SHIV KUMAR & ANR. versus UNION OF INDIA & ORS.

SHIV KUMAR & ANR.

UNION OF INDIA & ORS.(Civil Appeal No. 8003 of 2019)

OCTOBER 14, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Land Acquisition Act, 1894: s.4 – Whether purchaser ofthe property after issuance of notification under s.4 of the Act of1894, can invoke the provisions contained in s.24 of the Act of2013 – Held: An incumbent, who has purchased the land after s.4notification, has no right to question the acquisition – The Act of2013 intends to benefit landowners mentioned in the notificationunder s.4 and not such purchasers who purchase the land after ithas been vested in the State – Such purchasers do not have rightto receive the higher compensation under the provisions containedin the Act of 2013 – Proviso to s.24(2) makes it clear that in casecompensation concerning the majority of landholding has not beendeposited, then recorded owner(s) at the time of issuance ofnotification under s.4 of the Act of 1894 shall have the right toreceive the compensation – transaction effected after s.4notification is illegal and void – Such void transactions are notvalidated under the Act of 2013 – Thus, the Act of 2013 does notconfer any right on purchaser whose sale is ab initio void – Rightto Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 – s.24(2) and its proviso.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: ss.3(c), 3(r)– Affected family, land owner – Meaning of – Discussed.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Who can claim declaration/rights under s.24(2) for the restorationof land or lapse of acquisition – Held: It cannot be by personwith no title in the land – person cannot enforce and ripe fruitsbased on void transaction to start claiming title and possessionof the land by seeking declaration under s.24 of the Act of 2013;

Ait will amount to conferment of benefit never contemplated by thelaw – The provision of the Act of 2013 cannot be said to be enablingor authorizing purchaser after s.4 Notification to questionproceeding taken under the Act of 1894 of taking possession –What cannot be done directly cannot be permitted in an indirectmanner – Land Acquisition Act, 1894 – s.4.B

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Subsequent purchasers cannot be termed to be affected personswithin the provisions of Act of 2013 – Thus, no right can be claimedbased on transfer made by way of execution of Power ofCAttorney, Will, etc., as it does not create any interest in immovableproperty.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: Object ofthe Act – Held: The provisions of the Act of 2013 aim at theDacquisition of land with least disturbance to the landowners andother affected families and to provide just and fair compensationto affected families whose land has been acquired or proposed tobe acquired or are affected and to make adequate provisions forsuch affected persons for their rehabilitation and resettlement –EThe provisions of Act of 2013 aim at ousting all inter-meddlers fromthe fray by ensuring payment in the bank account of landholdersunder s.77 of the Act – The intendment of the Act of 2013 is tobenefit farmers etc. – Subsequent purchasers cannot be said to belandowners entitled to restoration of land and cannot be termedto be affected persons within the provisions of Act of 2013.F

Dismissing the appeal, the Court

HELD: 1.An incumbent, who has purchased the land aftersection 4 notification, has no right to question the acquisition.The Act of 2013 intend to benefit landowners mentioned in theGnotification under Section 4, not for the benefit of suchpurchasers who purchase the land after it has been vested inthe State. Sub-section 4 of Section 11 of the Act of 2013, whichis akin to section 4 of the Act of 1894, contains prohibitionthat no person shall make any transaction or cause anytransaction of land or create any encumbrance on land from theHdate of publication of such notification. Without seeking

exemption from the Collector, there is total prohibition on anytransaction of land. Whereas the legal position under the Act of1894 was that transaction effected after section 4 notificationwas illegal and void. [Paras 6, 8, 9] [703-F; 709-A-B]

Government (NCT of Delhi) v. Manav Dharam Trust& Anr.(2017)6 SCC 751 : [2017] 4 SCR 232 –overruled.

U.P. Jal Nigam, Lucknow through its Chairman & Anr.v. Kalra Properties (P) Ltd., Lucknow & Ors. (1996)3 SCC 124 : [1996] 1 SCR 683 ; Sneh Prabha (Smt.)& Ors. v. State of U.P. & Anr. (1996) 7 SCC 426 :[1995] 5 Suppl. SCR 264 ;Meera Sahni v. LieutenantGovernor of Delhi & Ors.(2008) 9 SCC 177 : [2008]10 SCR 1012 ; V. Chandrasekaran & Anr.v. Administrative Officer & Ors.(2012) 12 SCC 133 :[2012] 10 SCR 603 ;Rajasthan State IndustrialDevelopment and Investment Corpn. v. Subhash SindhiCooperative Housing Society, Jaipur & Ors. (2013) 5SCC 427 : [2015] 5 SCR 365 ; Rajasthan HousingBoard v. New Pink City Nirman Sahkari SamitiLtd. & Anr.(2015) 7 SCC 601 : [2015] 5 SCR 365 ;M. Venkatesh & Ors. v. Commissioner, BangaloreDevelopment Authority, etc. (2015) 17 SCC 1 : [2015]11 SCR 454 – referred to.

2. The ‘affected family’ has been defined under section 3(c)of the 2013 Act. The affected family includes landowners forwhose benefit land is held before the acquisition. personacquiring interest after section 11 notification cannot be said tobe included in the “affected family” at all. Landowner as definedin Section 3(r) is person who is recorded as the owner of landor building. purchaser after section 11 cannot be said to be alandowner within the purview of section 3(r). [Paras 10, 12] [709-G; 710-F; 711-B-F]

3.1 Section 24(2) provides that in case the award has beenpassed five years or more prior to the commencement of theAct, but the physical possession of the land has not been taken,or the compensation has not been paid, the said proceedingsshall be deemed to have lapsed. In the instant case, there is

Anothing to doubt that actual physical possession had been takenin 2000. Thus, Section 24(2) is not attracted in the case.Evenotherwise, proviso to Section 24(2) does not recognize apurchaser after Section 4 notification inasmuch as it provides thatwhere an award has been made, and the compensation in respectof majority of land holdings has not been deposited in theBaccount of the beneficiaries, then, all beneficiaries specified inthe notification for acquisition issued under the Act of 1894, shallbe entitled to compensation under the provisions of the Act of2013. The proviso makes it clear that in case of compensationconcerning the majority of landholding has not been deposited,Cthen recorded owner(s) at the time of issuance of notificationunder section 4 of the Act of 1894 shall have the right to receivethe compensation. Purchasers after section 4 notification havenot been given the right to receive the higher compensationunder the provisions contained in the Act of 2013. [Paras 16,17] [713-D-F-H; 714-A ]D3.2 The Act of 2013 presupposes that person is requiredto be rehabilitated and resettled. Such person who haspurchased after section 4 notification as sale deed is void underthe Act of 1894, cannot claim rehabilitation and resettlement asper policy envisaged under the Act of 2013, as his land has notEbeen acquired, but he has purchased property which hasalready been acquired by the State Government, he cannot claimeven higher compensation, as per proviso to section 24(2) underthe Act of 2013. Given that, the transaction of sale, effected aftersection 4 notification, is void, is ineffective to transfer the land,Fsuch incumbents cannot invoke the provisions of section 24. Asthe sale transaction did not clothe them with the title when thepurchase was made; they cannot claim ‘possession’ and challengethe acquisition as having lapsed under section 24 by questioningthe legality or regularity of proceedings of taking over of

possession under the Act of 1894. It would be unfair and unjustGand against the policy of the law to permit such person to claimresettlement or claim the land back as envisaged under the Actof 2013. When he has not been deprived of his livelihood but isa purchaser under void transaction, the outcome ofexploitativetactics played upon poor farmers who were unable to defendHthemselves. Thus, under the provisions of Section 24 of the Act

of 2013, challenge to acquisition proceeding of the taking overof possession under the Act of 1894 cannot be made, based ona void transaction nor declaration can be sought under section24(2) by such incumbents to obtain the land. The Act of 2013does not confer any right on purchaser whose sale is ab initiovoid. Such void transactions are not validated under the Act of2013. No rights are conferred by the provisions contained inthe 2013 Act on such purchaser as against the State. ‘Voidis,ab initio,’ nullity, is inoperative, and person cannot claim theland or declaration once no title has been conferred upon himto claim that the land should be given back to him. personcannot enforce and ripe fruits based on void transaction to startclaiming title and possession of the land by seeking declarationunder Section 24 of the Act of 2013; it will amount to confermentof benefit never contemplated by the law. [Paras 18-21] [714-B-C-E-H; 715-A-D]4. The provisions of the Act of 2013 aimed at theacquisition of land with least disturbance to the landowners andother affected families and to provide just and fair compensationto affected families whose land has been acquired or proposedto be acquired or are affected and to make adequate provisionsfor such affected persons for their rehabilitation andresettlement. The intendment of Act of 2013 is to benefit farmersetc. Subsequent purchasers cannot be said to be landownersentitled to restoration of land and cannot be termed to beaffected persons within the provisions of Act of 2013. It is notopen to them to claim that the proceedings have lapsed underSection 24(2). Apart from that the claims have been made ontransactions based on the power of attorneys, agreements, etc.;as such also they are not entitled to any indulgence and cannotinvoke provisions of section 24(2) of the 2013 Act. No right canbe claimed based on transfer made by way of execution ofPower of Attorney, Will, etc., as it does not create any interestin immovable property. [Paras 22, 23, 24] [715-F-H; 716-A; 718-E]

Suraj Lamp and Industries Pvt. Ltd. through Directorv. State of Haryana & Anr.; Mamleshwar Prasad v.Kanahaiya Lal, (1975) 2 SCC 232 ; A.R. Anutulay v.R.S.Nayak(1988) 2 SCC 602 : [1975] 3 SCR 834 ;

AState of Uttar Pradesh v. Synthetics and Chemicals Ltd.(1991) 4 SCC 139 ;State of B. Shama Rao v. UnionTerritory of PondicherryAIR 1967 SC 1480 ;Municipal Corporation of Delhi v. Gurnam Kaur(1989) 1 SCC 101 : [1988] 2 Suppl. SCR 929 ;Narmada Bachao Andolan (III) v. State of MadhyaBPradesh, AIR 2011 SC 1989 : [2011] 6 SCR 443 ;Hyder Consulting (UK) Ltd. v. State of Odisha(2015)2 SCC 189 : [2014] 14 SCR 1029 ;Sant Lal Gupta v.Modern Coop. Societies Ltd. [2010] 13 SCC 336 :[2010] 13 SCR 621 ; Vineeta Sharma v. RakeshCSharma(2019) 6 SCC 162 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8003of 2019.

From the Judgment and Order dated 18.01.2019 of the DivisionBench of the High Court of Delhi at New Delhi in Writ Petition (C)No. 92 of 2018.

S. N. Bhatm B. S. Mathur and Rajat Mathur, Advs. for theAppellants.

K. M. Natraj, ASG and Debashish Rout, Advs. for theRespondents.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1. The question involved in the matter is whether purchaser ofthe property after issuance of notification under section 4 of the LandAcquisition Act, 1894 (for short, “the 1894 Act”), can invoke theprovisions contained in section 24 of the Right to Fair Compensationand Transparency in Land Acquisition, Rehabilitation and ResettlementAct, 2013 (for short, “the Act of 2013”).

2. Notification No.F.10(29)/96/L&B/LA/11394, dated 27.10.1999,was issued for the acquisition of the land situated in the revenue estateof Village Pansali, Delhi, for the public purpose of the Rohini ResidentialScheme under planned development of Delhi. It was followed by thedeclaration under section 6 issued on 3.4.2000. Possession was takenon 12.5.2000. Subsequently, the petitioners purchased the land on5.7.2001 by way of Registered Sale Deed executed by one Satya Narain,the Power of Attorney holder of original owners. The purchasers thenparticipated in the proceedings for the determination of compensationunder sections 9 and 10 of the 1894 Act. The award was passed on3.4.2002. In the meanwhile, an unauthorized colony came up with thename of Deep Vihar, Pansali, Pooth Kalan, Delhi. The petitionersclaimed that they continued in the actual physical possession of the landeven after passing of the award on 17.09.2008 and the same formedpart of the unauthorized colony. The Government of NCT of Delhiprovisionally regularised the colony. The Act of 2013 came in force from1.1.2014. The respondents never took the actual physical possessionof the land; as such, the acquisition has lapsed. The purchasers/petitioners filed writ petition at the High Court of Delhi. DivisionBench of the High Court has dismissed the writ application.

A3. Learned counsel appearing on behalf of the purchaserssubmitted that the High Court has erred in rejecting the writ applicationon the ground that the purchasers after issuance of notification undersection 4 of the 1894 Act cannot question the land acquisition. Thedecision runs contrary to the dictum laid down by this Court inGovernment (NCT of Delhi) v. Manav Dharam Trust & Anr. (2017)B6 SCC 751. Learned counsel further submitted that the High Court hasalso erred in dismissing the writ application on the ground that petitionershave admitted that the property is part of the unauthorized colony ofDeep Vihar.

4. Shri K.M. Natraj learned Additional Solicitor General hasCsupported the impugned judgment and order and submitted that thepurchase made after the notification issued under section 4 of the 1894Act and declaration under section 6 is void. The purchasers had acquiredno right, and they cannot question the land acquisition, nor they caninvoke the provisions contained in section 24 of the Act of 2013. It wasDfurther submitted that decision in Manav Dharam Trust (supra) is perincuriam because of large number of decisions of this Court holdingthat sale made after issuance of notification under section 4 is void.

5. It is crystal clear that for seeking the relief under section 24,the proceedings for taking possession under Act of 1894 have been putEinto question as illusory one, and possession continues with appellants.The decision in Manav Dharam Trust (supra) has been mainly reliedupon by the learned counsel appearing on behalf of the purchasers/petitioners in which Division Bench opined that subsequent purchasersare affected by the acquisition. Therefore, they are entitled to seek adeclaration of the lapse of acquisition under the Act of 2013. It hasFfurther opined that since declaration is sought, the challenge is not tothe acquisition proceedings. Because of the operation of section 24(2)of the 2013 Act, the ratio of the various cases decided by this Courtunder the Act of 1894, has no application to such situations. It hasobserved thus:G“

“21. All the decisions cited by the learned Senior Counselappearing for the appellants, no doubt, have categorically heldthat the subsequent purchasers do not have locus standi tochallenge the acquisition proceedings. However, in the presentcase, the challenge is not to the acquisition proceedings; it is onlyHfor declaration that the acquisition proceedings have lapsed

because of the operation of Section 24(2) of the 2013 Act, andtherefore, the ratio in those cases has no application to thesecases.

22. It is one thing to say that there is challenge to the legalityor propriety or validity of the acquisition proceedings and yetanother thing to say that by virtue of the operation of subsequentlegislation, the acquisition proceedings have lapsed.

23. In all the decisions cited by the learned Senior Counsel forthe appellants, which we have referred to above, this Court hasprotected the rights of the subsequent purchaser to claimcompensation, being person interested in the compensation,despite holding that they have no locus standi to challenge theacquisition proceedings.

28. Thus, the subsequent purchaser, the assignee, the successorin interest, the power-of-attorney holder, etc., are all persons whoare interested in compensation/landowners/affected persons interms of the 2013 Act and such persons are entitled to file casefor declaration that the land acquisition proceedings have lapsedby virtue of operation of Section 24(2) of the 2013 Act. It is adeclaration qua the land wherein indisputably they have aninterest, and they are affected by such acquisition. For such adeclaration, it cannot be said that the respondent-writ petitionersdo not have any locus standi.”6. First, we advert to the legal position concerning the purchasesmade on 5.7.2001, made after notification under Section 4 had beenissued under the Act of 1894. Law is well settled in this regard by acatena of decisions of this Court that an incumbent, who has purchasedthe land after section 4 notification, has no right to question theacquisition.

6 (a). In U.P. Jal Nigam, Lucknow through its Chairman &Anr. v. Kalra Properties (P) Ltd., Lucknow & Ors. (1996) 3 SCC124 it was observed :

“3. …...That apart, since M/s. Kalra Properties, the respondenthad purchased the land after the notification under Section 4(1)was published, its sale is void against the State, and it acquiredno right, title, or interest in the land. Consequently, it is settledlaw that it cannot challenge the validity of the notification or the

Aregularity in taking possession of the land before the publicationof the declaration under Section 6 was published.”

6(b). In Sneh Prabha (Smt.) & Ors. v. State of U.P. & Anr.(1996) 7 SCC 426 it has been laid down that subsequent purchasercannot take advantage of land policy. It was observed:

“5. Though at first blush, we were inclined to agree with theappellant but on deeper probe, we find that the appellant is notentitled to the benefit of the Land Policy. It is settled law thatany person who purchases land after the publication of thenotification under Section 4(1), does so at his/her peril. The objectof publication of the notification under Section 4(1) is notice toeveryone that the land is needed or is likely to be needed for apublic purpose, and the acquisition proceedings point out animpediment to anyone to encumber the land acquired thereunder.It authorizes the designated officer to enter upon the land to dopreliminaries, etc. Therefore, any alienation of land after thepublication of the notification under Section 4(1) does not bindthe Government or the beneficiary under the acquisition. Ontaking possession of the land, all rights, titles, and interests in landstand vested in the State, under Section 16 of the Act, free fromall encumbrances, and thereby, absolute title in the land isacquired thereunder. If any subsequent purchaser acquires land,his/her only right would be subject to the provisions of the Actand/ or to receive compensation for the land. In recentjudgment, this Court in Union of India v. Shri Shivkumar Bhargavaand Ors. [1995] 1 SCR 354 considered the controversy and heldthat person who purchases land subsequent to the notificationis not entitled to an alternative site. It is seen that the Land Policyexpressly conferred that right only on that person whose landwas acquired. In other words, the person must be the owner ofthe land on the date on which notification under Section 4(1) waspublished. By necessary implication, the subsequent purchaserwas elbowed out from the policy and became disentitled to thebenefit of the Land Policy.”

6(c). In Meera Sahni v. Lieutenant Governor of Delhi & Ors.(2008) 9 SCC 177, the Court had relied upon the decision describedHabove and observed thus:

“21. In view of the aforesaid decisions, it is by now well-settledlaw that under the Land Acquisition Act, the subsequent purchasercannot challenge the acquisition proceedings and that he wouldbe only entitled to get the compensation.”

6(d). In V. Chandrasekaran & Anr. v. Administrative Officer& Ors. (2012) 12 SCC 133, the Court has considered various decisionsand opined that the purchaser after Section 4 notification could notchallenge land acquisition on any ground whatsoever. The Courtobserved:

“15. The issue of maintainability of the writ petitions by the personwho purchases the land subsequent to notification being issuedunder Section 4 of the Act has been considered by this Courttime and again. In Leela Ram v. Union of India AIR 1975 SC2112, this Court held that anyone who deals with the landsubsequent to Section 4 notification being issued, does so, athis own peril. In Sneh Prabha v. State of Uttar Pradesh AIR1996 SC 540, this Court held that Section 4 notification givesa notice to the public at large that the land in respect to which ithas been issued, is needed for public purpose, and it furtherpoints out that there will be “an impediment to anyone toencumber the land acquired thereunder.” The alienation after thatdoes not bind the State or the beneficiary under the acquisition.The purchaser is entitled only to receive compensation. Whiledeciding the said case, reliance was placed on an earlier judgmentof this Court in Union of India v. Shiv Kumar Bhargava and Ors.(1995) 2 SCC 427.

18. In view of the above, the law on the issue can be summarizedto the effect that person who purchases land subsequent tothe issuance of Section 4 notification with respect to it, is notcompetent to challenge the validity of the acquisition proceedingson any ground whatsoever, for the reason that the sale deedexecuted in his favour does not confer upon him, any title and atthe most he can claim compensation on the basis of his vendor’stitle.”

(emphasis supplied)

6(e). In Rajasthan State Industrial Development andInvestment Corpn. v. Subhash Sindhi Cooperative Housing Society,Jaipur & Ors. (2013) 5 SCC 427, it is laid down:

A“13. There can be no quarrel with respect to the settled legalproposition that purchaser, subsequent to the issuance of aSection 4 Notification in respect of the land, cannot challengethe acquisition proceedings, and can only claim compensation asthe sale transaction in such situation is Void qua theGovernment. Any such encumbrance created by the owner, orBany transfer of the land in question that is made after the issuanceof such notification would be deemed to be void and wouldnot be binding on the Government. (Vide: Gian Chand v. Gopalaand Ors. (1995) 2 SCC 528; Yadu Nandan Garg v. State ofRajasthan and Ors. AIR 1996 SC 520; Jaipur DevelopmentCAuthority v. Mahavir Housing Coop. Society, Jaipur, and Ors.(1996) 11 SCC 229; Secretary, Jaipur Development Authority,Jaipur v. Daulat Mal Jain and Ors. (1997) 1 SCC 35; MeeraSahni v. Lieutenant Governor of Delhi and Ors. (2008) 9 SCC177; Har Narain (Dead) by L.Rs. v. Mam Chand (Dead) byL.Rs. and Ors. (2010) 13 SCC 128; and V. Chandrasekaran andDAnr. v. The Administrative Officer and Ors. JT 2012 (9) SC260).”

(emphasis supplied)

6(f). Three-Judge Bench in Rajasthan Housing Board v. NewEPink City Nirman Sahkari Samiti Ltd. & Anr., (2015) 7 SCC 601, inthe context of section 4 as well as section 42 of the Rajasthan TenancyAct which also prohibited the transactions from being entered into withSC/ST persons, has observed:

“33. The other decision relied upon by the Society is V.FChandrasekaran and Anr. v. Administrative Officer and Ors.2012 (12) SCC 133] wherein this Court laid down thus:

17. In Ajay Kishan Singhal v. Union of India: AIR 1996 SC 2677;Mahavir and Anr. v. Rural Institute, Amravati and Anr. (1995) 5SCC 335; Gian Chand v. Gopala and Ors. (1995) 2 SCC 528;Gand Meera Sahni v. Lieutenant Governor of Delhi and Ors. (2008)9 SCC 177, this Court categorically held that person whopurchases land after the publication of Section 4 notificationwith respect to it, is not entitled to challenge the proceedings forthe reason, that his title is void and he can at best claimcompensation on the basis of vendor’s title. In view of this, theHsale of land after issuance of Section 4 notification is void, and

the purchaser cannot challenge the acquisition proceedings. (Seealso: Tika Ram v. the State of U.P. (2009) 10 SCC 689).

18. In view of the above, the law on the issue can be summarizedto the effect that person who purchases land subsequent tothe issuance of Section 4 notification with respect to it, is notcompetent to challenge the validity of the acquisition proceedingson any ground whatsoever, for the reason that the sale deedexecuted in his favour does not confer upon him, any title and atthe most he can claim compensation on the basis of his vendor’stitle.

34. Reliance has been placed on Dossibai Nanabhoy Jeejeebhoyv. P.M. Bharucha 1958 (60) Bom.LR 1208] so as to contend thatthe ‘person interested’ in the land under Section 9 of the LandAcquisition Act would include person who claims interest incompensation to be paid on account of acquisition of land ad theinterest contemplated Under Section 9 is not restricted to legalor proprietary estate or interest in the land but such interest aswill sustain claim to apportionment, is the owner of the land.In our opinion, the decision is of no avail. The instant transactionbeing void as per Section 42 of the Rajasthan Tenancy Act, andthe property was inalienable to non-SC. Obviously, the logicalcorollary has to be taken that no right in apportionment tocompensation can be claimed by the Society.”

6(g). In M. Venkatesh & Ors. v. Commissioner, BangaloreDevelopment Authority, etc. (2015) 17 SCC 1, three-Judge Benchhas opined:

“16. That brings us to the question of whether Prabhaudas Pateland other respondents in SLP (C) No. 12016 of 2013 wereentitled to any relief from the Court. These respondents claimto have purchased the suit property in terms of sale deed dated22-8-1990, i.e., long after the issuance of the preliminaryNotification published in July 1984. The legal position about thevalidity of any such sale, post-issuance of preliminary notification,is fairly well settled by long line of the decisions of this Court.The sale in such cases is void and non-est in the eye of the lawgiving to the vendee the limited right to claim compensation andno more. Reference may in this regard be made to the decision

of this Court in U.P. Jal Nigam v. Kalra Properties (P) Ltd,wherein this Court said: (SCC pp. 126-27, para 3)

“3. … It is settled law that after the notification under Section4(1) is published in the gazette, any encumbrance created by theowner does not bind the Government, and the purchaser doesnot acquire any title to the property. In this case, Notificationunder Section 4(1) was published on 24-3-1973; possession ofthe land admittedly was taken on 5-7-1973, and the pumpingstation house was constructed. No doubt, declaration underSection 6 was published later on 8-7-1973. Admittedly powerunder Section 17(4) was exercised dispensing with the inquiryunder Section 5-A and on service of the notice under Section 9possession was taken, since urgency was acute viz. pumpingstation house was to be constructed to drain out floodwater.Consequently, the land stood vested in the State under Section17(2) free from all encumbrances. It is further settled law thatonce possession is taken, by operation of Section 17(2), the landvests in the State free from all encumbrances unless notificationunder Section 48(1) is published in the gazette withdrawing fromthe acquisition. Section 11-A, as amended by Act 68 of 1984,therefore, does not apply, and the acquisition does not lapse. Thenotification under Section 4(1) and the declaration under Section6, therefore, remain valid. There is no other provision under theAct to have the acquired land divested, unless, as stated earlier,notification under Section 48(1) was published, and the possessionis surrendered pursuant thereto. That apart, since M/s KalraProperties, the respondent had purchased the land after thenotification under Section 4(1) was published, its sale is voidagainst the State, and it acquired no right, title, or interest in theland. Consequently, it is settled law that it cannot challenge thevalidity of the notification or the regularity in taking possessionof the land before the publication of the declaration under Section6 was published.

(emphasis supplied)”

7. It has been laid down that the purchasers on any groundwhatsoever cannot question proceedings for taking possession. Apurchaser after Section 4 notification does not acquire any right in theland as the sale is ab initio void and has no right to claim land underHthe Policy.

8. When we ponder as to beneficial provisions of the Act of 2013,they also intend to benefit landowners mentioned in the notification underSection 4, not for the benefit of such purchasers who purchase the landafter it has been vested in the State.

9. Sub-section 4 of Section 11 of the Act of 2013, which is akinto section 4 of the Act of 1894, contains prohibition that no personshall make any transaction or cause any transaction of land or createany encumbrance on land from the date of publication of suchnotification. Section 11(4) is extracted hereunder:

“11. Publication of preliminary notification and power ofofficers thereupon.–

x x x x x

(4) No person shall make any transaction or cause any transactionof land specified in the preliminary notification or create anyencumbrances on such land from the date of publication of suchnotification till such time as the proceedings under this Chapterare completed:

Provided that the Collector may, on the application made by theowner of the land so notified, exempt in special circumstancesto be recorded in writing, such owner from the operation of thissubsection:

Provided further that any loss or injury suffered by any persondue to his wilful violation of this provision shall not be made upby the Collector.”

Without seeking exemption from the Collector, there is totalprohibition on any transaction of land. Whereas the legal position underthe Act of 1894 was that transaction effected after section 4notification was illegal and void.

10. When we consider other provisions, the ‘affected family’ hasbeen defined under section 3(c) of the 2013 Act. The definition readsas under:

“3. Definitions.–In this Act, unless the context otherwiserequires,—

(c) “affected family” includes—

(i) family whose land or other immovable property has beenacquired;

(ii) family which does not own any land but member ormembers of such family may be agricultural labourers,tenants including any form of tenancy or holding of usufructright, share-croppers or artisans or who may be working inthe affected area for three years prior to the acquisition ofthe land, whose primary source of livelihood stand affectedBby the acquisition of land;

(iii) the Scheduled Tribes and other traditional forest dwellerswho have lost any of their forest rights recognized underthe Scheduled Tribes and Other Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006 (2 of 2007) dueCto acquisition of land;

(iv) family whose primary source of livelihood for three yearsprior to the acquisition of the land is dependent on forestsor water bodies and includes gatherers of forest produce,hunters, fisherfolk and boatmen, and such livelihood isDaffected due to acquisition of land;

(v) member of the family who has been assigned land by theState Government or the Central Government under any ofits schemes and such land is under acquisition;

(vi) family residing on any land in the urban areas forEpreceding three years or more prior to the acquisition of theland or whose primary source of livelihood for three yearsprior to the acquisition of the land is affected by theacquisition of such land;”

The affected family includes landowners for whose benefit landFis held before the acquisition. person acquiring interest after section11 notification cannot be said to be included in the “affected family” atall.

11. Definition of ‘family’ is in section 3(m), it is extractedhereunder:G“3. Definition.–In this Act, unless the context otherwiserequires,—

(m) “family” includes person, his or her spouse, minor children,Hminor brothers and minor sisters dependent on him: Provided that

widows, divorcees, and women deserted by families shall beconsidered separate families;

Explanation.—An adult of either gender with or without spouseor children or dependents shall be considered as separate familyfor the purposes of this Act.”

12. The definition of ‘landowner’ is in section 3(r), the same isextracted hereunder:

“3. Definition.–In this Act, unless the context otherwiserequires,—

(r) “landowner” includes any person,— (i) whose name isrecorded as the owner of the land or building or part thereof, inthe records of the authority concerned; or

(ii) any person who is granted forest rights under the ScheduledTribes and Other Traditional Forest Dwellers (Recognition ofForest Rights) Act, 2006 (2 of 2007) or under any other law forthe time being in force; or

(iii) who is entitled to be granted Patta rights on the land underany law of the State including assigned lands; or (iv) any personwho has been declared as such by an order of the court orAuthority;”

Landowner is person who is recoded as the owner of land orbuilding. The record of date of issuance of preliminary notification undersection 11 is relevant. purchaser after section 11 cannot be said tobe landowner within the purview of section 3(r).

13. Person interested is defined in section 3(x) thus :

“3. Definition.–In this Act, unless the context otherwiserequires,—

(x) “person interested” means—

(i) all persons claiming an interest in compensation to bemade on account of the acquisition of land under thisAct;

(ii) the Scheduled Tribes and other traditional forest dwellers,who have lost any forest rights recognized under the

AScheduled Tribes and Other Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006 (2 of 2007);

(iii) person interested in an easement affecting the land;

(iv) persons having tenancy rights under the relevant State lawsincluding share-croppers by whatever name they may beBcalled; and

(v) any person whose primary source of livelihood is likely tobe adversely affected;”

14. rehabilitation and resettlement scheme has to be preparedCunder Section 16. Section 17 deals with the review of such scheme.An approved scheme to be made public under Section 18. Section 19deals with the publication of declaration and summary of rehabilitationand resettlement scheme. After inquiry, Award is passed by the Collectorunder Section 23. The Collector is required to consider, among otherthings, the interest of the person claiming the compensation,Drehabilitation, and resettlement while making an award.

15. Section 24 of the Act of 2013, which deals with landacquisition made under the Act of 1894, is also relevant. The same isextracted hereunder:

“24. Land acquisition process under Act No. 1 of 1894shall be deemed to have lapsed in certain cases – (1)Notwithstanding anything contained in this Act, in any case ofland acquisition proceedings initiated under the Land AcquisitionAct, 1894,—

F(a) where no award under section 11 of the said LandAcquisition Act has been made, then, all provisions of thisAct relating to the determination of compensation shallapply; or

(b) where an award under said section 11 has been made, thenGsuch proceedings shall continue under the provisions of thesaid Land Acquisition Act, as if the said Act has not beenrepealed.

(2) Notwithstanding anything contained in sub-section (1), in caseof land acquisition proceedings initiated under the LandAcquisition Act, 1894 (1 of 1894), where an award under the

said section 11 has been made five years or more prior to thecommencement of this Act but the physical possession of theland has not been taken, or the compensation has not been paidthe said proceedings shall be deemed to have lapsed and theappropriate Government, if it so chooses, shall initiate theproceedings of such land acquisition afresh in accordance withthe provisions of this Act:

Provided that where an award has been made, and compensationin respect of majority of land holdings has not been depositedin the account of the beneficiaries, then, all beneficiaries specifiedin the notification for acquisition under section 4 of the said LandAcquisition Act, shall be entitled to compensation in accordancewith the provisions of this Act.”

(emphasis supplied)

16. Section 24 (2) provides that in case the award has beenpassed five years or more prior to the commencement of the Act, butthe physical possession of the land has not been taken, or thecompensation has not been paid, the said proceedings shall be deemedto have lapsed. It is not the case set up that compensation had not beenpaid to purchasers/owners. The only case set up is that physicalpossession has not been taken and proceedings of taking over possessionhave been questioned to take advantage of provisions under Section24(2) of the Act of 2013. Whereas, averment in the writ petition itselfindicates that possession had been taken over in the year 2000 and thatunauthorized colonies have come up in the area. Thus, it is clear thatpossession, if any, is illegal, and in fact, the actual physical possessionhad been taken, and re-entering in possession in an unauthorized mannercan confer no right. There is nothing to doubt that actual physicalpossession had been taken in 2000. Thus, Section 24(2) is not attractedin the case.

17. Even otherwise, proviso to Section 24(2) does not recognizea purchaser after Section 4 notification inasmuch as it provides thatwhere an award has been made, and the compensation in respect of amajority of land holdings has not been deposited in the account of thebeneficiaries, then, all beneficiaries specified in the notification foracquisition issued under the Act of 1894, shall be entitled tocompensation under the provisions of the Act of 2013. The provisomakes it clear that in case of compensation concerning the majority of

Alandholding has not been deposited, then recorded owner(s) at the timeof issuance of notification under section 4 of the Act of 1894 shall havethe right to receive the compensation. Purchasers after section 4notification have not been given the right to receive the highercompensation under the provisions contained in the act of 2013

B18. The Act of 2013 presupposes that person is required to berehabilitated and resettled. Such person who has purchased aftersection 4 notification as sale deed is void under the Act of 1894, cannotclaim rehabilitation and resettlement as per policy envisaged under theAct of 2013, as his land has not been acquired, but he has purchaseda property which has already been acquired by the State Government,Che cannot claim even higher compensation, as per proviso to section24(2) under the Act of 2013. An original landowner cannot be deprivedof higher value under the Act of 2013, which higher compensation wasnot so contemplated when the void transaction of sale had been entered,and right is conferred under proviso to Section 24(2) on recorded ownersunder Act of 1894. We have come across instances in which afterDnotifications under section 4 were issued and, the property waspurchased at throwaway prices by the builders and unscrupulouspersons, such purchases are void and confer no right even to claimhigher compensation under Section 24(2) of the Act of 2013 as it is tobe given to the owner as mentioned in the notification.E19. Given that, the transaction of sale, effected after section 4notification, is void, is ineffective to transfer the land, such incumbentscannot invoke the provisions of section 24. As the sale transaction didnot clothe them with the title when the purchase was made; they cannotclaim ‘possession’ and challenge the acquisition as having lapsed underFsection 24 by questioning the legality or regularity of proceedings oftaking over of possession under the Act of 1894. It would be unfairand profoundly unjust and against the policy of the law to permit sucha person to claim resettlement or claim the land back as envisaged underthe Act of 2013. When he has not been deprived of his livelihood butis purchaser under void transaction, the outcome ofexploitativeGtactics played upon poor farmers who were unable to defendthemselves.

20. Thus, under the provisions of Section 24 of the Act of 2013,challenge to acquisition proceeding of the taking over of possessionunder the Act of 1894 cannot be made, based on void transactionHnor declaration can be sought under section 24(2) by such incumbents

to obtain the land. The declaration that acquisition has lapsed under theAct of 2013 is to get the property back whereas, the transaction oncevoid, is always void transaction, as no title can be acquired in theland as such no such declaration can be sought. It would not be legal,just and equitable to give the land back to purchaser as land was notcapable of being sold which was in process of acquisition under theAct of 1894. The Act of 2013 does not confer any right on purchaserwhose sale is ab initio void. Such void transactions are not validatedunder the Act of 2013. No rights are conferred by the provisionscontained in the 2013 Act on such purchaser as against the State.

21. ‘Voidis, ab initio,’ nullity, is inoperative, and person cannotclaim the land or declaration once no title has been conferred upon himto claim that the land should be given back to him. person cannotenforce and ripe fruits based on void transaction to start claiming titleand possession of the land by seeking declaration under Section 24of the Act of 2013; it will amount to conferment of benefit nevercontemplated by the law. The question is, who can claim declaration/rights under section 24(2) for the restoration of land or lapse ofacquisition. It cannot be by person with no title in the land. Theprovision of the Act of 2013 cannot be said to be enabling or authorizinga purchaser after Section 4 to question proceeding taken under the Actof 1894 of taking possession as held in U.P. Jal Nigam (supra) whichis followed in M. Venkatesh (supra) and other decisions andconsequently claim declaration under Section 24 of the Act of 2013.What cannot be done directly cannot be permitted in an indirect method.

22. The provisions of the Act of 2013 aimed at the acquisitionof land with least disturbance to the landowners and other affectedfamilies and to provide just and fair compensation to affected familieswhose land has been acquired or proposed to be acquired or are affectedand to make adequate provisions for such affected persons for theirrehabilitation and resettlement. The provisions of Act of 2013 aim atousting all inter-meddlers from the fray by ensuring payment in the bankaccount of landholders under section 77 of the Act.

23. The intendment of Act of 2013 is to benefit farmers etc.Subsequent purchasers cannot be said to be landowners entitled torestoration of land and cannot be termed to be affected persons withinthe provisions of Act of 2013. It is not open to them to claim that theproceedings have lapsed under Section 24(2).

A24. Apart from that the claims have been made on transactionsbased on the power of attorneys, agreements, etc.; as such also theyare not entitled to any indulgence and cannot invoke provisions of section24(2) of the 2013 Act. The Court has considered the question of thevalidity of transactions in the form of power of attorney in Suraj Lampand Industries Pvt. Ltd. through Director v. State of Haryana &BAnr. (2012) 1 SCC 656, and has held that no rights could be accruedon such transactions as this is not legal mode of transfer. This Courthas observed :

“20. power of attorney is not an instrument of transfer inregard to any right, title, or interest in an immovable property.The Power of Attorney is creation of an agency whereby thegrantor authorizes the grantee to do the acts specified therein,on behalf of the grantor, which when executed will be bindingon the grantor as if done by him (see Section 1A and Section 2of the Powers of Attorney Act, 1882). It is revocable orterminable at any time unless it is made irrevocable in mannerknown to law. Even an irrevocable attorney does not have theeffect of transferring title to the grantee.

21. In-State of Rajasthan v. Basant Nehata 2005 (12) SCC 77this Court held:

“13. grant of power of attorney is essentially governed byChapter X of the Contract Act. By reason of deed of powerof attorney, an agent is formally appointed to act for the principalin one transaction or series of transactions or to manage theaffairs of the principal generally conferring necessary authorityupon another person. deed of power of attorney is executedby the principal in favor of the agent. The agent derives rightto use his name and all acts, deeds, and things are done by himand subject to the limitations contained in the said deed, the sameshall be read as if done by the donor. power of attorney is, asis well known, document of convenience.

Execution of power of attorney in terms of the provisions ofthe Contract Act as also the Powers-of-Attorney Act is valid. Apower of attorney, we have noticed hereinbefore, is executed bythe donor so as to enable the done to act on his behalf. Exceptin cases where power of attorney is coupled with an interest, itis revocable. The done in exercise of his power under such

power of attorney only acts in place of the donor subject, ofcourse, to the powers granted to him by reason thereof. Hecannot use the power of attorney for his own benefit. He actsin fiduciary capacity. Any act of infidelity or breach of trust isa matter between the donor and the done.

An attorney holder may, however, execute deed of conveyancein the exercise of the power granted under power of attorneyand convey title on behalf of the grantor.

Scope of Will

14. will is the testament of the testator. It is posthumousdisposition of the estate of the testator directing the distributionof his estate upon his death. It is not transfer inter vivo. Thetwo essential characteristics of will are that it is intended tocome into effect only after the death of the testator and isrevocable at any time during the lifetime of the testator. It is saidthat so long as the testator is alive, will is not be worth thepaper on which it is written, as the testator can at any timerevoke it. If the testator, who is not married, marries after makingthe will, by operation of law, the will stands revoked. (seeSections 69 and 70 of the Indian Succession Act, 1925).Registration of will does not make it any more effective.

Conclusion

15. Therefore, SA/GPA/WILL transaction does not convey anytitle nor create any interest in an immovable property. Theobservations by the Delhi High Court, in Asha M. Jain v. CanaraBank 94 (2001) DLT 841 that the “concept of power of attorneysales have been recognized as mode of transaction” whendealing with transactions by way of SA/GPA/WILL areunwarranted and not justified, unintended misleading the generalpublic into thinking that SA/GPA/WILL transactions are somekind of recognized or accepted mode of transfer and that itcan be valid substitute for sale deed. Such decisions to theextent they recognize or accept SA/GPA/WILL transactions asconcluded transfers, as contrasted from an agreement to transfer,are not good law.

16. We, therefore, reiterate that immovable property can be legallyand lawfully transferred/ conveyed only by registered deed of

Aconveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount totransfer, nor can they be recognized or valid mode of transferof immovable property. The courts will not treat such transactionsas completed or concluded transfers or as conveyances as theyneither convey title nor create any interest in an immovableBproperty. They cannot be recognized as deeds of title, except tothe limited extent of Section 53A of the Transfer of Property Act.Such transactions cannot be relied upon or made the basis formutations in Municipal or Revenue Records. What is statedabove will apply not only to deeds of conveyance in regard toCfreehold property but also to transfer of leasehold property. Alease can be validly transferred only under registeredAssignment of Lease. It is time that an end is put to the perniciouspractice of SA/GPA/WILL transactions known as GPA sales.

17. It has been submitted that making declaration that GPA salesDand SA/GPA/WILL transfers are not legally valid modes oftransfer is likely to create hardship to large number of personswho have entered into such transactions, and they should be givensufficient time to regularize the transactions by obtaining deedsof conveyance. It is also submitted that this decision should bemade applicable prospectively to avoid hardship.”E

No right can be claimed based on transfer made by way ofexecution of Power of Attorney, Will, etc., as it does not create anyinterest in immovable property.

25. In Manav DharamTrust (supra), even the provisions of theFAct of 2013 have not been taken into consideration, which prohibitssuch transactions in particular provisions of section 11, including theproviso to section 24(2). Apart from that, it was not legally permissibleto Division Bench to ignore the decisions of the larger Benchcomprising of three Judges and of Co-ordinate Bench. They were notGper incuriam and were relevant for deciding the issue of takingpossession under Act of 1894, at the instance of purchaser. In case itwanted to depart from the view taken earlier, it ought to have referredthe matter to larger bench. It has been ignored that when purchaseis void, then no declaration can be sought on the ground that the landacquisition under the Act of 2013 has lapsed due to illegality/irregularityHof proceedings of taking possession under the Act of 1894. Nodeclaration can be sought by purchaser under Section 24 thatacquisition has lapsed, effect of which would be to get back the land.They cannot seek declaration that acquisition made under the Act of1894 has lapsed by the challenge to the proceedings of taking possessionunder the Act of 1894. Such right was not available after the purchasein 2000 and no such right has been provided to the purchasers underthe Act of 2013 also. Granting right to question acquisition would beagainst the public policy and the law which prohibits such transactions;it cannot be given effect to under the guise of subsequent legislationcontaining similar provisions. Subsequent legislation does not confer anynew right to person based on such void transaction; instead, it includesa provision prohibiting such transactions without permission of theCollector as provided in Section 11(4).

26. Thus, we have to follow the decisions including that of largerBench mentioned above, laying down the law on the subject, which stillholds the field and were wrongly distinguished. The binding value ofthe decision of larger and coordinate Benches have been ignored whiledeciding the Manav Dharam Trust case (supra), it was not open to itto take different view. The decision in Manav DharamTrust (supra)is per incuriam in light of this decision of this Court in MamleshwarPrasad v. Kanahaiya Lal, (1975) 2 SCC 232, A.R. Anutulay v. R.S.Nayak, (1988) 2 SCC 602, State of Uttar Pradesh v. Synthetics andChemicals Ltd., (1991) 4 SCC 139, State of B. Shama Rao v. UnionTerritory of Pondicherry, AIR 1967 SC 1480, MunicipalCorporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, NarmadaBachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC1989, Hyder Consulting (UK) Ltd. v. State of Odisha, (2015) 2 SCC189 and Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010 13SCC 336.

27. We hold that Division Bench in Manav Dharam Trust (supra)does not lay down the law correctly. Given the several bindingprecedents which are available and the provisions of the Act of 2013,we cannot follow the decision in Manav Dharam Trust (supra) andoverrule it. Shri S.N. Bhatt, learned counsel submitted that in case thisCourt does not agree with the Manav Dharam Trust (supra), the casemay be referred to Hon’ble the Chief Justice of India under theprovisions of Order VI Rule 2 of the Supreme Court Rules, 2013. Hehas relied upon the decision of this court in Vineeta Sharma v. RakeshSharma (2019) 6 SCC 162 in which, in view of the conflict of opinion

Aof two Division Bench judgments of this Court as to the interpretationof section 6 of the Hindu Succession Act, 1956 the matter was referredto the Hon’ble the Chief Justice of India, for constituting an appropriateBench. However, in the instant case, the issue is different, whether wehave to follow the decision in Manav Dharam Trust (supra) or theearlier decisions of this Court mentioned above. It is apparent that theBdecisions of the Three Judges Bench are binding on us, and in view ofother consistent decisions of this Court, we have to follow them. It isnot appropriate to refer the case to larger Bench under Order VI Rule2 of Supreme Court Rules. We find no fault in the Judgments layingdown the law that the purchase after section 4 is void as against theCState. We are not impressed with the submission raised on behalf ofthe purchasers to refer the matter for the constitution of Larger Benchto the Hon’ble Chief Justice. When decisions of Larger Bench andother Division Bench are available, the case cannot be referred to aLarger Bench.D28. Concerning the illegal colony, averments have been made thatthe colony is an unauthorized and provisional order was passed toregularise it. The plea taken is contradictory and shows the falsity ofthe claim raised by the purchasers. That, apart predecessors of thepurchaser obtained the land-based on Power of Attorney, Agreementto Sell, and Will on 9.12.1982. As per averments made in the writEapplication, Bijender Singh, who was owning ½ share, sold the shareto Satya Narain by the documents like Agreement to Sell, Power ofAttorney, or Will. It has also been averred that Om Prakash sold theremaining ½ share to Satya Narain on 11.3.1984 by way of Agreementto Sale, Power of Attorney, or Will. The purchase made throughAgreement to Sale, Power of Attorney, or Will by Satya Narain didFnot confer title upon him to transfer it to the purchasers apart fromthe fact that it was void in view of purchase after Section 4. Based onpurchase made from such owners whose title was not perfect,purchasers had no derivative title in the eye of law. There was no legallyrecognized title deed in favor of Satya Narain.G29. Resultantly, we hold that no interference is called for in thejudgment and order passed by the High Court. Accordingly, the appealis dismissed.

Devika GujralH

Appeal dismissed.