Harbans Kaur Vs. Union of India and ors. - Court Judgment

Excerpt:
- - (3) the aforesaid land was sold in public auction by the state and the petitioner purchased it for consideration and the sale certificate in respect of this land was issued in favor of the petitioner on 16th of may 1963. thereafter a notification under section 6 of the land acquisition act appears to have been issued on 23rd january 1964 conversing this land as well. land acquisition collector, delhi and others air1986delhi40 ,this court basing its judgment on has clearly held as under :the issue of a notification under section 4(1) of the land acquisition act is a condition precedent to the exercise of any further power under the act.malik sharief-ud-din, j.(1) the petitioner has challenged the validity of the order dated 16th of september 1982 passed by the metropolitan magistrate directing that the charge be framed against the petitioner under section 9 of the delhi lands (restrictions on transfer) act, 1972. earlier the case was sent up by the police also under section 420 and 120b indian penal code . but it seems that the learned magistrate declined to frame charge under these sections. this order of the learned magistrate was passed despite an application made by the petitioner under section 239 cr.p.c. asserting that there were no grounds for framing of the charge. (2) now for purpose of determination of the controversy i may take notice of certain dates. section 4 notification under the land acquisition act was issued on 24th october 1961. admittedly, the land in dispute comprised in khasra nos. 20 and 39, azadpur. at the time when section 4 notification was issued it was an evacuee land and the aforesaid section 4 notification had exempted the evacuee land. it is obvious from this section 4 notification dated 24th october 1961 that the evacuee lands were not covered by it. (3) the aforesaid land was sold in public auction by the state and the petitioner purchased it for consideration and the sale certificate in respect of this land was issued in favor of the petitioner on 16th of may 1963. thereafter a notification under section 6 of the land acquisition act appears to have been issued on 23rd january 1964 conversing this land as well. this was done despite the fact that this land was exempted by section 4 notification of the land acquisition act. (4) the case of the petitioner is that even at the time when the sale certificate was issued in her favor she never got the possession of the land as the land was in possession of one prithi singh with whom she entered into an agreement. it was on the basis of this set of facts that the investigating agency was set in motion and on investigation a report under section 173 cr.p.c. went to the court of the magistrate that the petitioner and others have committed an offence under section 420/120b indian penal code and section 9 of the delhi lands (restriction on transfer) act. all these facts have been noticed by the learned magistrate and even after coming to the conclusion that the land was not covered by section 4 notification and that in law there can be no section 6 notification in respect of the land he expressed his helplessness in providing any assistance to the petitioner. in smt angira devi gupta v. land acquisition collector, delhi and others : air1986delhi40 , this court basing its judgment on has clearly held as under : 'the issue of a notification under section 4(1) of the land acquisition act is a condition precedent to the exercise of any further power under the act. the notification under section 4 is a sine qua non. in the absence of section 4 notification no acquisition proceedings can subsist as neither the collector can enter upon the property for the purposes mentioned in section 4(2), nor can the collector hear the objections under section 5a, nor can it submit the report to the appropriate government for consideration and issue of the declaration under section 6. the award of compensation is on the basis of the market value as on the date of section 4 notification. in the absence of section 4 notification the machinery provided by the act for determination of compensation obviously cannot apply,'(5) the precise question, thereforee, that arises is whether on facts and circumstances of this particular case the petitioner could be prosecuted under section 9 of the delhi lands (restriction on transfer) act, 1972 for contravention of sections 3 and 4 of the same act. the prosecution is mainly launched because the land in dispute was covered by section 6 notification and it is on that basis that a suggestion is made that there has been contravention of sections 3 and 4 of the said act. having found that the land was not covered by section 4 notification under the land acquisition act there is no basis for the prosecution which cannot be maintained. in that view of the matter the proceedings in f.i.r. no 2/80 special cell, vikas bhavan, initiated under sections 420/120b indian penal code and section 9 of the delhi lands (restriction on transfer) act, 1972 are quashed and the impugned order charging the petitioner under section 9 of the delhi lands (restriction on transfer) act, 1972 is set aside. the petition is accordingly allowed.