Delhi High Court – Orders
Tej Singh vs Union Of India And Ors on 27 November, 2024
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8943/2018
TEJ SINGH .....Petitioner
Through: Mr. Abhishek Rawat, Adv.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Rajneesh Sharma, Mr.
Siddharth Panda, Mr. Ritank
Kumar and Mr. Anil Pandey,
Advs. for R-1 & 2.
Mr. Arun Birbal and Mr. Sanjay
Singh, Advs. for DDA.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 27.11.2024
1. This writ petition has been preferred seeking the following
reliefs:
“(i) issue a writ of Mandamus in favour of the petitioner and
against the respondents thereby declaring the entire acquisition
proceedings in respect of and in relation to the petitioners land
measuring 200 square yards, comprised in Khasra No. 18/2/2
situated in the area of Village- Mubarikpur Dabas, Delhi, abadi
known as Inder Enclave–II, Delhi-110081 to have lapsed; and
(ii) issue a writ of Certiorari, in favour of the petitioner and against
the respondents thereby quashing the Impugned Notification(s) No.
F.11 (19)/2001/L&B/LA/20112 dated 21.03.2003 issued under
Section 4, Notification No. F. 1l(20)/2004/L&B/LA/28176 dated
19.3.2004 issued under Section 6 of the Land Acquisition Act,
1894 (hereinafter referred to as the ‘old land acquisition act’) and
award No. 16/2005-06/DC/N-W dated 14.09.2005, with respect
land measuring 200 square yards, comprised in Khasra No. 18/2/2
situated in the area of Village-Mubarikpur Dabas, Delhi, abadi
known as Inder Enclave–II, Delhi-110081 falling in the list of 895W.P.(C) 8943/2018 Page 1 of 9
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unauthorized colonies, pending consideration for regularization
with Government of Delhi as illegal, null and void being against
the mandate of law;
pass any other relief, which this Hon’ble Court may deem fit and
proper in favour of the petitioner and against the respondents.”
2. From the disclosures made in the writ petition, we find that the
petitioner asserts to have obtained a right and interest in the subject
property sometime in 2012 and more particularly by way of a General
Power of Attorney dated 20 December 2012.
3. Such a transaction cannot possibly be countenanced in light of
the decision of the Supreme Court in Suraj Lamp & Industries (P)
Ltd. (2) v. State of Haryana1, where the following was observed:-
“16. Section 54 of the TP Act makes it clear that a contract of sale,
that is, an agreement of sale does not, of itself, create any interest
in or charge on such property. This Court in Narandas
Karsondas v. S.A. Kamtam[(1977) 3 SCC 247] observed: (SCC pp.
254-55, paras 32-33 & 37)
“32. A contract of sale does not of itself create any interest
in, or charge on, the property. This is expressly declared in
Section 54 of the Transfer of Property Act. (See Ram
Baran Prasad v. Ram Mohit Hazra[AIR 1967 SC 744 :
(1967) 1 SCR 293] .) The fiduciary character of the
personal obligation created by a contract for sale is
recognised in Section 3 of the Specific Relief Act, 1963,
and in Section 91 of the Trusts Act. The personal
obligation created by a contract of sale is described in
Section 40 of the Transfer of Property Act as an obligation
arising out of contract and annexed to the ownership of
property, but not amounting to an interest or easement
therein.
33. In India, the word „transfer‟ is defined with reference
to the word „convey‟. … The word „conveys‟ in Section 5
of the Transfer of Property Act is used in the wider sense
of conveying ownership.
***
37. … that only on execution of conveyance, ownership
passes from one party to another….”
1
(2012) 1 SCC 656
W.P.(C) 8943/2018 Page 2 of 9
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17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004)
8 SCC 614] this Court held: (SCC p. 619, para 10)
“10. Protection provided under Section 53-A of the Act to
the proposed transferee is a shield only against the
transferor. It disentitles the transferor from disturbing the
possession of the proposed transferee who is put in
possession in pursuance to such an agreement. It has
nothing to do with the ownership of the proposed
transferor who remains full owner of the property till it is
legally conveyed by executing a registered sale deed in
favour of the transferee. Such a right to protect possession
against the proposed vendor cannot be pressed into service
against a third party.”
18. It is thus clear that a transfer of immovable property by way of
sale can only be by a deed of conveyance (sale deed). In the
absence of a deed of conveyance (duly stamped and registered as
required by law), no right, title or interest in an immovable
property can be transferred.
19. Any contract of sale (agreement to sell) which is not a
registered deed of conveyance (deed of sale) would fall short of the
requirements of Sections 54 and 55 of the TP Act and will not
confer any title nor transfer any interest in an immovable property
(except to the limited right granted under Section 53-A of the TP
Act). According to the TP Act, an agreement of sale, whether with
possession or without possession, is not a conveyance. Section 54
of the TP Act enacts that sale of immovable property can be made
only by a registered instrument and an agreement of sale does not
create any interest or charge on its subject-matter.
20. A power of attorney is not an instrument of transfer in regard to
any right, title or interest in an immovable property. The power of
attorney is creation of an agency whereby the grantor authorises
the grantee to do the acts specified therein, on behalf of grantor,
which when executed will be binding on the grantor as if done by
him (see Section 1-A and Section 2 of the Powers of Attorney Act,
1882). It is revocable or terminable at any time unless it is made
irrevocable in a manner known to law. Even an irrevocable
attorney does not have the effect of transferring title to the grantee.
21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this
Court held: (SCC pp. 90 & 101, paras 13 & 52)
“13. A grant of power of attorney is essentially governed
by Chapter X of the Contract Act. By reason of a deed of
power of attorney, an agent is formally appointed to act
for the principal in one transaction or a series of
transactions or to manage the affairs of the principal
generally conferring necessary authority upon another
W.P.(C) 8943/2018 Page 3 of 9
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person. A deed of power of attorney is executed by the
principal in favour of the agent. The agent derives a right
to use his name and all acts, deeds and things done by him
and subject to the limitations contained in the said deed,
the same shall be read as if done by the donor. A power of
attorney is, as is well known, a document of convenience.
***
52. Execution of a power of attorney in terms of the
provisions of the Contract Act as also the Powers of
Attorney Act is valid. A power of attorney, we have
noticed hereinbefore, is executed by the donor so as to
enable the donee to act on his behalf. Except in cases
where power of attorney is coupled with interest, it is
revocable. The donee in exercise of his power under such
power of attorney only acts in place of the donor subject
of course to the powers granted to him by reason thereof.
He cannot use the power of attorney for his own benefit.
He acts in a fiduciary capacity. Any act of infidelity or
breach of trust is a matter between the donor and the
donee.”
An attorney-holder may however execute a deed of conveyance in
exercise of the power granted under the power of attorney and
convey title on behalf of the grantor.
22. A will is the testament of the testator. It is a posthumous
disposition of the estate of the testator directing distribution of his
estate upon his death. It is not a transfer inter vivos. The two
essential characteristics of a will are that it is intended to come into
effect only after the death of the testator and is revocable at any
time during the lifetime of the testator. It is said that so long as the
testator is alive, a will is not worth the paper on which it is written,
as the testator can at any time revoke it. If the testator, who is not
married, marries after making the will, by operation of law, the will
stands revoked. (See Sections 69 and 70 of the Succession Act,
1925.) Registration of a will does not make it any more effective.
23. Therefore, an SA/GPA/will transaction does not convey any
title nor creates any interest in an immovable property. The
observations by the Delhi High Court in Asha M. Jain v. Canara
Bank [(2001) 94 DLT 841] , that the “concept of power-of-attorney
sales has been recognised as a mode of transaction” when dealing
with transactions by way of SA/GPA/will are unwarranted and not
justified, unintendedly misleading the general public into thinking
that SA/GPA/will transactions are some kind of a recognised or
accepted mode of transfer and that it can be a valid substitute for a
sale deed. Such decisions to the extent they recognise or accept
SA/GPA/will transactions as concluded transfers, as contrasted
from an agreement to transfer, are not good law.
W.P.(C) 8943/2018 Page 4 of 9
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24. We therefore reiterate that immovable property can be legally
and lawfully transferred/conveyed only by a registered deed of
conveyance. Transactions of the nature of “GPA sales” or
“SA/GPA/will transfers” do not convey title and do not amount to
transfer, nor can they be recognised or valid mode of transfer of
immovable property. The courts will not treat such transactions as
completed or concluded transfers or as conveyances as they neither
convey title nor create any interest in an immovable property. They
cannot be recognised as deeds of title, except to the limited extent
of Section 53-A of the TP Act. Such transactions cannot be relied
upon or made the basis for mutations in municipal or revenue
records. What is stated above will apply not only to deeds of
conveyance in regard to freehold property but also to transfer of
leasehold property. A lease can be validly transferred only under a
registered assignment of lease. It is time that an end is put to the
pernicious practice of SA/GPA/will transactions known as GPA
sales.”
4. We additionally take note of the following disclosures which
are made by the respondents. The subject land formed part of a
Notification under Section 4 of the Land Acquisition Act, 18942
which had been issued on 21 March 2003. This was followed by a
declaration under Section 6 of the 1894 Act which came to be
published on 19 March 2004. The Award in respect of that acquisition
came to be rendered on 14 September 2005.
5. According to the disclosures made by the Land Acquisition
Collector3 in these proceedings, the recorded tenure holders at the
time of acquisition were those detailed in para 5 which reads thus:-
“5. It is submitted that in the land acquisition proceeding with
respect to any agricultural land, the land acquisition collector has to
exercise his function by placing reliance on the revenue records. It
is respectfully submitted that as per revenue records available
before the answering Respondent, the Petitioner herein is not the
recorded owner, rather the name of the recorded owners of the
Land in Question, are as follows:
i. Sh. Jai Parkash S/o Sh. Chander (1/2 share)
ii. Sh.Dayanand (1/6th share)2
1894 Act
3
LACW.P.(C) 8943/2018 Page 5 of 9
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iii. Sh.Rajbir (1/6th share)
iv. Sh. Ramvir Singh (1/6th share)”
6. The affidavit of the LAC also provides details of the
compensation which came to be awarded to the original land holders.
We deem it apposite to extract para 7 of the counter affidavit in this
regard:-
“7. It is further also submitted that the compensation In terms of 1
bigha and 8 biswa has already been dispensed with to the recorded
owners. Break up of the award compensation paid to the recorded
owners is as follows:
i. Rs. 3,65,994/- to Sh. Jai Prakash S/o Chander . vide cheque
no. 921938 dated March 26, 2007 ii. Rs. 1,21,998/- ·to
Dayanand vide cheque no. 921939 dated March 26, 2007
iii. Rs. 1,21,998/ – to Rajbir vide cheque nO.921940 dated
March 26, 2007
iv. Rs. 1,21,998/- to Rambir Singh vide cheque no. 921941
dated March 26, 2007″
7. We are thus of the considered opinion that the petitioner is
clearly not entitled to any relief not merely on the basis of him being a
subsequent purchaser, but also on the ground of the writ petition
constituting a “stale claim”.
8. We, in this regard bear in mind the following pertinent
observations that came to be rendered by Supreme Court in Mahavir
and Ors. vs. Union of India and Ors.4. Dealing with the assertion of
stale claims and in the context of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 20135 , the Supreme Court in
Mahavir had held as follows:
“21. The Court is duty-bound to prevent the abuse of the process of
law in the cases which have been concluded several decades4
(2018) 3 SCC 588
5
2013 ActW.P.(C) 8943/2018 Page 6 of 9
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before, in our considered opinion, the provisions of Section 24(2)
of the 2013 Act cannot be invoked in such cases of dead claims or
stale claims. There are several numbers of cases coming to this
Court in which matters had been contested up to this Court
questioning the acquisition and the petitions have been dismissed
by this Court, and acquisition has attained finality, possession was
taken, the award passed. Notice had been issued under Section
12(2) of the Act tendering the awarded amount but it has not been
collected by the claimants/landowners deliberately or they had
refused to collect it and are not ready and willing to accept it and,
thereafter, it has been deposited in the name and account of the
owners in the treasury which is also deposited as per the State
Government’s instructions issued time to time relating to how
government money is to be dealt with. The act of failure to deposit
money under Section 31 after possession is taken only imposes
liability to pay higher interest under Section 34. The acquisition
would not lapse under the Act.
22. In our opinion, the cases in which there is deliberate action of
the owners for not collecting the compensation and they do not
want to receive it, Section 24(2) of the 2013 Act does not come to
their rescue as provisions are to help those persons who are
deprived of compensation but not for those who deliberately had
not received it and litigated for decades for quashing of
proceedings avoiding to receive compensation by wilful act. The
failure to deposit in court under Section 31(1) in such cases would
attract only interest as envisaged under Section 34 of the Act and
the provisions of Section 24 cannot be so invoked in such cases.
23. In the instant case, the claim has been made not only belatedly,
but neither the petitioners nor their previous three generations had
ever approached any of the authorities in writing for claiming
compensation. No representation had ever been filed with any
authority, none has been annexed and there is no averment made in
the petition that any such representation had ever been filed. The
claim appears not only stale and dead but extremely clouded. This
we are mentioning as additional reasons, as such claims not only
suffer from delay and laches but courts are not supposed to
entertain such claims. Besides such claims become doubtful,
cannot be received for consideration being barred due to delay and
laches.
24. The High Court has rightly observed that such claims cannot be
permitted to be raised in the court, and cannot be adjudicated as
they are barred. The High Court has rightly observed that such
claims cannot be a subject-matter of inquiry after the lapse of a
reasonable period of time and beneficial provisions of Section 24
W.P.(C) 8943/2018 Page 7 of 9
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of the 2013 Act are not available to such incumbents. In our
opinion, Section 24 cannot revive those claims that are dead and
stale.
25. The High Court has observed that Raisina is a part of the
Lutyens zone of Delhi. It is prime locality of New Delhi and
government offices, etc. are located. The petitioners asked the High
Court to infer and conclude that in the absence of some indication
of the record being made available by them that their ancestors
have not ever received any compensation. How the petitioners
came to know that their ancestors had not received compensation
has not been disclosed in the petition. The High Court has rightly
declined to entertain such claims. The protective umbrella of
Section 24 is not available to barred claims. If such claims are
entertained under Section 24, it would be very-very difficult to
distinguish with the frivolous claim that may be made even after
tampering the records, etc. or due to non-availability of such record
after so much lapse of time. Once right had been lost due to delay
and laches or otherwise, it cannot be revived under provisions of
Section 24 of the 2013 Act. The intendment of the 2013 Act is not
to revive stale and dead claims and in the concluded case when
rights have been finally lost. If there is delay and laches or claim is
otherwise barred, it is not revived under Section 24(2) of the 2013
Act. The provision does not operate to revive legally barred claims.
26. The provision of Section 24 does not invalidate courts
judgments/orders in which right have been finally lost or due to
inaction is barred. Law does not permit examination of barred or
totally fraudulent claims. The provisions of the law cannot be
permitted to be defrauded or misused. Section 24(2) of the 2013
Act cannot be invoked in such cases. The High Court has rightly
declined to entertain the writ petitions filed by the petitioners. It is
not conceivable how the petitioners could file such a petition in a
laconic manner relating to the prime locality at New Delhi that too
for hundreds of acres with the delay of more than 100 years.
27. The prayers that have been made in writ petition are not only
misconceived, there is an attempt to stop the ongoing construction
activity. It has also been mentioned that government offices, etc.
have come up and the Government has leased property to private
parties also but still, the prayer has been made to stop the
construction activity. It passes comprehension how such relief
could ever be asked for. No authority had ever been approached by
the petitioners or by their ancestors. As such the petition is aimed
at the total misuse of the process of law. Even for a moment, such a
petition could not have been received for consideration.
W.P.(C) 8943/2018 Page 8 of 9
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28. We have seen in a large number of cases that the acquisition
had attained finality, compensation had been tendered but not
received and development had also taken place. The petitions are
being filed in the courts under the provisions of Section 24(2) of
the 2013 Act that they have not been paid any compensation. In
fact, if there is any such grievance, they themselves are responsible
for not collecting the compensation that was offered and tendered
to them. The provision of Section 24 is not intended to apply and
extend help in such cases.”
9. We consequently find no justification to entertain the writ
petition. The writ petition shall stand dismissed.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
NOVEMBER 27, 2024/DR
W.P.(C) 8943/2018 Page 9 of 9
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