Delhi High Court
Ajay Beri vs Estate Officer-Iii (Delhi Urban ... on 30 August, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 25th May, 2022
Pronounced on: 30th August, 2022
+ W.P.(C) 7125/2022 & CM APPL. 21872/2022
AJAY BERI ..... Petitioner
Through: Mr. Ravinder Sethi, Sr. Advocate
with Mr. Badal Dayal and Mr.
Puneet Sharma, Advocates
versus
ESTATE OFFICER-III (DELHI URBAN SHELTER
IMPROVEMENT BOARD) & ANR ..... Respondents
Through: Mr. Parvinder Chauhan, SC with
Mr. Sushil Dixit, Advocates for
DUSIB/R-1.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant petition under Article 226 read with Article 227 of the Constitution of India has been filed on behalf of the petitioner seeking following reliefs:-
"a) Issue appropriate writ, order or direction in the nature of certiorari thereby quashing the order dated 07.02.2020 as passed by Ld. District Judge (North-West), Tishazari District Courts, Delhi vide which, Ld. District Judge (North-West), Delhi, dismissed the appeal of the Petitioner filed under the Section 9 of the Public Premises Act, 1971 and Signature Not Verified W.P.(C) 7125/2022 Page 1 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55
b) To further issue appropriate writ, direction in the nature of Certiorari or any other appropriate writ to quash Eviction Order dated 02.04.2013 as passed by Ld. Estate Officer-III, Delhi Urban Shelter Improvement Board w.r.t. Petitioner's land in question bearing Khasra No.824(3-10), 825 (0-
16) And 826 (0-17) now known as 6/3, Rohtak Road, Near Madipur Village, Delhi and to further issue appropriate writ, direction in the nature of certiorari or any other appropriate writ thereby quashing recovery notices dated 17.02.2021 bearing no. DD/Land/DUSIB/2021/D-488 allegedly issued for the recovery of an amount of Rs.1,98,54,223/- and also reminder notices dated 31.03.2021,23.06.2021, 24.08.2021 for alleged illegal occupation of Petitioner's land in question.
b. Issue a writ or direction in the nature of mandamus directing the respondents not to dispossess the petitioner from the land comprised in Khasra No.824(3-10), 825 (3-10), 826 (0-17)total admeasuring 7 Bigha 17 Biswa situated in Village Madipur now known as 6/3, Rohtak Road, Madipur Village, Delhi."
FACTUAL MATRIX
2. The brief facts of the case are as under:-
i. In the year 1957-58, the petitioner's late father, became the lessee in respect of property bearing Khasra No.824 (measuring 3 Bighas 10 Biswas), Khasra No.825 (measuring 0 Bighas 16 Biswas) and Khasra No.826 (measuring 0 Bighas 17 Biswas), now known as 6/3, Rohtak Road, Near Madipur Village, Delhi. The said land was later on bought by his father vide registered sale deed dated 30th November 1967 executed by the erstwhile owners Sh. Dharm Bir Signature Not Verified W.P.(C) 7125/2022 Page 2 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 and Sh. Manohar Lal, both sons of Sh. Tulsi Ram for a total consideration of Rs. 36,000/-, which was duly registered vide registration No. 4297, Book No. I, Volume No. 886 pages 96 to
100. The said land was used by petitioner‟s father for industrial purposes under the name of M/s Imperial Technical Works for manufacturing of original parts of Lamberetta, Vespa Scooters and Rajdoot Motorcycles.
ii. On 13th November 1959 a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter "LA Act") was issued whereby the property in question was sought to be acquired by the DDA/Slum Wing for development purposes, followed by a notification under Section 6 of the LA Act dated 10th June 1963. It is alleged that vide Award No. 1691 dated 23rd March 1964 the said land was acquired and the formal possession of the aforesaid mentioned Khasras were taken over by the then Tehsildar, JJ, MCD from Land & Housing Department on 10th June 1965 under JJR Scheme, Madipur. The aforesaid land has been transferred to MCD, Slum Clearance Scheme on 10th June 1965. iii. The concerned Estate Officer VIII (S&JJ) passed an order dated 22nd September 2008 under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1894 (hereinafter "PP Act"). The order dated 22nd September 2008 was challenged before District Judge-III (West)/ARCT, Delhi and vide order dated 31st March 2009 the matter was remanded back to the Estate Officer for reconsideration with the directions to allow the petitioner to file a rejoinder and allow parties to lead evidence and then, to decide the Signature Not Verified W.P.(C) 7125/2022 Page 3 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 case on merits. The parties were directed to appear before the Estate Officer on 13th April 2009.
iv. After the matter was remanded back by the District Judge, the Estate Officer passed the order dated 2nd April 2013, whereby the petitioner was held to be "unauthorized occupant", as has been defined under Section 2(g) of the PP Act of the premises in question and an order was passed under Section 5(1) of the PP Act directing the petitioner to vacate the premises within 15 days of the publication of the order with a further direction to the Department to assess the damages for unauthorized occupation by the petitioner or anyone claiming under him in terms of Section 7 of the PP Act. v. The petitioner preferred an appeal before the District and Sessions Judge (West) under Section 9 of the PP Act against the order dated 2nd April 2013 passed by the Estate Officer. The said appeal was decided vide impugned order dated 7th February 2020 whereby the District & Sessions Judge (West) rejected the appeal bearing no.PPA-05/2016.
3. Hence, the petitioner is before this Court by way of the instant writ petition assailing the aforesaid.
SUBMISSIONS
4. Learned counsel appearing on behalf of the petitioner submitted that the land in question was never vested in the Government as the possession of the land, whether formal or physical, had never been taken by Land Acquisition Collector (hereinafter "LAC") under Section 16 of the LA Act. It is further submitted that acquisition proceedings have not been completed by the LAC till date and the land in question continues to Signature Not Verified W.P.(C) 7125/2022 Page 4 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 remain under the possession and control of the petitioner. Learned counsel submitted that the petitioner purchased the property in question subsequent to notification under Section 4 and 6 of the LA Act. There is no illegality committed since the Delhi Land (Restriction on Transfer) Act, 1972, which inter alia by virtue of Section 3, prohibited sale and purchase of any property under acquisition by the Government, came into force from 14th January 1972 and it had no retrospective application. It is further submitted that the said property was purchased before the Act of 1972 came into force. It is submitted that the property was a built up property and its physical possession had never been taken over by the LAC or any other department during „Kabza Karwahi‟ after passing of the award under Section 6 of the LA Act on 23rd March 1964. The petitioner continued to be in uninterrupted lawful possession of the land. It is emphasized that the DDA vide its letters dated 7th January 1981, 13th March 1981, 4th May 1981 and 23rd May 1981 wrote to the LAC to take over the possession of the property but even during the Kabza Karwahi on 10th December 1981, its physical possession was not taken over and the petitioner continued to run his business from the premises in question.
5. Learned counsel for the petitioner submitted that the notice under Section 4 of the PP Act dated 9th June 2008 was issued without compliance of the mandate of Sections 11, 15 and 16 of the LA Act. The Estate Officer as well as the Appellate Court have not considered the aforesaid submissions and legal propositions and requirements and passed the impugned order. No possession proceeding under Section 16 of LA Act was initiated by the LAC, therefore the purpose for which the land had been acquired, had become obsolete/infructuous. Inordinate delay Signature Not Verified W.P.(C) 7125/2022 Page 5 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 and long lapse of time in the matter of taking possession and paying compensation has had the effect of snapping necessary link between the proposal for acquisition itself. Therefore, to allow the acquisition of petitioner‟s land under old award of the year 1964 is not only unreasonable but, the same is misapplication of the provision of LA Act by the respondent.
6. In support of his arguments, learned counsel for the petitioner has relied upon the judgment passed by this Court in the case of Satyendra Kumar vs. UOI 194 SCC OnLine Del 14, wherein it is held as under:-
"6...when there is an unreasonable delay in making the payment or in taking over possession of the property after the award, it could raise a suspicion about the bonafides of the acquisition proceedings."
7. Learned counsel for the petitioner submitted that respondent no.2 had sent recovery notice for recovery of an amount of Rs.1,98,54,223/- to the petitioner, for alleged recovery of damages of alleged unlawful occupation/possession of land in question. The said land had never been vested with the Government under Section 16 of the LA Act. Therefore, the recovery notice for recovering the amount is illegal and without any basis.
8. It is further submitted that the provision for assessing arrears or damages to be recovered are provided under Section 7 of the PP Act, where under the Estate Officer has to issue show cause notice to the occupant and further has to assess the damages on account of use and occupation of land. But in complete contrast, respondent no.2, on its own accord and without initiating any proceedings under Section 7 of the PP Signature Not Verified W.P.(C) 7125/2022 Page 6 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 Act and without calling for any objections or production/consideration of the evidence as mandated under sub-Section 3 of Section 7, issued alleged unlawful demand notices in contravention of such provisions. Moreover, respondent no. 2 is demanding arrears for time period starting from 29th September 1998 to 1st May 2013, which is otherwise time barred as it has to be restricted to three years before initiation of proceedings as the damages are of earlier period and in contravention of provisions of PP Act which provides the procedure for issuing demand notices and consideration of evidence for such issuance.
9. In support of his arguments, learned counsel for the petitioner has relied upon the judgments passed in New Delhi Municipal Committee vs. Kalu Ram 1976 (3) SCC 407, S.V. Motwani vs. The Collector of Delhi & Ors AIR 1974 Del 56 and Ms. Rachna Dogra vs. Directorate of Estates 109 (204) DLT 286. Learned counsel for the petitioner submitted that in view of aforesaid decisions and law settled by different High Courts as well as by this Court, the Estate Officer and the Appellate Court have passed the orders in contravention of the provisions of the statute and law settled. It is therefore prayed that the instant petition may be allowed and impugned order may be set aside.
10. Per Contra, learned counsel for the respondent vehemently opposed the submissions made on behalf of the petitioner and submitted that there is no illegality or error in the impugned orders passed by the Estate Officer and the District Judge.
11. Learned counsel for the respondent submitted that admittedly after passing of the order dated 2nd April 2013 by Estate Officer, the possession of the land in question was taken over way back in May 2013. It is Signature Not Verified W.P.(C) 7125/2022 Page 7 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 submitted that there has never been any dispute about the fact that the subject land in question was acquired under the provisions of the LA Act. In this respect, an Award bearing No. 1691 dated 23rd March 1964 was passed. Learned counsel submitted that the challenge of the petitioner to the order passed by the Estate Officer solely premised upon the allegation that though the land in question was acquired, however the physical possession of the subject land never vested with the Government and therefore, could not have been treated as public premises. It is submitted on behalf of the respondent that the instant case has a checkered history and there has been multiple rounds of litigations between the parties. However, the sum and substance of the litigation is that the Predecessor- in-Interest of the petitioner had been running a factory on the subject land which was sought to be acquired and during the first round of litigation i.e. CWP 197/1964 vide letter dated 17th November 1965 and 8th December 1965, an assurance was given by Delhi Administration that the possession of the subject land will not be taken over till an alternative allotment is made.
12. Learned counsel for the respondent submitted that it is petitioner‟s own case that on 26th February 1971, allotment of Plot No. 235, situated in Block B of Okhla Industrial Area, Phase-I, New Delhi was made (hereinafter "alternative plot"). Thereafter, Predecessor-in-Interest of the petitioner preferred another writ petition being CWP No. 39/1972. It is submitted that ground (II) of the said writ petition clearly shows that there is a categorical admission to the effect that on 26th February 1979, allotment of alternative plot was made in favour of the Predecessor-in- Interest of the petitioner. The sole grievance agitated in the said writ Signature Not Verified W.P.(C) 7125/2022 Page 8 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 petition had been that neither there is any development nor the alternative plot has been demarcated and there was no provision of the electricity or water, therefore, it was not possible to shift the factory to the alternative plot.
13. The aforesaid writ petition came to be disposed of by this Court vide judgment dated 26th February 1979 by directing that the possession of the petitioner shall not be disturbed from the subject land for a period of 30 months from the date the petitioner is handed over possession of the alternative plot. Admittedly, the possession was handed over way back on 29th March 1996. Therefore, the period of 30 months for which the physical possession of the subject property could not have been taken over in terms of the order dated 26th February 1979, passed by this Court, expired way back on 28th September 1998. Although the petitioner had taken over the possession of the alternative plot and as per the available record has already sold out the same, but the possession of the subject land was not surrendered. Rather, the petitioner went on filing one case after another with a view to scuttle any attempt of taking over the physical possession of the land in question.
14. Learned counsel for the respondent has referred to the judgment of Hon‟ble Supreme Court in the matter of Indore Development Authority vs Manoharlal and Ors. (2022) 8 SCC 129 and relied upon contents of paragraphs 246 to 273 of the same. It is further submitted that the said land measures only about 4 Bighas 3 Biswas i.e. less than 1 Acre and the same was part on a very large chunk of acquired land measuring about 283 acres. The possession of the entire acquired land was taken way back on 10th June 1965 by drawing a panchnama and as well as making Signature Not Verified W.P.(C) 7125/2022 Page 9 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 endorsement on the plan. The petitioner has never raised any doubt about the preparation of panchnama in respect of the entire land measuring about 283 acres.
15. Learned counsel for the respondent submitted that therefore, the plea of the petitioner premised on "Physical Possession" is liable to be discarded and rejected. No other plea, ground or argument has been raised on this aspect. Therefore, the instant writ petition is devoid of any merit and liable to be rejected. Insofar as the challenge to the demand letter dated 21st February 2021 is concerned, the same is equally misconceived. The said demand letter has been called upon to make payment of damages towards occupation of the subject land beyond the time allowed by this Court vide judgment dated 26th February 1979 passed in CWP No. 31/1972. In the event the petitioner complies with the said demand letter, nothing would survive, however, if the petitioner does not comply with the said demand, the answering respondent would be constrained to invoke its legal remedies for recovery which, obviously, would be in the shape of proceedings under Section 7 of the PP Act. It is submitted that nothing is more to be read in the said demand letter. Therefore, the instant petition is devoid of any merit and is liable to be dismissed.
16. It is further submitted that the impugned order passed by the learned District Judge was back on 7th February 2020 and the instant writ petition has been preferred in May 2022. Thus, there is evident and unexplained delay of 2 years in filing the writ petition, which is liable to be dismissed on the ground of delay and laches.
Signature Not Verified W.P.(C) 7125/2022 Page 10 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55FINDINGS AND ANALYSIS
17. I have heard learned counsel for the parties at length and perused the documents and relevant judgments cited at Bar.
18. In the instant case, the land of Khasras No.824, 825 and 826 of Village Madipur was acquired vide Award No. 1691 dated 23rd March 1964 and the formal possession of the aforesaid mentioned Khasras were taken over by the then Tehsildar, JJ, MCD from Land & Housing Department on 10th June 1965 under JJR Scheme, Madipur. By virtue of this acquisition and taking over of the possession of the land by the then Tehsildar, respondent became the owner of the land in question. In the instant case, the land in question was first given to DDA by LAC, thereafter, DDA handed over this land to MCD/ Slum Cluster Residential Scheme on 10th June 1965. The entry to this effect is also on record. But, on the contrary, petitioner herein has vehemently submitted that M/s. Imperial Tehnical Works has purchased the land bearing Khasras No. 824 to 826, Village Madipur through a purported sale deed dated 30th November 1967 executed on Rs.2/- stamp paper by one Sh. Dharambir and Sh. Manohar Lal, both sons of Sh. Tulsi Ram. The petitioner is also claiming that the possession of the land was not taken over by the LAC from him after acquisition; the said acquisition is not effective.
19. The Estate Officer-III, Delhi Urban Shelter Improvement Board, has passed order dated 2nd April 2013 under sub Section 1 of Section 5 of the PP Act. The relevant portion of the said order is reproduced herein below for proper adjudication of the matter:-
"In view of above facts and reasons recorded above, I, the undersigned, am satisfied that Signature Not Verified W.P.(C) 7125/2022 Page 11 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 Sh.Ajay Barry resident of K-78; Hauj Khas, New Delhi also at Khasra No.824, 825 & 826 village Madipur or whosoever is claiming through him or is unauthorized occupation of the Public Premises specified in the Schedule below:
SCHEDULE Land bearing Khasra No.824 (measuring 3 Bighas 10 Biswas), 825 (measuring 0 Bigha 16 Biswas)& 826 (measuring 0 Bigha 17 Biswas) measuring about 4125 Sq. yards.
Now, therefore, in exercise of powers conferred on me under Sub-Section (1) of Section 5 of the Public Premises (Eviction of Unautharised Occupants) Act, 1971, I hereby order the said Sh.Ajay Barry and all persons, who may be in occupation of the land bearing Khasra No.824, 825 & 826 village Madipur or any part thereof to vacate the said premises within 15 days of the date of publication of this order. In the event of refusal or failure to comply with this order within the period specified above the said Sh.Ajay Berry and all other persons concerned are liable to be evicted from the said premises i.e. the land bearing Khasra No.824, 825 & 826 village Madipur , if need be, by the use of such force as may be necessary.
Petitioner Department is also at liberty to file the claim for assessment of damages under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for unauthorized occupation of the Public Premises described in the Schedule above separately against Sh.Ajay Berry or whosoever is claiming through Signature Not Verified W.P.(C) 7125/2022 Page 12 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 him or is in unauthorized occupation of the Public Premises the specified in the Schedule above.
This file may be consigned to record and order to all concerned may be issued."
20. The petitioner herein filed an appeal bearing PPA-05/2016 before District & Sessions Judge (West), Delhi on the ground that the Estate Officer has not appreciated that Deputy Housing Commissioner, Delhi Administration, Delhi vide letter dated 21st March 1967 acknowledged that the possession of the land in question had not been taken over by the LAC, referring to the earlier letter of LAC dated 15th October 1965, which suggested that the land in question was a built up property even prior to issuance of notification under Section 4 of the LA Act. It is also contended that the Estate Officer has not appreciated that the physical possession of the land was never taken over by the LAC. Another ground for challenging the Estate Officer‟s order in the appeal is that vesting of the land in Government has never taken place as the actual possession was never taken over by the DDA/LAC/Slum Department.
21. The aforesaid appeal was rejected by the Appellate Court vide order dated 7th February 2021. The operative portion of the same reads as under:-
"27. To sum up, from the aforesaid discussion, although the possession of the property had not taken soon after the passing of the Award No. 1691 dated 23.03.1964, and it manifest that a symbolic possession was taken on 10.06.1964 and later on 10.12.1981, and no notice was not given to the occupier / appellant to demolish the super structure or for that matter, no demolition action Signature Not Verified W.P.(C) 7125/2022 Page 13 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 was taken either by the staff on that day, since the appellant was to be offered alternate accommodation in terms of the outcome of WP(C) 197/1964. Admittedly. the alternative plot was allotted and its possession was taken over by the appellant on 29.03.1996 and thereafter, the perpetual lease deed was executed on 21.06.1996, which fact was also conceded in the WP(C) No. 6588/2014 and CM Appl. 15675/2014 pending before the Hon'ble High Court of Delhi, which was dismissed as withdrawn on 20.08.2019.
28. The whole discussion goes to show that the appellant has already taken advantage or benefit from the government in the nature of an alternative accommodation, continued to unlawfully occupy the public land in question to the detriment of the public purpose despite ceasing to hold any legal or equitable right to hold on to the possession of the land in question. It is manifest that the appellant has retained the possession of the public land taking advantage of the lackadaisical approach of the public officers concerned. Lastly, it is also matter of record that the land in question was transferred to the MCD, Slum Clearance Scheme on 10.06.1965 much before the execution of the sale deed in favour of the appellant dated 30.11.1967 and there is no iota of evidence on the record that the appellant was the owner of the land on the date of passing of Award No. 1691 dated 23.03.1964 or that he had any right or interest in the same.
29. Before parting with this case, the reliance by the ld. Counsel for the appellant on decisions in the case of Raghubir Singh Sherawat vs. State of Haryana (supra) and Prahlad Singh vs. Union of India (supra) is totally misplaced since at the cost Signature Not Verified W.P.(C) 7125/2022 Page 14 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 of repetition the possession of the land in question was taken much prior to the execution of sale deed in favour of the appellant and the land in question had been vested with MCD on 10.06.1965. It appears that the whole exercise of taking over the possession was taken as per the practices and norms prevailing at the relevant point of time and while filing the Writ Petition bearing No. 31/1972 before the Circuit Bench of the Hon'ble Punjab High Court at Delhi referred above, no cudgel was concerned Land Acquisition Collector. In fact, after the disposal of the said writ, another writ bearing CWP No. 1019/1973 was filed where again no challenge was made that symbolic possession had been taken over by the MCD after due notice and the only plea made by the appellant was for allotment of alternate accommodation, which writ was also dismissed as withdrawn on 13.10.1973. The said aspect operates as estoppel against the appellant and he cannot be allowed to approbate and reprobate on his stand so as to challenge the acquisition of the land and its subsequent taking over of possession by the concerned authorities. Needless to state that the possession of the site in question has been taken over by the authorities on 02.05.2013 after following due process of law.
RELIEF
30. In the said view of discussion, I find no grounds to interfere in the decision taken by the Ld. Estate Officer and therefore, the present appeal is hereby dismissed with costs of Rs.1,00,000/- (one lakh), which be paid to the respondent no.2/DUSIB for suffering the misfortune of this prolonged litigation to the detriment of public interest, which shall be paid or Signature Not Verified W.P.(C) 7125/2022 Page 15 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 claimable without prejudice to any other claim towards damages or costs by it.
31. The records of Ld. Estate Officer be sent back alongwith a copy of this judgment for information and record."
22. In the instant petition, it is an admitted fact that the land in question was acquired under the provisions of LA Act, 1894. It is also an admitted fact that an award bearing no. 1691 was passed on 23rd March 1964. The challenge of the petitioner to the order passed by learned Estate Officer as well the order passed in the appeal solely premised upon the allegations that though land in question was acquired, however, the „physical possession‟ of the same continued to remain with the petitioner. It is also the case of the petitioner that the title of the land in question had never been vested with the Government and therefore, it could not be treated as public premises so as to invite the applications of the Public Premises Act.
23. In the present case, the petitioner has been offered alternative plot by the department and which was handed over to him way back on 29th March 1996. It is also brought to the notice of this Court that vide order dated 26th February 1979, the Coordinate Bench of this Court directed that the possession of the land in question shall not be disturbed for a period of 30 months from the date of handing over the possession of the alternative plot to the petitioner. Admittedly, the possession of alternative plot was handed over in the year 1996. Therefore, the period of 30 months for which the physical possession of the subject property could not have been taken over in terms of the order dated 26th February Signature Not Verified W.P.(C) 7125/2022 Page 16 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 1979, passed by the Coordinate Bench of this Court in WP(C) 31/1972, expired way back on 28th September 1998. The relevant portion of order dated 26th February 1979 reads as under:-
"It is really strange that despite repeated opportunities being taken by the parties, respondents could not sort out this case out of court. There is no valid stand which the respondents could or have taken before us. We accordingly accept the petition, make the rule absolute and issue a writ to the respondents that they are directed not to disturb, interfere or intermeddle in any manner with the possession of the petitioners‟ factory land at Rohtak Road or the factory called the "Imperial Technical Works"
situated in village Madipur at Mila 6/3, Rohtak Road, Delhi till 30 months from the date the petitioners are given possession of either plot No.235, Block-B (measuring 2420 sq.yds.) in Okhla Industrial Area, Phase-1 or any other plot in a developed industrial area having electricity and water. In the circumstances of the case, we feel, the petitioners are also entitled to costs as against respondents 1, 2 and 4."
24. During the course of enquiry before the Estate Officer, it has come in the evidence that Deputy Housing Commissioner, Delhi Administration wrote a letter to LAC in reference to earlier letter dated 15th October 1965 providing that the factory of „M/s. Imperial Technical Works‟ at Village Madipur be not disturbed unless an alternative plot is offered to it for shifting the present site to a conforming area in one of the Industrial Schemes of the DDA. There is also another letter dated 4th May 1981 written by Mr. K.K. Satyapaian, Deputy Director (NL), DDA to one Mr. V.K. Khanna, Under Secretary, Land and Building Signature Not Verified W.P.(C) 7125/2022 Page 17 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 Department, pointing out that development work was held up due to want of inter alia the land in question and requesting for necessary instructions to be passed to the LAC for handing over the land on 8th May 1981. In response to letter dated 4th May 1981, a letter dated 23rd May 1981 was written to the effect that vacant possession of the land under reference may be taken over under Section 16 of the LA Act in consultation with the DDA. It is also matter of record that Kabza Karwahi was also taken by the LAC on 10th December 1981.
25. The Estate Officer, after conclusion of the trial and after perusing the entire documents on record, reached to the conclusion that the physical possession has already been taken by the respondent authority for the purpose for which acquisition has taken place. The petitioner has already been offered an alternative plot and the same has been handed over to him. The possession of the alternative plot was taken over by the petitioner vide File No. F-6A(32)69/LSB(1) on 29th March 1996. The main grievance of the petitioner is that the actual possession of the land in question was not taken over by the concerned authority.
26. In the case of Sham Lal v. Rajinder Kumar 20 (1994) 30 DRJ 596, this Court held as under:-
"12. On the basis of the material available on record, it will be a misnomer to say that the plaintiff has been in 'possession' of the suit property. The plaintiff is neither a tenant, nor a licensee, nor a person even in unlawful possession of the suit property. Possession of servant is possession of the real owner. A servant cannot be said to be having any interest in the suit property. It cannot be said that a servant or a chowkidar can Signature Not Verified W.P.(C) 7125/2022 Page 18 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 exercise such a possession or right to possession over the property as to exclude the master and the real owner of the property from his possession or exercising right to possession over the property.
13. Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider
(i) the person possessing,
(ii) the things possessed and,
(iii) the persons excluded from possession.
A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and a master."
27. The ratio of the aforesaid judgment is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying Signature Not Verified W.P.(C) 7125/2022 Page 19 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 or claiming possession of the property or as would entitle him to compel the master from staying away from his own property.
28. In the case of Indore Development Authority vs. Manohar Lal (2020) 8 SCC 129, the Hon‟ble Supreme Court held as under:-
"246. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.
247. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession"
used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government Signature Not Verified W.P.(C) 7125/2022 Page 20 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.
249. The concept of possession is complex one. It comprises the right to possess and to exclude others, essential is animus possidendi. Possession depends upon the character of the thing which is possessed. If the land is not capable of any use, mere non-user of it does not lead to the inference that the owner is not in possession. The established principle is that the possession follows title. Possession comprises of the control over the property. The element of possession is the physical control or the power over the object and intention or will to exercise the power. Corpus and animus are both necessary and have to co-exist. Possession of the acquired land is taken under the Act of 1894 under Section 16 or 17 as the case may be. The government has a right to acquire the property for public purpose. The stage under Section 16 comes for taking possession after issuance of notification Signature Not Verified W.P.(C) 7125/2022 Page 21 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 under Section 4(1) and stage of Section 9(1). Under Section 16, vesting is after passing of the award on taking possession and under Section 17 before passing of the award.
250. Mitra‟s "Law of Possession and Ownership of Property", 2nd Edn., expressions „trespass‟ and „trespasser‟ have been dealt with by the learned Author with the help of Words and Phrases, Permanent Edition, West Publishing Co. which has also been quoted with respect to who is a trespasser:
"A "trespasser" is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor‟s consent or otherwise. Wimmer‟s Estate, In re P 2d p.121"
"A "trespasser" is one entering or remaining on land in another‟s possession without a privilege to do so created by possessor‟s consent, express or implied, or by law. Keesecker v. G.M. Mckelvey Co., N.E. 2d pp. 226,227."
251. One who enters or remains in possession on land of another without a privilege to do so, is also treated as a trespasser. On the strength of Full Bench decision of Patna High Court in S.M. Yaqub v. T.N. Basu, Mitra, has referred to the observation that the possession should not be confused with occupation. A person may be in actual possession of the property without occupying it for a considerable time. The person who has a right to utilise the whole in any way he likes. Possession in part is good enough to infer that the person is in possession of the rest. Learned Author has referred to Jowitt‟s Dictionary of English Law, Signature Not Verified W.P.(C) 7125/2022 Page 22 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 Ed. 1969, so as to explain what constitutes possession.
"There are three requisites of possession. First, there must be actual or potential physical control. Secondly, the physical control is not possession unless accompanied by intention hence if a thing is put into the hand of a sleeping person he has no possession of it. Thirdly, the possibility and intention must be visible or evidence by external signs for if the thing shows no signs of being under the control of anyone, it is not possession." AIR 1949 Pat 146.
256. This Court in V. Chandrasekaran v. Administrative Officer dealt with the concept of vesting under the 1894 Act. The facts of the said case indicated that the appellants and the officials of the State and Development Board connived with each other to enable the appellant to grab/encroach upon the public land, which was acquired and falsified the documents so as to construct flats thereon. Considering the gravamen of the fraud, the Chief Secretary of the State was directed to trace out such officials and to take suitable action against each of them. It was also held by this Court that alienation of land subsequent to notification under Section 4(1) is void and no title passes on the basis of such sale deed. This Court held that once land vested in the State free from all encumbrances, it cannot be divested. Once land has been acquired, it cannot be restored to tenure- holders/persons interested, even if it is not used for the purpose for which it is so acquired. Once possession of land has been taken, it vests in the State free from all encumbrances. Under Sections 16 and 17, the acquired property becomes the property of the Government without any limitation or condition Signature Not Verified W.P.(C) 7125/2022 Page 23 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 either as to title or possession. Reliance has been placed on Fruit and Vegetable Merchants Union (supra):
"19. That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, Section 56 of 165 (2012) 12 SCC 133 the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that "such property shall thereupon vest in such receiver". The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act 1 of LA), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, Signature Not Verified W.P.(C) 7125/2022 Page 24 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Sections 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them." (emphasis supplied)
257. In National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad, the concept of vesting was considered. This court observed that vesting means an absolute and indefeasible right. Vesting, in general sense, means vesting in possession. Vesting may include vesting of interest too. This Court observed thus:
"38. "Vesting" means having obtained an absolute and indefeasible right. It refers to and is used for transfer or conveyance. "Vesting" in the general sense, means vesting in possession. However, "vesting"
does not necessarily and always means possession but includes vesting of interest as well. "Vesting" may mean vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act.
The word "vest" has different shades, taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration. Thus, the word 2011 (12) SCC 695 "vest" clothes varied colours from the context and situation Signature Not Verified W.P.(C) 7125/2022 Page 25 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 in which the word came to be used in the statute. The expression "vest" is a word of ambiguous import since it has no fixed connotation and the same has to be understood in a different context under different sets of circumstances. [Vide Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344, Maharaj Singh v. State of U.P. AIR 1976 SC 2602, Municipal Corpn. of Hyderabad v. P.N. Murthy AIR 1987 SC 802, Vatticherukuru Village Panchayat v.
Nori Venkatarama Deekshithulu 1991 Supp (2) SCC 228, M. Ismail Faruqui v. Union of India AIR 1995 SC 605, SCC p. 404, para 41, Govt. of A.P. v. Nizam, Hyderabad (1996) 3 SCC 282, K.V. Shivakumar v.
Appropriate Authority (2000) 3 SCC 485, Municipal Corpn. of Greater Bombay v.
Hindustan Petroleum Corpn. AIR 2001 SC 3630 and Sulochana Chandrakant Galande v. Pune Municipal Transport (2010) 8 SCC
467.]" (emphasis supplied)
259. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same. In Municipal Corporation of Greater Bombay & Ors. v. Hindustan Petroleum Corporation & Anr167, this Court discussed the concept of vesting in the context of Section 220 of the Bombay Municipal Corporation Act. It has referred to various decisions including that of Richardson v. Robertson, (1862) 6 LT 75 thus:
"8. It is no doubt true that Section 220 provides that any drain which vests in the Corporation is a municipal drain and shall be under the control of the Corporation. In this context, the question Signature Not Verified W.P.(C) 7125/2022 Page 26 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 arises as to what meaning is required to assign to the word "vest" occurring in Section 220 of the Act? In Richardson v. Robertson 6 LT at p. 78, it was observed by Lord Cranworth as under: (LT p.78) "The word „vest‟ is a word, at least, of ambiguous import. Prima facie „vesting‟ in possession is the more natural meaning. The expressions „investiture‟ -- „clothing‟ -- and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But I am willing to accede to the argument that was pressed at the Bar, that by long usage „vesting‟ originally means the having obtained an absolute and indefeasible right, as contradistinguished from the not having so obtained it. But it cannot be disputed that the word „vesting‟ may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession."
* * *
15. We are, therefore, of the view that the word "vest" means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act." (emphasis supplied)
260. The word „vest‟ has to be construed in the context in which it is used in a particular provision of the Act. Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, section 24(2) does not contemplate divesting of the property from the State as mentioned above.
Signature Not Verified W.P.(C) 7125/2022 Page 27 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55261. Now, the court would examine the mode of taking possession under the Act of 1894 as laid down by this Court. In Balwant Narayan Bhagde (supra) it was observed that the act of Tehsildar in going on the spot and inspecting the land was sufficient to constitute taking of possession. Thereafter, it would not be open to the Government or the Commission to withdraw from the acquisition under Section 48(1) of the Act. It was held thus:
"28. We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based. But we are writing a separate judgment as we feel that the discussion in the judgment of our learned Brother Untwalia, J., in regard to delivery of "symbolical" and "actual"
possession under Rules 35, 36, 95 and 96 of Order 21of the Code of Civil Procedure, is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned Brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment. We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, LA, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What Signature Not Verified W.P.(C) 7125/2022 Page 28 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of.
There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the Signature Not Verified W.P.(C) 7125/2022 Page 29 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 occupant or the owner ever coming to know of it."
262. In Tamil Nadu Housing Board v. A. Viswam (supra) it was held that drawing of Panchnama in the presence of witnesses would constitute a mode of taking possession. This court observed:
"9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land." (emphasis supplied).
265. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, this Court ruled that under compulsory acquisition it is difficult to take physical possession of land. The normal mode of taking possession is by way of drafting the Panchnama in the presence of Panchas. This Court observed thus:
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well- settled legal position that it is difficult to take physical possession of the land under Signature Not Verified W.P.(C) 7125/2022 Page 30 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.
5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter- affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed."
29. In view of the aforesaid ratio laid down by the Constitution Bench in Indore Development (Supra), the possession of the land in question in the instant petition has already been taken over by the concerned Signature Not Verified W.P.(C) 7125/2022 Page 31 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 authority. It is also pertinent to mention here that a large chunk of the land was acquired for the development and the land in question is merely a piece of the said acquisition. The development has already taken place for which the large chunk of the land was acquired. After perusing the documents and contentions made in the petition as well as the counter and rejoinder affidavit, I have reached at the conclusion that the petitioner has already taken the advantage and benefit from the Government in the nature of alternative plot. He continued to unlawfully occupy the public land in question to the detriment of the public purpose despite ceasing to hold any legal or equitable right to hold on to the possession of the land in question. It is also matter of record that the land in question was transferred to the MCD, Slum Clearance Scheme on 10th June 1965 much before the execution of the sale deed in favour of the petitioner dated 30th November 1967 and there is no iota of evidence available on record that the petitioner was the owner of the land on the date of passing of Award bearing No. 1691 dated 23rd March 1964 or he had any right or interest in the same.
30. Vide the Demand Letter dated 21st February 2021, the petitioner has been called upon to make payment of damages towards occupation of the land in question beyond the time allowed by the Coordinate Bench of this Court vide its order/judgment dated 26th February 1979 passed in CWP No. 31/1972. In the event the petitioner complies with the said demand letter, nothing could survive, however, if the petitioner does not comply with the said demand, the respondent has all legal right to invoke its legal remedies for recovery under Section 7 of the PP Act. Therefore, Signature Not Verified W.P.(C) 7125/2022 Page 32 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 demand letter dated 21st February 2021 is merely precursor to the proceedings under Section 7 of the PP Act.
31. I have also perused the impugned order passed by the Estate Officer as well as the order of Appellate Court. The Appellate Court, while passing the detailed and reasoned order discussed all the legal aspects pertaining to the instant matter and found that there is no illegality in the order passed by the Estate Officer.
SCOPE OF WRIT JURISDICTION
32. In the instant writ petition, I have to consider the scope of writ jurisdiction while adjudicating any quasi-judicial and administrative order.
33. Under Article 226 of the Constitution of India, High Courts have the power to adjudicate upon an impugned order along with the power to entertain writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. While adjudicating upon an impugned order, the scope of writ jurisdiction is narrowed to examining the contents of the order which is before the Court. Any consideration beyond assessment of the impugned order, including investigation into evidence and questions of facts would amount to exceeding the jurisdiction. While examining the challenge to an impugned order, the Court has to limit itself to the consideration whether there is any illegality, irregularity, impropriety or error apparent on record.
34. In Nagendra Nath Bora vs. Commr. of Hills Division and Appeals AIR 1958 SC 398, the Hon‟ble Supreme Court made the following observations while examining the scope of interference by Signature Not Verified W.P.(C) 7125/2022 Page 33 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 High Courts in an order impugned and what would constitute an error apparent on record:-
"37. But the question still remains as to what is the legal import of the expression „error of law apparent on the face of the record‟. Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England, are, therefore, the same. It is also clear, on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the common-law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.
38. The principle underlying the jurisdiction to issue a writ or order of certiorari, is no more in doubt, but the real difficulty arises, as it often does, in applying the principle to the particular facts of a given case. In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of Signature Not Verified W.P.(C) 7125/2022 Page 34 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected. As already indicated, the Appellate Authority had unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction. Section 9(3) of the Act, gives it the power to pass such orders as it thought fit. These are words of very great amplitude. The jurisdiction of the Appellate Authority, to entertain the appeals, has never been in doubt or dispute. Only the manner of the exercise of its appellate jurisdiction was in controversy. It has not been shown that in exercising its powers, the Appellate Authority disregarded any mandatory provisions of the law. The utmost that has been suggested, is that it has not carried out certain Executive Instructions. For example, it has been said that the Appellate Authority did not observe the instructions that tribal people have to be given certain preferences, or, that persons on the debarred list, like smugglers, should be kept out (see p. 175 of the Manual). But all these are only Executive Instructions which have no statutory force. Hence, even assuming, though it is by no means clear, that those instructions have been disregarded, the non-observance of those instructions cannot affect the power of the Appellate Authority to make its own selection, or affect the validity or the order passed by it.
XXX Signature Not Verified W.P.(C) 7125/2022 Page 35 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55
41. A Constitution Bench of this Court examined the scope of Article 227 of the Constitution in the case of Waryam Singh v. Amarnath [(1954) SCR 565]. This Court, in the course of its judgment, made the following observations at p. 571:
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR (1951) Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."
It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Art 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art, 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases, either under Article 226 or 227 of the Constitution, was not justified."
35. The Hon‟ble Supreme Court in Union of India vs. P. Gunasekaran, (2015) 2 SCC 610, elaborating upon the extent of exercise of writ jurisdiction, held as under:-
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;Signature Not Verified W.P.(C) 7125/2022 Page 36 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be:...."
36. Further, the Hon‟ble Supreme Court in Sarvepalli Ramaiah vs. District Collector, Chittoor (2019) 4 SCC 500, made the observations as reproduced hereunder, while examining the scope of Article 226 of the Constitution of India:-
"41. In this case, the impugned decision, taken pursuant to orders of Court, was based on some materials. It cannot be said to be perverse, to warrant interference in exercise of the High Court's extraordinary power of judicial review. A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record. The decision in this case is not irrational.
42. A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise.
43. Judicial review under Article 226 is directed, not against the decision, but the decision-making Signature Not Verified W.P.(C) 7125/2022 Page 37 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision- making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact."
37. Further in Sanjay Kumar Jha vs. Prakash Chandra Chaudhary, (2019) 2 SCC 499, the following observations were made by the Hon‟ble Supreme Court:-
"13. It is well settled that in proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a court of appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case...."
38. The law, as has been interpreted by the Hon‟ble Supreme Court, is clear that a High Court exercising its writ jurisdiction shall not appreciate evidence and must not interfere in the order impugned unless there is a gross illegality or error apparent on the face of record. Hence, this Court will also limit itself to the question of law and the contents of impugned order.
CONCLUSION
39. In view of the aforesaid discussions, facts and circumstances and law laid down by the Hon‟ble Supreme Court on the issue of taking Signature Not Verified W.P.(C) 7125/2022 Page 38 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55 possession as well as scope of writ jurisdiction as discussed above, I do not find any cogent reason to interfere with the impugned order. The impugned order does not suffer from any illegality. The writ petition stands dismissed. Pending application, if any, stands disposed of.
40. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH) JUDGE AUGUST 30, 2022 Aj/ak Signature Not Verified W.P.(C) 7125/2022 Page 39 of 39 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:30.08.2022 17:19:55