' The petitioner challenges the order dated 17th October, 1981, by which the Commissioner accepted an appeal filed by respondents 3 and 4 and ordered that the amended award be given effect to.
The result of the order, according to the petitioner is, that it shall have to allow exemption of plots to the respondents.
2. Briefly, the facts of this case are that the petitioner framed a housing scheme known as `Gulshan-e-Rave on 11th December, 1975. On 31st January, 1976, the Deputy Commissioner issued a notification under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973, hereinafter called the Housing Act. This included the land in dispute also. A notification to take possession of the entire land, under section 13 of the above Act, issued on 16th November, 1976, was published in the official Gazette on 13th December, 1976. The actual possession is said to have been taken on 18th December, 1976 while the Land Acquisition Collector announced the award on 30th September, 1978.
3. On 30th June, 1977, the previous owner sold, out of Khasra No, 1056/3/6, village Nawankot, areas measuring 10 Kanals 25 sft., and 8 Marlas 215 sft., respectively to respondents 3 and 4, by registered sale deeds. The Land Acquisition Collector while considering the question of compensation, gave award, in favour of the previous owner, for the reason that the respondents 3 and 4 were not the owners on the date of acquisition or possession. This led to filing of appeals by the respondents 3 and 4 before the Commissioner who accepted the same on 1st September, 1979.
4. The petitioner took a review petition but that was rejected on 14th March, 1981. Consequently, the Land Acquisition Collector incorporated the names of respondents 3 and 4 in the list of the awardees. Armed with those respondents 3 and 4 applied for exemption of the plots in their possession which was not acceded to by the petitioner. The respondents 3 and 4 then went up in appeal before the Commissioner, who allowed the same as stated above.
5. From the facts given above, the question arising for determination is, whether an owner, possession of whose land had been taken away, in pursuance to acquisition proceedings, can sell the same land thereafter and pass a good title to his vendee, only because the award had not till then been announced? A number of precedent cases have been relied on and I will discuss them hereunder.
6. A Full Bench of Patna High Court in State of Bahar v. Dr. G. H. Grant (1) answered a similar question in the following terms: - "In a proceeding under the Land Acquisition Act, title to the land does not pass to the State as soon as award under section 11 is made and filed under section 12, but it is deferred till possession is taken under section 16 of the Act."
7. Earlier, the Indian Supreme Court was also seized of matter, concerning in terpretaiorl of sections 16 and 17 of the Land Acquisition Act, in the Fruit and Vegetable Merchants Union v. Delhi Improvement rust (2). It observed that, in the cases contemplated by those provisions, the property acquired becomes the property of the Government, without any conditions or limitations as to title or possession, as the Legislature has not limited the purpose or the duration.
8. This Court also considered the same provisions in Mirza Muhammad Hussain Beg V. Government of West Pakistan (3) to hold that the Government becomes the owner of the property which has been acquired and an absolute title free from all encumbrances, vests in it after possession is taken under sections 16 of the Land Acquisition Act, 1894.
9. Again in Mst. Sardar Begum v. L. I. T. (4) a Division Bench of this Court approved the contention of the respondent that if an acquisition had been made, in conformity with all the mandatory requirements of law, the property shall vest absolutely in the Trust, free from all encumbrances, under section 16 of the Land Acquisition Act:1894. {{FOOT NOTE}}
(1) AIR 1960 Pat. 382 (2) AIR 1957 SC 344
(3) PLD 1961(W. P.) Lah. 696 (4) PLD 1972 Lah. 458 {{FOOT NOTE}}
10. Section 16 of the Land Acquisition Act, 1894, reads as under:- , "16. When the Collector has made an award under section 11, he may subject to the provision of section 31 take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances."
11. The paralleled provision in the Punjab Acquisition of Land (Housing) Act, 1973, is section 12. The possession in the present case had been taken in urgency under section 13, which goes as follows:- "13. In case of urgency, the Deputy Commissioner may, immediately after the publication of notice published under S. 6 (I), authorise the Collector through a notification published in the official Gazette to enter upon and take possession of land which shall thereupon vest absolutely in Government or the Official Development Agency, as the case may be, free from all encumbrances: 'Provided
12. Both, the section 16 of the Land Acquisition Act, 1894, and section 13 of the Act reproduced above, have a common phrase " take possession of the land which shall thereupon vest absolutely in Government free from all encumbrances." A comparison of the urgency and normal provisions also makes it clear that the vesting of the property is linked with possession and not award, despite the fact that award is always announced later than possession, in case of urgency. Thus the law laid down in the judgments referred to above does apply, and so the vesting of the title is complete only on taking possession, whatever, the stage in the acquisition proceedings.
13. Again, the award of compensation for the land acquired or to be acquired under the Housing Act, is governed by its sections 7 and 8. Section 7 gives a part of the procedure to be followed in determining the amount of compensation of the land to be acquired whereas section 8 provides for award for a land which has already been acquired. Thus, the award can be announced after the acquisition under section 8 and so the vesting of title may be complete even before the award is made. Section 12, on the other hand, deals with taking of possession after award under section 7 and not 8. The Housing Act thus provides for an award both before and after acquisition but the vesting in either case is complete on taking possession.
14. In view of the above, the property in dispute vested in the petitioner on 18th December, 1976, when the possession was taken. The sale by the previous owner on 30th June, 1977 was, thus a nullity in law. The owner had no property left to be sold. Consequently, the vendee may be paid cash compensation only, by the Land Acquisition Collector, on the strength of the sale-deeds but the purchasers of portions of land, cannot claim exemption from the petitioner, in respect of each and every portion of the purchased land.
15. It may, however, be clarified that if the vendor had sold the entire acquired property, in such a situation to a vendee or vendees, and all of them claim the compensation jointly, as the original vendor would have done, the the petitioner may consider the case and allow such an exemption, as it would have allowed to the original vendor. Such an action would be based on an equitable premises so that the vendor, who had once sold his right in the property, fir consideration, should not be assisted by the law, to fraudulently receive its compensation or exemption once again, to the detriment of his victims.
' The upshot of whole discussion is that the order of the Commissioner is without lawful authority and of no legal effect. The parties shall bear their own cost.
Writ .