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1978 DIGILAW 570 (ALL)

Agra Nagar Mahapalika v. Leela Ram

1978-05-17

DEOKI NANDAN

body1978
JUDGMENT Deoki Nandan, J. This is a second appeal by the Agra Nagar Mahapalika for injunction restraining it from demolishing the plaintiff's shop and from interfering with their possession thereon in pursuance of the order of acquisition, or in pursuance of any order pursuant to or consequent thereon. The plaintiffs were six in number, and the appellant Nagar Mahapalika of the City of Agra was the sole defendant. The plaintiffs came to court with the allegations that a plot of land bearing Municipal no. 2705/2755, Hira Hussaini Chauraha, Agra, had been declared evacuee property under the provisions of the Administration of Evacuee Property Act; that later on, in or about June 1955, it became part of the Compensation Pool under Section 12 of the Displaced Persons Compensation and Rehabilitation Act, 1954, and vested in the Central Government; that the plaintiffs are in occupation of portions of the said plot having entered the same as tenants on behalf of the Custodian, but now hold the same from the Central Government at varying rates of rent, which they had been regularly paying to the Managing Officer, Agra; that the plaintiffs were displaced persons from West Pakistan and were allotted their respective portions of the land by the Custodian, Agra; and with the permission of Asstt. Custodian they had raised permanent pucca constructions and have been carrying on business since about the year 1950 that being displaced persons, the plaintiffs were entitled to hold the land as allottees of different portions thereof, and are entitled to get the same transferred in their favour under the Displaced Persons Compensation and Rehabilitation Act, their applications therefore being pending with the Central Government. It was then alleged that without any prior notice or information whatsoever, either to the plaintiffs or to the Managing Officer of Acquired Evacuee Properties at Agra, the defendant's men came to demolish the shops possessed by the plaintiffs, in or about the middle of the year 1963, saying that the property had been acquired under the Land Acquisition Act; whereupon, the plaintiffs approached the Managing Officer, Agra, who moved the Land Acquisition Officer for not taking any action against them as the property vested in the Central Government and could not be acquired under the provisions of the Land Acquisition Act; that the said objection of the Managing Officer was pending disposal with the Land Acquisition Officer, yet the defendant was trying to dispossess the plaintiffs in hot haste, hence the suit. The plaintiff's claimed that the property vested in the Central Government, and the proceedings for acquisition of the same under the Land Acquisition Act, were illegal and ultra vires. The requirement of notice under the Nagar Mahapalika Adhiniyam was sought to dispense with, on the ground that any delay would defeat the suit and the plaintiffs would be ruined in the meanwhile by demolition of their pucca constructions on which they had spent thousands of rupees. The defendant Nagar Mahapalika denied the allegations that the land in suit was declared evacuee property or that it vested in the Custodian or the Central Government. The possession of the plaintiffs over the land and the constructions in suit was admitted, but the rest of the allegations were denied. In the additional pleas, the defendant Nagar Mahapalika pleaded that the plaintiffs had no cause of action; that the land in suit was Government Nazul land which vested in State of Uttar Pradesh, and was originally under the management of Agra Improvement Trust and since February, 1960 it was under the management of the defendantNagar Mahapalika; that a portion of the said plot of land was leased out to one Haji Gul Mohammad and others for 30 years renewable upto 90 years under registered deeds of leases dated August 27, 1937 and October 27, 1946, for the purpose of residence; and that only the tenancy rights under the said leases could, if at all be declared evacuee property, or vest in the Custodian or the Central Government and the State Government continued to be the owner of the land. It was then pleaded that the Agra Improvement Trust framed a general improvement and rehousing scheme at Nala Mantola; that the land in suit was included in that Scheme; that notice of the said scheme, under Section 36 of the U. P. Town Improvement Act, was published in the U. P. Gazette dated 11th, 18th and 25th April, 1959, that notices under Section 38 of that Act were issued and served on the Assistant Custodian, Agra and also on the plaintiffs nos. 1, 2, 4 and 6 as tenants and occupiers; that the objections of the Assistant Custodian were rejected by the Administrator, Agra Improvement Trust on 17.8.1959; that the said scheme was duly sanctioned by the Governor of Uttar Pradesh on or about November 13, 1959 and notifications under Sections 42 (1) and 49 of that Act dated December 3, 1959, were duly published in the U. P. Gazette that the rights of the plaintiffs, if any, have been acquired by "the State Government" in accordance with law and the prescribed procedure; that the plaintiffs were not entitled to any injunction either in law or in equity; that the suit was bad for want of a statutory notice under Section 571 of the U. P. Nagar Mahapalika Adhiniyam and was barred by section 52 of the Land Acquisition Act; that it was bad for misjoinder of causes of action and of parties that it was undervalued; that the State Government was a necessary party and the suit was not maintainable for not impleading it as a party. It may be here pointed out that the words "the State Government" were substituted in place of the words "the defendant" in paragraph 23 of the written statement by amendment; and the last plea that the State Government was a necessary party and the suit was not maintainable for want of necessary party, was also added by the same amendment of the written statement which was allowed by the court's order dated January 13, 1965 on the defendant's application 63A. In the said application 63A, it is said that the land for Development Scheme is acquired by the State Government under the provisions of the Land Acquisition Act, as modified by the provisions of U. P. Town Improvement Act or the U. P. Nagar Mahapalika Adhiniyam; that the possession is taken by the Government which transfers the same to the Local Body or Company for whom the land is needed; that the said legal position had not been brought out correctly in the written statement and it was accordingly necessary to do so for the purposes of the disposal of the suit. The trial Court framed the following nine issues: 1. Whether the land in suit has been taken over an evacuee property and has (sic) acquired by Central Govt. as alleged ? 2. Whether the land in suit has been acquired by the defendant ? If so, its effect ? 3. Whether the acquisition by the defendant is illegal and invalid ? 4. Is the suit bad for misjoinder of parties and causes of action ? 5. Whether the suit is undervalued and the courtfeepaid is insufficient ? 6. Whether the suit is bad under Section 52 of the Land Acquisition Act? 7. Whether the suit is bad under Sec. 571 of U. P. Act II of 1959 ? 8. To what relief, if any, is the plaintiff entitled ? 9. Whether the State Govt. is necessary party to this suit as alleged ? If so, what is the effect of nonrejoinder of State Govt. ? On issue no. 5, the trial court held that the suit was undervalued. The valuation was thereupon corrected by the plaintiffs by amending the plaint. On issue no. 9, which was decided as a preliminary issue on 9th April 1965, the trial court held that the State Government was not a necessary party. Issue nos. 4 and 7 were answered in the negative against the defendant and in favour of the plaintiffs. Issues nos. 1, 2 and 3 were taken up together, and it was held that the land was declared evacuee property and later on acquired by the Central Government under the Displaced Persons Compensation and Rehabilitation Act. On Issues nos. Issue nos. 4 and 7 were answered in the negative against the defendant and in favour of the plaintiffs. Issues nos. 1, 2 and 3 were taken up together, and it was held that the land was declared evacuee property and later on acquired by the Central Government under the Displaced Persons Compensation and Rehabilitation Act. On Issues nos. 2 and 3, the land acquisition proceedings were held to be illegal in view of the finding that the land had vested in the Central Government and that the defendant could not have acquired the land. In the result the suit was decreed by the issue of injunction prayed for. The lower appellate court raised the same points and affirmed the findings and decree of the trial court. Having heard learned counsel for the parties, I am of the view that the appeal must be dismissed on the ground that the acquisition of the land in dispute was not yet complete and the defendant Nagar Mahapalika had, on the date of the cause of action pleaded by the plaintiffs, viz., November 13, 1963, or on the date of the suit, or on the date of the filing of the written statement, viz., March 4, 1964 no authority in law to enter upon the land, but the findings of the two courts below on the issues relating to the validity of the acquisition proceedings must be set aside, inasmuch as the State Government and the Collector were not made parties to the suit and no notice under section 52 of the Land Acquisition Act or section 80 of the Code of Civil Procedure was served on either of them and consequently the validity of the acquisition proceedings could not have been challenged in the suit giving rise to this appeal. The pleas taken in the plaint and the written statement have already been adverted to above. The plaintiffs had asserted that they were in possession of the land. In paragraph 12 of the written statement, the defendant Nagar Mahapalika had in so many words admitted that the plaintiffs nos. 1, 2, 4 and 6 are in possession of portions of the said plots, that is, to say, in possession of their respective portions of the land in dispute. In paragraph 12 of the written statement, the defendant Nagar Mahapalika had in so many words admitted that the plaintiffs nos. 1, 2, 4 and 6 are in possession of portions of the said plots, that is, to say, in possession of their respective portions of the land in dispute. Now, under the Land Acquisition Act, as amended by the U. P. Town Improvement Act, possession could be taken even before an award is made by the Collector. Although there is nothing on the record to indicate that a direction under section 17 (1) and (1A) of the Land Acquisition Act, 1894 was ever issued by the State of Uttar Pradesh to the Collector to enter into possession of the land even before the making of the award. Mr. Lakshman Swarup has placed before me a printed copy of notification No. 5209P/XXXVII171 (H)59 dated January 12, 1960 (which has been admittted by me as evidence on the record) which purports to be such a direction. Despite the direction, assuming that it was in fact issued, after the sanction of the scheme by the State Government by notification dated December 3, 1959 under section 42 (1) read with section 49 of the U. P. Town Improvement Act, which was equivalent to a declaration under section 6 of the Land Acquisition Act, the defendantNagar Mahapalika has clearly admitted in paragraph 12 of its written statement that the plaintiffs continued to be in possession of the land in suit. Now, unless possession of the land proposed to be acquired is in fact taken by the Collector, the land could not vest in the State Government and thereafter in the defendantNagar Mahapalika in accordance with the provisions of section 16 of the Land Acquisition Act and section 17A inserted there into, by the Schedule to the Town Improvement Act. The defendantNagar Mahapalika had no authority in law to disturb the possession over the land in suit or any part thereof unless the land vested in it in accordance with law. The action of the defendantNagar Mahapalika complained of by the plaintiffs in the suit, in trying to demolish their constructions on the land in suit and to dispossess them therefrom, were acts of trespass and unwarranted by law. The action of the defendantNagar Mahapalika complained of by the plaintiffs in the suit, in trying to demolish their constructions on the land in suit and to dispossess them therefrom, were acts of trespass and unwarranted by law. Under the circumstances the plaintiffs claim for the relief of injunction restraining the defendantNagar Mahapalika from demolishing their shops or from interfering with their possession, could not have been refused and the decree of the courts below must, therefore, be confirmed. As noticed above, the finding of the two courts below that the land acquisition proceedings were illegal or invalid cannot, however be sustained in view of the fact that the State Government and the Collector were not made parties to the suit and the necessary notices under section 52 of the Land Acquisition Act and under section 80 of the Code of Civil Procedure were not served. It is not necessary, and not expedient in the circumstances of the case to permit the plaintiffs to do so now. It would, however, be open to them to take such steps as they may be advised for impugning the validity of the land acquisition proceedings in accordance with law. In the result the appeal fails and is dismissed but in the circumstances there will be no order as to costs.