Smt. Chan Kaur vs The Chief Commissioner, Delhi and Others

Bedi, J.—This petition under Articles 226 and 227 of the Constitution arises under the following circumstances:

On the partition of the country in 1947 Dilsher and Fateh, sons of Nur Khan, residents of village Kalu Sarji, Tahsil and district Delhi migrated from India to Pakistan leaving behind 3 Bighas and 19 Biswas of agricultural land in the village which is the subject-matter of this Writ petition. This land was declared to be evacuee property and vested in the Custodian, Delhi, u/s 8 of the Administration of Evacuee Property Act (No. 31 of 1950). This along with some other land was acquired by the Central Government on 24th March, 1955 u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. On 11th December, 1959, this land was purchased by the petitioner in an auction for Rs. 17,500/- as she was the highest bidder. On 15th November, 1960, the petitioner applied to the Managing Officer for getting provisional possession of the land and on 10th August, 1961, sale certificate was granted to the petitioner. On 14th August, 1961, notification u/s 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued by the Government directing the possession of the land be taken although no notification u/s 4 was issued. On 21st August, 1961, the Land Acquisition Collector issued notices to the persons interested u/s 9 of the Act. On 20th December, 1961, the Land Acquisition Collector give his award which is annexurs ''E'' to the petition allowing Rs. 13,627-50 P. to the petitioner as compensation. On 16th March, 1962, possession of the land was taken from the petitioner. The petitioner accepted the compensation allowed to him by the Collector under protest and then applied to the Collector u/s 18 of the Act that the matter be referred for the determination of the award to the Court. The proceedings u/s 18 of the Act were still pending in the Court when the petitioner filed this petition praying that the various acquisition proceedings including the award given by respondent No. 2 the Land Acquisition Collector, and the notifications and the notices issued to the petitioner in so far as they affected the land of the petitioner starting from the notification dated 13th November, 1959, upto the stage of proceedings for determination of compensation pending with respondent No. 4, Shri Hans Raj, Additional District Judge, Delhi, be quashed or directed to be ignored and the respondents restrained from proceeding in any manner against the petitioner in respect of the area measuring 3 Bighas and 19 Biswas bearing Khasra Nos. 463/98/2, 464/98, and 465/98.

Rule was issued to the respondents on 1st May, 1964, in response to which the affidavit of Shri K.L. Rathee, Secretary, Local-Self Government and Housing Commissioner, Delhi Administration, was put in.

Arguments of the parties were heard at considerable length. The counsel for the petitioner invited my attention to Article 19(1)(f) of the Constitution and submitted that under this Article the petitioner had a fundamental right to acquire, hold and dispose of property subject to certain exceptions. He also drew my attention to Article 31 of the Constitution which requires that no person shall be deprived of his property save by authority of law which provides for compensation for the property so acquired or requisitioned. The counsel submitted that the property of the petitioner had not been acquired according to law as no notification u/s 4 of the Act had been issued by the acquisitioning authority before notification under S. 6 was issued, and that this omission vitiated the whole acquisition proceedings respecting this land. In support of his contention he cited Motibhai Vithalbhai Patel and Another Vs. The State of Gujarat and Another, which lays down that the publication of a notification u/s 4 is compulsory and therefore necessary in all cases of acquision including cases of urgency and even emergency and there may be substantial compliance with the provisions of the said section The notification is a public announcement by the Government that the land is likely to be needed for acquisition in the stated locality It was further observed that the notification lays the foundation for preliminary investigation by officers duly authorized to survey the land and do other acts necessary in the course of such investigation, and that the date of the notification under sub-section (1) of section 4 is also of importance for it has the effect of fixing the relevant date for the purpose of ascertainment and assessment of the market value of the land under acquisition. He also cited Iftikhar Ahmed Vs. State of Madhya Pradesh and Others, , which is to the effect that the notifications u/s 4 and 6 are an essential part of the acquisition proceedings and they are in the nature of jurisdictional facts which give power to the local land acquisition authorities to act further and in the absence of which subsequent proceedings would be ultra vires. In that case the acquisition proceedings were set aside on the ground that the land acquired was not properly specified in the notifications under sections 4 and 6, and in the case before me no notification u/s 4 was at all issued. Some other cases were cited which were also to the same effect.

The petitioner''s counsel proceeded on the assumption that the respondents might argue that although the land was acquired in 1961 yet the petition was preferred after a long delay and that this was case of waiver, and submitted that it being a question of fundamental rights and of jurisdiction, this argument will have no force. In support of this contention he cited Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, The counsel also cited some other authorities on the same point and also on the point that the delay in such cases would not he material. It will not serve any useful purpose to discuss those cases at length as the counsel for the respondents has not raised those objections and has also conceded that the omission to notify u/s 4 of the Act invalidates the acquisition proceedings.

The main objection of the respondents'' counsel however, was that the land was acquired for the Indian Institute of Technology and the Institute has built upon it. He submitted that the Institute and the respondents had made certain improvements on the land spending considerable amount of money, and if the acquisition proceedings are set aside then who will be responsible for the money spent by the respondents on such improvement and from whom will the respondents get their damages He, therefore, submitted that the proper remedy for the petitioner was to go to the civil Court and get the entire matter adjudicated upon. The counsel for the petitioner on the other hand submitted that the land was acquired in 1961 and if the petitioner is asked to go to the civil Court it will take another ten years or so before the final decision is given. He submitted that this was a fit case in which this court should exercise its powers under Article 226, stating further that the petitioner purchased the land from the State in an auction for Rs. 17,500/- in 1961 which was acquired by it on payment of Rs. 13627-50 nP. which was far less than the amount the petitioner had to pay, although the value of the property must have increased within this interval. He further stated that the acquisition proceedings were vitiated not because of the petitioner''s fault but because the State failed to issue notification u/s 4 of the Act and under the circumstances if anybody was responsible to pay the damages or penalty it was the State. The counsel submitted that there had been flagrant and unjustified invasion of the petitioner''s fundamental rights and that in such circumstances this Court must act to protect the petitioner. In support of this argument he cited Raghubans Prasad Singh v. Lakhan AIR 1941 Pat 434. In that case Sarjoo Prasad, J. observed that "in the case of flagrant and unjustified invasion of the fundamental rights of a citizen we must act in the exercise of our powers to protect him against injury and give him the relief provided the circumstances of the case are such that otherwise the alternate remedy available to the citizen may not be equally effectual, convenient and beneficial and by the time he gets the relief the citizen may have suffered irretrievable loss and damage on the same point the counsel cited Buddhu Vs. Municipal Board and Others, , (where it was held that the High Court can entertain the petition under Article 226 even though the petitioner has another remedy of suit), and Manjula Manjari Dei Vs. M.C. Pradhan, Director of Public Instruction,

For the foregoing reasonss I accept this petition and quash the various acquisition proceedings including the award given by respondent No. 2 and the notifications and notices issued to the petitioner in so far as they affect the land of the petitioner upto the stage of proceedings for determining the compensation pending with respondent No. 4. The petitioner shall be entitled to her costs.