Case: General Government Servants Co-Operative Housing Society Limited Vs. Wahab Uddin and Others Etc

2. The land involved, belonged to one Imam Khan as an occupancy tenant. Before the partition of India, he migrated to Pakistan, whereafter his rights in the lands were declared evacuee property. Subsequently, in pursuance of a notification issued under Section 12 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954, the Central Government acquired the lessee rights. As a result of the notification, these rights vested in the Central Government free from all encumbrances. The Central Government the reafter sold these rights by auctions in August/September 1962. The first Respondent purchased a plot of land for a sum of Rs. 21, 700. He deposited the entire amount with the Managing Officer, Evacuee Property, Agra. A sale certificate was issue d to him on September 12, 19623. It appears that one Ramlal Lamba was in the possessi on of the land in question. He was asked by the Managing Officer, Evacuee Property, to vacate the land, and deliver possession to the first respondent. Ins tead of delivering possession of the land to the first respondent Lamba, filed a Writ Petition under Article 226 of the Constitution in the Punjab High Court at Delhi. The Writ Petition was dismissed on 4.12.69. He then filed an appeal which was also dismissed on 2.2.70. He then filed a suit in the Court of the Munsiff Agra, for restraining the Managing Officer, Evacuee Property, from interfering in his possession. Thus the first respondent could not get possession of the land4. After the auction sale, the State of U. P. (Respondent No. 2 herein) filed a suit under Section 171 of U. P. Tenancy Act, 1939 (hereinafter the Tenancy Act) against the Custodian of the Evacuee Property, and the four auction purchasers including the first respondent, for possession. This suit was dismissed by the Assistant Collector, Ist Class, on 24.3.69 on the ground that it was not maintainable. An appeal was filed. This was also dismissed on 24.10.70. Thus before the petitioner could obtain possession of the land, the Collector of Agra (Respondent No.3 herein) issued a notification under Section 4 of the Land Acquisition Act (hereinafter the Act) on March 1, 1970, notifying that the plots in dispute (and several other plots) were intended to be acquired by the State Government for construction of residential houses for the members of the General Servants Co-operative Housing Society Ltd., Agra, the appellant before us. The first respondent did not have any knowledge or information of the said notification under Section 4 of the Act and so he did not, as he could not, file any objection under section 5A of the Act. The notification under section 4 was followed by a notification under section 6 of the Act on May 4, 1973. After the said notifications, proceedings relating to determination of compensation for the lands were started. In that connection the first Respondent was served with a notice under section 9(3) of the Act, calling upon him to prefer his claim for compensation. Thereupon the first Respondent filed objections, but before the objections were disposed of he filed a writ petition before the High Court of Allahabad. Th e High Court allowed the writ petition and struck down the notification dated 5th May 1973, under Section 6 of the Act. The High Court held that as the acquisition was made by the State Government for the benefit of a Co-operative Society, it could do s o only after complying with the provisions of Chapter VII of the Act, and the Land Acquisition (Companies) Rules, 1963 (hereinafter called the rules), but as the State Government did not do so, there was a breach of the principle of natural just ice. Repelling the argument of the appellant to the contrary, the High Court also held that the first respondent was a person interested within the meaning of section 3 (b) of the Act.

Reasoning: This point which has been urged for the first time before us is a mixed question of fact and law. It does not appear to have been taken before the High Court. A mixed question of law and fact needing investigation into facts cannot be allowed to be urged for the first time in an appeal by special leave under Art. 136 of the Constitution.It is true that admittedly the first respondent was out of possession at the relevant time but there is no evidence before us to show whether or not the land in question was contiguous to any other land occupied by the person who is in possessi on and that his possession had been lawful. We are therefore not in a position to accept the submission of the appellant that the first respondents claim was barred by limitation. On the contrary there is ample evidence before us to show that the first respondent had interest in the land in question. We come to this conclusion from the following circumstances:(I) A sale certificate had been issued to the first respondent after the purchase of the land in auction sale held in 1 962;(2) the Collector, Agra, knew that the first respondent had purchased the land in auction, for he had himself filed a suit for ejectment from the land in question under section 171 of the Tenancy Act against the first respondent, and that t he suit was dismissed by the Assistant Collector Ist Class, on 24th March, 1969; the appeal preferred against the said order had also been dismissed by the Commissioner on the 27th of October, 1970;(3) the Collector issued notice under section 9 (3) of the Act calling upon the first respondent to prefer his claim, if any for compensation of the land acquired. (This amounts to an admission of the first respondents interest in the land by the Collector) and(4) that in the counter affidavit filed by the Collector, in reply to the affidavit filed by the first respondent before the High Court the claim of the petitioner to get compensation for the rights acquired by the Government was not denied by the appellant. W e therefore agree with the High Court that the first respondent was a person interested within the meaning of clause (b) of section 3 of the ActIn our opinion, the real question , as urged by the first respondent, is notwhether there has been any violation of any principle of natural justice but whether Rule 4 of the Rules has been complied with by then (1) of Section 4 of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the official gazette and that he shall also cause a public notice of the substance of the notification to be given at convenient places in the said localityThe inquiry report submitted by Collector does not show that he applied his mind to the provisions of rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under rule 4. The report that was submitted was one under section 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice. In our opinion there has been failure of justice.