Delhi High Court
Mange Ram & Anr vs Union Of India & Ors on 26 November, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26th November, 2015.
+ W.P.(C) No.6313/2010 & CM No.12515/2010 (for stay)
MANGE RAM & ANR ..... Petitioners
Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
Ajay Gulati, Mr. Sachin Jain and Mr.
Bhoomija Verma, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Vivek Goyal, CGSC for UOI and
Mr. Rasheed Ansari, Adv. for R-
2&3/GNCTD.
Mr. L.B. Rai and Mr. Mohit Kumar
Sharma, Advs. for applicant.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition seeks mandamus to the Union of India (UOI) as well as
Govt. of NCT of Delhi (GNCTD) to make allotment and give possession of
65 bighas and 9 biswas of land to the two petitioners in terms of allotment
letter dated 28th June, 2005.
2. Notice of the petition was issued and pleadings have been completed.
3. The senior counsel for the petitioners and the counsels for the
respondents were heard on 23rd November, 2015 as well as today.
4. It is the case of the petitioners:
W.P.(C) No.6313/2010 Page 1 of 29
(i) that the two petitioners i.e. Sh. Mange Ram and Sh. Ram Mehar
are displaced persons and in lieu of their properties / land left behind
in Pakistan, the Ministry of Rehabilitation, Govt. of India on 30th
September, 1966 issued them a „Sanad' bearing No.D-914 (Hadbust
No.22) with respect to acquired evacuee land admeasuring 71 bighas
and 5 biswas in Village Jharoda Mazra, Burari, Delhi;
(ii) however physical possession of the said land could not be
handed over by the respondents to the petitioners since the said land
was in illegal unauthorised occupation of others;
(iii) that the petitioners at that time were given to understand that
legal proceedings with regard to the said land were pending and they
should await till conclusion of the said proceedings;
(iv) however, even those proceedings were decided in favour of the
occupants who were declared as Bhumidars of those lands;
(v) that vide letter dated 20th April, 1989, the work relating to
administration, management and disposal of the remaining urban
evacuee built up property, urban evacuee plots, rural evacuee
agricultural land etc. was transferred by the Govt. of India to the Delhi
Administration;
W.P.(C) No.6313/2010 Page 2 of 29
(vi) that from 1974 till 2005, the petitioners kept on visiting the
Evacuee Property (EP) Cell for redressal of their grievance and also
made written representations for allotment of alternative land
somewhere else in Delhi, but to no avail;
(vii) that ultimately vide official note dated 19 th May, 2005, it was
proposed that some other lands in piece-meal, available and belonging
to the Custodian of Evacuee Property be allotted to the petitioners;
(viii) that on examination of official records it was found that six
parcels of land in revenue Villages Civil Station, Sheikh Sarai,
Rithala, Haiderpur and Hameerpur total admeasuring 65.09 bighas
were available;
(ix) that vide letters dated 2nd May, 2005 and 13th June, 2005, the
Tehsildar, GNCTD and the Managing Officer, EP Cell sought present
status of the said lands from the local Tehsildars and it was found that
the said lands belonged to and were in possession of the Government;
(x) that accordingly, vide letter dated 28th June, 2005, the Managing
Officer, EP Cell, GNCTD informed the petitioners of allotment of six
parcels of land aforesaid total admeasuring 65.09 bighas and asked the
petitioners to meet the officers in this regard;
W.P.(C) No.6313/2010 Page 3 of 29
(xi) that the petitioners agreed to accept the aforesaid lands in lieu of
71 bighas and 5 biswas of land earlier allotted to them and requested
for a new Sanad and physical possession thereof;
(xii) that though further steps were taken in this respect as evident
from the contemporaneous office notings but in the meanwhile, the
Displaced Persons Claim and Other Laws Repeal Act, 2005 (Repeal
Act) was notified on 6th September, 2005 repealing the Displaced
Persons (Compensation & Rehabilitation) Act, 1954;
(xiii) that the petitioners on 22nd December, 2006 lodged a complaint
with the Public Grievances Commission of not getting formal
possession and allotment of the land;
(xiv) though the Public Grievances Commission also found in favour
of the petitioners but observed that since there was no saving clause in
the Repeal Act, no direction could be given;
(xv) thus, the allotment of 65.09 bighas of land made in favour of the
petitioners did not fructify.
This petition was filed contending that notwithstanding the
Repeal Act, the petitioners were entitled to be put into possession of
the said 65.09 bighas of land and be awarded title with respect thereto.
W.P.(C) No.6313/2010 Page 4 of 29
5. Vide order dated 17th September, 2010 in this petition, status quo was
directed to be maintained with respect to the 65.09 bighas of land which was
allotted / proposed to be allotted to the petitioners.
6. One M/s Maha Maya Dwelling Private Limited filed CM
No.13471/2011 for impleadment in this petition averring that the petitioners
had entered into an agreement with it for transfer of rights in the lands to be
allotted to the petitioners. Vide order dated 17th November, 2011, though the
said M/s Maha Maya Dwelling Private Limited was not impleaded as a
party, but permitted to intervene in the matter only by making submissions.
The same order also records the denial of the petitioners of having entered
into any agreement with the said M/s Maha Maya Dwelling Private Limited.
7. The respondents UOI as well as GNCTD filed counter affidavits and
to which rejoinders were filed by the petitioners. Vide order dated 17 th
November, 2011, the respondents were permitted to file sur-rejoinder and
which has been filed by GNCTD.
8. The respondent No.1 UOI in its counter affidavit has inter alia
pleaded that the work regarding administration, management and disposal of
evacuee, urban and rural properties and lands situated in Delhi was
transferred to Delhi Administration in 1989 and at present GNCTD is
W.P.(C) No.6313/2010 Page 5 of 29
managing all the affairs and that vide Notification dated 6 th September, 2005.
The Administration of Evacuee Property Act, 1950 has been repealed
without any saving clause and thus UOI is not a necessary or property party
to the present proceedings.
9. GNCTD in its counter affidavit has pleaded:
(a) that the petitioners have not approached the Court with clean
hands and have suppressed material facts and made wrong and
misleading statements;
(b) that the petitioners had taken actual physical possession of 71
bighas and 5 biswas of land allotted to them;
(c) that the documents show that the petitioners had taken actual
physical possession of land about four decades ago and the petitioners
have sold the land to the present occupants thereof or their
predecessors; particulars of documents of the time of allotment of land
are given and it is stated that, the land therein is described as vacant,
directions therein are contained for making revenue entries in name of
petitioners, the petitioners therein have acknowledged allotment and
transfer of land in their favour, the petitioners therein made no
grievance of land or any part thereof being encroached, and the
W.P.(C) No.6313/2010 Page 6 of 29
petitioners therein have acknowledged receipt of possession of land
and satisfaction of their claims;
(d) that the petitioners, after a gap of about four decades since the
last communication with the Office of the Assistant Settlement
Commissioner, had stated that there was encroachment on the said 71
bighas and 5 biswas of land and that they could not take possession
thereof;
(e) that the petitioners have tried to take the land a second time;
(f) that issue of Sanad is the culmination of the entire process
beginning from filing of claim for evacuee property;
(g) that after a gap of about 38 years since the last letter to the
Managing Officer, Delhi, the petitioners came up with a fresh dispute
in 2005 that there were illegal occupants on the land;
(h) that the petitioners, after accepting the Sanad, cannot contend so
and even if there are any illegal occupants, it is the petitioners who
have to take steps for removal thereof;
(i) that the responsibility of the Evacuee Property Cell / Office of
the Settlement Commissioner abates on issue of Sanad;
W.P.(C) No.6313/2010 Page 7 of 29
(j) that if the petitioners were dissatisfied, they should have
agitated the same before accepting the Sanad;
(k) that in fact the petitioners, prior to accepting the Sanad, had
made several claims and which were all taken care of;
(l) that thus the repeal of the Displaced Persons Act is irrelevant;
(m) that the petitioners took actual physical possession of the land at
the site on 8th / 9th July, 1962;
(n) that the Sanad dated 30th September, 1966 implies that the
petitioners accepted the land allotted to them and the title of the land is
transferred to their names;
(o) that all the subsequent disputes are extraneous to the issue; the
visits of the petitioners from 1974 to 2005 are denied;
(p) that the letter dated 4th May, 2005 is the first communication,
after a gap of about 38 years;
(q) that the case of the petitioners was completed to the satisfaction
of the petitioners in or about the year 1966 and the file was consigned
to the Record Room;
(r) that no new rights were created in favour of the petitioners in
W.P.(C) No.6313/2010 Page 8 of 29
the year 2005.
10. The petitioners have filed a rejoinder:
(I) denying having taken physical possession of the land in the year
1962;
(II) pleading that the office notings of the respondents show that
possession of the land had not been taken; reliance in this regard is
placed on documents received through the medium of Right to
Information Act, 2005 (RTI Act);
(III) that though a decision had been taken in the year 2005 to allot
alternate land to the petitioners but the same could not be fructified
owing to the repeal aforesaid;
(IV) that after the filing of the petition, vide Notification dated 19 th
August, 2010, powers have been delegated for disposal of pending
claims under the Displaced Persons Act, notwithstanding repeal
thereof;
(V) denying that the grant of Sanad is the culmination of the
process;
(VI) pleading that the petitioners were serving in the Indian Army
W.P.(C) No.6313/2010 Page 9 of 29
and posted outside Delhi since 1965 till January, 2002 when they
retired and hence could not take any steps, though kept on
corresponding during that time also;
(VII) relying on the office notings of the respondents of the year
2005.
11. The respondents GNCTD in the sur-rejoinder has pleaded:
(A) that though the petitioners along with the writ petition had only
placed the documents pertaining to the year 2005 and thereafter on
record, the petitioners along with the rejoinder had brought documents
of prior to the year 2005 on record and of which no mention was made
in the petition;
(B) that all the letters of different dates ranging from 1967 onwards
filed with the rejoinder had been submitted by the petitioners to the
respondents together, in or about the year 2004-2005, and the
petitioners later on, by an RTI application, had taken copies thereof;
(C) that none of the said letters bear any acknowledgement in
receipt thereof from the respondents;
(D) denying that the said letters / representations of the year 1967
W.P.(C) No.6313/2010 Page 10 of 29
onwards were received in the office of the respondents at the
contemporaneous time;
(E) that even if it were to be believed that the petitioners were
making representations from time to time, the petition is still highly
belated;
(F) that mere making of the representations does not extend the
period of limitation; reliance in this regard is placed on C. Jacob Vs.
Director of Geology and Mining Indus. Est. (2008) 10 SCC 115,
Naresh Kumar Vs. Department of Atomic Energy (2010) 7 SCC 525,
Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar (2011) 5
SCC 607, Karnataka Power Corporation Ltd. Vs. K. Thangappan
(2006) 4 SCC 322 and M/s Samant Vs. Bombay Stock Exchange
(2001) 5 SCC 323;
(G) that the office notings of the year 2005 relied upon by the
petitioners are merely indicative of the process undertaken on the basis
of the representations then received from the petitioners; some of the
observations made by some of the officers are without any basis and
no rights can accrue to the petitioners on the basis thereof; reliance is
placed on Jasbir Singh Chhabra Vs. State of Punjab (2010) 4 SCC
W.P.(C) No.6313/2010 Page 11 of 29
192 in this regard.
(H) that the repeal of the Displaced Persons Act and the
modification thereof by Notification dated 19th August, 2010 only
applies to cases which were pending finality;
(I) that Section 22 of the Displaced Persons Act provides appeal to
the Settlement Commissioner; the said statutory remedy has not been
availed of by the petitioners;
(J) that the petitioners on 30th September, 1980 wrote to the Deputy
Commissioner, Delhi Administration for correction of revenue records
and in which the petitioners referred to the occupants of the land as
their tenants;
(K) that the petitioners were therefore earning the fruits of the land
which was allotted to them and with respect whereof Sanad has been
executed in favour of the petitioners.
12. The senior counsel for the petitioners:
(i) drew attention to the letter dated 28th June, 2005 of the Land &
Building Department of the respondent GNCTD to the petitioners on
the subject of "Allotment of alternative land in respect of land already
W.P.(C) No.6313/2010 Page 12 of 29
allotted in Jharoda Mazra Burari vide Sanad No.D-914 (Hadbust
No.22)" and informing that the matter was being processed for
allotment of 65.09 bighas of land in the Villages aforesaid;
(ii) drew attention to the file noting dated 18th August, 2005 of the
Tehsildar, EP Cell observing that the claim of the petitioners was quite
genuine, though "bluntly delayed";
(iii) drew attention to the file notings dated 13th September, 2005 to
the effect that though possession of the land of which the Sanad was
executed was delivered to the petitioners on paper but no actual
physical possession of the allotted land could be given either because
the land was encroached by other persons or because the land had
been given to other persons or due to conferment of Bhumidari Rights
by the Revenue Officers;
(iv) contended that the process aforesaid was however held up
owing to the Repeal Act which did not contain any saving clause;
(v) drew attention to the file noting dated 16th December, 2005 of
the Tehsildar, EP Cell to the effect that the claims of the petitioners
remained unsatisfied and that it is the duty of the Government
Department to hand over actual physical possession of the allotted
W.P.(C) No.6313/2010 Page 13 of 29
land to the petitioners;
(vi) drew attention to Section 20 of the Displaced Persons Act and
Rules 34-G, 10-A and 58 of the Displaced Persons (Compensation and
Rehabilitation) Rules, 1955 framed thereunder;
(vii) contended that the respondents have not shown anything to the
effect that the petitioners accepted the Sanad;
(viii) contended that since inspite of file notings aforesaid, the final
decision remained to be taken owing to the intervention of the Repeal
Act and which was modified in 2010 during the pendency of this
petition, the matter should be remanded to the respondents for taking a
final decision;
(ix) contended that there is no delay, since the respondents from
2005 to 2010 were considering the claim of the petitioners.
13. The counsel for the respondents GNCTD, besides the arguments /
contentions already noted above, drew attention to the letter dated 30 th
September, 1980 of the petitioner No.1 to the Deputy Commissioner, Delhi
Administration to the effect that he was the owner of the land mentioned
therein and owing to his employment with the Army at different places had
assigned the work of cultivation thereof to tenants on yearly basis and had
W.P.(C) No.6313/2010 Page 14 of 29
learnt that the tenants had got the said land mutated in their names and
asking for appropriate orders to be passed in that respect and clearance of
unauthorised structure over his land. It was argued that the claim in the
present petition is directly contradictory thereto.
14. The senior counsel for the petitioners does not controvert the letter
dated 30th September, 1980 supra but contends that part of the land
mentioned therein is not the land subject matter of the Sanad of the year
1966.
15. The counsel for the applicant M/s Maha Maya Dwelling Private
Limited adopted the arguments of the senior counsel for the petitioners.
16. I have during the hearing of the petition repeatedly enquired from the
senior counsel for the petitioners, whether not the plea of the petitioners that
the possession of the land with respect whereto Sanad of the year 1966 was
admittedly executed in favour of the petitioners was not given to the
petitioners and the contention of the respondents that the possession was so
delivered, raises a disputed question of fact which cannot be conveniently
adjudicated in writ jurisdiction and whether not the petitioners had invoked
wrong remedy.
17. However the senior counsel for the petitioners contends that the file
W.P.(C) No.6313/2010 Page 15 of 29
notings of the year 2005 show that the respondents have admitted the factum
of possession having not been so delivered. It is further argued that the
respondents have been unable to show that the possession was delivered in
the year 1962 and without which it follows that the claim of the petitioners
as displaced persons remains unsatisfied.
18. The counsel for the respondents GNCTD, though without any
pleading, also suggested that the petitioners, in the year 2005, were in
collusion with some of the officials of the Land & Building Department of
the GNCTD and had devised the present scheme to grab valuable land of
GNCTD. It was also suggested that the petitioners had by devising such
means already taken possession of another 71 bighas and 5 biswas of land.
However, the said contentions being without any basis and pleadings, cannot
be considered.
19. I am however unable to find the petitioners entitled to relief.
20. It cannot be lost sight of that the plea raised by the petitioners before
this Court for the first time in the year 2010 by way of this writ petition, of,
notwithstanding the transfer of title in the land to them in the year 1966, they
had not been delivered possession of the land, is by it‟s inherent nature a
factual plea and adjudication whereof cannot be in exercise of powers under
W.P.(C) No.6313/2010 Page 16 of 29
Article 226 of the Constitution of India.
21. My this opinion is enforced in view of the admission by the senior
counsel for the petitioners, under instructions, during the hearing also of the
petitioner No.1 having written the letter dated 30th September, 1980 supra.
Even if it were to be believed and held that only a part of the land referred to
therein is the land with respect to which Sanad of the year 1966 was
executed (though the petitioners have not filed any documents to show
ownership / title to the other land which they claim to be not part of the
Sanad and more so in view of the Khasra numbers changing from time to
time), the fact still remains that the petitioners in the year 1980 were
admitting having been put into possession of the land of which the Sanad
was executed in their favour in the year 1966 and were further admitting that
they had allowed their said land to be cultivated by tenants on yearly basis.
The claim of the petitioners in the writ petition is of having not been put into
possession of any part of the land with respect to which the Sanad was
executed in their favour. The letter dated 30th September, 1980 clearly
falsifies the stand of the petitioners in the writ petition, disentitling the
petitioners from any equitable relief under Article 226 of the Constitution of
India.
W.P.(C) No.6313/2010 Page 17 of 29
22. Supreme Court recently in State of Assam Vs. Bhaskar Jyoti Sarma
(2015) 5 SCC 321 also observed that "the question whether actual physical
possession was taken over remains a seriously disputed question of fact
which is not amenable to a satisfactory determination by the High Court in
proceedings under Article 226 of the Constitution of India. ......Remand to
the High Court to have a finding on the question of dispossession, therefore,
does not appear to us to be a viable solution".
23. Not only so, even if it were to be believed that the petitioners were not
put into possession of the land of which the Sanad was executed in their
favour in 1966, the claim of the petitioners for the first time in 2005 i.e. after
nearly 30 years, for land in lieu thereof was also highly belated. Anyone not
delivered possession of land inspite of being conferred with title thereof is
expected to act with promptitude. The contention of the petitioners, of
having made representations therefor, from 1967 till 2005 also, is highly
suspect and at best also raises disputed question of fact. The senior counsel
for the petitioners has been unable to meet the contentions of the
respondents, of the representations even if made by the petitioners from 1967
onwards, being not capable of keeping the said claim alive.
24. I am of the view that the file notings and / or the letter dated 31 st
W.P.(C) No.6313/2010 Page 18 of 29
August, 2005 could not have ignited a claim which was already dead. The
petitioners, independently of their claims as displaced persons and which
stood satisfied on execution of Sanad in the year 1966, had no new right to
allotment of any land in the year 2005 and which claim can be agitated by
way of this writ petition filed in the year 2010. Also, even if it were to be
believed that the petitioners could not pursue their claim owing to the Repeal
Act of the year 2005, the petition filed in the year 2010 i.e. after five years
therefrom would also be barred by time, delay and laches. Any officer of the
Government, even if makes admission of a claim against the Government
and which claim is otherwise barred by law / limitation and thus not valid,
cannot bind the Government therewith. I am, from a reading of the file
notings of the year 2005 relied upon by the petitioners, indeed surprised;
they undoubtedly are without regard to protecting the interest of the State /
Government, which its‟ officers are expected to, and are intended to part
with valuable land worth hundreds of crores of rupees, obviously detrimental
to public interest and by way of enriching the petitioners. The principle
enshrined in Section 18 of the Limitation Act, 1963, of the acknowledgement
in writing of liability or right extending the period of limitation, can be
invoked only if such acknowledgment is made prior to expiry of period of
W.P.(C) No.6313/2010 Page 19 of 29
limitation. It is not the case of petitioners that there was any such
acknowledgement of liability towards the petitioners or of right of petitioners
at any time prior to the year 2005.
25. I have in this context examined the provisions of the Displaced
Persons Act to gauge whether the provisions thereof permitted the Sanad
aforesaid to be executed without delivery of possession and if so to what
effect and what was the remedy of petitioners thereagainst and what was the
limitation provided for availing thereof.
26. The Sanad dated 30th September, 1966 is titled "Permanent Allotment
of Acquired Evacuee Property in Rural Areas". It provides, (a) that the
evacuee land subject matter thereof was acquired vide Notification under
Section 12 of the Displaced Persons Act; (b) that the said property was being
transferred to the petitioners for the purpose of compensation payable to
petitioners under the Displaced Persons Act; (c) "The President is hereby
pleased to transfer the right, title and interest acquired by Central
Government in the said property" to the petitioners. A reading thereof,
which as a government grant is to be interpreted as per its terms, does not
show that after the execution thereof there was any obligation remaining of
the grantor thereof to put the petitioners into vacant peaceful possession of
W.P.(C) No.6313/2010 Page 20 of 29
the land with respect whereto it was granted. The whole claim of the
petitioners in this petition is premised on the respondents being under an
obligation to put the petitioners into vacant, physical possession of the land
and having not fulfilled the said obligation. However, on a reading of the
Sanad, no such obligation is made out.
27. The said Sanad is preceded by (i) a document dated 9th July, 1962 of
handing over of possession of total land admeasuring 71.5 bighas to allottee
i.e. petitioners herein recording that the petitioners were present on the spot,
that demarcation had been done in presence of petitioners, that with respect
to a part of land there was a stay granted by the Court, that on another part
two persons were doing cultivation and there were illegal occupants who had
no right for compensation and that acknowledgement had been done on the
spot; (ii) a document dated 16th July, 1962 of the Court of Allotment cum
Managing Officer, Delhi recording handing over possession of land to
petitioners on the spot on 8th July, 1962 and directing sending of records to
Tehsildar for declaring the petitioners as owners of the allotted 71.5 bighas
of land; (iii) order dated 30th September, 1966 of the Court of Managing
Officer / Settlement Officer Delhi recording that the petitioners were allotted
71.5 bighas of land on 4th May, 1961 in satisfaction of their remaining land
W.P.(C) No.6313/2010 Page 21 of 29
claim, that possession of the land was delivered to them on 8 th July, 1962,
that no rent was due from them and directing execution of Sanad of
permanent allotment of said land in favour of petitioners and forwarding
copy of order to Tehsildar for incorporation in Revenue Records.
28. I have next examined the provisions of the Displaced Persons Act and
the Displaced Persons Rules. Section 12 of the Act empowers the Central
Government to acquire any evacuee property for a public purpose being a
purpose connected with the relief and rehabilitation of displaced persons.
Vide sub-section (2) thereof, on publication of Notification thereunder, the
right, title and interest of any evacuee in the property specified in the
Notification stands extinguished and the evacuee property vests absolutely in
the Central Government free from all encumbrances. Vide sub-section (4),
all evacuee property acquired thereunder was to form part of the
compensation pool. Section 15 of the Act exempts property forming part of
compensation pool from being proceeded against for any claim in any
manner whatsoever in execution of any decree or by other process of any
Court or authority. Finally, Section 20 of the Act empowers the Managing
Officer to transfer any property out of the compensation pool inter alia by
allotment of such property to a displaced person.
W.P.(C) No.6313/2010 Page 22 of 29
29. The Displaced Persons Rules, in Chapter II lays down the procedure
for submission of compensation application, in Chapter III lays down the
procedure to be followed by the Settlement Commissioner on receipt of
compensation application, in Chapter IV deals with determination of
compensation and in Chapter V deals with payment of compensation and
transfer of acquired evacuee property. Chapter V(A) deals with allotment of
evacuee agricultural lands situated in urban areas; Chapter VI deals with
payment of compensation by transfer of Government built property; Chapter
VII deals with payment of compensation for rural houses and the shops left
in West Pakistan and finally Chapter VIII deals with compensation in respect
of verified claim for agricultural land situated in rural areas. The Sanad in
favour of the petitioners being titled "Permanent Allotment of Acquired
Evacuee Property in Rural Areas", the Chapter of the Displaced Persons
Rules applicable to the petitioners would be Chapter VIII, Rule 49
whereunder provides that a displaced person having verified claim in respect
of agricultural land shall as far as possible be paid compensation by
allotment of agricultural land. The other Chapters as aforesaid deal with
agricultural land in urban areas, government built up property, etc. Chapter
V, vide Rule 22 thereunder provides for allotment of residential properties in
W.P.(C) No.6313/2010 Page 23 of 29
occupation of displaced persons, shops in occupation of displaced person and
industrial concerns in occupation of displaced person and would also have no
application to the allotment in favour of the petitioners. Rule 34G to which
reference was made by the senior counsel for the petitioners, is under
Chapter V(A) dealing with allotment of evacuee agricultural lands in urban
areas and would also have no application.
30. Rule 50 under Chapter VIII which as aforesaid is applicable, provides
for the Settlement Commissioner to fix the value of any agricultural land
intended for allotment. Thereafter, Rule 58 to which also reference was
made by the senior counsel for the petitioners provides that where any
person is allotted agricultural land under the Rules, he shall be granted
vacant possession of such land. Rule 60 provides that where any person is
offered allotment of agricultural land under the Rules, he shall communicate
his acceptance of the allotment to the Settlement Commissioner and if no
reply is received within the period fixed, the allotment shall be deemed to
have been accepted. Rule 61 provides that where any person refuses to
accept the allotment of any agricultural land offered to him, the claim for
compensation shall be deemed to have been satisfied to the extent the value
of the allotted land and such allotted land shall be available for allotment to
W.P.(C) No.6313/2010 Page 24 of 29
any other claimant. Thereafter, Rule 68 provides for execution of the Sanad
in favour of the allottee.
31. From the scheme of the Rules aforesaid, it is borne out that the
allotment of agricultural land and delivery of possession thereof precede the
execution of Sanad. That is also how the documents relied upon by the
petitioners show the transaction to have taken place. In the light of the
scheme of the Rules, the suggestion of the senior counsel for the petitioners
that there was nothing to show that the petitioners had accepted the Sanad
inasmuch as the same is not signed by them, is of no avail. Under the Rules,
if the petitioners had not accepted the land allotted to them and / or had
refused the same, their claim for compensation would have stood
extinguished. The petitioners after more than 35 years cannot contend that
they had not accepted the Sanad. The said stand is also falsified from the
letter dated 30th September, 1980 supra admittedly written by the petitioner
No.1.
32. What also emerges from the Act and the Rules is that the acquisition
under Section 12 of the evacuee property is free from all encumbrances.
Thus, upon the lands which were allotted and with respect whereto Sanad
was executed in favour of the petitioners being acquired, no right or claim of
W.P.(C) No.6313/2010 Page 25 of 29
any person with respect thereto persists or survives for the petitioners to say
that others had claimed as Bhumidhars with respect to the said lands.
33. Coming back to the aspect of limitation, even if the petitioners were
aggrieved from the allotment by the Settlement Officer of the land to them
on which others had possession, the remedy of the petitioners was to appeal
to the Chief Settlement Commissioner under Section 22 of the Act and the
limitation whereof was of 30 days. The petitioners admittedly did not
appeal. The only inference can be that either they had no grievance or the
grievance urged after decades is an afterthought and mala fide or even if had
a grievance, the limitation for agitating the same has expired. Reference in
this regard also can be made to Shankara Co-op Housing Society Ltd.
supra.
34. In this context I have also wondered, whether after the petitioners had
accepted the Sanad which is a document of transfer of title of the land to the
petitioners, the petitioners under the Civil Law can have a claim for
alternative land on the ground that the possession of the land of which Sanad
was granted in their favour was not delivered to them.
35. I am unable to find any such proposition in law.
36. Though the Sanad is a Government grant and the Transfer of Property
W.P.(C) No.6313/2010 Page 26 of 29
Act, 1882 is not applicable thereto and is governed by its own terms but I
have, as a proposition of law, wondered the remedy of a purchaser of
immovable property who is not delivered the possession of the property sold.
It is found that delivery of possession is not essential to complete a sale.
Section 55 of the Transfer of Property Act laying down the rights and
liability of buyer and seller of immovable property, in the absence of a
contract to the contrary, inter alia provides that the seller is bound to give,
on being so required, the buyer, or such person as he directs, such possession
of the property as its nature admits. Therefrom, it is evident that delivery of
possession is not essential for completion of transfer and there can be
situations where transfer is complete without delivery of possession.
Following this logic also, the remedy of the petitioners, even if were not put
in possession of the land inspite of conveyance of title thereof in their
favour, cannot be to seek alternate land but can only be to recover possession
of the same land or seek compensation.
37. A Division Bench of this Court as far back as in Hari Chand Vs.
Gordhan Das AIR 1957 P&H 238 (Circuit Bench at Delhi) held that mere
non-delivery of possession or stipulation to delivery of possession at a later
date does not prevent the sale from being complete. The High Court of
W.P.(C) No.6313/2010 Page 27 of 29
Madhya Pradesh also in Sayyed Ibne Hasan Mazhar Husain Vs. Mst.
Mehtab Latafat Husain AIR 1960 MP 237 held that the only three requisites
to complete transfer by sale are (i) an agreement to transfer; (ii) price; and,
(iii) the competency to contract and further held that the requirement in
delivery of possession is a procedural matter.
38. Even if it were to be believed that though by the Sanad of the year
1966, the land admeasuring 71 bighas and 5 biswas stood transferred to the
petitioners but the possession thereof was not delivered by the Government
of India to the petitioners, the senior counsel for the petitioners was unable to
explain, as to how the same would entitle the petitioners to claim alternative
land. The remedy, if any of the petitioners for such a situation was to claim
against the Government of India as the transferor to deliver possession and
which claim could have been made within the period of limitation provided
therefor and/or to have the transfer annulled or to claim back the sale
consideration i.e. compensation in lieu of which the land was given to the
petitioners. The petitioners cannot after 36 years, without having annulled
the transfer, claim another plot of land in lieu thereof. Supreme Court, in
Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jajoo (2009) 5
SCC 713 held that right of possession over a property is a facet of title; as
W.P.(C) No.6313/2010 Page 28 of 29
soon as a deed of sale is registered, the title passes to the vendee; the vendor,
in terms of the stipulations made in the deed of sale, is bound to deliver
possession of the property sold; if he does not do so, he makes himself liable
for damages. Here, not only is there no stipulation in the Sanad that the
grantor thereof will deliver vacant, physical possession of the land with
respect whereto it was executed, to the petitioners but on the contrary the
reading thereof shows that the transfer was complete, with the right, title and
interest acquired by the Central Government in the property being
transferred to the petitioners, thereby also vesting in the petitioners the right
to recover possession from whosoever may have been in possession of the
land.
39. There is thus no merit in the petition, whichsoever way it may be
examined.
40. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 26, 2015/bs (corrected & released on 25th May, 2016) PS: Since there has been a long delay in correcting and releasing this judgment, the Court Master to inform the counsels.
W.P.(C) No.6313/2010 Page 29 of 29