JUDGMENT
R.C. Lahoti, J.
(1) By this petition filed on 1st April, 1991, the petitioner seeks quashing of the impugned communication dated 3.12.90 issued by the respondent No.2, Joint Secretary, L&B Delhi Administration and a direction to the respondents to allot to the petitioner an alternative plot under Large Scale Acquisition Development and Disposal of Lands in Delhi Scheme, 1961.
(2) Vide notification dated 24.10.61 under Section 4 of the Land Acquisition Act, 1894 large scale of land was proposed to be acquired for the public purpose of the planned development of Delhi. One of the persons whose land was acquired was one Pat Ram Gujar. On 21.1.63, the said Pat Ram transferred 450sq.yds of plot out of 700 sq.yds. to 3 persons namely Kulwant Kaur, Jaswant Kaur (the petitioner) and Gyan Kaur. The petitioner is claiming an alternative plot of land under the scheme of the respondents. On 3.12.90 vide Annexure P-8, the respondent No.2 has informed the petitioner with reference to her application dated 28.4.89 that she has been found not eligible for allotment of an alternative plot because she was not the owner of the land at the time of notification under Section 4 of the Land Acquisition Act i.e. on 24.10.91.
(3) According to the petitioner it is the policy of the respondent to allot alternative plot of land to the person adversely effected by land acquisition and in as much as she is one who has stepped into the shoes of the person whose land has been acquired, she is entitled to allotment of an alternative plot. She had made an application on 17.4.65 seeking allotment and thereafter she has been pursuing her claim for allotment which has finally been rejected in the year 1990. Hence the petition.
(4) According to the respondents, the petitioner is not entitled to allotment of any land by way of alternative plot in as much as the petitioner is not `the person whose land was acquired’. She has purchased the land in question only after the date of notification under Section 4 of the Land Acquisition Act which transaction is illegal in itself as no one can transfer his title or interest in the land subsequent to the date of the notification under Section 4 above said. The object of the scheme framed by the respondents is rehabilitation of bonafide displaced persons consequent to their having been uprooted by large scale acquisition of land. It is not the intendment of the scheme to confer some benefit on the persons whose lands have been acquired much less to the persons who purchase land subsequent to the date of the notification, may be with the object of earning a right to allotment of an alternative plot.
(5) In an additional affidavit filed on behalf of the respondent No.2 on 11.7.96, it has been stated that the respondents have never received any application for the allotment of an alternative plot on 17.4.65 as alleged by the petitioner. The impugned decision communicated vide letter dated 3.12.90 has been taken on the petitioner’s application dated 19.7.89 which was apparently highly belated.
(6) Two questions arise for decision : firstly, whether the petitioner, a purchaser of land subsequent to the date of notification under Section 4 of the Land Acquisition Act, 1894 is entitled to allotment of an alternative plot under the policy of the respondents; and secondly, whether the petition is highly belated and hence liable to be dismissed on the ground of delay and laches.
(7) It is submitted by the learned counsel for the petitioner that there have been two schemes of the respondents for allotment of alternative plots in lieu of acquired land. The earlier scheme was of the year 1961 and the latter scheme is of the year 1989. In the year 1961 there was no bar on purchasing the land even though it was covered by a notification under Section 4 of the Land Acquisition Act. The bar was created for the first time by an enactment known as Delhi Lands (Restriction on Transfer) Act, 1972. Thus the purchase by the petitioner on 21.1.63 was legal and valid. Strong reliance has been placed on the Full Bench decision of this Court in Smt. Shiv Devi Virlley VS. L.G. Delhi, Air 1987 Delhi 46 wherein this position of law has been noticed.
(8) On the other hand, the learned counsel for the respondent have placed reliance on the decision of this Court in Krishan Kumar Malik Vs. Union of India, (CWP 255/84) decided on 28.11.84 and the observations of the Supreme Court made in U.P.Jalnigam Lucknow Vs. Kalra Properties (P) Ltd., Lucknow, and Smt.Sneh Prabha VS. State of U.P., 1995(4) Ad SC(C) 279, 314.
(9) The relevant part of the Scheme is extracted and reproduced hereunder :-
“(8)As a general policy disposal of developed land should be made by auction and the premium should be determined by the highest bid, except in the following case where land may be allotted at predetermined rates namely, the cost of acquisition and development plus the additional charge mentioned in sub- paragraph (7) above :- (i) to individuals whose land has been acquired as a result of the Chief Commissioner’s notification dated the 8th March, 1957, the 3rd September, 1957, the 13th November, 1959, and the 10th November, 1960 or other such subsequent notifications, provided that this concession will not be available in the case of individuals affected by the notifications dated the 7th March, 1957, and the 3rd September, 1957, if the acquisition proceedings have been completed and payment made or deposited in Court by the 1st January, 1961.”
In these cases : (a) if a residential plot is to be allotted the size of such plot, subject to the ceilings prescribed, may be determined by the Chief Commissioner, taking into consideration the area and the value of the land acquired from the individual and the location and value of the plot to be allotted; and xxxxxx (underlining by us)
(10) This very scheme was subject matter of consideration before the Full Bench in Smt. Shiv Devi’s case (supra). Notification under Section 4 of Land Acquisition Act was published in September, 1957. Subsequently, but prior to the declaration under Section 6, Smt. Shiv Devi got a sale deed registered on 5.1.59. Land Acquisition award was made on 1.6.61. The petitioner sought for allotment of alternative plot.
10.1The Full Bench stated the object of the Scheme as under :- “In this process of acquisition one class of persons which was most affected were persons who had purchased land for their personal residential houses and who lost the lands through the large scale acquisitions made for planned development. These persons who lost their land through the acquisition and got a small compensation in return were faced with the predicament of acquiring other land for building purposes either at public auctions or through membership of a co-operative society. The government appears to have realised that this would lead to exceptional hardship.”
10.2Vide para 16, one of the questions stated by the Full Bench as posed before it was : whether the date of the Section 4 notification is at all relevant in the matter of allotment of an alternative plot?
10.3Vide paras 17 and 18 the Full Bench has observed : (17) “We have examined this question in some detail from many aspects. The acquisition proceedings taken under the Land Acquisition Act have certain phases. Firstly, there is a notification under Section 4 stating that the government intends to take action. This is followed by objections under S.5A and then there is a Notification under S.6, when the government decides that it has to acquire land and later on the government actually takes the lands by means of an Award an gives compensation in lieu of the land to the owner thereof. It does not appear to us that there is any impediment in law for the owner of lands to transfer the same merely because a Notification under S.4 has been issued. No doubt, after the Act of 1972, called the Delhi Lands (Restriction on Transfer) Act, came into force in the Union Territory of Delhi, nobody can transfer the land after the Notification under S.6 has been issued, except after getting permission under S.4 of the Delhi Lands (Restriction on Transfer) Act. But, there is no mention of S.4 Notification in this Act. We do not see how a person who acquires land, after the S.4 notification has been issued, can be treated to be a non-owner for the purposes of the Scheme framed which has been reproduced earlier, which land was notified as being one which the government contemplated to acquire. After the S.6 Notification the government’s decision to acquire the land becomes more or less definite. But, even then, the government has power to withdraw from the acquisition by reason of S.48, Land Acquisition Act. We are, therefore, unable to accept the reasoning in the judgment of Krishan Kumar Malik V. Union of India, (AIR 1985 Delhi 225). It is quite clear that any one whose land has been acquired as a result of the Notifications mentioned in Cl.8 of the Scheme is entitled to apply. By anyone is meant the owner of the land at the time of acquisition and not the owner at the time of the issue of the Notification under S.4. In fact, there is no impediment in law at all either today or earlier regarding transfer, after the Notification has been issued under S.4. There is an impediment after the acquisition notice is issued under S.6, but that too applies after 1972. We have not yet come across a case in which the acquisition of planned development were made after 1972. We would not like to comment upon them.”
10.4The Full Bench upheld the petitioner Smt. Shiv Devi’s entitlement to allotment of an alternative plot.
(11) The decision of the Full Bench was noticed by a Division Bench of this Court in Smt. Kulwant Kaur VS. Union of India, Cwp 2720/90 decided on 24.8.90. The decision is unreported and copy thereof has been placed on record as Annexure R-1 (pages 51-54 of the paper book). Therein the Division bench has noticed the distinction in the 1961 and 1989 schemes. The 1989 scheme specifically provides for allotment of alternative plot of land only to those persons who were the recorded owners on the date when Section 4 notification was issued.
(12) In U.P.Jal Nigam, Lucknow through its Chairman & Anr. VS. M/s.Kalra Properties (P) Ltd Lucknow & Ors., , their Lordships have held :-
“It is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance by the owner does not bind the Government and the purchaser does not acquire any title to the property.”
“SINCEM/s.Kalra Properties, 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.”
12.1Vide para 4 their Lordships have carved out an exception in favour of the purchaser after the date of notification under Section 4 by observing :- “…at best he would be entitled to step into the shoes of the owner and claim payment of the compensation, but according to the provisions of the Act.”
(13) In Yudu Nandan Garg VS. State of Rajasthan & Ors., , their Lordships have held in the context of Section 4(1) of the Land Acquisition Act, 1894 :- “It is seen that long after the notification under Section 4(1) was published in the Gazette, the appellant had purchased the property and constructed the house thereon. Therefore, as against the State his purchase was not lawful and it could not be used against the State to clothe it with a colour of title as against the State. It is an encumbrance on the State and when the acquisition is finalised and the possession is taken, the State under Section 16 is entitled to have the possession with absolute title free from all encumbrances. The appellant cannot get any title much less valid title to the property.”
(14) We may now refer to two decisions of the Supreme Court wherein specifically the question of allotment of an alternative plot to a subsequent transferee arose for decision.
(15) In Smt.Sneh Prabha VS. State of U.P., 1996 Iv AD- SC(C) 279 their Lordships have held :- “It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own 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 public purpose and acquisition proceedings points out an impediment to anyone to encumber the land acquired thereunder. it authorises 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 land, all rights, titles and interest 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 Vs. Shri Shiv kumar Bhargava & Ors. (JT 1995 (6) Sc 274) considered the controversy and held that a person who purchases land subsequent to the notification is not entitled to alternative site. It is seen that the Land Policy expressly conferred 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 dis-entitled to the benefit of the Land Policy.”(para 5)
(16) In Union of India VS. Shri Shiv kumar Bhargava & Ors., Jt 1995 (6) Sc 274 the respondent was not the owner on the date when the notification under Section 4(1) of the La Act was published but as on the date when the acquisition was finalised he became the owner by virtue of purchase. A learned Judge of the High Court held the respondent entitled to allotment of alternative site. Appeal before the Division Bench was dismissed on the ground of delay. On an appeal by Union of India, their Lordships held :-
“THE policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right, title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification under S.4(1) was published. This was the view of this Court in another case while considering the Full Bench Judgment of the Delhi High Court. Under these circumstances, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification under Section 4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed.”
“The Judgment of the Supreme Court does not give particulars of `another case’ which was before the Supreme Court. Though the particulars of Full Bench judgment of the Delhi High Court are also not mentioned, obviously it must have been the judgment in Shiv Devi’s case (supra) as there is no other Full Bench judgment of Delhi High Court touching this issue. The facts set out by their Lordships clearly show that the notification under Section 4(1) was published on 29.6.66 and therefore the respondent therein must have claimed allotment of alternative plot of land under the 1961 scheme.”
(17) Full Bench judgment in Smt.Shiv Devi Virlley’s case proceeds on the premises that merely because of notification under Section 4(1) of the Land Acquisition Act there is no impediment in law for the owner of the land to transfer the same. Therefore, the provisions of the Delhi Lands (Restriction on Transfer) Act, 1972 had a material bearing on the “issue at hand”. But for the provisions of the 1972 Act the transfer would be valid inspite of notification under Section 4 of the Land Acquisition Act and hence on the basis of such transfer even the purchaser would be entitled to allotment of an alternative plot.
17.1A perusal of the Full Bench decision in Shiv Devi’s case (supra) reveals their Lordships having proceeded on two premises : (i) that a mere notification under Section 4 does not bar the land owner from transferring the land; (ii) a bar on transfer of land forming subject matter of Section 4 notification was for the first time imposed by Delhi Land (Restriction on Transfer) Act, 1972 and that would made a difference for the applicability of the scheme on pre-act and post-act transfers.
17.2The law laid down by the Supreme Court and as noticed in paras 13 to 16 above clearly indicates that Section 4 notification takes away the power of the land owner to transfer the land or to create any encumbrance thereon. Such transfer or encumbrance would be null and void creating no title or interest in favour of the transferee. At least such a transfer cannot be set up against the State. The only right which their Lordships of the Supreme Court have recognised in favour of such transferee is the right to claim compensation apparently because the transferor -land owner having realised the price from the transferee cannot be permitted to realise the same twice over by way of claiming compensation from the State.
17.3The applicability of the law laid down by the Supreme Court does not depend for its efficacy on the provisions of Delhi Land (Restriction on Transfer) Act, 1972. Even if this act would not have been enacted the law as to the effect of Section 4 Notification would have remained the same as has been laid down by their Lordships of the Supreme Court.
17.4Be that as it may, we are bound by the law as laid down by the Supreme Court that being the law of the land. We are, therefore, clearly of the opinion that under the Scheme transferee of land having acquired it subsequent to the date of Section 4 notification cannot in law claim for allotment of alternative plot of land consequent to acquisition.
(18) Though the petitioner claims to have made an application for allotment of alternative plot of land on 17.4.65 but the respondent-DDA has denied having received any such application. Pursuant to a specific direction made by the Court on 27.4.94 an additional affidavit sworn in by Smt. Shashi Kaushal, Under Secretary (ALT) has been filed. It is stated therein that :- “It is vehemently denied that any such letter as alleged requesting the allotment of an alternative plot was ever received on 17.4.65 in the office of Land and Building Deptt., Indraprastha Estate, Vikas Bhawan, New Delhi as per records available in the Office.”
(19) In view of that statement and in the absence of any convincing and reliable evidence having been produced on behalf of the petitioner, its averment of application having been made on 17.4.65 cannot be accepted. The petitioner, therefore, also suffers from gross delay and laches.
(20) For the foregoing reasons, we hold the petitioner not entitled to any relief in the present petition which is dismissed though without any order as to the costs.
