Delhi District Court
Union Of India vs . Col. S.K. Joshi & Ors. on 30 August, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
LAC No. 26/11/04
In the matter of :
Union of India Vs. Col. S.K. Joshi & Ors.
254. Gaon Sabha Pochanpur, Delhi
Through BDO, South West,
Najafgarh, New Delhi. ... IP No. 254
1. Col. S.K. Joshi
S/o Shri Amrit Bhushan Joshi,
R/o 1635, Sector - 4, Panchkula,
Haryana. ... IP No. 1
2. Smt. Gulshan Bhardwaj,
W/o Shri A.K. Bhardwaj,
R/o 3435, Paschim Vihar,
Vaishali Nagar,
Jaipur (Rajasthan). ... IP No. 2
Village : Pochanpur
Award No.: 30/200203
Filed on : 15.03.2004
Reserved on : 29.08.2011
Decided on : 30.08.2011
LAC No. 26/11/04 Page 1/18
JUDGMENT:
1. This is a reference under Section 3031 of the Land Acquisition Act, 1894.
2. The subject matter of this reference is land in Kh. No. 21/9 measuring 1 bigha situated in the revenue estate of village Pochanpur, New Delhi.
3. Vide Award No. 30/200203, a large chunk of land of village Pochanpur including land in question was acquired for Dwarka PhaseII, Delhi under Planned Development of Delhi.
4. The Land Acquisition Collector determined the market value of the land in question at Rs. 4,44,222.39. However, the compensation was not disbursed to anyone as the same was disputed and the reference was referred to the Court for adjudication of dispute amongst the IPs.
5. Case of IP No. 254, Gaon Sabha is that it is the recorded owner of the land in question and Gaon Sabha was in possession at the time of acquisition / taking over of possession by the authorities and therefore claimed the entire compensation.
6. IP No. 1 Col. S.K. Joshi has filed his claim on 21.07.2005. However, another claim was again filed by this IP on 22.03.2007. Since second claim was filed without amending first claim and without leave of the Court, only first claim dated LAC No. 26/11/04 Page 2/18 21.07.2005 shall be considered as claim of IP No. 1 for the purposes of disposal of this reference.
7. Case of IP No. 1 Col. S.K. Joshi is that he had purchased 500 sq. yds. of land vide duly registered sale deed from the recorded owner and the SDM/RA had sanctioned mutation in his favour on 12.05.1996. Possession of the suit land was delivered by IP No. 1 to the Government of India. Therefore, this IP has claimed the entire compensation for 500 sq. yds. of land.
8. Gaon Sabha has filed reply to the claim of IP No. 1 and has stated that the sale deed in favour of IP No. 1 is nothing but a piece of paper as it is hit by Section 33 of the Delhi Land Reforms Act, 1954.
9. IP No. 2, Smt. Gulshan Bhardwaj has also stated in her claim petition that she had purchased the land in question measuring 500 sq. yds. from the recorded owner vide duly registered sale deed and mutation was sanctioned in her favour vide case No. 67/8889 dated 18.08.1988 by the Tehsildar, Delhi. She has further stated that the order of vesting of land is a nullity in the eyes of law as neither she was given any notice before vesting land in Gaon Sabha nor she had violated any provision of Delhi Land Reforms Act, 1954. She claims that possession of land in question was delivered by her to the Government of India at the time of acquisition. Therefore, she claimed the entire compensation for 500 sq. yds. of land. LAC No. 26/11/04 Page 3/18
10. Gaon Sabha has filed reply to the claim of IP No. 2 and has stated that the land in question had vested in Gaon Sabha. Said order is not challenged by IP No. 2 and IP No. 2 now cannot challenge that order in present proceeding. It is further stated that the sale deed relied upon by IP No. 2 is a piece of paper being in violation of Section 33 of Delhi Land Reforms Act, 1954.
11. On 07.12.2006, following issues were framed:
(i) Which of the IP is / are entitled to get amount of compensation and to what extent? OPParties.
12. On behalf of Gaon Sabha, Panchayat Secretary, Shri N.K. Verma entered the witness box as PWIP254 and exhibited three khasra girdawaris as Ex. PWIP254/1, 2 and 3 for the years 199798, 199899 and 19992000 respectively pertaining to Kh. No. 21/09.
13. In the khasra girdawaris for the year 1997 to 1998, in column no. 4 dealing with 'Name of tenure holders as classified in partI of the khatauni' Gram Sabha as well as Major S.K. Joshi are mentioned visavis Kh. No. 21/9 for 10 biswa of land. Same is the position for remaining 10 biswa of land where also name of Gaon Sabha and Smt. Gulshan Bhardwaj are mentioned in Column No. 4.
14. Khasra girdawari for the year 199899 which is Ex. PWIP234/2 is not legible inasmuch as number of field is cut off while copying the records for making certified copy thereof.
15. However, in khasra girdawari for the year 19992000, LAC No. 26/11/04 Page 4/18 which is Ex. PWIP254/3, in Column No. 4, only names of IP No. 1 and 2 are mentioned visavis land measuring 10 biswa each in Kh. No. 21/9. Name of Gaon Sabha is conspicuously absent.
16. IP No. 1 Shri S.K. Joshi entered the witness box as IP1W1. In his evidence by way of affidavit, he stated same facts as were already stated by him in his claim petition. Registered sale deed dated 26.02.1985 was exhibited as IPW1W1/1. Clause 6 and 7 of the sale deed are relevant and are as under: "6. That the vendor and the vendee both have obtained the necessary No Objection Certificate from Teh. (Notification), Delhi.
7. That the said land will be used for agricultural purpose and this sale does not contravene Section 33 of Delhi Land Reforms Act, 1954."
17. IP No. 1 was subjected to a brief crossexamination where he denied that the sale deed relied upon by him was in violation of Section 33 of the Delhi Land Reforms Act, 1954. He stated that the land had not vested in Gaon Sabha when he purchased the same. IP No. 1 stated that he was not aware of vesting of land in Gaon Sabha prior to it's acquisition. He stated that the land was mutated in his name in the year 1990.
18. IP No. 2 Smt. Gulshan Bhardwaj also filed her evidence by way of affidavit where she also stated similar facts as were stated by her in her claim petition. She exhibited sale deed in LAC No. 26/11/04 Page 5/18 her favour as Ex. IP2W1/1 and relied upon khatauni showing mutation in her name which was exhibited as Ex.IP2W1/2. Clause 6 and 7 of the sale deed are same as in the sale deed of IP No. 1.
19. This IP was also subjected to a brief cross examination where she denied the suggestion that the sale deed relied upon by IP No. 2 was in violation of Section 33 of the Delhi Land Reforms Act, 1954. She stated that the land had not vested in Gaon Sabha when she purchased the same. She further stated that she came to know about vesting of land only after its acquisition. She stated that the land was mutated in her favour in the year, 1988.
20. Next witness examined by IP No. 1 and 2 was Shri Chhattarpal Singh, Kanungo, Record Keeper, SDM Office Tehsil, Hauz Khas, New Delhi who was examined as IP1W2.
21. This witness had brought mutation file no. 149/9091 as per which mutation of 10 biswa of land of Kh. No. 21/9 was effected in favour of IP No. 1 on 30.10.90. Mutation order was exhibited as Ex. IP1W2/1
22. Patwari's report for mutation, Ex. IP1W2/1 records that the seller has more than 8 standard acre land; land in question is not subject matter of acquisition; land in question is not involved in proceedings under Section 74(4) of the Delhi Land Reforms Act and report of Section 81 of DLR Act is also given.
23. On the back of Ex. IP1W2/1, Tehsildar has ordered LAC No. 26/11/04 Page 6/18 mutation of 10 biswa of land in favour of IP No. 1 on 30.10.1990. Tehsildar has noted that Naib Office Kanungo (NOK) has verified notings of the Patwari that the seller has more than 8 standard acre of land.
24. Similarly, in Ex. IP2W2/1, which is Patwari's report for mutation, it is noted that IP No. 2 Smt. Gulshan Bhardwaj is the buyer who has purchased 10 biswa of land in Kh. No. 21/9. Seller has more than 8 standard acre of land; land is not subject matter of acquisition proceedings and is not vested in Gaon Sabha.
25. On the back of Ex. IP2W2/1, Tehsildar has noted that the Naib Office Kanungo (NOK) has verified report of Patwari and seller is not having less than 8 standard acre of land and as a result passed orders for mutation of land in favour of IP No. 2. IP No. 2 also exhibited khatauni as per which land measuring 10 biswa of Kh. No. 21/9 was mutated in her name vide Mutation No. 17/8889 dated 18.10.1988.
26. Next witness examined by IP No. 1 and 2 in support of their claims is Shri Narinder Kumar, Record Keeper, Revenue Deptt., Tis Hazari Courts, Delhi who appeared as IP1W3.
27. Although Gaon Sabha did not take any steps to prove vesting orders in favour of Gaon Sabha, IP No. 1 and 2 had summoned the records of vesting to show violation of principles of natural justice.
LAC No. 26/11/04 Page 7/18
28. IP1W3 produced an order dated 12.11.1992 passed by Ld. SDM/RA in case No. 237/8687. As per this order, after Tehsildar had sanctioned mutation in favour of IP No. 2 on 18.10.1988, file was brought before SDM/RA on 26.06.1990. Learned SDM/RA noted that sale in favour of IP No. 2 was in violation of Section 33 of Delhi Land Reforms Act, 1954 as seller was left with less than 8 standard acre of land. Therefore, SDM/RA passed order of vesting against IP No. 2.
29. How the learned SDM/RA arrived at the finding, contrary to reports of Patwari and Kanungo, that seller was left with less than 8 standard acre of land is not forth coming from the records.
30. Moreover, it is evident that Ld. SDM/RA passed order without issuing any notice to IP No. 2.
31. Once Tehsildar had granted mutation in favour of IP No. 2, she was not expected to keep an eye on the file to find out whether SDM/RA is initiating action against her unless she was given a notice of suo motto action by the learned SDM/RA.
32. IP1W3 Shri Narinder Kumar while exhibiting vesting order also exhibited report of Patwari as Ex. IP1W3/2 where it is categorically noted that seller has more than 8 standard acre of land.
33. From the evidence of IP1W3, it appears that vesting orders were also passed against IP No. 1 in similar circumstances on same date i.e. 12.11.1992. However, those vesting orders are not on the record. Although it is recorded in evidence recorded on LAC No. 26/11/04 Page 8/18 16.10.2010 that the witness is directed to reappear with the records pertaining to IP No. 1 (though it is written as IP No. 2) but it appears that the witness did not reappear and matter rested there.
34. Shri Lalit Rana, Halka Patwari, appeared as IP1W4 but could not render any assistance as he stated that khatauni register was in a mutilated condition and it cannot be said what was the total amount of land held by Shri Daya Nand, in the year 198485, Vendor of IP No. 1 and 2.
35. This is the evidence brought on record by the different IPs in this reference.
36. Before discussing arguments of the parties, it is also noted that in written prayer of LAC (SW) for date of hearing 24.05.2010, it is stated that Shri Daya Nand and Shri Ram Singh had 1/2 share each in Kh. No. 21/9 measuring 4 bigha and 16 biswa. One bigha of land from this khasra was sold to one Shri Ranjit Kesri Dass, and 10 biswa each to IP No. 1 and 2. Further, khatauni filed by LAC (SW) shows that 1 bigha of land sold to Shri Ranjit Kesri Dass was mutated in his name vide case No. 306/9798 by the orders of Tehsildar / Vasant Vihar, New Delhi vide orders dated 25.06.98 but only land sold to IP No. 1 and 2 was vested in Gaon Sabha vide orders of SDM/RA dated 12.11.92 and land sold to Shri Ranjit Kesari Dass was not vested in Gaon Sabha for violation of Section 33 of Delhi Land Reforms Act, 1954.
LAC No. 26/11/04 Page 9/18
37. Noticing the fact that the land in question was urbanized under Section 507 of Delhi Municipal Corporation Act, a notice was sent to the Ministry of Urban Development, who is successor of Gaon Sabha. Unfortunately, none came to contest the reference from the side of the Ministry.
38. Counsel for parties addressed arguments and also filed written arguments in support of this case.
39. Learned Counsel for Gaon Sabha, Shri Vikram Singh Girsa has argued that till date IPs have not challenged the vesting order passed against IP No. 1 and 2. Said order has become final now and cannot be challenged before this Court.
40. Counsel for Gaon Sabha has further argued that ld. SDM/RA can suo motto take action if by inspection of any records it comes to his knowledge that there is any contravention of law in recording mutation. Counsel for Gaon Sabha has taken exception to the fact that case of IP No. 1 is that mutation was recorded in his favour by SDM/RA on 12.05.1996, but land had already vested in Gaon Sabha on 12.11.1992. Relying upon the judgments of Randhir Singh Vs. Union of India and Anr. : RFA No. 369/2002 decided by the Hon'ble High Court of Delhi and Sri Chand Vs. LAC and Anr. :
118(2005) DLT 320 (DB), it was argued that the Gaon Sabha be given the entire compensation being the recorded owner in possession.LAC No. 26/11/04 Page 10/18
41. On the other hand, Shri Brahm Dutt Sharma, Ld. Counsel for IPs has argued that on the basis of a registered sale deed, the Tehsildar, under Section 22 of the Delhi Land Reforms Act, 1954 had granted mutation of 10 biswa of land each in favour of IP No. 1 and 2 vide Ex. IP1W2/1 and Ex. IP2W2/1 respectively. This order was never challenged under Section 63 of Delhi Land Revenue Act before Ld. Dy. Commissioner. SDM/RA has passed order of vesting of land in question in favour of Gaon Sabha without jurisdiction and without notice to the IPs. It is argued that there was no violation of Section 33 of the Delhi Land Reforms Act, 1954 as is evident from order of Tehsildar, Ex. IP2W2/1 and Ex. IP1W2/1. Counsel for IP No. 1 and 2 has also relied upon Khasra girdawaris filed by Gaon Sabha where names of IP No. 1 and 2 are shown in Column No. 4.
42. Lastly, Ld. Counsel for IPs has assailed order of vesting on the plea that whereas land purchased by IP No. 1 and 2 is vested in Gaon Sabha for violation of Section 33 of Delhi Land Reforms Act but land measuring one bigha sold to Shri Ranjeet Kesari Dass stands mutated in his name and said land is not vested in Gaon Sabha. To assail part vesting of land, reliance is placed on Harlal Vs. Gaon Sabha reported as 53(1994) DLT 26.Therefore, counsel for IPs has pressed for the release of entire compensation in favour of IP No. 1 and 2.
43. Since the main defence of counsel for Gaon Sabha is LAC No. 26/11/04 Page 11/18 that due to violation of Section 33 of Delhi Land Reforms Act, 1954 land had vested in favour of Gaon Sabha, it is pertinent to quote Section 33 of the said Act which is as under: "33. Restrictions on the Transfers by a Bhumidar - (1) No Bhumidar shall have the right to transfer by sale or gift or otherwise any land to any person other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union territory of Delhi.
44. Effect of breach of Section 33 is provided in Section 42 which reads as under: "42. Transfer in contravention to Section 33 - (1) Where a transfer of any holding or part thereof has been made in contravention of the provisions of this chapter by a Bhumidar or Asami, the transferee and every person who may have obtained possession of such holding or part shall, notwithstanding anything in law be liable to ejectment from such holding or part on the suit of the Gaon Sabha or the land holder, as the case may be which shall thereupon become vacant land; but nothing in this section shall prejudice the right of the transferor to realise the whole or portion of the price remaining unpaid, or the right of any other person other than the transferee to proceed against such holding or land in enforcement of any claim thereto.
(2) To every suit for ejectment under this section the transferor shall be made a party.
LAC No. 26/11/04 Page 12/18
(3) Notwithstanding anything contained in subsection (1), the Revenue Assistant also may, on receiving information or on his own motion, take action to eject the transferee and every person who may have obtained possession as aforesaid, after following such procedure as may be prescribed."
45. Further, Section 47 of the Act read as under: "47. Consequences of ejectment under Section 46 - Upon ejectment [under Section 42], all the rights and interests of the Bhumidar or Asami in the holding or in any improvements made therein or to get compensation for such improvements shall be extinguished."
46. A conjoint reading of the above noted provisions of law shows that a bhumidar is enjoined from selling agricultural land if after sale of land he is left with less than eight standard acres of land. Such a transferee is liable to ejectment from such holding on the suit of Gaon Sabha or the land owner which shall there upon become a vacant land. In such a suit, transferor is to be made a party. Upon ejectment, rights of bhumidar in the holding are extinguished.
47. Whether the vendor of IP No. 1 and 2 was left with less than eight standard acre of land after executing sale deeds in favour of IP No. 1 and 2?
48. Ex. IP1W2/1 and Ex. IP2W2/1 are Patwari's reports for mutation. Halka Patwari had reported that the land holding of vendor of IP No. 1 and 2 was not left with less than eight standard LAC No. 26/11/04 Page 13/18 acres of land in Delhi.
49. This report was affirmed by Naib Office Kanungo (NOK). Relying upon these reports, the Tehsildar ordered mutation in favour of IP No. 1 and 2 on two different dates.
50. However, order of SDM/RA Ex. IP1W1/3 records that the sale in favour of IP No. 2 was in contravention of Section 33 of Delhi Land Reforms Act and vendor was left with less than eight standard acres of land.
51. What is the basis of this observation is not available from the order of SDM/RA. It is a rather a cryptic order.
52. In view of clause 7 of the sale deeds of IP No. 1 and 2 where the vendor had stated in clause 7 that the sale deed was not in contravention of Section 33 of the Delhi Land Reforms Act and in view of reports of Patwari for mutation as also its verification by Naib Office Kanungo (NOK), burden of proof was on Gaon Sabha that the sale deed was in contravention of Section 33 of the Act.
53. Gaon Sabha has not discharged the said burden.
54. The fact that the sale of land measuring 1 bigha by the same vendor of IP No. 1 and 2 in favour of one Shri Ranjit Kesari Dass was not challenged by revenue officials and rather the land was mutated in favour of said Shri Ranjit Kesari Dass on 25.06.1998 shows that the vendors were not left with land less than eight standard acres. Had it been the case, mutation in favour of said Shri Ranjit LAC No. 26/11/04 Page 14/18 Kesari Dass would not have been effected in the year 1996 i.e. four years after vesting of land of IP No. 1 and 2 in favour of Gaon Sabha for violation of Section 33 of Delhi Land Reforms Act.
55. Although the onus to prove that the vendors of IP No. 1 and 2 were left with less than eight standard acres of land was on Gaon Sabha but still IP No. 1 and 2 had summoned a witness to prove land holding of their vendors in the year 198485, the year of sales in their favour.
56. However, the summoned witness could not throw any light on the subject as IP1W4 Shri Lalit Rana, Halka Patwari stated that Khatauni register was in a mutilated condition and it cannot be said what was the total amount of land held by Shri Dayanand, the vendor of IP No. 1 and 2 in the year, 198485.
57. Therefore, it is not established on record that vendors of IP No. 1 and 2 were left with less than eight standard acres of land and sale was in violation of Section 33 of the Act.
58. Secondly, mutation was recorded in favour of IP No. 1 on 30.10.1990. Mutation was recorded in favour of IP No. 2 on 18.08.1988. This was followed by an entry in Khatauni i.e. in Ex. IP2W1/2. SDM/RA notes in its order dated 12.11.1992, Ex. IP1W3/1, that "file was brought before SDM/RA on 20.06.1990. The applicant had failed to appear and defend her case. The application is dismissed in default..." Case of Gaon Sabha in written arguments is that LAC No. 26/11/04 Page 15/18 SDM/RA can take suo motto action. Reference was made to Section 42 (3) of Delhi Land Reforms Act. If, however, SDM/RA had to act suo motto, IPs were entitled to a notice before recalling an entry of mutation in their favour which was allowed by Tehsildar after following due process of law. Therefore, action of SDM/RA in passing order of vesting is bad in law.
59. Thirdly, after vesting of land in Gaon Sabha for violation of Section 33 of DLR Act, IP No. 1 and 2 were liable to ejectment from land in question on the suit of Gaon Sabha and thereafter land in question would have become vacant land. Admittedly, Gaon Sabha has not filed any ejectment suit against IP No. 1 and 2. In the absence of ejectment, Section 47 of Delhi Land Reforms Act does not come into force and in absence of ejectment, rights of IP No. 1 and 2 over land in question are not extinguished. The fact that IPs were in possession till the acquisition of land is evident from khasra girdawaris of Gaon Sabha itself which show name of IP No. 1 and 2 in Column No. 4 "Name of tenure holders, if any, as classified in part II of the khatoni". If rights of IP No. 1 and 2 were not extinguished in the land in question and they were in possession at the time of acquisition of the land, they would be entitled to compensation deposited by the Collector in this reference.
60. Vesting order, Ex. IP1W3/1 is dated 12.11.1992. As per Schedule I, Section 185 of Delhi Land Reforms Act, period of LAC No. 26/11/04 Page 16/18 limitation under Section 42 (1) for ejectment of transferee is 'None'. Land was acquired in the year 200203 . Till then, IP No. 1 and 2 were in possession. After the land was acquired, right of Gaon Sabha to eject IP No. 1 and 2 got interdicted. IP No. 1 and 2 continued to be in possession of land in question and IP No. 1 and 2 themselves handed over the possession to Collector. Rights of parties to compensation for land in question would be determined on the basis of rights of the parties on the date of taking over of its possession by the Collector. By then, Gaon Sabha had failed to exercise its rights for ejectment of IP No. 1 and 2. Therefore, relying upon Section 47 of the Act, it is IP No. 1 and 2 who will be entitled to compensation and not Gaon Sabha as in absence of ejectment their rights over land in question were not extinguished.
61. Fourthly, no order of vesting of land of Shri Ranjit Kesari Dass were passed till the date of acquisition for the land purchased by him. In the case of Harlal (supra) part vesting of land of petitioner in Gaon Sabha under Section 7 of DLR Act was set aside by Hon'ble High Court. Action of SDM/RA to single out IP No. 1 and 2 for vesting of land in Gaon Sabha and thereafter sanctioning mutation in favour of Shri Ranjit Kesari Dass who had purchased the land from the same vendor is also arbitrary.
62. Fifthly, reliance by counsel for Gaon Sabha on the case of Sri Chand (supra) is misplaced because that was a dispute LAC No. 26/11/04 Page 17/18 between father and son and son was claiming compensation in acquired land being a coparcenor. In this case, stand of Gaon Sabha that the Gaon Sabha was in possession of land in question stands nullified by admitted fact that Gaon Sabha did not file any ejectment suit against IPs and possession of Gaon Sabha is also falsified by khasra girdawaris filed by Gaon Sabha, Ex. PW1P254/3, where possession of IP No. 1 and 2 is shown. If Gaon Sabha was not in possession, merely by a vesting order in its favour, it cannot draw any assistance from the judgment of Sri Chand and will not be entitled to get any compensation.
63. Conclusion of the above would be that issue no. 1 is decided in favour of IP No. 1 and 2 holding and directing that IP No. 1 and 2 are entitled to compensation for 10 biswa of land each.
64. Reference is answered accordingly. Let a copy of this judgment be sent to the LAC (SW) and thereafter file be consigned to record room.
Announced in the open Court on the 30th day of August, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 26/11/04 Page 18/18