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2005 DIGILAW 95 (DEL)

SARTI DEVI v. UNION OF INDIA

2005-01-28

A.K.SIKRI, D.K.JAIN

body2005
D. K. JAIN, J. ( 1 ) THIS application is filed by the applicant under Section 5 of the Limitation Act seeking condonation of delay in filing the review petition. For the reasons stated in the application, prayer made in this application is allowed and delay in filing the review petition is condoned. The application stands disposed of. RP. No. 111/2004. ( 2 ) THE petitioners (non-applicants in this review petition) filed CWP. No. 2658/92 seeking appropriate writ, order or direction to the respondents to announce/communicate the Award in respect of land of the petitioners having l/3rd share bearing Khasra Nos. 1176/ 933 (3 bighas 16 biswas), and 951 (7 bighas 1 biswas) total measuring 10 bighas 17 biswas situated within the Revenue Estate of Village baha Pur, New Delhi and to pay the compensation and solatium, interest, additional amount and the damages to the petitioners. The case set up by the petitioners was that the subject land was not included in the Notification under Section 4 but included in the Declaration under Section 6 of the land Acquisition Act. However, it was left out in the Award No. 1387/1962-63 announced by the Land Acquisition Collector on 31 August, 1962 and thus the land of the petitioner was not acquired. Still, the possession of the land was taken and the land was allotted to the E. P. Railway Refugee rehabilitation and Housing Building cooperative Society Ltd. , Greater Kailash enclave-1, New Delhi in May,1964. In this back drop, prayer was made for acquiring the land properly and paying them compensation. The matter was heard and vide order dated 13 November,2002 writ petition was allowed holding that petitioners were deprived of the land otherwise than by due course of law. However, as the property had already been utilized by the said Society, direction was given to the respondents to acquire the land by issuing appropriate notification and pay the petitioners compensation for the same. ( 3 ) IN the Review Petition filed by Government of NCT, Department of Land and Building, it is stated that a vital fact which could have bearing on the outcome of the petition was not brought to the notice of this court and was suppressed by the writ petitioners. ( 3 ) IN the Review Petition filed by Government of NCT, Department of Land and Building, it is stated that a vital fact which could have bearing on the outcome of the petition was not brought to the notice of this court and was suppressed by the writ petitioners. This material fact, according to the Department, is that the entire subject land in which the petitioners have l/3rd share and which was a composite property was notified as evacuee property in the year 1948 itself. The matter in this respect was even adjudicated by the competent Officer, Delhi, who passed the order dated 25 February, 1954 and dismissed the claim of the claimants/predecessor-in-interest. It is submitted that since the land was an evacuee property, it did not belong to the petitioners and, therefore, petitioners could not have filed the writ petition. Further, the review petitioner pleads that there was no question of acquiring the land which vested with the Government and for this reason the land was excluded from the Award. ( 4 ) WE have heard learned counsel for the parties and have also gone through the order dated 25 February, 1954 passed by the competent Officer, Delhi. ( 5 ) A perusal of the aforesaid order would show that the said case was filed by the claimants claiming mortgagee rights in the property in dispute which was effected in the year 1922. As per Section 9 (2) of the Evacuee interest (Separation) Act, such a merger which is more than 20 years old would be deemed to have been extinguished. However, the plea raised by the claimants was that the property was acquired by Delhi Improvement trust in 1949 when the Evacuee Interest (Separation) Act had not come into existence and, therefore, property could not be regarded an evacuee property and consequently composite property within the meaning of the said Act. However, the plea raised by the claimants was that the property was acquired by Delhi Improvement trust in 1949 when the Evacuee Interest (Separation) Act had not come into existence and, therefore, property could not be regarded an evacuee property and consequently composite property within the meaning of the said Act. It was in this context that the Competent Authority was specifically called upon to decide the issue as to what would be the effect of vesting of property under Delhi Improvement Trust in 1949, even when the Evacuee Interest (Separation) Act came to be passed in the year 1951 i. e. subsequently the Competent Authority decided this question in the following manner: "section 9[2] would certainly apply if the property can be regarded as composite property, and if it is not composite property, I have no jurisdiction to entertain the information. The property was notified as evacuee property in 1948. Under Section 8[2] of the Administration of Evacuee property Act, 1950, if any property has been notified as evacuee property under any law which has now been repealed by reason of the enactment of this Act of 1950, the property is to be deemed to have been declared as evacuee property under the Administration of evacuee Property Act,1950. Hence, this property will be deemed to have been declared as evacuee property under the Administration of Evacuee property Act, 1950. Such a declaration is binding upon under Section 8[2] of the Evacuee Interest (Separation) Act of 1951. Otherwise also these Act of 1950 and 1951 being of dates later than the Act of 1948 under which the delhi Improvement Trust has acquired the property they must prevail as against the earlier enactment of 1948. For all these reasons this property has to be regarded as evacuee property and consequently composite property within the meanings of Sect. 2[d] of act 64 of 1951 since the mortgagors are evacuees and mortgages are non evacuees. "[emphasis added] ( 6 ) IT is clear from the aforesaid, the property in question was regarded as an evacuee property and consequently composite property. This significant and important fact was not brought to the notice of this court and judgment dated 13 November,2002 came to be passed treating the property in question as petitioners property. "[emphasis added] ( 6 ) IT is clear from the aforesaid, the property in question was regarded as an evacuee property and consequently composite property. This significant and important fact was not brought to the notice of this court and judgment dated 13 November,2002 came to be passed treating the property in question as petitioners property. If land in question is found to be an evacuee property, the petition filed by the petitioners would naturally fail as there was no question of acquiring the evacuee property which already vested with the Government. Learned counsel for the review petitioner drew our attention to the Award as well which specifically records, while excluding this property, to be an evacuee property. We, therefore, find it to be a fit case where our order dated 13 november,2002 needs to be reviewed. Prayer made in this review petition is accordingly allowed and the said order dated 13 November,2002 is recalled. The writ petition is restored to its original number. The review petition stands disposed of. CM. 2615/2004 and CM. 4542/2004 ( 7 ) THESE applications filed by the review petitioner for interim stay and modification of order dated 19 March,2004 also stand disposed of. .