S. N. Variava, J. - (1.) This appeal is against a portion of the judgment dated 14th December, 1995 (passed by a Full Bench of the Delhi High Court) whereunder Writ Petition 1543 of 1982, filed by the respondents, has been allowed.
(2.) Briefly stated the facts are as follows : Large tracts of land were acquired for the planned development of Delhi. A large number of writ petitions were filed challenging the acquisition. By the judgment dated 14th December, 1995 the acquisition proceedings were upheld. Appeals against this judgment have been dismissed by this Court. However, in this judgment a few writ petitions, where the lands were evacuee properties, were allowed and the acquisition in respect of those lands was set aside on the following reasoning : "Civil Writ Petition No. 783/81 In this petition, the notification under Section 4 is dated 13th November, 1959 and declaration under Section 6 is dated 2nd January, 1969. The award had been given on 17th January, 1983. The land use prescribed in the Master Plan is Zonal Park and in the revised plan is District Park. In the original notification dated 13th November, 1959, it is mentioned that it would not cover the evacuee land. The petitioner had purchased this property from its previous owner on 6th August, 1962. However, on the date of notification issued under Section 4 of the Act, this land was evacuee property and vested in the Custodian and stood excluded from the said notification. The name of the previous owner is Kailash Chand Gupta. Reliance is placed on a judgment of single Bench of this Court given in Civil Writ Petition No. 155/83, Harbans Kaur vs. Land Acquisition Collector decided on August 12, 1991 in which, on similar facts, it was held that as the original notification issued under Section 4 excluded its application to the evacuee land, mere fact that the land ceases to be evacuee after the issuance of notification under Section 4 of the Act would not validate the subsequent proceedings taken under Sections 6 and 11 of the Act for acquiring the land as notification under Section 4 did not pertain to the evacuee land. It is quite evident that if there is no notification issued under Section 4 of the Act pertaining to a particular land, then any declaration issued under Section 6 would be by itself not valid in respect of the land which was not subject-matter of notification issued under Section 4 of the Act. It has been urged before us that the writ petition has been brought belatedly as Section 6 declaration had been issued in 1969 whereas the writ petition had been filed in 1981. It is not the case where any defect in the Section 4 notification is being highlighted like that the same was not published in accordance with the provisions of the Act. What has been pointed out is that the notification issued on 13th November, 1959 did not at all pertain to the land in question as it was evacuee land at that time. If the notification on the face of it is not applicable to the land in question, the same is non est and any proceedings taken for acquiring the land on the basis of such a notification issued under Section 4, which did not pertain to the land in question, would be void ab initio and without jurisdiction. In our view, once it is shown that there was no notification issued under Section 4 pertaining to the particular land, the subsequent proceedings being void, the petitioner would not be debarred from challenging such proceedings even belatedly. So, this petition is liable to be allowed. C.W.P. Nos. 377/83, 2256/83 and 1543/82 In the first two cases, the notification under Section 4 had been issued on 13th November, 1959 while in C.W.P. No. 1543/82, the notification had been issued on 23rd January, 1965 but notifications themselves excluded the evacuee lands. It is evident that on the date of the notifications, the land of these petitioners was evacuee land and it is only later on that the land has been auctioned or transferred by the competent officer in favour of the petitioners. It is, hence, evident that notification issued under Section 4 could not possibly apply to the land of these petitioners when at the time of the notification, the land in question was evacuee land or composite land. The land obviously belonged to the Government and in case the Government needed the land for public purpose, they could have easily retained the possession of the land and there was no need to resort to Land Acquisition Act for acquiring this land. At any rate, when the land of the petitioners, being evacuee land, was not covered by the notifications issued under Section 4, any subsequent proceedings of acquisition taken in respect of the said land on the basis of the said notification under Section 4 were on the face of it illegal. Hence, the acquisition proceedings in respect of the land of these petitioners are liable to be quashed." Thus these acquisitions were set aside on the grounds: (a) They were pursuant to a Notification dated 13th November, 1959, under Section 4 of the Land Acquisition Act; (b) that tis Notification did not cover evacuee lands and, therefore, further proceedings would not be valid; (c) that evacuee lands or composite lands belong to the Government and in case the Government needed the land for public purpose they could have easily retained the possession of the land and there was no need to resort to Land Acquisition Act for acquiring this land; (d) that once it was shown that there was no Notification issued under Section 4 pertaining to these lands, the subsequent proceedings being void, the petitioners were not debarred from challenging such proceedings even belatedly.
(3.) At this stage it must be noticed that the acquisition of petitioners lands was not under Notification dated 13th November, 1959. Petitioners lands were acquired under proceedings pursuant to Section 4 Notification dated 23rd January, 1965. The Notification dated 23rd January, 1965 did not exempt evacuee properties. The High Court fell in error in stating that a Notification dated 23rd January, 1965 exempted evacuee lands. Thus the factual basis on which acquisition of other evacuee lands was set aside did not exist in this case. This aspect appears to have not been noticed by the High Court. One cannot blame the High Court as there were so many matters before it. It is only natural that facts of this particular case may not have been noticed.;