Ram Prakash Narang and Others vs State of U.P. and Others

D.K. Seth, J.—Mr. A. K. Misra, counsel for the Respondents, pressed his application for vacating the stay order passed in the present writ petition which is opposed vehemently by Mr. M. D. Singh, counsel for the Petitioners. The vehemence in which both the counsel have argued their respective cases and their laborious submissions left no stone unturned in support of their respective cases on the merit itself while seeking to bring home their respective contentions. The hearing on the application for vacating interim order virtually was a fullfledged hearing on the merits and demerits of the respective cases which fact was fairly conceded by both the counsel and both of whom implored this Court to decide the main writ petition as well along with the disposal of the application for vacating the interim order and had agreed to address the Court on the merits of the case itself.

In my view, decision on the application for vacating the interim order would have the effect of deciding the case on merits itself and the argument advanced by both the counsels make it reasonable to decide the case on merit. Thus, the questions arise for consideration of this Court and this Court had proposed to decide the same in the manner hereinafter.

The order dated 6th April, 1988 (Annexure 6) passed by the Special Land Acquisition Officer, Joint Organisation, Meerut has since been challenged by means of the present writ petition. Learned counsel for the Petitioner assails the said order on the ground of discrimination in violation of Article 14 of the Constitution of India in so far as the Petitioners and some other private individuals mentioned in the said order while exempting the properties of those persons refusing to exempt the properties of the Petitioners from the acquisition of the land concerned. According to the counsel for the Petitioners, the discrimination was wholly irrational and cannot be treated to be a rational classification or distinction between the two groups. His second contention was that the award having been published after two years in terms of Section 11A, the acquisition proceedings stood lapsed.

The learned counsel for the Respondents defended the case on the ground, first, that the award was published well within two years excluding the period during which the proceedings remained stayed by reason of the order passed by the Court, which fact he elaborated on the basis of the dates specified by him. Secondly, he contended that since Section 17(1) of the said Act was applied in the present case, Section 11A does not have any manner of application and even if the award is published after two years, the same does not have the effect of lapsing the acquisition. His third contention was that the Petitioners having purchased the land long after the acquisition proceeding was initiated and the notifications u/s 4(1) read with Section 17(1) and the notification u/s 6(1) were published, the Petitioners do not have any locus standi to assail the proceedings on that account. His fourth contention was that so far as the validity of the proceedings or the award is concerned, the same cannot be challenged by the Petitioners since the same stood concluded by reason of the challenge to the acquisition thrown by the original owner stood dismissed in earlier proceedings and the Petitioners having been claiming through the original owners on the ground of their stepping into the shoes of the former owner. His next contention was that the points now raised could very well have been raised in the earlier proceedings by the original owner and the same having not been raised, the question is no more open to be raised by the transferees in view of the principles of constructive res-judicata. His other contention is that there was no discrimination as alleged in the petition on the facts and circumstances of the case in the matter of exemption of some of the properties while not those of the Petitioners and the same was based on rational classification and reasonable nomenclature.

In reply, the learned counsel for the Petitioners contended that in the earlier writ petition, the challenge was thrown to the notifications under Sections 4 and 6 of the Act. The question of exemption was not involved in the earlier proceedings. The award was never the subject matter of challenge in the said proceedings. The persons exempted are also subsequent purchasers. According to him, Section 9 is not excluded by reason of Section 17 and possession is to be taken even when Section 17 is applied within 15 days of the notice u/s 9 and the land vests only when possession is taken and such possession is to be actual and not symbolic. Relying on Section 17(3A) the learned counsel for the Petitioners contends that unless 80% payment is made before taking possession, the taking over of possession is illegal. He further contends that the Meerut Development Authority (''M.D.A.'' for short) does not require the land for the purpose it was sought to be acquired since it is proposing to construct Hotel, Motel, Nursing Home, etc. and thus, the purpose having been frustrated, the exemption should have been allowed in the case of the Petitioners as well.

These submissions were opposed by the counsel for Respondents on the ground that it was not the award but a portion of the property was exempted by the said order from the award already made.

After having heard the contentions of the learned counsel, the question that arises for consideration is as to whether the acquisition stood lapsed by reason of Section 11A on account of non-publication of the award within a period of two years appears to be the question to be decided first. Certain facts are admitted by both the counsel and which are also matters of record and cannot be disputed. The notification u/s 4(1) read with Section 17(1) of the said Act was published on 17th of August, 1980. The notification u/s 6(1) was published on 17th of October, 1980. The award was published on 6th of April, 1988. The original owners had filed writ petition challenging the said notifications. In the said writ petition, an interim order of stay was granted on 21st October, 1980. The writ petition, however, was dismissed on 24th May, 1985. In SLP before the Hon''ble Supreme Court against the said order dated 24th May, 1985, an interim order of stay was granted on 23rd August, 1985. The SLP was decided and dismissed by the Hon''ble Supreme Court on 7th of April, 1986. On the other hand, the Petitioners filed Writ Petition No. 744 of 1985 separately challenging the acquisition proceedings. An interim order of stay was granted in the said writ petition on 1st February, 1985. The said stay order was vacated on 12th of January, 1987. The original owners filed Civil Suit No. 991 of 1986 and obtained an order of stay on 1lth December, 1986. The said order of stay was vacated on 17th February, 1987. Another Civil Suit No. 823 of 1986 was filed by one Jag Mohan Lal Saxena allegedly in collusion with the original owners and the Petitioners in which an order of stay was obtained or, 9th September, 1986.

Thus fact remains that the order of stay was obtained on 21st October, 1980 and before the said order of stay was vacated on 24th May, 1985, another stay order was obtained in Writ Petition No. 744 of 1985 on 1st February, 1985. During the period between 24th May. 1985 and 23rd August. 1985, on which date the Supreme Court had granted stay, no stay was operating so far as the original owners were concerned but the stay order obtained on 1st February, 1985 was operating. The stay order was vacated by the Supreme Court on 7th April, 1986 but then the stay order granted on 1st February, 1985 remained operative till 12th January. 1987. Then again before the stay order granted on 1st February. 1985 was vacated, another stay order was obtained on 15th February. 1986 in Civil Suit No. 991 of 1986 which continued till 17th February. 1987. Thus, it appears that the stay order remained operative continuously till 17th February, 1987. Therefore, the declaration of the award on 6th April, 1988 cannot be said to be beyond two years within the meaning of Section 11A. Therefore, the first contention raised by the counsel for the Petitioners cannot be sustained.

The contention of the counsel for the Petitioners that Section 17(3A) has not been complied with by reason of non-payment of 80% compensation before taking possession and the other questions relating to taking of possession does not seem to be of any substance in view of the decision in the case of Satendra Prasad Jain and Others Vs. State of U.P. and Others, , wherein it was held:

Further, Section 17(3A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the Government takes possession of it u/s 17(1). Section 11A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation.

In the instant case, even that 80 per cent of the estimated compensation was not paid to the Appellants although Section 17(3A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the Ist Respondent. It is, at any rate, not open to the third Respondent, who, as the letter of the Special Land Acquisition Officer dated 27th June. 1990 shows, failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the first Respondent and the first Respondent is under no obligation to make an award.

In the said decision, it was also held:

Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made u/s 11. Upon the taking of possession the land vests in the Government, that is to say. the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration u/s 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11A, lapse. When Section 17(1) is applied by reason of urgency. Government takes possession of the land prior to the making of the award u/s 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11A can have no application to cases of acquisitions u/s 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.

The judgment in the case of Satendra Prasad Jain (supra) was relied on and followed by this Court in the case of Ramji Das and Ors. v. State of U.P. and Ors. 1995 (1) AWC 214 : 1995 SCD 558.

The above ratio supports the contention of the learned counsel for the Respondents that Section 11A has no manner of application in the present case.

By reason of my above observation, it is not necessary to go into the other details of the arguments advanced by both the learned counsel on the above issue that spelt out in different manner and couched in different expressions in right earnest by both the learned counsel.

The next question now requires consideration is as to whether the Petitioners do have locus standi to question the award or its exemption. Admittedly the Petitioners had purchased the land some times in the latter part of 1981 which is an admitted position as it appears from Annexure ''7'' to the writ petition, namely, the document of title which dates acquisition of interest by the Petitioners in the property as on 17th September. 1981, namely, long after 17th August, 1980 when notifications u/s 4(1) and u/s 17(1) were published and 17th October, 1980, the date when notification u/s 6(1) was published. Since the Petitioners have purchased subsequent to the acquisition, they cannot have any right to challenge the acquisition independent of the original owner inasmuch as the original owners were divested of the title as soon the possession was taken. The possession was taken before the Petitioners acquired interest in the property. The said fact has not been disputed by the counsel for the Petitioners in course of his argument. On the other hand, he contended that even if he may not challenge the acquisition but still then he can very well challenge the order of exemption. The moment possession is taken, the owner of the land loses his title to the Government. Unless acquisition is set aside, the said fact remains confirmed. Only when an acquisition is set aside, the divesting of title of the owner on the date of taking possession become non-est and continues in the owner. Therefore, any transfer subsequent thereto would stand affirmed by reason of the setting aside of acquisition. The case is just reverse when such acquisition is not set aside and is confirmed as in the present case. The challenge to the acquisition, if fails, the divesting of title is absolute and operative from the date of taking over possession as is the effect thereof in view of Section 16 of the said Act. A person divested of title cannot transfer interest in the land from which the transferors stood divested. From the date of taking over possession, it is the Government in whom the title stood vested. A transfer of an interest in a land by a transferor who does not have any interest in the land does not convey any title to the transferee for the simple reasons that the transferor had no title which could be conveyed to the transferee. The Deed contained in Annexure ''7'' therefore, does not convey any interest in the land in favour of the Petitioners. The transfer, therefore, appears to be a void one and the deed does not create any interest in favour of the transferee. Thus the transferee cannot acquire any locus standi independent of the transferor. As in the present case, the challenge to the acquisition having stood concluded, there was no scope for challenging the acquisition. The question of grant of exemption is related to the acquisition which stood affirmed. By reason of the document contained in Annexure ''7'', the Petitioners did not acquire any locus standi even to challenge the exemption. The only claim at best the Petitioners could insist upon may be the claim to receive the compensation if it is so provided in the deed and agreed between the transferor and the transferee to which the Government having not been a party is in no way concerned. Therefore, the Petitioners cannot claim any locus standi to challenge even an order of exemption. Inasmuch as in the case of those persons as soon the properly is exempted from the scope of the award, the transfer made by the transferor becomes absolute by reason of revival of title to the transferor on account of such exemption on the principle analogous to Section 43 of Transfer of Property Act. Therefore, it cannot be sad that the Petitioners and the said other persons stood on the same footing as was sought to be contended by the learned counsel for the Petitioners.

Then again the question of discrimination as sought to be made out by the learned counsel for the Petitioners is also devoid of any merit in view of the fact that a compact block was exempted from acquisition as was pointed out from the plan itself which is part of the record. I have perused the plan and have found the contention of the learned counsel for the Respondents with regard to the exemption of a compact block to be of substance. Then again it was pointed out that certain constructions were sought to be made by the Petitioners on the land in contravention of Sections 14 and 15 of the U.P. Urban Planning and Development Act which was demolished pursuant to the order passed in 1982 being Annexure ''CA-1''.

The decision cited by the counsel for the Petitioners in the case of Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others, , does not help the Petitioners'' counsel''s contention to the extent that symbolic possession cannot be taken to be actual possession as in the present case since the Petitioners are still in occupation. Inasmuch as in the present case, the possession was taken before the Petitioners acquired interest in the property. Therefore, the Petitioners were neither present nor in occupation of the property at the time of taking of possession. Therefore, they have no locus standi to raise all these questions in the present writ petition. Such questions could have been raised in the writ petition filed by the original owners. The writ petition by the original owners having stood decided, the issues are concluded and can no more be raised by the Petitioners. Then again the said judgment does not lay any distinction between symbolic possession and actual possession. Taking of possession is dependent on the facts and circumstances of each individual case. In the said case it was observed:

The legal position is clear that even if the Appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the Appellant did not have the effect of obliterating the consequences of vesting.

The observation that once it is vested, "neither the Government nor the Commissioner could thereafter withdraw from the acquisition of any portion of the land u/s 48(1) of the Act" does not help the Petitioners in the facts and circumstances of the present case inasmuch as here certain portions of the land were thought to be not necessary for the purpose and was, therefore, exempted. The said exemption order cannot be challenged by the Petitioners since in respect of the same property, the Petitioners do not have any interest. Neither the Petitioners can draw any analogy in support of their case on the basis thereof since the entire observation made in the said judgment as quoted above, the property in which the Petitioners are claiming interest could not be withdrawn from acquisition.

The decision in the case of U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, cited by the learned counsel for the Petitioners does not help him except for the proposition that there is no other provision excepting Section 48(1) for divesting the State from the land acquired. Here, in the present case, Section 48(1) of the Act has been resorted to. On the other hand, the ratio decided in the said judgment helps the contention of the learned counsel for the Respondents to the extent that even if the award is published after lapse of two years, that will not invalidate the acquisition made pursuant to the notification published u/s 4(1) read with Section 17(4). At the same time, it also lays down the proposition that a purchase having been made after the notification u/s 4(1) was published, the sale was void against the State and the purchaser acquires no right, title and interest in the land. Consequently the transferee cannot challenge the validity of the notification or the regularity in taking possession of the land as has been held in Para 3 of the said judgment.

For all these reasons, it is not necessary to go into other questions raised by the learned counsel for the respective parties. In view of the observation above, the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.