Civil Writ Petition No. 872 of 2004 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 872 of 2004 Date of decision: 7 .10.2009 Gurbhej Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. A.K.Chopra,Senior Advocate with Mr. Isher Singh, Advocate for the petitioner. Ms. Rita Kohli, Additional Advocate General, Punjab for respondent No.1. Mr. J.S.Toor, Advocate for respondents No.2 and 3. Mr. Alok Jain, Advocate for respondent no.4. ***** S.D.ANAND, J. 1. The core issue for the decisional fate of the case is the validity or otherwise of the impugned acquisition of land which was made by respondent No.2-The Amritsar Improvement Trust, Amritsar. The fact of acquisition started with the issuance of a notification under Section 36 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as “the Act”) in the year 1971 (Annexure P-7) which was followed up by the issuance of further required notification under Section 42 of the Act in August, 1973 (Annexure P-8). The possession of the acquired land was obtained, through the Land Acquisition Collector of the Trust,on 1.6.1984 Civil Writ Petition No. 872 of 2004 -2- **** (Annexure R/2/2) 2. The foundational premise, on the basis whereof the petitioner has applied for the invalidation of the impugned acquisition, may be indicated in the first instance:- 3. The land comprised in Khasra Nos. 341,342 and 343 of village Kot Khalsa, Tehsil and District Amritsar (hereinafter referred to as “the acquired land”) was owned and possessed by one Wassan Singh who acquired title thereto, by purchase, in the year 1955. He raised construction on a part thereof sometime prior to 1.1.1971. The petitioner (alongwith non-petitioners Gurbinder Kaur wife of Gurwinder Singh and Bhupinder Kaur wife of Shri Harnek Singh) purchased the acquired land, vide registered sale deed dated 20.3.1995 (Annexure P-1), from the legal heirs of Wassan Singh. A mutation (Annexure P-2), on the basis of the above transaction, was sanctioned in favour of the petitioner and the co- vendees/non-petitioners (Annexure P-2). Before making the purchase aforementioned, the petitioner and the non-petitioner/co-vendees “had enquired about the genuineness of the land in question” and had also obtained a copy of Jamabandi for the year 1991-92 which recorded Wassan Singh and his legal heirs as owners in possession of that land.” The acquired land, which is situated just opposite to the Guru Nanak Dev University premises, continues to be in possession of the petitioner and the non-petitioners/co-vendees. They have raised A class construction on a part thereof; while the other part of the acquired land is unoccupied and is being used by the petitioner for the purpose of his business. The constructed portion thereof is under the tenancy of certain tenants who are using it for Civil Writ Petition No. 872 of 2004 -3- **** residential purpose. 4. It is only the publication of an auction notice in the issue dated 28.12.2003 of The Tribune which announced to the petitioner that the land purchased by him and the non-petitioners/co-vendees was to be put to auction “for the allotment of a petrol pump site”. On ascertainment of facts from the office of respondent no2, it came to the notice of the petitioner that the land aforementioned had been acquired by the The Amritsar Improvement Trust, Amritsar following issuance of notifications under Sections 36 and 42 of the Act (Annexures P-7 and P-8 respectively). 5. The plea, for quashing of the impugned acquisition, is on the essential premise that the possession of the acquired land had never been obtained from the petitioner and the non-petitioners/co-vendees and that the Amritsar Improvement Trust cannot, accordingly, be held to have acquired any proprietary and possessory title of that land which had already been purchased by the petitioner and the non-petitioners/co-vendees from the legal heirs of Wassan Singh. It is also the averment, in the context, that the land aforementioned had been the subject matter of a litigation between the legal heirs of Wassan Singh and the Amritsar Improvement Trust and the Civil Court, vide judgment and decree dated 30.3.1981, had recorded a finding that the possession of the land aforementioned had not been taken by the Improvement Trust. It was also held that “till the possession of the land has not been taken over by the Trust, the Trust cannot be said to be the owner of the land and the said Wassan Singh was held to be owner in possession of the land at the time of decision i.e. 30.3.1981.” 6. The plea was resisted by respondent no.2-the Amritsar Civil Writ Petition No. 872 of 2004 -4- **** Improvement Trust by averring that the land had been validly acquired, that the averred purchase of acquired land by the petitioner and the non- petitioners/co-vendees having been made during the post acquisition period cannot be invalidated the latter (acquisition) and that the petition is bad on account of non-impleadment of M/s Esquire Auto Filler in whose favour it had been auctioned for setting up a petrol pump and the concern aforementioned had already deposited a substantial part of the auction amount towards the purchase price. Qua the Civil Court adjudication, the averment made was that the finding of the Civil Court “have no bearing as has been sought by the petitioner”. 7. In the course of the replication, the petitioner reiterated the averments made in the petition and denied those made in the written statement. 8. The factual blinkers leave no manner of doubt that, on his own showing, the petitioner and the non-petitioner/co-vendees had purchased the acquired land vide registered sale deed dated 20.3.1995. As against it, the land had already been acquired much prior thereto. The notification under Section 36 of the Act had been issued by the Improvement Trust in the year 1971; while the notification under Section 42 of the Act had been issued in August, 1973. It is further apparent from Annexure R/2/1 that the Chairman, Improvement Trust, Amritsar addressed a communication to the Land Acquisition Collector, Improvement Trust, Amritsar intimating the forwarding of cheque No. C/27 441507 dated 30.3.1979 for Rs.16,16,762.85 drawn on the Punjab and Sind Bank Ltd., Hall Bazar, Amritsar “on account of advance of compensation of land in accordance Civil Writ Petition No. 872 of 2004 -5- **** with award No. 5 of 1979 in respect of opposite Guru Nanak Dev University Scheme.” The Chairman of respondent no.2 also called upon the addressee vide that very communication “to fix the date for delivering the physical possession of the land comprised in the said scheme area so that development work of the scheme can be taken into hand”. 9. It is further apparent from Annexure R/2/2 that the vacant possession of the acquired land was delivered by the Land Acquisition Collector to the officers of the respondent no.2 on 1.6.1984. The relevant documentation was made by the Land Acquisition Collector in the presence of Sarv/Shri Sukhdeep Singh, Bhagwan Singh, Swaran Singh (all Patwaris) and also N.K.Sharma, Assistant Engineer, Balbir Singh, SO and Satish Kumar, Assistant. 10. The learned Senior Counsel for the petitioner argued with passion that documentation aforementioned was all a make-believe affair and no possession of the acquired land had, at all, been taken by respondent no.2-the Amritsar Improvement Trust. In order to buttress that point of view, the learned counsel for the petitioner invited our attention to Annexure R/2/2 wherein there is an observation that the Collector had “on request made by the owners of these industries, Collector has granted 15 days time.” The above fact, the arguments proceeds, goes a long way to falsify the averment made on behalf of the petitioner that the possession of the land had been taken. The argument raised thereby is that there was deferment of delivery of possession by a fortnight. “The plea deserves dismissive frown. The suggested inference is not borne out from a perusal of Annexure R/2/2. The clue to the controversy is to be found in Annexure Civil Writ Petition No. 872 of 2004 -6- **** R/2/2 itself. It notices that “no interference was made at the time of proceedings.” The only inference which can be safely drawn from the above fact is that the owners of these industries had sought a fortnight time to be able to remove the structure etc. from that site. As already noticed it is recorded in Annexure R/2/2 itself that “no interference was made at the time of proceedings”. There is, thus, no warrant for the expounded proposition that there had been any deferment of delivery of possession. 11. The learned Senior Counsel for the petitioner, then, aruged that the respondent no.2 not having been proved to have obtained possession and there also being no evidence that the compensation had been paid to the claimant, it has to be compulsively held that the acquisition lapsed. Implicit reliance, in support of the advocated point of view was placed upon the judgment rendered by this Court in Amolak Singh and others Vs. The Pathankot Improvement Trust, Pathankot through its Chairman and others 2003(1) the Punjab Law Reporter, 658. 12. The plea was contested by the learned counsel for the respondents who further argued the inapplicability of judgment in Amolak Singh's case (supra) to the facts and circumstances of this case. 13. We have not been able to persuade ourselves to find merit in the contention raised on behalf of the petitioner. We have already held in the foregoing paras of this judgment that there is enough documentation to prove that respondent no.2-The Amritsar Improvement Trust had obtained the possession of the acquired land. It is further apparent from Annexure R/2/1 that the cheque representing the compensation amount had been forwarded to the Land Acquisition Collector concerned who was also Civil Writ Petition No. 872 of 2004 -7- **** requested “to fix the date for delivering the physical possession of the land comprised in the said scheme area so that development work of the scheme can be taken into hand”. It is further apparent from Annexure R/2/2 (rapat Roznamcha) that the vacant possession of the acquired land had been obtained. We must notice, at the stage, that it is not a case where the possession is indicated to have been obtained by the respondent No.2-the Amritsar Improvement Trust in a huff. It is vide letter dated 7.4.1979 (Annexure R/2/1) that the respondent no.2 had requested the Land Acquisition Collector to fix the date for delivery of possession. The actual possession came to be obtained on 1.6.1984 (Annexure P-2). Long lapse of time is, by itself, sufficient to deflate the plea raised on behalf of the petitioner that the documentation regarding delivery of possession was all a make-believe affair. 14. The reliance placed by the learned counsel for the petitioner upon Amolak Singh's case (supra) is thoroughly misconceived on account of the variation of the facts in that case and the case before this Court. In that case, the notification under Section 36 of the Punjab Town Improvement Act, 1922 had been issued on 11.6.1971. The award in that case was dated 2.6.1976. In that case too, the petitioners therein had raised a plea that no compensation had been received by them, that they continued to be in possession of the acquired land, that a number of residential and other buildings had already come up on the acquired land and that the scheme sanctioned by the Improvement Trust (at its special meeting on 3.4.1971) could not be implemented. It was on the above averments that the petitioners therein had filed a writ petition for quashment of the award dated Civil Writ Petition No. 872 of 2004 -8- **** 2.6.1976 and the proceedings taken in pursuance thereof. This Court noticed, in that case, that the validity of the impugned award had been upheld by the Apex Court. All that this Court held in that case was that the Improvement Trust shall reconsider “the entire matter in regard to implementation of its amended scheme”. In that context, this Court had noticed that a colony had indeed come up on the acquired land “with the effective connivance of the official of the concerned department and the trust itself” inspite of the fact that the stay orders “were only restricted to the dispossession”. This Court in that case noticed its exasperation that the unauthorised construction was allowed to come up during that period. This Court also found, as a fact, in that case that the Government had not taken the possession of the acquired land. In the case before us, the finding recorded by us is to the contrary. We have held, on the basis of Annexure R/2/2, that the possession of the acquired land had been obtained by respondent no.2-the Improvement Trust. The Ruling in Amolak Singh's case (supra) does not, thus, advance the petitioner's case in any manner. 15. Faced with the predicament aforementioned of not having been able to succeed on the issues noticed above, the learned Senior Counsel vehemently argued that the judgment rendered by the Civil Court having attained finality, the impugned acquisition has to be compulsively invalidated. 16. Insofar as the pleadings are concerned, the averment with regard to the factum and effect of the impugned civil court decree was made in the course of para 11 of the petition. In the corresponding para of the written statement, the respondent-Amritsar Improvement Trust averred Civil Writ Petition No. 872 of 2004 -9- **** that the finding of the civil court “have no hearing as has been sought by the petitioner”. We may notice that though the legal heirs of Wassan Singh had indeed impleaded respondent no.2 (and its office bearers at various hierarchical level) as defendants therein, it is apparent from Annexure P/1, copy of the judgment dated 30.3.1981, that the suit had been instituted on 24.3.1979. It came to be disposed of, vide judgment and decree dated 30.3.1981. As against it, the material obtaining on the file conclusively proves that the notification under Section 36 of the Act had been issued on 21.4.1971 and the further notification under Section 42 of the Act had been issued in August, 1973. On that account, the acquired land came to vest in the Improvement Trust. It is further apparent from a perusal of Annexure P- 10, an issue with regard to validity or otherwise of the impugned award had been framed. The following three issues, relevant in the context, had been framed by the Civil Court:- “5. Whether the award given by the Collector of the Improvement Trust is invalid?OPP 6. Whether the scheme cannot be challenged in the civil court? OPP 7. Whether the award given by the Collector has become absolute and final and cannot be challenged in the Civil Court?OPP 17. Issue no.5 was decided against the plaintiffs therein by observing that the validity of the award of the indicated category could be challenged only under the Land Acquisition Act and not in a civil suit. On that finding, the Civil Court refrained from adjudicating upon the validity of Civil Writ Petition No. 872 of 2004 -10- **** the award. Issue no.6 was not pressed. The finding under issue no.7 was that the Civil Court has no jurisdiction to decide the legality of the award. The Civil Court judgment aforementioned does not, thus, enable the petitioner to argue that the impugned award stood invalidated under issues no.2 and 3(which are quoted hereunder for facility of reference) as well. “1) Whether plaintiffs are owners in possession of the building built on Khasra No. 341-343?OPP 2) Whether the scheme in question is void and ineffective qua the property of the plaintiff for the reasons mentioned in the plaint?OPP” 18. The findings recorded by the Civil Court were against the plaintiffs therein who are none else or other than the predecessor-in-interest of the petitioner before this Court. The only finding adverse to the respondents was under issue no.1 wherein the Civil Court held that “no doubt the award for the acquisition of the property has been given by the Land Acquisition Collector under the Land Acquisition Act, 1894 but the trust cannot claim the complete ownership unless the possession is taken.” The finding was that the Trust had not been proved to have obtained the possession of the acquired land. In view of the own finding of the Civil Court that the validity of the impugned award could not have been called into question in a civil suit, it was fallacious for the Civil Court to proceed to record a finding that the acquired land could not have vested in the Improvement Trust as the possession thereof had not been proved to have been taken by the Trust. There is no warrant for that proposition at all. Once the relevant notifications are issued, there is a deemed presumption Civil Writ Petition No. 872 of 2004 -11- **** that the acquired land vests in the beneficiary, by completely divesting the original owner of any title therein. Even otherwise, Annexure R/2/2 is adequate enough to support our view that the possession of the acquired land had indeed been obtained by the respondent no.2-the Amritsar Improvement Trust. 19. We would like to notice yet another point having relevant bearing on the adjudication of the controversy. There is a precise averment in the petition that “the scheme has not been executed for a number of years in the said case for five years, the Government/Improvement Trust is not entitled to execute further after a lapse of time.” On that averment, it was pleaded that the impugned action at the hands of the respondents to auction that land is invalid. There also was an averment that the petitioner (and certain tenants) is still in possession of the acquired land. 20. In the corresponding para of the written statement, the correctness of that averment was denied and it was reiterated that possession of acquired land had been obtained as early as on 1.6.1984 vide Annexure R/2/2) and that “the land in question has already been auctioned to M/s Esquire Auto Filer who have paid a huge sum of Rs.59.00 lac to the answering-respondent towards 25% of the total price of the land.” It is interesting to notice that it was none else or other than the petitioner himself who had placed on record photographs Annexure P-15 and also Annexure A-3. Both items consist of four photographs each. A conjunctive perusal thereof, would reveal that a petrol pump is already functional on the acquired land. These photographs are adequate to falsify the above quoted averments made by the petitioner. Civil Writ Petition No. 872 of 2004 -12- **** 21. To sum up, the challenge herein at the hands of the petitioner to the validity of the impugned acquisition was on the allegation that the possession of the acquired land had not been obtained and that all the proceedings in the context were a make-believe affair and further that the Civil Court finding (in the civil suit between the predecessors-in-interest of the petitioner as plaintiffs and respondent Improvement Trust as defendant therein) having attained finality, the impugned acquisition would stand compulsively invalidated. 22. After having scanned the substance of submissions and the reasoning put forth in support thereof, we hold that the challenge raised is mythical and denuded of force for the reasons noticed in the foregoing paras of this judgment 23. These observations must converge to only one conclusion i.e. that the petition is devoid of merit and it deserves dismissal. The petition shall stand dismissed accordingly. (S.D.ANAND) JUDGE October 07, 2009 (J.S.KHEHAR) Pka JUDGE