Delhi District Court
Union Of India vs Gaon Sabha on 31 August, 2015
IN THE COURT OF AJAY GOEL: ADDL. DISTRICT JUDGE-1,
DISTRICT-NORTH, ROHINI COURTS, DELHI.
LAC No. 19B/2015
Award No. 19/2005-06
Village : Bawana
In the Matter of:
Union of India
Through its Secretary
Government of NCT of Delhi. .....Petitioner.
VERSUS
Gaon Sabha, Through BDO(NW)
BDO Office Complex,
Alipur, Delhi. ......Interested Party.
Sh. Dharampal, Ram Chander and Satbir
All S/o Sunder Lal,
R/o VPO-Bawana, Delhi .......Objectors.
Section 4 Notification dated: 27.1.03
Section 6 Declaration dated: 23.01.2004
Date of Institution of Reference: 11.07.2011
Date of Assignment to this court: 10.2.15
Date of Arguments: 21.08.2015
Date of Order: 31.08.2015
LAC-19B/2015 Page No.1/13
JUDGMENT
REFERENCE PETITION U/S 30-31 OF L. A. ACT.
1. Vide award No. 19/2005-06, land of village Bawana, Delhi was acquired by the Govt. for public purpose i.e. "Development of Narela Bawana Phase-II under planned development of Delhi". These were the proceedings for determination of compensation in respect of land measuring 3184 bighas 17 biswas in Village Bawana. The LAC assessed the total compensation of the land was Rs.1,61,27,90,407/- alongwith interest. The land was notified U/s 4 of the LA Act vide notification dated 27.01.03 . The Delhi Govt. issued declaration U/s 6 of the L A Act vide notification dated 23.1.04 and notices U/s 9 and 10 of said act were also issued to interested persons and in response to the notices issued, claims were filed by interested persons.
2. Notices of the case were issued to the IPs as per memorandum sent by the LAC.
3. Claim petition was filed on behalf of Gaon Sabha wherein it was stated that claimant Gaon Sabha is the recorded owner and was in possession of the land in dispute i.e. 65/1(4-16) and 66/5(4-16) situated in the revenue estate of village Bawana, Delhi. It was stated that the said land was acquired vide award no. 19/05-06 and the possession of the land was taken over from the claimant Gaon Sabha. It was stated that no other person except IP no. 1 is the owner of the land in question and other IPs have no valid or legal LAC-19B/2015 Page No.2/13 right in the land in question. It was prayed that compensation amount in respect of above land may be released in favour of the claimant.
4. Claim petition was also filed on behalf of Sh. Dharam Pal, Satbir and Ram Chander IP no. 2 wherein it was stated that he is the absolute owner in respect of land bearing khasra no. 65/1(4-16) and 66/5(4-
16) situated in the revenue estate of village Bawana, Delhi. It was stated that claimant was allotted the said khasra no. under the 20 Point Programme and had also been issued the LR Form 20 dated 27.11.1961. As stated Gram Sabha Bawana had also issued a certificate to irrigate the land in question which shows that the claimant apart from being its owner was also in physical cultivatory possession of the land in question. It was also stated that since claimant was in possession of the land in question, the gram sabha filed a petition under section 86-A of the DLR Act for eviction of the claimant which was consigned to record room with an order directing the BDO to conduct an enquiry. However, since the BDO never conducted any enquiry till the date of notification and date of taking over possession, the claimant always remained in physical cultivatory possession of the land in question. It was stated that LAC had taken the possession of the suit directly from the claimant and no other person except the claimant is entitled for the entire amount of compensation in respect of khasra no. 65/1(4-16) and 66/5(4-16) being the owner as well as in possession of the land in question.
LAC-19B/2015 Page No.3/135. Reply to the petition of objector/IP no. 1 Dharam Pal was filed on behalf of Gaon Sabha, IP no. 1 wherein it was stated that objector/IP no. 2 has not come to the court with clean hands and has suppressed material facts. It was stated that as per Rule 185 of Delhi Panchayat Raj Rules 1959 no immovable property vested in or belonging to Gaon Sabha shall be transferred by sale, mortgage or exchange except on the resolution of Gaon Panchayat and with the sanction of Chief Commissioner to which aspect IP no. 2 has failed. It was stated that IP no. 2 has no legal right, title in respect of the land in question and has no locus standi to file the present claim. It was denied that IP no. 2 was allotted any land or Gaon Sabha issued any certificate to irrigate the land in question. It was denied that IP no. 2 is entitled for the entire compensation being owner in possession of the land in question. Accordingly it was prayed that the claim petition of IP no. 2 be dismissed.
6. On the pleadings of parties, the following issues were framed vide order dated 10.04.12:-
1) Which of the IP is entitled to the compensation, if any, to what amount?
2) Relief.
7. In evidence, both the IPs have led their respective evidence.
8. IP no. 1 examined Sh. T. S Joshi as IP1W1, Sh. Ashwani Kumar, Patwari as IP1W2. IP1W1 Sh. T. S Joshi brought the original possession report dated 5.7.06 prepared in award no. 19/2005- LAC-19B/2015 Page No.4/13 06/DC/NW in respect of village Bawana Ex. IP1W1/1. IP1W2 had brought summoned record which was collectively Ex. IP1W2/1 and IP1W2/2.
9. In support of his case IP no. 2 examined himself as IP2W1, Sh. Saheb Singh as IP2W2, Sh. Jaipal as IP2W4 and Sh. Narender Kumar as IP2W5, IP2W6 Hari Dutt Kaushik and IP2W7 Sh. Trilok Chand.
10.IP2W1 had reiterated his claim and relied upon documents i.e. Form-57 dated 27.11.61, khasra girdawari for the year 1982-83, certificate issued by gaon sabha Pradhan dated 18.05.81, photocopy of attested copy of khasra girdawaries in respect of irrigation of crops on acquired land for th eyear 1998 to 2005 Ex. IP2W1/1 to Ex. IP2W1/4, copy of petition for declaration of bhumidari rights received on 24.12.03 was marked A and copy of order passed by SDM/RA in case titled as Gaon Sabha Bawana vs. Jeet Ram was marked B. IP2W2 supported the case of the IP no. 2. IP2W3 Ashwani Kumar, Halqa Patwari from SDM Office stated that khasra girdawari for the year 1981, 1982 and 1983 in respect of Khasra no. 65/1 and 66/5 has been consigned to record room Kanjhawala. IP2W4 Sh. Jaipal, Assistant Revenue Clerk from Irrigation Department had brought the khasra girdawari issued by the irrigation department for the year 1998 till 2005 and the attest copy of the same was Ex. IP2W4/1(colly).He also stated that khasra no. 65/1 and 66/5 was being irrigated and cultivated by Ram Chander and Dharampal s/o Sunder lal till the year 2005 and crop Jwar was standing as on 2005.
LAC-19B/2015 Page No.5/13IP2W5 Sh. Narender Kumar, Record Keeper, Revenue Department had brought the original record of file of case 26/RA/83 titled as Gaon Sabha Bawana Vs. Jeet Ram and the list of the cases pending u/s 86 A DLR Act was Ex. IP2W5/1(Colly). IP2W6 Hari Dutt Kaushik, Kanoongo had stated khasra girdawari of village Bawana for the year 1981 to 1990-91 had been weeded out vide order Ex. IP2W6/1.
11.Now the details of IPs in present reference are given below in tabulation form for better elucidation of facts:-
Sr. No. IP No. Basis
1. 1 Owner in possession
2. 2 Claimed himself to be owner in
possession being land allotted
to him under 20 Point
Prorgamme.
12.I have gone through the material available on record and have heard the arguments addressed by counsel for respective IPs. My findings in the present reference petition are given below:-
13.Issue No. 1. What right, interest or title, the IPs have in the acquired land?:- In order to prove this issue, the respective IPs have led their evidence. It is the case of the claimant Sh. Dharampal, Ram Chander and Satbir that they are the absolute owner in respect of land bearing khasra no. 65/1(4-16) and 66/5(4-
16) situated in the revenue estate of village Bawana, Delhi and they LAC-19B/2015 Page No.6/13 were allotted the said khasra no. under the 20 Point Programme initiated by Smt. Indira Gandhi, the then Prime Minister and was allotted a certificate by the Gram Sabha, Bawana, Delhi. It is further the case of claimants that they remained in continuous physical possession of the land in question. On the other hand, the Gaon Sabha has denied that claimants were allotted the land in question under twenty point program or Gaon Sabha issued any certificate to claimants. It was also denied by Gaon Sabha that the claimant was irrigating the land in question till its possession was taken over by LAC.
14.The IP2W1 Sh. Dharampal relied upon form LR-57 dated 27.11.61, Khasra girdawari for the year 1982-83, certificate issued by Gaon Sabha Pradhan dated 18.05.1981, attested copy of khasra girdawaries in respect of irrigation of crops on the acquired land for the year 1998 to 2005 and same were Ex. IP2W1/1 to Ex. IP2W1/4 and copy of petition for declaration of bhumidari rights was initially marked as Mark A and copy of order passed by SDM/RA in case titled as Gaon Sabha Bawana Vs. Jeet Ram was marked as Mark B. All these documents have been duly proved by the IP2W1 as per law in his evidence. In his cross-examination, he has denied the suggestion put to him to the effect that his father was never handed over the possession of acquired land by the Pradhan or that allotment certificate was issued by a person without getting proper approval from the competent authority. Sh. Sahib Singh was LAC-19B/2015 Page No.7/13 examined as IP2W2 who is Pradhan and in his evidence, he has stated that he had issued the document Ex. IP2W1/1 to IP2W1/3 in the capacity of a Pradhan and he further stated that he was appointed as a Pradhan by Gram Sabha by way of a resolution duly passed and approved. He further stated that Gram Sabha never filed any case against him and resolution by way of which he was given powers to allot land to people in village Bawana was taken back by the Gaon Sabha after the completion of his tenure as Pradhan and forwarded to the next Pradhan appointed by the Gaon Sabha. He further stated that he had alloted the land to IP No. 2 namely Sh. Sunder Lal on behalf of Gram Sabha on the basis of authority and resolution given to him.
15.IP2W4 Sh. Jaipal, Assistant Revenue Clerk, Irrigation Department brought the khasra girdawari issued by the Irrigation Department for the year 1998 till 2005 Ex. IP2W4/1 and stated that khasra No. 65/1 and 66/5 was being irrigated and cultivated by Ram Chander and Dharampal S/o Late Sunder Lal till the year 2005 and crop Jwar was standing as on 2005. Sh. Narender Kumar IP2W5 brought the original file of case 26/RA/83 titled as Gaon Sabha Vs. Jeet Ram and copy of order dated 30.04.1985 was Ex. IP2W5/1.
16.IP2W5 Sh. Narender Kumar, Record Keeper from Revenue Department is also one of the most important witness produced before the court who has proved the case No. 26/RA/83 titled as Gaon Sabha Bawana Vs. Jeet Ram and copy of order dated 30.04.85 LAC-19B/2015 Page No.8/13 was Ex. IP2W5/1 and name and khasra number of IP No. 2 find mentioned in said order dated 30.04.1985 at serial No. 65. The same clearly proves that if once eviction proceedings were initiated by the Gaon Sabha IP No. 1 then IP No. 2 must be in possession of the land in question otherwise there was no need for initiation of eviction proceeding by Gaon Sabha. By initiation of eviction proceedings, the IP No. 1 Gaon Sabha itself admitted the possession of the IP No. 2 over the land in question. To this effect, the reliance is placed upon AIR 1960 page 100 and Section 58 of the Indian Evidence Act, which clearly states that "admission is the best piece of evidence".
17.The counsel for IP No. 2 has also rightly argued that if Gaon Sabha i.e. IP No. 1 has destroyed the khasra girdawaris, then adverse inference has to be drawn against Gaon Sabha only and in support of his contention, the counsel for IP No. 2 has relied upon AIR 1968 SC 1413 and 1988 Delhi 332.
18.I am also supported in my view by the dictum of the Hon'ble High Court in Behari & Others Vs. Union of India etc. 47 (1992) DLT 300 (DB) and in Balbir Singh Vs. ADM (Revenue) and Others 57 (1995) DLT (DB). In Behari's case in para 1 of the judgment, the Hon'ble High Court observed that ".... We are of the view that the reason given by learned ADJ is not sufficient to rebut the presumption of bhoomidari rights of Behari in those fields. He was shown to be in possession of those fields in the LAC-19B/2015 Page No.9/13 judgment that in the khasra girdawari, Behari has been shown to be in cultivatory possession of the aforesaid khasra number after 1962-63. However, this presumption of possession, according to the learned Addl. District Judge, stood rebutted because Behari seemed to have irrigated those fields from a well situated in Khasra No. 1119/716 which did not belong to him. We are of the view that the reason given by the learned Addl. District Judge is not sufficient to rebut the presumption of Bhoomidari rights of Behari in those fields. He was shown to be in possession of those fields in the khasra Girdawari. No entry contrary to such possession emerged from any other documents like Khatauni and, therefore the conclusion drawn by learned Addl. District Judge does not appear to be sufficient. In fact, khasra girdawari are always accepted in proof of possession of a certain person. We are, therefore of the view that Behari had also acquired Bumidari rights of the aforesaid three khasra numbers measuring 4 bighas 13 biswas."
19.On the other hand, Gaon Sabha produced Sh. T. S. Joshi, Kanoongo from office of LAC North as IP1W1 who brought the original possession report dated 05.07.2006 prepared in Award No. 19/2005- 06/DC/NW, in respect of Village-Bawana and same was Ex. IP1W1/1. In his examination in chief he stated that as per possession report, at the time of taking of possession vide above award, the land was LAC-19B/2015 Page No.10/13 lying vacant and no hindrance from any corner was caused. Rather in his cross-examination, he has stated that in the document Ex. IP1W1/1, there is no mention of persons from whom the possession of khasra numbers were taken vide above award. The other witness produced by Gaon Sabha i.e. IP1W2 Sh. Ashwani Kumar, Patwari has rather demolished the case of Gaon Sabha by stating that he does not know when Gaon Sabha came into possession of land under reference or that he does not know whether Gaon Sabha initiated any proceedings U/s 86 A of the DLR Act against IP No. 2.
20.After observing the evidence led by parties and careful consideration of same shows and proves that IP No. 2 was in possession of the land in question as he has been successful in proving the khasra girdawari issued by the Irrigation Department for the year 1998 till 2005 Ex. IP2W4/1 and it is proved that khasra No. 65/1(4-16) and 66/5(4-16) was being irrigated and cultivated by Ram Chander and Dharampal S/o Late Sunder Lal till the year 2005. The Pradhan of village Sh. Sahib Singh has also deposed in favour of IP No. 2. Ex. IP2W7/1 is an application for declaration of bhumidari rights relied upon by IP No. 2. Moreover, the Gaon Sabha has neither taken any steps nor challenged the khasra girdarwaris in favour of IP No. 2. When it has been proved that IP No. 2 was irrigating the land in question, hence he has been able to establish his possession over the land in question.
21.The Gaon Sabha has argued that bhumidari rights have not been LAC-19B/2015 Page No.11/13 declared in favour of IP No. 2 by concerned revenue authorities. The said arguments is not tenable. If there is any dispute then there is no need to invoke the jurisdiction of revenue officers under DLR Act if land has already been acquired as settled in judgment titled M/s Sikri Brothers Vs. Union of India, 1973 Rajdhani Law Reporter (Note) 56 and titled Pyare Vs. Financial Commissioner 1994 (2001) DLT 348 (DV). It is settled that Court of ADJ has to determine the question. Rather, it has been held in judgment titled Govt. of NCT Delhi Vs. Poonam Gupta 2005 (125) DLT 423 that "rights of bhumidari as matured are to be seen from the date when petition under Section 85 of DLR Act was filed. If person had acquired those rights on the said date, mere delay in deciding the rights does not debar the said person from the benefits which a declared bhumidar is entitled." When in the present circumstances when Gaon Sabha has neither proved his possession nor ownership, the claim of IP No. 1 is not tenable. The possession is established in favour of IP No. 2. It is also proved that he was in possession for the last 5 years and bhumidari application was pending. So in these circumstances and in view of the discussion of law discussed above, the IP No. 2 is held entitled for entire compensation. The Gaon Sabha could not refute the entries, when prima facie possession of IP No. 2 is proved then ownership of Gaon Sabha should have been proved on record. It should have been further proved that possession was taken from LAC-19B/2015 Page No.12/13 Gaon Sabha by LAC authority which IP No. 1 has failed to prove. It is also not proved as to how Gaon Sabha came into picture as alleged by them and what was basis as it is not made out as to why they have not challenged the entries and particularly what was the need for them to file eviction petition, if IP No. 2 was not in possession. Thus IP No. 2 Sh. Dharam Pal, Satbir and Ram Chander are entitled for entire amount of compensation.
22.Relief:- In view of the above finding, the reference is decided. Claimants/IP No. 2 are hereby granted 100% of compensation in respect of khasra no. 65/1(4-16) and 66/5(4-16) situated in the revenue estate of Village Bawana, Delhi. Payment be called with up to date interest in the name of IP No. 2. District Nazir is directed to remit the awarded amount of the land to the entitled IP in above terms as per above findings. Copy of this judgment be sent to the LAC. District Nazir will distribute the amount as per above observation to the entitled I.P. after receiving the amount from concerned bank. File be consigned to record room.
Announced in open court (AJAY GOEL)
on 31.08.2015. ADJ-1(North)/Delhi.
LAC-19B/2015 Page No.13/13