Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 10, Cited by 0]

Delhi District Court

As 'Pyare vs . Financial Commissioner' Reported In ... on 27 April, 2013

             IN THE COURT OF SHRI AMIT KUMAR: ADJ­01 (NW)
                              ROHINI COURTS: DELHI


                                                                     LAC No.        : 4B/10

Union of India 

                                          Versus

   1. Gram Sabha Bawana 
      Through B.D.O. (N/W), 
      at B.D.O. Office Complex Alipur Block, 
      Alipur, Delhi - 110036

   2. Vinod Kumar 
      S/o Shri Jeet Ram 
      R/o Village & P.O. Bawana, 
      Delhi - 110039                                   ... Interested Persons

Award No.      :    19/2005­06
Village:       Bawana, Delhi 

                         Date of receipt of reference                   :       29.05.2010
                         Date of reserving Judgment                     :       06.04.2013
                         Date of pronouncement of Judgment              :       27.04.2013

                                     JUDGEMENT

1. The present reference u/s 30­31 of Land Acquisition Land, 1894 (hereinafter referred to as LA Act) has been sent by the Land Acquisition Collector (hereinafter referred to as LAC) to this court, thereby a dispute between the interested persons (IPs) as named herein above in respect of the land comprising of Khasra No.36/2 (4­12), 36/3 (1­16), 36/8 (6­11), 36/9 (4­

16), 36/12 (4­16), 36/13 (5­12) total measuring 28 Bigha 3 Biswa situated in Village Barwala, Delhi which was acquired vide Award No.19/2005­06.

2. Alongwith this reference, the LAC has sent a total compensation of Rs.1,34,05,248/­ to this court.

3. As per Naksha Muntzimn, IP No.1 Gram Sabha is the recorded owner whereas IP No.2 is the objector. After receipt of the reference in this court, notices were issued to both the interested persons who filed respective claims. IP No.1 in the claim stated that Gram Sabha is the recorded bhumidhar of the land under reference to this court and this land was gair mumkin shor which is just like banzar kadim and could not be cultivated being unfit for cultivation and it is a waste land which vested in Gram Sabha at the time of commencement of DLR Act. It is stated that IP No.2 filed a writ petition before Hon'ble High Court claiming that the land in question was given on lease to him and since he failed to re­claim the land, this lease expired and lease­cum­allotment was cancelled by Director of Panchayat vide order dated 26.08.98 and since then the possession of the land in question is with IP No.1 and the same was never allotted to anybody till the acquisition of the land. It was claimed by IP No.1 that entire compensation of the land under reference should be given to IP No.1

4. IP No.2 in his claim stated that he is in cultivatory possession of the land since 1975 and the same was in the knowledge of IP No.1 Gram Sabha. He stated that in 1987, ejectment proceedings u/s 86A of DLR Act were initiated against him by Gram Sabha but the said proceedings were abandoned by Gram Sabha. Subsequently, IP No.1 tried to take forcible possession of the land for which IP No.2 filed a civil suit No.694/1990 for injunction which was decreed in his favour on 24.04.99 and the appeal of Gram Sabha against this order was dismissed as withdrawn before Ld. ADJ, Delhi on 17.09.04. It is claimed that IP No.2 also filed a petition u/s 85 of DLR Act in 1999 but since the land was acquired, the Revenue Assistant had no powers to decide that issue and now it is for this court to decide whether IP No.2 acquired bhumidhari rights or not. It is claimed that he also filed a writ petition No.3208/02 wherein vide order dated 08.01.03, the revenue authorities were directed to inspect the land and file the report in respect of who is in actual physical possession of the land and accordingly, filled form P­

5. In fact, it was claimed by IP No.2 that he is entitled to entire compensation as he has acquired bhumidhari rights u/s 85 of DLR Act only on the basis of adverse possession.

5. On the respective pleadings of the parties, following issues were framed on 13.07.11: ­

1. Which of the IPs is entitled to compensation and what amount?

2. Relief.

6. I have heard the submissions and my issue­wise findings is as under:­

7. ISSUE NO.1 :

The onus of proving this issue was on both the parties. IP No.1 has examined only one witness who has placed on record Khatauni of the year 1988­89 as Ex. IP1W­1/A, Khasra Girdawri for the year 1991­92, 1992­93 as Ex. IP1W­1/B and as Ex. IP1W­1/C respectively. He has further placed on record the copy of diary and order dated 25.10.03 vide which the other records of the land has been destroyed as per rules. On the other hand, IP No.2 has examined himself as IP2W­1 and the record from Hon'ble High Court in his writ petition as IP2W­2, the record of his petition u/s 85 of DLR Act through IP2W­3, record of Nehri Khasra Girdawri of the year 2000­06 through IP2W­4, record of his civil suit through IP2W­5, record of the appeal filed by Gram Sabha through IP2W­6, record of the physical inspection carried out on directions of Hon'ble High Court through IP2W­7, the record of form P­5 through IP2W­8, record pertaining to 1981­82 has been weeded out through IP2W­9 and two independent witnesses namely Sube Singh and Satbir as IP2W­10 and IP2W­11 to prove his possession since 1975.

8. It is proved that IP No.1 is the recorded bhumidhar of the land under reference through the documents placed on record filed by both the parties. As a matter of fact, even the witnesses examined by IP No.2 i.e. IP2W­10 and IP2W­11 in their cross examination admitted that Gram Sabha is the recorded owner of the land under reference. Even the claim filed by IP No.2 shows that Gram Sabha is the recorded owner of the land under reference. IP No.2 mentioned in his claim that proceedings to eject him u/s 86A of DLR Act were initiated by Gram Sabha and further he has become bhumidhar by adverse possession which implies that Gram Sabha is recorded owner of the land as one can become owner by adverse possession against true owner. IP No.2, therefore, has to prove on record that he has become bhumidhar u/s 85 of DLR Act because of his continuous possession for three years. Admittedly, he filed a civil suit in 1990 which was decreed exparte on 24.04.99 vide Ex. IP2W­1/1 wherein it was decreed that he is in undisputed possession of the land under reference and Gram Sabha was restrained from dispossessing him without due process of law. The appeal filed by Gram Sabha against this order was withdrawn though on the reasons that Hon'ble High Court has already passed directions in the writ petition No.3208/02, but that affirms the Judgment of Ld. Civil Court in respect of possession of IP No.2. Even the order passed by Hon'ble High Court in writ petition as Ex. IP2W­1/3 shows that IP No.2 in that writ petition admitted that Gram Sabha is the recorded owner though he claimed that he was in possession of the land in question for more than 25 years and now should be declared bhumidhar by recording his possession. This writ petition was disposed off with directions to the revenue authorities to inspect the land physically and prepare the report in that regard, but by withdrawing the appeal against the Judgment of civil court, the findings of civil court that IP No.2 is in possession of the land in question remains unchallenged. Otherwise also, the record of Nehri Khasra Girdawri proved on record by IP No.2 shows that he is in cultivatory possession of the land in question. Further, IP No.2 filed proceedings u/s 85 of DLR Act which were not concluded because of acquisition proceedings. Ld. Counsel for IP No.2 in this regard has relied upon the Judgment of Hon'ble High Court in the case titled as 'Pyare Vs. Financial Commissioner' reported in 94 (2001) DLT 348. Ld. Counsel for IP No.2 submits that once the land is acquired, it is for this court to decide the rights and interests of the parties post acquisition.

9. IP No.2 before this court through his testimony and material placed on record has proved that he was in possession of the land in question for more than three years prior to the date of acquisition and therefore has attained bhumidhari rights in the land under reference. It is the case of Gram Sabha that land was leased out to IP No.2 and his lease was subsequently cancelled vide order of Director Panchayat dated 26.08.98, but this order has not seen the light of the day and otherwise also, prior to proving the cancellation of lease, Gram Sabha was first required to prove the creation of lease in favour of IP No.2. Merely producing the Khatauni wherein it is mentioned that lease has been cancelled in favour of IP No.2 vide order dated 26.08.98 does not serve the purpose. IP No.1 was first required to prove the lease than its cancellation. Otherwise also, under the provisions of DLR Act, even if a lease is created in favour of a person and the lessee establishes his cultivatory possession for undisturbed three years continuously, the said lessee becomes bhumidhar of land. IP No.2 has established his possession in the land for more than three years.

10. Now, we comes to the question of disbursement of the compensation. Ld. Counsel for IP No.2 in this regard has placed reliance on the Judgment of Hon'ble High Court in the case titled as 'Bihari & Ors. Vs. UOI' 47 (1992) DLT 300 and has argued that entire compensation should be given to IP No.2. I have perused this Judgment wherein the dispute was of a reference was u/s 18 of LA Act and not u/s 30­31 of LA Act and there was no issue involved between the parties of disbursement of the compensation between the owner and a person in actual physical possession. On the other hand, Hon'ble High Court in its Judgment in the case titled as "Raj Singh Vs. UOI"

reported in 2009 (III) AD (Delhi) 114 has held that in cases where a person has been declared in actual possession by revenue court or in cases where the proceedings u/s 85 of DLR Act could not be completed because of the acquisition or in any other cases of like nature, it will be appropriate if the compensation is disbursed in the ratio of 20:80 i.e. 20% should go to actual owner and 80% to the person in cultivatory possession. Hon'ble High Court discussed all other Judgments in this regard like "Moti Lal Jain Vs. Mukhtiyar Singh" reported in 117 (2005) DLT 538, "Rattan Singh Vs. UOI"

reported in 1993 (26) DRJ 577 and 'Rama Shankar Vs. Mukhtiare' reported in 2007 (98) DRJ 517 and thereafter concluded that where a person proves his possession, but never moved an application u/s 85 of DLR Act nor was declared owner should be given compensation in the ratio of 40:60. Whereas a person who proves his ownership u/s 85 of DLR Act, should be given compensation in the ratio of 20:80. In facts, I am of the opinion that IP No.1 should be given 20% of the compensation being the recorded owner and IP No.2 should be given 80% of the compensation being the person in actual physical cultivatory possession for three years prior to acquisition.

11. RELIEF :

In view of my findings on issue No.1, IP No.1 is entitled to 20% of the compensation and IP No.2 is entitled to receive 80% of the compensation of the land comprising of Khasra No.36/2 (4­12), 36/3 (1­16), 36/8 (6­11), 36/9 (4­16), 36/12 (4­16), 36/13 (5­12) total measuring 28 Bigha 3 Biswa situated in Village Barwala, Delhi.

12. In view of the above, the reference with respect to the land comprising of Khasra No.36/2 (4­12), 36/3 (1­16), 36/8 (6­11), 36/9 (4­16), 36/12 (4­16), 36/13 (5­12) total measuring 28 Bigha 3 Biswa situated in Village Barwala, Delhi is disposed off and the respective compensation be released to IP No.1 and 2 as mentioned herein above. File be consigned to Record Room. 

Announced in the open court                            (AMIT KUMAR)
on 27.04.2013                              ADJ­01(North West)
                                  Rohini Courts/Delhi