Devinder Gupta ( 1 ) LEGALITY and validity of notification dated 19. 9/1989 issued by respondent No. 5 the Delhi Wakf Board (hereinafter referred to as the board ) under the provisions of Section 27 of the Wakf Act, 1964 is under challenge in this petition filed under Article 226 of the Constitution of India. . . ( 2 ) ON 13. 9. 1948 a notification (annexure P-l) was issued by the Chief Commissioner, Delhi under the provisions of Re-settlement of Displaced Persons (Land Acquisition) Act, 1948 (hereinafter referred to as the act ) notifying the acquisition of 505. 3 acres of land for the resettlement of displaced persons. Objections were invited against this acquisition. Land measuring 1 bigha 9 biswas comprised in Khasra No. 168 situated in village Begampur, Delhi, part of which is a subject matter of dispute inhis petition, was also included in the notification of acquisition. In addition to the details and other particulars of the land acquired, the notification mentioned the boundaries of land also. ( 3 ) PETITIONER society, which is a cooperative society registered under the Bombay Cooperative Societies Act, as extended to Delhi comprises of displaced persons from Pakistan, who were the employees of the then Ministry of Rehabilitation of the Government of India. Since the land had been acquired for re-settlement of the displaced persons, it appears that the petitioner had been in correspondence with the Ministry of Labour through Department of Rehabilitation for allotment of land to be utilised by the members of the petitioner-society for construction of residential houses. In response to the petitioner s representations, on 6. 6. 1972, the Settlement Commissioner in the Department of Rehabilitation informed the President of the Society of the decision of the Government of provisionally allotting 60 acres of land. Petitioner was informed that the allotment of land would be subject to terms mentioned in Chief Settlement Commissioner s letter dated 26. 5. 1970. In addition to the amount already deposited, petitioner was also called upon to deposit a further sum of Rs. 8 lacs. Disputed land was also included within 60 acres provisionally allotted to the petitioner. Petitioner complied with the requirement of deposit of the amount. Annexure P- 5 is the proceedings by virtue of which provisional possession was handed over to the petitioner of the allotted area. 8 lacs. Disputed land was also included within 60 acres provisionally allotted to the petitioner. Petitioner complied with the requirement of deposit of the amount. Annexure P- 5 is the proceedings by virtue of which provisional possession was handed over to the petitioner of the allotted area. Handing over of provisional possession, including carrying out of demarcation was confirmed through letter dated 15. 6. 1972, annexure P-4. ( 4 ) IT appears that before final allotment could be made, a notification dated 22. 2. 1979 was issued by the Government under Section 22 of the Delhi Development Act, 1957 placing considerable land, including the land allotted to the petitioner, at the disposal of the D. D. A. for the purpose of development, in accordance with the provisions of the said Act. Considering this to be an act of cancellation of allotment in their favour, the petitioners filed CW 654/79, which was allowed by this court on 1. 9. 1980. D. D. A. filed Special Leave to Appeal (Civil) No. 3762/81 in the Supreme Court of India. During the pendency of the S. L. P. , a compromise was arrived at on 5. 9. 1982, which was filed in the Supreme Court on 6. 5. 1982. The SLP was dismissed as withdrawn, in terms of the agreement. By virtue of the agreement, which is incorporated in the order of the Supreme Court dated 6. 5. 1982, petitioner was allotted 45 acres of land instead of 60 acres of land, as originally allotted, subject to various terms and conditions incorporated in the agreement. The disputed land is a part of this allotment. ( 5 ) AS a consequence of the aforementioned development, a formal perpetual lease was executed on 28/08/1989 (annexure P-9) in favour of the petitioner-society with respect of 45 acres of land equivalent to 216 bighas, which also includes the disputed parcel of land. Society in its turn granted perpetual sub lease in favour of its members one of the perpetual sub lease is annexure P-10. Petitioner was duly put in possession of 45 acres of land, after proper demarcation on 20/09/1982 It is the petitioner s case that development activity commenced soon thereafter and quite a number of houses of various members of the petitioner society were in the process of construction and some of which have already been completed. Petitioner was duly put in possession of 45 acres of land, after proper demarcation on 20/09/1982 It is the petitioner s case that development activity commenced soon thereafter and quite a number of houses of various members of the petitioner society were in the process of construction and some of which have already been completed. On 11/07/1992 some persons, including officials of Mehrauli Tehsil, namely, Patwari and Naib Tehsildar accompanied by some property agents, started measuring some plots within the boundary of land allotted to the petitioner society. After measurements the revenue officials threatened to hand over possession of several plots to the said property dealer, who claimed to have paid a considerable amount to the Wakf authorities. It is claimed that petitioner thereafter visited Tehsil Office Mehrauli and Police Station Malviya Nagar and then came to know that respondent No. 5 had issued a notification on 19/09/1989 declaring a part of khasra No. l68 measuring 1 bigha 4 biswas situated in village Begarnpur to be a wakf property, in terms of Section 27 of the Wakf Act. Petitioner also learnt that by virtue of this notification Naib Tehsildar issued a notice, somewhere in June, 1992 for effecting mutation in the records. On 11/07/1992 when Patwari and Naib Tehsildar, Mehrauli had come to the spot they were trying to locate khasra No. l68, but were not in a position to locate the same. It is the petitioner s case that their rights are seriously jeopardised due to issuance of notification, Annexure P-16, by respondent No. 5 Under the provisions of Wakf Act respondent No. 5 had no right to include khasra No. 168 or any part thereof, situated in village Begampur in the notification and declaring the same to be a wakf property. Since this part of the property already stood vested. in the Government free from all encumbrances and at no point of time it was ever used as wakf property or for the purpose of grave yard. In the light of these averments, the petitioner has prayed for quashing the notification. ( 6 ) RESPONDENTS 1 and 2 in their return have not disputed the petitioner s claim. Return has been filed on the affidavit of Mohd. Aslam, Deputy Secretary, Ministry of Home Affairs (Rehabilitation Division) wherein it is stated that the action of respondent No. 1 in issuing the notification, Annexurep-16, is bad in law. ( 6 ) RESPONDENTS 1 and 2 in their return have not disputed the petitioner s claim. Return has been filed on the affidavit of Mohd. Aslam, Deputy Secretary, Ministry of Home Affairs (Rehabilitation Division) wherein it is stated that the action of respondent No. 1 in issuing the notification, Annexurep-16, is bad in law. The land comprised in khasra No. 168 was in fact acquired by Ministry of Rehabilitation through Delhi Administration vide notification dated 13/09/1948 under Section 3 of the Act for the purposes of re-settlement of displaced persons. This acquisition was made after giving due public notice inviting objections etc. After due process the mutation was also effected in the revenue records. It is also the case of respondents 1 and 2 that the land comprised in khasra No. 168 had never been used as a grave yard and had rightly been included in the area allotted to the petitioner society. ( 7 ) RESPONDENT No. 5, Delhi Wakf Board, filed its separate return on the affidavit of Jamil Murtza, Secretary of the Board. It is pleaded that challenge by the petitioner to notification Annexure P-16 after a lapse of almost three years is highly belated. The notification dated 13/09/1948 issued by the Chief Commissioner, proposing to acquire land under the provisions of the Act does not include the land in question, which has now been notified by respondent No. 5 as grave yard being wakf property. It is also pleaded that since land measuring 1 bigha 4 biswas being part of khasra No. 168 was a grave yard for 200 years or more, the same could not be acquired under the Act for rehabilitation of the displaced persons and by issuing notification dated 13/09/1948 there was only a proposal to acquire the land but the land was never acquired, which continued to remain as grave yard and has rightly been included in the notification Annexure P-16. ( 8 ) OTHER respondents have not filed their return. Respondents 3 and 4 are D. D. A. and Delhi Administration and respondents 6 and 7 are S. H. O. Police Station Malviya Nagar and Tehsildar Mehrauli, respectively. ( 9 ) AT the time of hearing, none appeared for respondents 3 to 7. I have heard learned counsel for the petitioner and respondents 1 and 2 and have been taken through the entire record. ( 9 ) AT the time of hearing, none appeared for respondents 3 to 7. I have heard learned counsel for the petitioner and respondents 1 and 2 and have been taken through the entire record. ( 10 ) THE Act was a special measure providing for speedy acquisition of land for settlement of displaced persons. The case of respondent No. 5 in its return is that by issuing notification dated 13/09/1948 only proposal was made to acquire the land but the land was never acquired. This stand taken by respondent No. 5 that the land was never acquired is not at all tenable in view of the clear provisions of Sections 3 to 5 of the Act. Section 3 says that whenever it appears to the provincial Government that it is necessary or expedient to acquire speedily any land for the re settlement of displaced persons a notification to that effect shall be published in the official gazette stating the area and boundary of the land proposed to be acquired and the date on which such acquisition will be made. Section 4 provides for the service of notice on the owner or occupier affected by the notice of acquisition and the manner in which service is to be effected. Section 5 deals with the vesting and taking possession of the land and says: VESTING and taking possession of land- (1) When a notice of acquisition is served or is published under section 4, the land shall vest absolutely in the Provincial Government free from all encumbrances on the date the notice is so served or published in the official Gazette. (2) The competent authority may, at any time after the land has become so vested, proceed to take possession thereof; Provided that such authority shall not take possession of any building or part of a building under this sub- section with out giving to the occupier thereof at least forty-eight hours notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. " ( 11 ) A bare reading of three provisions would show that after the notification under Section 3 is published in the official gazette, stating the date on which acquisition will be made, on service of the notice in the manner provided in Section 4, the land vests absolutely in the Government free from all encumbrances, on the date of the notice so served or published in the official gazette. On vesting of the property in the Government, the Competent Authority becomes entitled to obtain possession of the land. In notification Ext. P-l it was, in clear terms stated that acquisition would take on the 15th day after the date of publication of notification. In their counter, respondents 1 and 2 have stated that notification was duly published and served whereafter the land stood vested in the Government. No material has been placed on record by respondent No. 5 to rebut the stand taken by respondents 1 and 2 that notification was not duly published and notice was not duly served on the persons affected by acquisition. In the absence of any material a presumption has to be drawn that all officials acts were duly performed in the manner in which the same were required to be performed by virtue of provisions of the Act and the land rightly vested in the Government free from all encumbrances. There is also no dispute that ultimately 45 acres of land, including the land which is subject matter of this writ petition, was allotted in petitioner s favour of which possession was also delivered to the petitioner for which perpetual lease deed Annexure P-9 was also executed. ( 12 ) PETITIONER has placed on record lay out plans as also the correspondence which took place between the petitioner and D. D. A. Annexure P-13 is a letter dated 12/03/1985 from Delhi Development Authority addressed to the petitioner conveying the approval of the lay out plan and Annexure P-l 4 is a letter dated 31/01/1989 conveying the approval of set back-cum-demarcation plan. These communications are prior to the date of issuance of the impugned notification by respondent No. 5. ( 13 ) IT is not shown on record by respondent No. 5 that at any point of time area in question was utilised as a grave yard. These communications are prior to the date of issuance of the impugned notification by respondent No. 5. ( 13 ) IT is not shown on record by respondent No. 5 that at any point of time area in question was utilised as a grave yard. Under the provisions of the Wakf Act the wakf board is required to examine a report forwarded to it under sub-section (1) of Section 5 of the said Act and to publish in the official gazette a list of the wakfs, whether in existence at the commencement of the Act or coming into existence thereafter. Wakf Act was extended to the Union Territory of Delhi on 01/10/1962 by virtue of a gazette notification published in Gazette of India 1962, Part II - Section 3 (i) at page 1464. Before this date by virtue of notification Annexure P-1 the land already stood vested in the Government free from all encumbrances and there is nothing shown on record that this grave yard of wakf was in existence on the date of commencement of the Wakf Act. Power is vested in the Wakf Board to publish in the official gazette a list of those wakf which existed at the time of commencement and not those which had already become instinct. Right, title and interest of the petitioner to whom lawful allotment had been made, after the land stood vested in the Government free from all encumbrances, could not have been put in jeopardy by including a part of the allotted property in the list published under the provisions of the Wakf Act. In fact wakf was not in existence either at the commencement of the Wakf Actor subsequent thereto. Respondent No. 5 had neither any authority nor jurisdiction to include the same in notification, annexure P-16, and this notification qua the disputed property is non-est, which has to be declared as such. ( 14 ) RESULTANTLY, the writ petition is allowed. Notification, Annexure P-16, in so far as it includes land bearing khasra No. 168, measuring 1 bigha 4 biswas situated in village Begampur, Tehsil Mehrauli, New Delhi is quashed and set aside and respondents are prohibited from dealing the property in any manner whatsoever. No costs.