Allahabad High Court
Devi Prasad Chaudhary vs U.P. Avas Evam Vikas Parishad And Others on 26 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 405
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 1651 of 1999 Petitioner :- Devi Prasad Chaudhary Respondent :- U.P. Avas Evam Vikas Parishad And Others Counsel for Petitioner :- Nirmal Tewari,R.K. Sharma Counsel for Respondent :- M.Chandra,C.S.C.,M Chandra,Nakul Dubey,Shishi P Singh,Virendra Singh along with Case :- MISC. BENCH No. - 1505 of 1999 Petitioner :- Ganesh Ram Chaurasia Respondent :- U.P. Avas Evam Vikas Parishad Lucknow Through Secretary Counsel for Petitioner :- S.Mirza Counsel for Respondent :- M.Chandra,C.S.C.,N.Dubey,Virendra Singh Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard Sri Nirmal Tewari, learned counsel for the petitioner and Sri Virendra Singh, learned counsel for the respondents-U.P. Awas Evam Vikas Parishad.
(2) In the above captioned writ petitions, the petitioner is challenging the orders dated 24.03.1999 passed by the Competent Authority/Executive Engineer, Construction Division-III, U.P. Avas Evam Vikas Parishad, Lucknow (respondent no.4), whereby the respondent no.4, while invoking the provisions of Section 83 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as "Adhiniyam", directed the petitioners to remove illegal encroachment and construction made by them over Khasra No. 129 situated at village Bistauli, District Lucknow by 10.4.1999, otherwise, the Parishad will demolish the illegal construction made by them over the land in question for which they are responsible.
(3) Since common questions of law and facts are involved in the above-captioned writ petitions, therefore, they are being decided by a common order.
(4) Brief facts of the case are that proceedings for acquisition of a large tract of land situated in Village Bastauli, Pargana, Tehsil and District Lucknow were initiated by issuance of a notification under Section 28 of the Adhiniyam on 17.03.1979, for a Scheme called "Ram Sagar Mishr Nagar Vistar Yojna". This was followed by a declaration made under Section 32 of the Adhiniyam on 23.3.1980. As the provision of Section 17 of the Land Acquisition Act was invoked, the possession of the land was delivered on 3.2.1983, 11.1.1982, 3.2.1983 and 24.4.1985, resepectively. The award was ultimately made on 18.09.1985.
(5) It appears that plot in question was a larger plot but in minjumla plot Gata No. 129-M, measuring 0-2-0, the name of Triloki Nath Gupta was entered as Bhumidhar, who had earlier filed an application praying that land under his tenancy be exempted from the land acquisition. In the award, it has been mentioned that Awas Vikas Parishad exempted only a portion of the land and possession over remaining land has been taken over by the Avas Vikas Parishad. Thereafter, Triloki Nath Gupta has filed writ petition no. 5605 (M/B) of 1999 :Triloki Nath Gupta Vs. U.P. Avas Evam Vikas Parishad, Lucknow, with the grievance that he would be entitled for payment of compensation. A Co-ordinate Bench of this Court, on considering the fact that the writ petition has been filed after a lapse of more than 11 years particularly when the award was finalized on 18.9.1985, therefore, the writ petitioner cannot be permitted to file such a belated writ petition and further once land has been acquired and possession taken over, it cannot revert back to the tenure holder, dismissed the writ petition vide judgment and order dated 6.7.2000. Order dated 6.7.2000 reads as under :
"From the award dated 18-9-1985, it transpires that notification under section 28 of the U.P. Avas Evam Vikas Parishad Adhiniyam which is similar to Section 4 of the Land Acquisition Act was issued on 17-3-1979 and a declaration was issued on 23-3-1980. As the provision of Section 17 of the Land Acquisition Act was invoked, the possession of the land was delivered on 3-2-1983, 11-1-1982, 3-2-1983 and 24-4-1984. The award indicates that Plot No. 129 measuring about 18-4-14 was acquired. The petitioner filed the claim petition.
It appears that Plot No. 129 was a larger plot but in mijumla Plot Gata No. 129-M measuring 0-2-0 the name of Triloki Nath Gupta was entered as Bhumidhar. Sri Triloki Nath Gupta preferred an application praying that land under his tenancy be exempted from the land acquisition. It was mentioned in the award that the Awas Evam Vikas Parishad exempted only a portion of the land and possession over remaining land has been taken over by the Avas Evam Vikash Parishad, hence the petitioner would be entitled for payment of compensation.
It has been pointed by the learned counsel appearing on behalf of the Avas Evam Vikas Parishad that 288 Sq. feet land over which the construction of Mr. T.N. Gupta was exempted by the Avas Evam Vikas Parishad, the possession of remaining portion of the land was taken over by the Avas Evam Vikas Parishad. A notification under Section 28 of the Avas Evam Vikas Adhiniyam, the declaration under Section 32 which are similar to Sections 4 and 6 of the Land Acquisition Act were issued on 17-3-1979 and 20-5-1988. The present writ petition was filed in the year 1999 after a lapse of about more than 11 years particularly when the award was finalised on 18-9-1985, the petitioner cannot be permitted to file such belated writ petition particularly when he appeared before the Land Acquisition Officer and the award was passed after notification. It is well settled that the notification cannot be assailed after the delivery of the possession to the Authority for whose benefit the land has been acquired. Once land has been acquired and possession taken over, it cannot revert back to the tenure holder.
In view of the aforesaid observations, we are not inclined to interfere. The interim order stands vacated. The writ petition is accordingly dismissed."
(6) In an identical circumstances, Dr. Surya Narayan Singh has filed writ petition No. 1474 of 2004 : Dr. Surya Narain Singh Vs. U.P. Avas Vikas Parishad & others, which was disposed of vide judgment and order dated 16.2.20004 in terms of the aforesaid judgment and order dated 6.7.2000 passed in writ petition no. 5605 (M/B) of 1999. Order dated 16.2.2004 reads as under :
"Sri Vinod Kumar learned Counsel for the petitioner has sent an illness slip. However, Sri Nakul Dubey, learned Counsel for respondents has pointed out that identical controversies involving the same notification has been finally decided by this Court in W.P. No. 5605 (M/B) of 1999 Triloki Nath Gupta Vs. U.P. Avas Vikas Parishad, Lucknow and others in July, 2000.
We dispose of this petition also in terms of the orders passed in the said petition."
(7) Thereafter, Dr. Surya Narain Singh has filed another writ petition no. 9902 (M/B) of 2007 : Dr. Surya Narain Singh Vs. U.P. Avas Evam Vikas Parishad & 3 others, challenging the orders for removal of encroachment, which was dismissed on the ground of alternative remedy vide order dated 20.2.2020. Order dated 20.2.2020 reads as under :
1. Heard Sri Nirmal Kumar Tiwari, learned counsel for petitioner, Sri Ratnesh Chandra, learned counsel for respondents 1 to 3 and learned Standing Counsel for respondent 4.
2. Writ petition is directed against orders dated 16.8.2007 and 20.12.2007, Annexures 25 and 26 to the writ petition, whereby authorities of U.P. Avas Evam Vikas Parishad had directed petitioner to remove his encroachment else it will be demolished.
3. Learned counsel for petitioner submitted that land in dispute is his individual property and Avas Vikas Parishad has no concern and therefore, alleged notice in respect of demolition or removal of alleged construction is illegal.
4. Learned counsel appearing for Avas Vikas Parishad submitted that entire land has been acquired by Avas Vikas Parishad and petitioner has made encroachment thereon hence notice for removal of encroachment has been given.
5. Question as to whether land in question individually belonged to petitioner or acquired by respondents is a seriously disputed question of fact which require investigation into facts and evidence to be adduced by parties. Therefore, in our view, petitioner may avail remedy in common law by seeking declaration/ injunction with regard to land in question.
6. Dismissed on the ground of alternative remedy. Interim order, if any, stands vacated."
(8) It is admitted by the petitioner-Devi Prasad Chaudhary of writ petition No. 1651 (M/B) of 1999 that earlier he had filed a writ petition, bearing no. 1689 (M/B) of 1995 : Devi Prasad Chaudhary Vs. U.P. Avas Evam Vikas Parishad and others, challenging the order of demolition of the constructions. A Co-ordinate Bench of this Court, vide judgment and order dated 22.6.1995, disposed of the writ petition. The order dated 22.6.1995 reads as under :
"By means of this writ petition the petitioner has prayed for issuance of writ in the nature of certiorari to quash the order of demolition of the constructions in the petitioner's premises if the same has been passed and to issue a writ in the nature of mandamus not to disturb the peaceful possession of the petitioner over the house in question. The petitioner on 14.3.95 through a registered A/D. preferred an application to the Prescribed Authority indicating that notice purporting to be one under Section 83 of the Avas Vikas Parishad Adhiniyam has been sent upon him. He requested that in case any such notice has been issued or any order had been passed in pursuance of the said notice, then he should be informed. According to the petitioner he received neither any notice nor any communication from the side of the Prescribed Authority. He also preferred an application dated 3rd April, 1995 to the Housing Commissioner as well as to the Chief Minister, U.P. and other authorities concerned.
I have heard the learned counsel for the petitioner as well as Sri Mahesh Chandra appearing on behalf of Avas Vikas Parishad. As the issue involved is too trivial to drag on unnecessarily before this Court, this writ petition is disposed of by issuing a direction to the petitioner to appear before the Prescribed Authority on 5th July, 1995 along with a copy of this order as well as together with a copy of the representation addressed to the Housing Commissioner, which the competent authority may treat as the objection made by the petitioner against the said notice and after giving an opportunity to the petitioner or his counsel a personal hearing may pass appropriate orders.
Till the appropriate authority passes an appropriate order, the demolition and dispossession of the petitioner from the premises in question shall remain in abeyance but this order will lapse as soon as the competent authority passes an appropriate order.
(9) In compliance of the order dated 22.06.1995, the Prescribed Authority/Executive Engineer has considered the representations of the petitioner of writ petition no. 1651 (M/B) of 1999 dated 30.11.1998, 29.12.1997, 5.7.1995 and the representation of writ petition No. 1505 (M/B) of 1999 dated 23.10.1998 and after affording opportunity of hearing to the petitioners, Prescribed Authority/Executive Engineer has passed the order dated 24.03.1999, rejecting the aforesaid representations and directed the writ petitioners to remove illegal encroachment and construction made by them over the land in question by 10.4.1999, otherwise, the Parishad will demolish the illegal construction made by them over the land in question for which they are responsible. It is this order, which is impugned in the above-captioned writ petitions.
(10) Learned counsel for the petitioners has submitted that petitioners had purchased the land involved in the above-captioned petitions by sale-deeds executed sometime in the year 1975, which was presented for registration on the same day in the office of the Sub-Registrar, Lucknow, who got it registered on 3.6.1979 and, thereafter, after mutation of their names in the revenue record, they constructed a house and boundary wall on the land in question. Therefore, provisions of Section 83 of the Adhiniyam cannot be invoked in respect of the building of the petitioners as they are in existence prior to issuance of alleged notice under Section 28 of the Adhiniyam and no construction has been raised by the petitioners thereafter.
(11) Learned counsel for the petitioners has next submitted that no proceedings have taken place for acquisition of petitioners' property as no notice either under Adhiniyam or under the Land Acquisition Act has ever been served on the petitioner to the effect of acquiring and intention to acquire the petitioner's land, therefore, the respondents cannot be legally permitted to take over petitioner's land suddenly under the garb of alleged notification under Section 28 of the Adhiniyam published in the year 1979, after a lapse of about 20 years period.
(12) Per contra, learned counsel for the U.P. Awas Evam Vikas Parishad has submitted that a planned notification was published on 13.02.1979 under Section 28 of the Adhiniyam, against which, petitioner had filed the objections, therefore, he cannot say that he was not awre about the notification. Further, the objections filed by the petitioner was duly considered by "Niyojan Samiti" and after considering it, it was decided to acquire the whole area of the petitioner keeping in view the interest of plan of Housing Scheme made by the Parishad.
(13) Learned counsel for the Parishad has further submitted that the petitioner is presently in illegal possession over the land in question of the Parishad. The petitioner himself has admitted the fact that the sale deed was registered on 03.06.1979, meaning thereby that the sale deed in question has no legal sanctity in the eyes of law. Therefore, the mutation based on the sale deed which itself was executed after the notification has got no value in the eyes of law. Thus, the petitioner knowingly and willfully raised illegal and unauthorized constructions.
(14) He also submitted that in compliance of the directions of the State Government, the Housing Commissioner had constituted a Committee which was headed by Additional Housing Commissioner-cum-Secretary and a decision was taken on 20.05.1997 informing the petitioner to deposit the market value of the land of Parishad, which was unauthorizedly possessed by him and also deposit development charge to the Parisad and legal regularized the construction in question but the proposal of the Parishad was vehemently denied by the petitioner.
(15) Lastly, learned counsel for the Parishad has submitted that when the petitioner failed to comply with the conditions and he did not show any interest, then, the impugned decision was taken after giving him full opportunity. Therefore, it is incorrect to say that the petitioner was not informed about the decision earlier. Furthermore, the boundaries of proposed acquisition of the land in question has clearly been mentioned in advertisement dated 17.03.1979 under Section 28 of the Adhiniyam and as per boundaries, acquisition of the land in question was also proposed. Thus, the impugned order is perfectly justified and reasonable.
(16) It is a settled proposition of law that when the State acquires the large tract of land and draws the panchnama of taking possession, the same is enough for taking possession of the land.
(17) In Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700, the Apex Court has opined that the act of Tahsildar in going to the spot and inspecting the land was sufficient to constitute a taking of possession. Therefore, it was not open to withdraw the land acquired under Section 48(1) of the Act. The Apex Court observed:
"28. We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based. But we are writing a separate judgment as we feel that the discussion in the judgment of our learned Brother Untwalia, J., in regard to delivery of 'symbolical' and 'actual' possession under Rules 35, 36, 95 and 96 of Order 21of the Code of Civil Procedure, is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned Brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment.
We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute a taking of possession of land.
We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by the beat of drum or otherwise would be sufficient to constitute a taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession.
It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."
(18) In Tamil Nadu Housing Board v. A. Viswam (Dead) by LRs., (1996) 8 SCC 259, the Apex Court has held that recording of the memorandum by the Land Acquisition Officer (LAO) in the presence of witnesses signed by them would constitute taking possession of the land. The Apex Court observed:
"9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land."
(19) In Banda Development Authority, Banda v. Moti Lal Agarwal, (2011) 5 SCC 394, the Apex Court has held that if acquisition is of a large tract of land, it is not possible to take possession of each and every parcel of the land and it would be sufficient that symbolic possession is taken by preparing an appropriate document in the presence of independent witnesses and obtaining their signatures. The Apex Court observed:
"37. The principles which can be culled out from the above noted judgments are:
(i) No hardand fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."
(20) The question also came for consideration in State of T.N. v. Mahalakshmi Ammal, (1996) 7 SCC 269, in which the Apex Court observed that possession would be taken by drawing memorandum. The Apex Court observed:
"9. It is well settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on 2691986 and for Survey No. 2/11 award was made on 3181990. Possession having already been undertaken on 24111981, it stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 3181990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as laid down by this Court.
Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm.
It would not be possible to take any 8 physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award."
(21) In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212, the Apex Court has observed that the normal rule of taking possession is drafting the panchnama in the presence of panchas. the Apex Court observed:
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 1741976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now wellsettled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.
5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant.
In the counter affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed."
(22) In P.K. Kalburqi v. State of Karnataka, (2005) 12 SCC 489, the Apex Court held that if the land was vacant and unoccupied, taking symbolical possession would be enough.
(23) In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi, (2009) 10 SCC 501, it was observed by the Apex Court that mode of taking possession is by way of drawing of panchnama. Similar view has been reiterated in Omprakash Verma v. State of Andhra Pradesh, (2010) 13 SCC 158.
(24) In M. Venkatesh v. Commissioner, Bangalore Development Authority, (2015) 17 SCC 1, again it was reiterated by the Apex Court that mode of taking possession is by drawing a panchnama. It is further held that the mode of taking possession adopted by BDA was permissible.
(25) In State of Madhya Pradesh v. Narmada Bachao Andolan, (2011) 7 SCC 639, the Apex Court has held that it would depend upon the facts that of the individual case whether possession has been taken or not. We are of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed on record.
(26) In the instant case, proceedings for acquisition of land were initiated by a notification dated 17.3.1979 and that was issued under Section 28 of the Adhiniyam. This was followed by a declaration made under Section 32 of the Adhiniyam on 23.3.1980. The petitioners were not the owners of the land at the time of issuance of the notification under Section 28 of the Adhiniyam. The award was made on 18.09.1985.
(27) Learned counsel for the respondents has drawn our attention to order dated 20.1.2004 passed in Writ Petition No. 2435 (M/B) of 2001 : Nishatganj Residents Welfare Society Vs. Lucknow Nagar Nigam & others and has submitted that the Division Bench in Nishantganj Residents Welfare Society (Supra) has already directed for demolition of all unauthorized constructions and removal of encroachment..
(28) It is an admitted position that sale deed dated 18.3.1975 was registered on 03.06.1979, whereas notification under Section 28 of the Adhiniyam was issued on 13.02.1979 i.e. prior to issuance of the sale deed in favour of the petitioner of the plot in question.
(29) Law is well settled in this regard by a catena of decisions of this Court that an incumbent, who has purchased the land after notification, has no right to question the acquisition.
(30) In U.P. Jal Nigam, Lucknow through its Chairman and Anr. v. Kalra Properties (P) Ltd., Lucknow and Ors. : (1996) 3 SCC 124, the Apex Court observed that:
3. ......That apart, since M/s. Kalra Properties, the Respondent had purchased the land after the notification Under Section 4(1) was published, its sale is void against the State, and it acquired no right, title, or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before the publication of the declaration Under Section 6 was published.
(31) In Sneh Prabha (Smt.) and Ors. v. State of U.P. and Anr. :(1996) 7 SCC 426 it has been laid down by the Apex Court that subsequent purchaser cannot take advantage of land policy. It was observed:
"5. Though at first blush, we were inclined to agree with the Appellant but on a deeper probe, we find that the Appellant is not entitled to the benefit of the Land Policy. It is settled law that any person who purchases land after the publication of the notification Under Section 4(1), does so at his/her peril. The object of publication of the notification Under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for a public purpose, and the acquisition proceedings point out an impediment to anyone to encumber the land acquired thereunder. It authorizes the designated officer to enter upon the land to do preliminaries, etc. Therefore, any alienation of land after the publication of the notification Under Section 4(1) does not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, titles, and interests in land stand vested in the State, Under Section 16 of the Act, free from all encumbrances, and thereby, absolute title in the land is acquired thereunder. If any subsequent purchaser acquires land, his/her only right would be subject to the provisions of the Act and/or to receive compensation for the land. In a recent judgment, this Court in Union of India v. Shri Shivkumar Bhargava and Ors. : [1995] 1 SCR 354 considered the controversy and held that a person who purchases land subsequent to the notification is not entitled to an alternative site. It is seen that the Land Policy expressly conferred that right only on that person whose land was acquired. In other words, the person must be the owner of the land on the date on which notification Under Section 4(1) was published. By necessary implication, the subsequent purchaser was elbowed out from the policy and became disentitled to the benefit of the Land Policy."
(32) In Meera Sahni v. Lieutenant Governor of Delhi and Ors. : (2008) 9 SCC 177, the Apex Court had relied upon the decision described above and observed thus :
21. In view of the aforesaid decisions, it is by now well-settled law that under the Land Acquisition Act, the subsequent purchaser cannot challenge the acquisition proceedings and that he would be only entitled to get the compensation.
(33) In V. Chandrasekaran and Anr. v. Administrative Officer and Ors. : (2012) 12 SCC 133, the Apex Court has considered various decisions and opined that the purchaser after Section 4 notification could not challenge land acquisition on any ground whatsoever. The Apex Court observed:
"15. The issue of maintainability of the writ petitions by the person who purchases the land subsequent to a notification being issued Under Section 4 of the Act has been considered by this Court time and again. In Leela Ram v. Union of India : AIR 1975 SC 2112, this Court held that anyone who deals with the land subsequent to a Section 4 notification being issued, does so, at his own peril. In Sneh Prabha v. State of Uttar Pradesh : AIR 1996 SC 540, this Court held that a Section 4 notification gives a notice to the public at large that the land in respect to which it has been issued, is needed for a public purpose, and it further points out that there will be "an impediment to anyone to encumber the land acquired thereunder." The alienation after that does not bind the State or the beneficiary under the acquisition. The purchaser is entitled only to receive compensation. While deciding the said case, reliance was placed on an earlier judgment of this Court in Union of India v. Shiv Kumar Bhargava and Ors. : (1995) 2 SCC 427.
In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title."
(emphasis supplied) (34) In Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and Ors. : (2013) 5 SCC 427, the Apex Court has laid down:
13. There can be no quarrel with respect to the settled legal proposition that a purchaser, subsequent to the issuance of a Section 4 Notification in respect of the land, cannot challenge the acquisition proceedings, and can only claim compensation as the sale transaction in such a situation is Void qua the Government. Any such encumbrance created by the owner, or any transfer of the land in question that is made after the issuance of such a notification would be deemed to be void and would not be binding on the Government. (Vide: Gian Chand v. Gopala and Ors. : (1995) 2 SCC 528; Yadu Nandan Garg v. State of Rajasthan and Ors. : AIR 1996 SC 520; Jaipur Development Authority v. Mahavir Housing Coop. Society, Jaipur, and Ors. : (1996) 11 SCC 229; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. : (1997) 1 SCC 35; Meera Sahni v. Lieutenant Governor of Delhi and Ors. : (2008) 9 SCC 177; Har Narain (Dead) by L.Rs. v. Mam Chand (Dead) by L.Rs. and Ors. : (2010) 13 SCC 128; and V. Chandrasekaran and Anr. v. The Administrative Officer and Ors. : JT 2012 (9) SC 260)."
(emphasis supplied) (35) A Three-Judge Bench of the Apex Court in Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Ltd. and Anr., : (2015) 7 SCC 601, in the context of Section 4 as well as Section 42 of the Rajasthan Tenancy Act which also prohibited the transactions from being entered into with SC/ST persons, has observed:
33. The other decision relied upon by the Society is V. Chandrasekaran and Anr. v. Administrative Officer and Ors. : 2012 (12) SCC 133] wherein this Court laid down thus:
17. In Ajay Kishan Singhal v. Union of India: AIR 1996 SC 2677; Mahavir and Anr. v. Rural Institute, Amravati and Anr. : (1995) 5 SCC 335; Gian Chand v. Gopala and Ors. : (1995) 2 SCC 528; and Meera Sahni v. Lieutenant Governor of Delhi and Ors. : (2008) 9 SCC 177, this Court categorically held that a person who purchases land after the publication of a Section 4 notification with respect to it, is not entitled to challenge the proceedings for the reason, that his title is void and he can at best claim compensation on the basis of vendor's title. In view of this, the sale of land after issuance of a Section 4 notification is void, and the purchaser cannot challenge the acquisition proceedings. (See also: Tika Ram v. the State of U.P. : (2009) 10 SCC 689).
18. In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title.
34. Reliance has been placed on Dossibai Nanabhoy Jeejeebhoy v. P.M. Bharucha M : 1958 (60) Bom. LR 1208] so as to contend that the 'person interested' in the land Under Section 9 of the Land Acquisition Act would include a person who claims interest in compensation to be paid on account of acquisition of land ad the interest contemplated Under Section 9 is not restricted to legal or proprietary estate or interest in the land but such interest as will sustain a claim to apportionment, is the owner of the land. In our opinion, the decision is of no avail. The instant transaction being void as per Section 42 of the Rajasthan Tenancy Act, and the property was inalienable to non-SC. Obviously, the logical corollary has to be taken that no right in apportionment to compensation can be claimed by the Society.
(36) In M. Venkatesh and Ors. v. Commissioner, Bangalore Development Authority, etc. : (2015) 17 SCC 1, a three-Judge Bench of the Apex Court has opined:
"16. That brings us to the question of whether Prabhaudas Patel and other Respondents in SLP (C) No. 12016 of 2013 were entitled to any relief from the Court. These Respondents claim to have purchased the suit property in terms of a sale deed dated 22-8-1990, i.e., long after the issuance of the preliminary Notification published in July 1984. The legal position about the validity of any such sale, post-issuance of preliminary notification, is fairly well settled by a long line of the decisions of this Court. The sale in such cases is void and non-est in the eye of the law giving to the vendee the limited right to claim compensation and no more. Reference may in this regard be made to the decision of this Court in U.P. Jal Nigam v. Kalra Properties (P) Ltd., wherein this Court said: (SCC pp. 126-27, para 3) "3. ... It is settled law 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 to the property. In this case, Notification Under Section 4(1) was published on 24-3-1973; possession of the land admittedly was taken on 5-7-1973, and the pumping station house was constructed. No doubt, declaration Under Section 6 was published later on 8-7-1973. Admittedly power Under Section 17(4) was exercised dispensing with the inquiry Under Section 5-A and on service of the notice Under Section 9 possession was taken, since urgency was acute viz. pumping station house was to be constructed to drain out floodwater. Consequently, the land stood vested in the State Under Section 17(2) free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification Under Section 48(1) is published in the gazette withdrawing from the acquisition. Section 11-A, as amended by Act 68 of 1984, therefore, does not apply, and the acquisition does not lapse. The notification Under Section 4(1) and the declaration Under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification Under Section 48(1) was published, and the possession is surrendered pursuant thereto. That apart, since M/s. Kalra Properties, the Respondent had purchased the land after the notification Under Section 4(1) was published, its sale is void against the State, and it acquired no right, title, or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before the publication of the declaration Under Section 6 was published.
(emphasis supplied) (37) It has been laid down that the purchasers on any ground whatsoever cannot question proceedings for taking possession. A purchaser after notification does not acquire any right in the land as the sale is ab initio void and has no right to claim land under the Policy.
(38) In the present case, the petitioner has purchased the plot in question through registered sale deed on 3.06.1979, whereas the notification under Section 28 of the Adhiniyam has been issued on 13.2.1979. This shows that the petitioner has purchased the land in question after the notification.
(39) It is apparent that acquisition has attained finality, the award was passed, and possession was taken long back. .
(40) Considering the aforesaid, we are of the view that impugned order issued by the respondent no.4 is perfectly justified and there is no illegality or infirmity in the impugned order.
(41) The writ petitions lack merit and are, accordingly, dismissed but without any order as to costs.
.
(Karunesh Singh Pawar, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 26.2.2020 Ajit/-