Delhi District Court
Union Of India vs . Jagdish on 30 October, 2013
IN THE COURT OF SH. ALOK AGARWAL, ADDITIONAL DISTRICT JUDGE:
DWARKA COURTS: NEW DELHI.
LAC No : 29/11/08/04
Village :Dhool Siras
Award No. : 27/20022003
UID No: 02405C0351192009
In the matter of :
Union of India Vs. Jagdish
Union of India
Through Land Acquisition Collector
SouthWest District, Kapashera,
New Delhi.
Vs.
1. Gaon Sabha of Village Dhoolsiras,
District South West,
New Delhi. ... IP No. 1
2. Shri Jagdish ( deceased)
Through LRs
(a)Smt. Vidya D/o Late Sh. Jagdish W/o Bhajan Lal
(b)Smt. Mohan Devi D/o Late Jagdish W/o Ramesh Kumar
(c) Om Prakash S/o Late Sh. Jagdish
(d)Smt. Simintra D/o Late Sh. Jagdish W/o Thakur Das
(e) Sh. Jai Narain S/o Late Sh. Jagdish
(f) Smt. Hemlata D/o Late Sh. Jagdish W/o Sh. Ramesh
(g) Smt. Sheela D/o Late Jagdish W/o Udesh Kumar
LAC No: 29/11/08/04 1 30.10.2013
(h) Karan Singh S/o Late Jagdish
(i) Smt. Krishana D/o Late Sh. Jagdish W/o Krishan
(j) Smt. Prem Wati Wd/o Jagdish
All R/o VPO Dhool Siras Delhi. ... IP No. 2
3. UOI ( Ministry of Urban Development)
Govt. of India, Nirman Bhawan
Molana Azad Road, New Delhi. ....... IP No. 3
4. DDA
Through its Vice Chairman
Vikas Sadan, I.N.A Market
New Delhi. .......... IP No. 4
Filed on : 11.02.2004
Reserved on : 23.10.2013
Decided on : 30.10.2013
J U D G M E N T :
1. This reference Under Section 3031 of the Land Acquisition Act was initially filed in the court in the year 2004 and was decided by my Ld. Predecessor vide his judgment dated 22.09.05. However vide a common judgment dated 28.08.08, this matter along with 47 other cases was remanded back by the Hon'ble High Court for fresh adjudication.
2. By way of a Notification No. F.10(30)/96/L& B/LA/13417 dated 13.12.2000 and a notification under Section 6 of the Act and Award No. 27/200203 of village Dhoolsiras 3133 bigha and 17 biswas of land situated at village Dhoolsiras including the land subject matter of this LAC No: 29/11/08/04 2 30.10.2013 case, was acquired by the Government for Planned Development of Delhi for Dwarka ProjectII. As the IP No. 2 raised objection for releasing the compensation to IP No. 1, the reference has been sent for adjudication with the amount of compensation , i.e. Rs. 23,72,909/.
3. The dispute in the present case is over a total of 4 bighas and 14 biswas of land in the following khasra numbers.
1. 9//2/1 2 Bigha and 6 Biswas
2. 12//1 2 Bighas and 8 Biswas In the Revenue Record, the above land is recorded in the name of Gaon Sabha, Dhool Siras. However, IP No. 2 Sh. Jagdish also claimed to be an interested party.
4. In the Court, the Gaon Sabha filed its claim claiming to be the sole and absolute owner of the land under reference. It also claimed to be in possession of the land at the time of acquisition and having handed over the same to the LAC. On this basis, the Gaon Sabha has claimed the entire compensation payable in this regard.
5. The claim of IP No. 2 Jagdish is not on record. It is mentioned in one of the previous order sheets that a copy of the claim of IP No. 2 was supplied to Gaon Sabha who has also filed its reply. However, the claim does not appear to have been filed by IP No. 2 on record of this case. On this being pointed out, the Ld. Counsel for IP No. 2 placed on LAC No: 29/11/08/04 3 30.10.2013 record, a copy purporting to be a copy of the claim as originally drafted.
6. As indicated from the evidence which is later on produced by IP No. 2, the claim of IP No. 2 is that he was allotted the land under reference by the Gaon Sabha, Dhool Siras vide a resolution dated 5.5.1986 under the 20 point programme of Govt. of India and that the said allotment was also sanctioned by Director, Panchyat and the Revenue Assistant. The possession of the land was handed over to him and he started cultivating the same. He has also claimed that he filed a suit before the Revenue Assistant under Section 74 (4) of the Delhi Land Reforms Act claiming bhumidari rights after having reclaimed the land but the said suit was dismissed on technical grounds. An Appeal to the collector against order of dismissal was also dismissed. He filed an appeal before the Financial Commissioner. Before the said appeal could be decided, the land was acquired and therefore, the Financial Commissioner did not finally decide the appeal. However, vide a common order, in case of two other similarly situated persons, whose land had not been acquired, the Financial Commissioner remanded their case back to the Revenue Authority overruling the judgments passed by the Revenue Assistant and the Collector and directing the Revenue Authority to decide the matter afresh on merits. IP No. 2 claims that he had successfully reclaimed the allotted land and LAC No: 29/11/08/04 4 30.10.2013 therefore he was entitled to be declared as a bhumidhar of the land and consequently, to claim the entire compensation payable for the land under reference.
7. From pleadings of the parties, following issues were framed: i. Which of the IP is entitled to get amount of compensation, and to what extent? OPP ii. Relief.
8. In order to prove his case, IP No. 2 examined himself as IP2W1 and proved documents as IP2/A to IP2/J. Counsel for Gaon Sabha tendered in evidence copies of Khasra Girdavaris as Ex. R 1 to R 15.
9. Ld. Predecessor of this court answered the reference vide his judgment dated 22.09.2005 holding that the IP No. 2 had failed to prove lawful allotment of land and his continuous possession over the same till acquisition. The claim of Gaon Sabha was therefore accepted and the entire compensation was held to be payable to the Gaon Sabha.
10. Order passed by the Ld. Predecessor of this Court was challenged by IP No. 2 before the Hon'ble High Court in LA Appeal No. 340/08.
11. Hon'ble High Court vide its order dated 18.03.2010, following the main order dated 28.08.2008 passed in L.A. Appeal No. 323/07 remanded this reference also back to this Court for fresh adjudication after issuing notice to the Ministry of Urban Development because after urbanization of land by a notification under Section 507 of DMC Act, LAC No: 29/11/08/04 5 30.10.2013 Gaon Sabha had ceased to exist and successor of Gaon Sabha is Ministry of Urban Development as per Section 150(3) (d) of the Delhi Land Reforms Act. However, rights of the Ministry of Urban Development were decided without giving any opportunity to the said Ministry to contest the case. It was also ordered that being the beneficiary of the acquisition, DDA be also impleaded as a party.
12. After remand, notices were issued to both the Urban Development Ministry and the DDA. None appeared for the Ministry in response to notice. My Ld. Predecessor even sent a DO letter to the Secretary, Ministry of Urban Development. There was no response addressed to the Court, but the Ld. Counsel for DDA informed that he had been asked to 'watch' the interest of the Ministry. Yet another order passed by the Court on 23.12.2009 to the Ministry to put up it's case before the court failed to evoke any response. The Ministry was therefore proceeded against Exparte.
13. On behalf of DDA, no separate reply or claim was filed despite several opportunities. Instead, the Ld. Counsel for DDA made a statement in the court on 05.07.2010 that DDA would adopt the claim and the replies filed by the Gaon Sabha. Thus, though the matter was remanded back chiefly on the ground that the Ministry of Urban Development and DDA were both required to be impleaded as parties, after impleadment one of them showed not only disinterest, but also LAC No: 29/11/08/04 6 30.10.2013 total disregard to the court notices and DO letter and the other merely supported the claim of Gaon Sabha to the entire compensation.
14. Besides issues framed earlier, following additional issue was also framed by learned predecessor of this Court on 26.07.2010 after the remand of the reference.
IA. "In case, the petitioner / claimant Jagdish is held not entitled to the compensation, then who out of the Gaon Sabha or UOI / DDA would be entitled to the compensation i.e. what would be the effect of the notification under Section 507 of DMC Act on the present case? OPP "
15. In it's evidence, the DDA proved the notification dated 24.10.1994 under Section 507 of DMC Act vide which the village Dhool Siras was urbanised, as Ex.RW(DDA)/X1 and notification dated 19.08.2000 as Ex. RW(DDA)/X2. Vide the later notification, the land belonging to the erstwhile Gaon Sabha, village Dhool Siras was placed at the disposal of DDA. Still, as already observed hereinabove, the DDA does not claim any compensation for itself, but has only supported the case of Gaon Sabha for the entire compensation.
16. After hearing part arguments in the matter, IP No. 2, on his application, was permitted to lead further evidence. He then examined IP2W2 Sh. Sat Narain who was the village Pradhan at the relevant time.
Sh. Sat Narain identified the allotment certificate issued by him in
LAC No: 29/11/08/04 7 30.10.2013
favour of IP No. 2 and receipt of land revenue. IP2W3, Sh. Braham Pal Singh, proved the receipt Ex.IP2/B and the resolution Ex. IP2/H from the LR book maintained in the office of the BDO, Najafgarh.
17. Gaon Sabha did not lead any other evidence and sought to rely upon it's evidence initially led before the matter was remanded back.
18. I have heard Sh. S.S. Gulia, Advocate for IP No. 2 and Sh. S.S. Dalal, Advocate for Gaon Sabha and have gone through the written submissions filed on behalf of Gaon Sabha.
19. The matter has been remanded back to the reference court by the Hon'ble High Court vide its judgment dated 28.08.08 in the following terms:
'Para 38 The appeal stands disposed of setting aside the impugned orders which are challenged in the appeal. The references which are the subject matter of the appeals are restored before the Ld. Reference Court for a fresh adjudication after permitting impleadment as afore directed'
20. The impleadments referred to above are impleadment of Ministry of Urban Development and DDA as parties. As already observed, the Ministry of Urban Development has not appeared despite service of notice and DDA has only supported the claim of Gaon Sabha. Therefore, neither Ministry of Urban Development nor the DDA has claimed the compensation or any personal interest in the reference on LAC No: 29/11/08/04 8 30.10.2013 its behalf. However, since the mandate to this court is to adjudicate afresh, after considering the evidence led by the parties both before and after the remand, my findings on the issues settled are as under: 21. Issue No. 1 The fact that the land in question belongs to Gaon Sabha Village, Dhool Siras having been vested in it by virtue of Section 7 and 154 of the Delhi Land Reforms Act at the time of commencement of the said act, is not in dispute. IP No. 2 claims that the same was allotted to him under the 20 point programme of Govt. of India on 05.05.1986. He thus acquired the status of an Assami. He cultivated and reclaimed the land and claimed bhumidhari rights in respect thereof. He also claims that the land remained in his possession till its acquisition.
22. The claim of IP No. 2 is based on the following evidence:
(a) Resolution of the Gaon Sabha dated 05.05.1986 ( Ex.IP2/F) stating that the list of persons to whom land would be allotted for cultivation had been received from Panchyat Secretary, with the approval of the Director Panchyat. It was resolved that the persons mentioned in the list be issued LR37 and patta certificate and possession of the land be given to them. The resolution was passed unanimously. The name of IP No. 2 Jagdishis shown in the list at Sl. No. 53.
(b) Allotment certificate of land under Rule 47 of the Delhi Land Reforms Rules, 1954 dated 30.10.86 issued by Gram Sabha, Dhool Siras, LAC No: 29/11/08/04 9 30.10.2013 allotting 5 Bighas and 8 Biswas of land to Jagdish( Ex.IP2/A).
(c) Receipt of land revenue for 4 bighas and 14 biswas of land dated 30.10.86 ( Ex. IP2/B), issued in favour of Jagdish.
23. The above documents have been duly proved on record by the petitioner as well as by IP2W2, Gram Pradhan Shri Sat Narayan who is the signatory of all the above documents. The receipt Ex.IP2/B and the resolution Ex.PW2/H have also been proved from the records brought from the office of BDO, Najafgarh by IP2W3 Shri Braham Pal Singh.
24. The allotment of land and the possession of IP No. 2 over the same has been denied by the respondent Gaon Sabha. The Gaon Sabha's denial of the same is based on an objection that the allotment, if any, to the petitioner was illegal since the same did not have the approval of Director Panchyat, as required under Rule 178 of the Delhi Panchyat Raj Rules, 1959, as amended in 1976. The Gaon Sabha has also claimed that the land in village Dhoolsiras was infact allotted to some persons vide another resolution dated 24.09.1986 in which the name of IP No. 2 does not appear. The said resolution has also been placed on record by IP No. 2 himself and has further been proved from the record by IP 2W3 Braham Pal Singh Ex.IP2/H. Further contention of the Gaon Sabha is that as per the Revenue Record i.e. the khatonies proved by it, LAC No: 29/11/08/04 10 30.10.2013 it is the Gaon Sabha, Dhool Siras which is shown as recorded owner of the land right upto the date of acquisition.
25. It would ,therefore, be seen that there is no serious challenge on behalf of Gaon Sabha to the fact that possession of the land was infact handed over for cultivation to IP No. 2 Jagdish on 30.10.1986 as evidenced by IP2/A. The Gaon Sabha has only challenged the allotment as irregular on the ground of violation of Rule 178 of Delhi Panchyat Raj Rules.
26. Rule 178 as amended in 1976, does require the approval of Director of Panchyat before the allotment of any land to any person under Section 74 of Delhi Land Reforms Act. However, the resolution of allotment dated 05.05.1986 Ex.IP2/F mentions that the Panchyat Secretary had informed the Gram Pradhan that approval of the Director Panchyat was taken. Pursuant to this resolution, the possession of the land has been handed over to IP No. 2 on 30.10.1986 as per allotment certificate Ex.IP2/A.
27. By virtue of Section 74 of the Delhi Land Reforms Act, the Gaon Sabha has a right to admit any person as an Assami to the land vested in it, on five years lease at a rate of rent, not more than 50% of the prevailing rate of rent in the village payable for such land. The procedure for this has been laid down under Rule 47 of the Delhi Land Reforms Rules, 1954. All that Section 47 requires is that the Gaon LAC No: 29/11/08/04 11 30.10.2013 Sabha would announce by beat of drums, the particulars of the land which is proposed to be leased out. On the date fixed, the Gaon Panchyat prepares the list of persons who express their desire to be admitted to the land and announces the rate of rent or revenue fixed for the same. The list is then shortlisted classwise in accordance with order of preference under Section 75 of the Delhi Land Reforms Act and thereafter the lands alloted by draw of lots.
28. This provision does not require any prior approval from any other authority before handing over the possession of land to the intended Assami.
29. It is, therefore, the Gaon Sabha and not the Director of Panchayats or any other authority who has the statutory right to admit any person as an Assami to any land which stands vested in the Gaon Sabha. Further, after such allotment, Section 22(3) of the Land Revenue Act enjoins upon the lessor ( in this case, Gaon Sabha) to report the allotment to the Revenue Authorities, in order to initiate the process of mutation. Here, after taking over possession of the land, there is no role to be played by the allottee for the purpose of mutation. It was, therefore, for the Gaon Sabha to initiate this process and if they have not done so, the allottee cannot be faulted for absence of mutation entries in his name in the Revenue Record. What is in the hands of the allottee is to cultivate the land and if it is successfully LAC No: 29/11/08/04 12 30.10.2013 reclaimed, he can claim bhumidhari right in the land by virtue of Section 74 (4) of the Land Reforms Act.
30. IP No. 2 in his evidence has also deposed that he, along with similarly situated persons initiated proceedings under Section 74 (4) of the DLR Act for declaration of the Bhumidhari rights. The proceedings were filed in the year 1994 but were decided against all such claimants by a common order dated 15.09.98 passed by the Revenue Assistant Shri Devinder Singh on technical ground of non compliance of Section 22 (5) of the Delhi Land Revenue Act. The order of the Revenue Assistant has not been properly proved by the petitioner. Only a copy of the same has been placed on record. However, the said order has been the subject matter of discussion in the orders of the higher revenue courts and in various connected cases in this court and therefore, the existence of the order cannot be denied by the respondent. What is worth mentioning here is that the Revenue Assistant had observed in the order that it was an admitted case of both sides that the plaintiff ( including IP No. 2 herein ) was allotted as an Assami and was handed over the possession and therefore, the case of the plaintiff fell within the four corners of provision of Section 22 of the Delhi Land Reforms Act.
31. The claims of all the plaintiffs were rejected under Order 7 Rule 11 CPC for their not having complied with Section 22(5) of the Land LAC No: 29/11/08/04 13 30.10.2013 Revenue Act and not having served a notice on the Gaon Sabha, as required under Section 99 of the Delhi Panchyat Raj Rules.
32. It is also in evidence that IP No. 2 along with other aggrieved parties filed an appeal before the Collector (SW) against the above order of the Revenue Assistant. A copy of the judgment passed by the Collector Sh. H.P.S. Saran on 04.01.2001 has been proved by IP No. 2 as Ex.PW2/J. Vide the said order the Collector dismissed the appeals and upheld the order of the Revenue Assistant. Once again the order of the Collector mentions in the penultimate paragraph that there is no dispute that the appellants were Assamies as admitted by the Gaon Sabha.
33. As per deposition of IP No. 2, the aggrieved persons went further in appeal before the Financial Commissioner whose order dated 13.05.03 has been proved in a connected case also decided today. It appears that here, the Gaon Sabha also raised an objection that the observation of the lower court with regard to admission on behalf of Gaon Sabha that the petitioners were Assamies was not correct. Before the Financial Commissioner could dispose of the matters, most of the land in village Dhool Siras had been acquired. Out of the 36 appellants before the Financial Commissioner, the lands belonging to all except two had been acquired. Ld. Financial Commissioner set aside the judgment of the Revenue Assistant and the Collector and remanded LAC No: 29/11/08/04 14 30.10.2013 the two cases back to the authorities for fresh adjudication. In respect of remaining 34 cases including the petitioner's case, the Financial Commissioner observed that it was an admitted position that the said petitioners were Assamies of the Gaon Sabha. The finding of the Financial Commissioner on the plea of the Gaon Sabha that the petitioners were not Assamies are reproduced below: 'So far as those cases are concerned, where land had not been acquired, Ld. Counsel for the petitioners are admittedly the Assamies. This contention is supported by the findings contained in the impugned order dated 04.01.2001 of the Collector ( SW) wherein he has observed that there is no dispute that appellants are Assamies as admitted by the Gaon Sabha. The plea of Ld. Counsel for the Gaon Sabha tha the admission made by their counsel who was present before the Collector should not be relied upon is rater queer and is untenable' and further that 'infact there is overwhelming evidence on record to substantiate the plea of the appellants that they were the allottees of land and were admitted as Assamies. The concurrent findings by the lower court on this issue are rather well reasoned and do not require any interference from this court'.
34. The existence of the above orders of the collector and the LAC No: 29/11/08/04 15 30.10.2013 Financial Commissioner has not been disputed on behalf of Gaon Sabha. Thus, the clearly established position is that IP No. 2 has been held to be an Assami in possession of the land under reference whose suit for declaration of Bhumidhari rights was pending as on the date of acquisition of the land.
35. In the case of M/s Sikri Borhters Vs. Union of India, reported as 1973 Rajdhani Law Reporter Note 57, it has been held that after acquisition of the land, the reference court hearing the reference under Section 3031 of the LA Act will decide the question whether the Assami had reclaimed the land and had become entitled to be declared as Bhumidhar. It is therefore for this court now to decide this issue.
36. In the case on hand, the oral deposition of IP No. 2 to the effect that he had reclaimed the land and was growing crops thereon has been denied by the Gaon Sabha. The Revenue Records have not incorporated his name as Assami. However, since it is established that IP No. 2 had been in possession of the land, as an Assami from the date of allotment till the date of acquisition and was seeking bhumidhari rights at the time of acquisition, the statutory effect of the same may be seen from the relevant provisions.
37. Once an Assami files a suit for declaration of bhumidhari rights under Section 74(2) of the Delhi Land Reforms Act before the Revenue Assistant, the Revenue Assistant ha the following three options: LAC No: 29/11/08/04 16 30.10.2013
1. He can order termination of lease and ejectment of the Assami.
2. He can extend the lease another period of two years.
3. In case the land had been duly reclaimed, he shall direct the Gaon Sabha to admit the Assami as Bhumidhar under Section 73.
38. In the case on hand, none of the above options have been exercised by the Revenue Assistant and by simply rejecting the suit under Order 7 Rule 11 CPC, he has left the parties in the same position as they were earlier. The result , therefore, is that IP No. 2 continued to be in possession of the land which was lawfully obtained by him.
39. Such a person can once again be ejected from the land by a suit of the Gaon Sabha under Section 77 of the Land Reforms Act. However, it is not the case of the Gaon Sabha that it has further filed any such suit against IP No. 2. The effect of non filing such suits under Section 77 within the period of limitation is laid down in section 79 of the act as per which, the person occupying the land becomes the bhumihdar thereof.
40. There is yet another provision under Section 86A which enables the Revenue Assistant to eject an illegal occupant of land on his own motion. IP No. 2 has in his deposition claimed that proceedings under Section 86A were initiated by the Revenue Assistant against him, but were withdrawn with an observation that the IP No. 2 was a regular allottee of the land and not an illegal occupant. However, the order of LAC No: 29/11/08/04 17 30.10.2013 the Revenue Assistant has not been proved by him, though a photocopy which is not very legible has been placed on record.
41. In any view of the matter, it is clearly established that before the land was acquired, IP No. 2 had continued in cultivatory possession of the land which was allotted to him by the Gaon Sabha for more than five years and therefore, was entitled to bhumidhari rights over the same. Even at that time when the village Dhool Siras was urbanized i.e. on 24.10.94, he had so continued in possession for more than five years. Section 154 (2) of the Delhi land Reforms Act lays down that at the time of urbanization if any land is held by an Assami of the Gaon Sabha, the provisions of Delhi Land Reforms Act would continue to apply to the said land despite the urbanization, except that any proceedings by or against the Gaon Sabha would be instituted or continued by or against Union of India.
42. The position is therefore clear that, both on th date of urbanization and on the date of acquisition of land, IP No. 2 having been in possession of the land allotted to him for more than five years and no proceedings for his ejectment being initiated either by Gaon Sabha before urbanization or by the UOI after urbanization, was entitled to bhumidhari rights in the land. I, therefore, hold that he had acquired Bhumidhari rights by the time, the land was acquired. Being a Bhumidhar, he is entitled to the entire amount compensation LAC No: 29/11/08/04 18 30.10.2013 payable in this case. Issue no. 1 is decided accordingly.
43. Issue no. 1 (A) This issue was settled after the remand of the case to the reference court in the following terms:
'In case, the petitioner / claimant Jagdish is held not entitled to the compensation, then who out of the Gaon Sabha or UOI / DDA would be entitled to the compensation i.e. what would be the effect of the notification under Section 507 of DMC Act on the present case? OPP '
44. In view of my findings on issue no. 1 that it is the claimant Jagdish who is entitled to entire compensation, this issue is infructous.
45. Relief: IP No.2 i.e. LRs of Sh. Jagdish are entitled to entire compensation in respect of land of 4 bighas and 14 biswas which is the subject matter of the present reference.
46. The reference is answered accordingly. Let a copy of the judgment be sent to the LAC(SW) for information and necessary action. File be consigned to record room.
Announced in the open Court
on 30th day of October, 2013 (ALOK AGARWAL)
ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
LAC No: 29/11/08/04 19 30.10.2013
LAC No: 29/11/08/04 20 30.10.2013