IMPORTANT POINT
Evacuee properties are not properties of the Central Government, therefore, they can be acquired, not just under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, but even under the Land Acquisition Act.

Headnote:(i) Land Acquisition Act, 1894-Section 4-Displaced Persons (Compensation and Rehabilitation) Act, 1954-Section 12-Acquisition of evacuee lands-Notification dated 23.1.1965 did not exempt evacuee properties-High Court fell in error in stating that Notification exempted evacuee lands-Evacuee properties can be acquired by the Government.
       Held : 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 Persons (Compensation and Rehabilitation) Act, 1954, but even under the Land Acquisition Act. (Para 15)
       (ii) Land Acquisition Act, 1894-Sections 4 and 6-Administration of Evacuee Properties Act, 1950-Evacuee Interest (Separation) Act, 1951-Sections 10 and 12-Displaced Persons (Compensation and Rehabilitation) Act, 1954-Section 12-Acquisition of evacuee property Consolidation Scheme-Certain lands allotted to respondents were substituted by poorer lands-Writ petition challenging the Scheme-Pending writ petition, Notification under Section 12 of Displaced Persons Act was issued, wherein all evacuee properties were acquired-Whether such a Notification put an end to rights which were pre-existing-Once an acquisition takes place under the Land Acquisition Act, all prior rights would stand terminated-Lands claimed by Respondents were composite properties, not covered by the Notification issued under Section 12 of the Act.
       Held : 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. (Para 16)
       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. 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. (Para 18)
       The Respondents themselves are not very clear as to whether these lands remained as composite properties or became the acquired lands vested 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. (Para 20)

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.

2. 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 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 and 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 pet

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2003 Supreme(SC) 990

IMPORTANT POINTEvacuee properties are not properties of the Central Government, therefore, they can be acquired, not just under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, but even under the Land Acquisition Act.

Cases Referred (7)

IMPORTANT POINT
Evacuee properties are not properties of the Central Government, therefore, they can be acquired, not just under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, but even under the Land Acquisition Act.