effected persons. We are also of the view that Rule 4 framed under Section 55 pf the Act of 1894 is delegated piece of legislation and has equal force of law and its compliance is mandatory, as observed. Under these circumstances, we quash the notification dated 12111980 and 2721984 (Annexure Nos. 1 and 3 respective to the writ petition) and allow the writ petition. No order as to costs."

It is clear, thus, that in that case no evidence was placed on the record to show that possession was taken. In the instant case there is a report affecting delivery of possession of the lands in question on which we had placed reliance.

The ratio laid down by the Division Bench of our Court in Union Sugar Mills Co. (supra) is that the lands would vest in the acquiring authority only after the Collector has taken possession of the same after making an award and till that stage the title in the property remains in the owner of the property and he can transfer it or can create any interest in it and that there is no bar in the way of transferee from such a transferor in claiming compensation. On their own case the petitioners reference for grant of more compensation is pending adjudication in regard to which we do not want to make any observation.

In Central Government Servants Cooperative Housing Society Ltd., Agra (supra) it was held that a person purchasing the land sought to be acquired in auctionsale by the Government under Disabled Persons Compensation and Rehabilitation Act by depositing the entire sale consideration would be a "person interested" within the meaning of Section 3(b) of the Land Acquisition Act.

In Mohammad AM Khan (supra), while interpreting Section 3(b) of the Act the Bombay High Court also held that a contract for sale of immovable property does not, if itself, create any interest in or charge on such property, and that when the seller and buyer are both willing to perform their respective parts of the contract which has become impossible by the unexpected interference by the State in acquiring the property, the buyer will be entitled to recover from the seller any purchase money property paid together with interest and also earnest with the interest.

In the State of Bihar (supra), the Patna Division Bench held that the definition of ''the person interested in the land'' envisaged under Section 3(b) of the Act is not exhaustive and that the title to receive the compensation by the owner is lost.

In Seetha lakshmi Ammal (supra) the Full Bench of the Madras High Court explained who can be a person interested within the meaning of Section 3(b) of the Act and that the ownership is not transferred until possession is taken under Section 16 and there is no absolute vesting of the land in the Government free from all encumbrances until the Collector after making the award under Section 11 takes possession of the land. The Full Bench proceeded to hold that if the owner had notice of the notification under Section 4 or declaration under Section 6 yet he sold the land concealing this information, he would not create in the purchaser a right to seek a de novo hearing. The Full Bench further held that the Court shall not be wrong in asking the petitionerpurchaser how he claimed any right in the property acquired and refusing to interfere with the notification for the reason that the vendor could not create a right in the vendee that stood extinguished after the expiry of the statutory period of 30 days from the date of publication of the notification under Section 4.

It was not shown by Mr. Dayal that the petitioners, or their vendor, who have not been impleaded as party to this proceeding, were not aware of the notifications. Such was not the case of the petitioners even in their suit. In Himalayan Tiles and Marbles (P) Ltd. (supra) the Apex Court upheld the claim of the petitioner company that it was a party interested on account of transfer of the land in question under the agreement entered into between it and the Government for whose benefit the lands were actually acquired and that could undoubtedly appear and adduce evidence on the question of quantum of compensation so that it may not have to pay a very heavy amount of money. It was also in those circumstances held that until the possession of entire land acquired was not taken by the Government there could not be complete acquisition so as to attract operation of Section 7 of the amending Act.

Thus, the decisions relied upon by Mr. Goyal are of no help to the petitioners besides the ratio laid down in the cases referred to by us of the Apex Court the binding on us.

In Munidpal Corporation of Great Bombay v. The Industrial Development and Investment Co. Pvt. Ltd. and others, JT 1996 (8) SC 16, when the writ petition was filed on 471983 whereas the declaration was published in 1979 and award was made on 24283 and possession was taken on 431983, it was rejected on the ground of laches. This ratio has been reiterated in Mis Star Wire (India) Ltd. v. The State of Haryana, JT 1996 (9) SC 429. Applying this ratio we Deject this petition also on account of laches.

For the reasons aforementioned, we do not find any merit in any of the submissions made by Sri Goyal.

In the result, this writ petition is dismissed. However, in the peculiar facts and circumstances, we make no order as to costs. Petition dismissed.