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TMI Blog2015 (9) TMI 1756X X X X Extracts X X X X X X X X Extracts X X X X ..... wo enactments and the respective schemes contemplated thereunder, it is difficult to hold that the evacuee property continues to retain such status after issuance of the notification Under Section 12 of the DPCR Act. Section 19 of the Act provides that notwithstanding anything contained in any contract or any other law for the time being in force but subject to the rules that may be made under the Act the managing officer or managing corporation may cancel any allotment etc., under which any evacuee property acquired under the Act is held or occupied by a person whether such allotment or lease was granted before or after the commencement of the Act. This provision thus confers the power to deal with evacuee property acquired under the Act only on a managing officer appointed or managing corporation constituted under the Act and makes no mention whatsoever of the Custodian appointed under the Administration of Evacuee Property Act. No doubt, Under Section 10 of the Administration of Evacuee Property Act the Custodian is empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chander Uday Singh, Sr. Advs., Virk Sibal, Shobha, Bharat Sachdeva, Anil Kumar, Vishnu Bahadur Saharya, Viresh B. Saharya, Advs. for Saharya Co. and Kuldeep Singh, Adv. JUDGMENT RANJAN GOGOI, J. 1. The challenge in this appeal is to an order dated 15.04.2004 passed by the High Court of Delhi in two writ petitions raising identical questions of law on similar facts. The writ petitions filed by the Respondent have been allowed and the acquisition proceedings under the Land Acquisition Act, 1894 (in short 'the LA Act') have been declared null and void. Aggrieved, the Delhi Administration has filed the instant appeal. 2. The core facts lie in a short compass and are as follows: The subject land, admittedly, was evacuee property. It was acquired Under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short 'the DPCR Act'). Thereafter the property was transferred to the compensation pool Under Section 14 of the said Act. A decision was taken to transfer the subject property out of the compensation pool to displaced persons. In an auction held on 6.8.1958 the predecessors of the Respondents (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 12 all such evacuee property acquired becomes a part of the compensation pool which vests in the Central Government Under Section 14(2) of the DPCR Act. Pointing out the provisions of the Section 20 of the DPCR Act, it is urged that property included in the common pool may be sold, leased, allotted or otherwise transferred to a displaced person. It is therefore urged that upon the acquisition of the subject property Under Section 12 of the DPCR Act the same had shed its character as evacuee property and by operation of the provisions of the Act the property stood vested in the Central Government. The exemption clause contained in the notification Under Section 4 of the LA Act issued in the present case on 13.11.1959, in so far as evacuee property is concerned, therefore, has no application to the subject land. 7. It is further argued that though in the present case the sale certificate in respect of the property was issued on 25.1.1962 and the property therein was transferred to the Respondents with effect from the said date, there is no inherent contradiction between the transfer of title in favour of the Respondents on a subsequent date and the acquisition of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.1.1962 to the said effect, the property stood transferred in the name of the Respondents with effect from the said date and not from any anterior date including the date of payment of the full amount due. This is notwithstanding the fact that Under Rule 90 of the Rules of 1955 for sale of properties forming part of the compensation pool, the sale certificate only formalises the transfer which is effective from the date of payment of the full price. Relying on the clear terms embodied in the sale certificate issued in the present case it is argued that the subject land continued to vest in the Central Government until 25.1.1962 and hence could not have been acquired by the notification dated 13.11.1959 Under Section 4 of the LA Act, the said date being anterior to the date of transfer of title in favour of the Respondents. 11. Two questions as set out below, in our considered view, arise for determination in the present case. (i) Whether the land, after issuance of notification Under Section 12 of the DPCR Act, ceased to be evacuee property so as to be excluded from the purview of the notification issued Under Section 4 of the LA Act? (ii) If the subject land vested in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l such measures as may be necessary to keep any evacuee property in good repair; (e) complete any building which has vested in him and which requires to be completed; [***] (i) take such action as may be necessary for the recovery of any debt due to the evacuee; (j) institute, defend or continue any legal proceeding in any Civil or Revenue Court on behalf of the evacuee or refer any dispute between the evacuee and any other person to arbitration or compromise any claims, debts or liabilities on behalf of the evacuee; (l) in any case where the evacuee property which has vested in the Custodian consists of a share or shares in a company, exercise, notwithstanding anything to the contrary contained in the 3 Indian Companies Act, 1913 (7 of 1913), or in the articles of association of the company, the same rights in the matter of making a requisition for the convening of a meeting or of presenting a petition to the Court under the provisions of the Indian Companies Act, 1913, or the articles of association of the company or in any other matter as the evacuee shareholder himself could have done had he been present, although the name of the Custodian does not appear in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Ors. v. Madan Lal Nangia and Ors. (supra) wherein it has been held that under the Administration of Evacuee Property Act, 1950, the evacuee property vests in the Custodian for purposes of administration of such property in accordance with the provisions of the Act and at that stage the property does not vest in the Central Government. However, after the issuance of the notification Under Section 12 of the DPCR Act the property vests in the Central Government. This is, in fact, abundantly clear from the provisions of Section 12(2) of the DPCR Act which clearly provides that on publication of a notification Under Sub-section (1) of Section 12 the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances. Under Sub-section (4) of Section 12 all such evacuee property acquired forms part of the compensation pool which Under Section 14 vests in the Central Government free from all encumbrances and shall be utilised in accordance with the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government free from all encumbrances. The power of the Custodian under the Administration of Evacuee Property Act, 1950, to allot any property to a person or to cancel an allotment existing in favour of a person rests on the fact that the property vests in him. But the consequence of the publication of the notification by the Central Government Under Section 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act with respect to any property or a class of property would be to divest the Custodian completely of his right in the property flowing from Section 8 of the Administration of Evacuee Property Act, 1950, and vest that property in the Central Government. He would, therefore, not be competent to deal with the property in any manner in the absence of any provision in either of these two enactments permitting him to do so. No provision was, however, pointed out to us in either of these Acts whereunder despite the vesting of the property in the Central Government the Custodian was empowered to deal with it. Sub-section 4 of Section 12 of the 1954 Act provides that all evacuee property acquired under that section shall form part of the compensation pool. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delivery of provisional possession, which in the present case was handed over to the Respondents on approval of the highest bid, it was held that such provisional possession gives the auction purchaser possessory rights as distinguished from proprietary rights in the auctioned property. The above proposition culled out in a judgment of the Punjab High Court in Roshan Lal Goswami v. Gobind Raj AIR 1963 Punj 532 was approved by this Court to further hold that such proprietary rights occasioned by the delivery of provisional possession creates an encumbrance on the property which can be the subject of acquisition under the LA Act. In the present case also the facts being identical, we have to hold that an encumbrance had been created in the subject property, which, as held in Saraswati Devi (supra), could be acquired under the LA Act although the ownership in the land vested in the Central Government. In this regard we must also take note of the manner in which the earlier decision of this Court in Sharda Devi v. State of Bihar 2003 (3) SCC 128 has been understood in Saraswati Devi (supra), namely, it is only such land in respect of which the entirety of the rights vests in the St ..... X X X X Extracts X X X X X X X X Extracts X X X X
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