Delhi District Court
Delhi Development Authority vs . S.B. Chaudhary & Ors on 16 March, 2012
1
CS 715/11/91
Delhi Development Authority Vs. S.B. Chaudhary & Ors
IN THE COURT OF SH N.K. GOEL : ADDL. DISTRICT JUDGE (5) WEST
DELHI
Suit No. 715/11/91
In re.
Delhi Development Authority
Vikas Sadan, Near I.N.A Market
New Delhi.
................Plaintiff
Vs.
1. Sh S.B. Chaudhary
S/o Late Sh ML Chaudhary
R/o G-54, D.D.A. SFS Flats,
Saket, New Delhi.
2. The Union of India,
through the Secretary
Ministry of Urban Development
Nirman Bhawan
New Delhi.
3. M/s. Kama Builders Pvt. Ltd.
having its Registered Office at:
E-9, Connaught Place,
New Delhi 110 001
.................Defendants
Date of Institution: 04-02-1991
Reserved on : 22-02-2012
Date of Decision : 16-03-2012
SUIT FOR DECLARATION OF TITLE AND CONSEQUENTIAL
RELIEF OF POSSESSION
2
CS 715/11/91
Delhi Development Authority Vs. S.B. Chaudhary & Ors
JUDGMENT
1. In the present suit as made out in the amended plaint the case of the plaintiff DDA is that the land situated in Revenue Estate of Ladha Sarai, Delhi bearing Khasra No. 166 Min measuring two Bigha 19 Biswas described as "Banjar Jadeed" and "Banjar Khadeem"(waste land) bearing Khata Khatoni no. 22 Min and land also bearing Khasra No. 166 Min Khata Khatoni no. 27 Min described as "Pahar"(Rocky) in the revenue records of the year 1964-65 vested in the Central Government i.e the Union of India (D-2); that vide notification dated 20.08.1974 published in the gazette of India dated 24.08.1974, the Central Government, in exercise of the powers conferred by Section 22(1) of the Delhi Development Act, 1957 (in short, the DD Act) placed the said land at the disposal of the plaintiff for the purpose of development in accordance with the provisions of the DD Act; the plaintiff was directed to develop and maintain the said land as green land and use and empowered to take such steps as may be required to serve the said purpose subject to the condition that the plaintiff was not to make or permit to be made any construction on the said land; that thereafter the plaintiff has been in possession of the said land in their own right and has developed the entire area as green in accordance with the master plan of Delhi; that the Hon'ble Supreme Court of India in civil appeal no. 5212 of 3 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors 1990 entitled as SB Chaudhary Vs Lt. Governor, Delhi and Others passed the following order dated 05.11.1990:
" Special leave granted. Counsel heard. The appellant has filled several documents and copies of judgments to establish his title. The respondents have also filed some documents after examining the aforesaid documents. Hearing counsel and perusing the affidavits filed, we are of the prima facie view that at the relevant time, the appellant was in possession of the land in question. As far as the question of title is concerned, it can be determined only after examining the evidence, documentary as well as oral. That question will have to be decided in appropriate proceedings before a competent authority. Both the parties claim to be in possession at present of the land in question. In these circumstances, we direct that the appellant shall be put in possession of the said land if he is not already in possession. The respondents, their servants and agents are restrained from interfering with the appellant's possession; save and except in due course of law, that is, pursuant to any order of a competent court or other competent authority. It will be open to the Delhi Development Authority to file appropriate legal proceedings before a Court of law or other competent authority to have their rights determined within a period of three months 4 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors from today. The appellant, his servants and agents are restrained from creating any third party right in the said land or from parting with possession thereof or inducting any outsider into the possession of the said land for a period of three months from today. The respondents will not make any application for interim relief in any legal proceedings which they take in connection with the said land except after four day's notice to the present Advocate-on-Record of the appellant. We clarify that the Court or the competent authority before whom the proceedings are taken to determine the question of title to the said land and all incidental matters including possession, will decide these questions on merits and without being influenced by what we have observed in this judgment.
The appeal is allowed and disposed of as aforestated. There will be no order as to costs."
As per the averments made in the plaint the plaintiff has, hence, filed the present suit for declaration of the title of D-2 to the said land and derivative title of the plaintiff u/s 22 of the DD Act. It is pleaded that the suit land being of the nature described u/s 7 of the Delhi Land Reforms Act, 1954 (in short, the 1954 Act) was vested in Gaon Sabha, Masood Pur, Delhi by order passed by the competent authority appointed under the 1954 Act at the commencement of the said Act; 5
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors that the said area of the Revenue Estate of Village Ladha Sarai was declared as urban area by notification dated 20.05.1963 issued in accordance with the provisions of Section 507 of the Delhi Municipal Corporation Act, 1957 (in short, the 1957 Act) and, thus, the said land ceased to be rural area; that according to the provisions of sub-clause 3 of Section 150 of the 1954 Act the suit land vested in the Central government on issue of the abovestated notification u/s 507 of the 1957 Act and the Gaon Sabha constituted for the said area stood dissolved; that on 29.11.1972 the Naib Tehsildar, Land Management Branch of the office of Deputy Commissioner, Delhi demarcated the Gaon Sabha land including the suit land of the Revenue Estate of Village Ladha Sarai and built up unauthorized constructions were demolished and the report prepared by the Naib Tehsildar was also signed by Tehsildar, DDA ; that the suit land has been in continuous physical possession of the Central Government and the plaintiff.
2. As per the averments made in the plaint the defendant no. 1, however, alleges to have purchased part of the said land bearing Khasra No. 166 Min without mention of Khata and Khatoni numbers or the year of any Jamabandi in which the said land has been described as agricultural land without having any constructions thereon and the said land was purchased by defendant no. 1 alongwith other persons; that the share of defendant no.1 in the said land comes 6 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors to 5 Bigas 4 Biswas as per full particulars given in the sale deeds annexed with the plaint as annexure A; that the plaintiff in terms of the order dated 05.11.1990 of the Supreme Court offered possession of the said land to defendant no. 1 on 01.02.1991 to the extent of his share but, defendant no.1 refused and made endorsement on office copy of a letter dated 01.02.1991 thereby receiving notice under protest that he was already in possession of the entire Khasra No. 166, Measuring 46 Bigha 1 Biswa at the spot though only a tent had been pitched and a board was hung on a tree stating that there was a stay order from the Supreme Court of India against dispossession; that defendant no-2 has title to the suit land being owner thereof and the plaintiff has title to the said land as the same has been placed at the disposal of the plaintiff by defendant no.2 on the following amongst other grounds:-
"(a)That the land in question was of the nature as mentioned in sub-
section (1) of Section 7 of D.L.R Act at the time of commencement of the said Act and was vested in Gaon Sabha Masoodpur in accordance with sub-section 2 of section 7 of the said DLR Act, 1954.
(b)That on urbanization of the area in 1963 the said land vested in Central Govt. i.e. Defendant No. 2 u/s 150 of the DLR Act, 1954.
7
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
(c) That the said land of which defendant no. 1 claim possession had been in the possession of Gaon Sabha Masoodpur till its dissolution in 1963 and thereafter in the possession of the Defendant no. 2.
(d)That in any case all the unauthorized occupants of the said land of the Revenue Estate of village Ladha Sarai were evicted in 29th November, 1972 and since then the land has been in continuous physical possession of Defendant No. 2 and of the plaintiff and in any case the rights of any other person in the said land stood extinguished after the expiry of 12 years.
(e)That the persons from whom Defendant no.1 alleged to have purchased the said land has no possession or title to it at the time of the alleged sale.
(f) That the said land was not under cultivation as mentioned in the alleged sale deeds by which defendant no.1 claims to have acquired title to the said land.
(g)That no one had been residing in the Revenue Estate of village Sarai after 1947 and it was known as Mauze-Be-Chirag. The land in dispute was of the nature of waste land etc. as mentioned in section 7(1) in 8 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors respect of which the rights of proprietor or proprietors and any other persons stood terminated in accordance with the provisions of sub- section 2 of said section 7 of the D.L.R Act."
It is stated that that the Defendant No.1 threatens and intends to create rights of third parties to the said land, to induct outsiders in it and to part with possession thereof to others; that the Defendant No.1 has intention to make construction on the said land in case he is prevented from transferring the said land to others though he has no right to do so; that according to the master plan of Delhi the suit land has to be developed and maintained as green and to be conservated under the Mehrauli Heritage Zone and the area is notified as Protected Forest vide notification no. F.SCO 32 (C) Noti-80/6974-81 dated 10.04.1980 issued under the Indian Forests Act, 1927 being situated at the Western side of the road going to Andheria More from Qutub; that during the pendency of the case the Supreme Court passed the followings orders on 08.05.1991:-
" THE CONTEMPT PETITION above mentioned being called on for hearing before this Court on the 8th day of May, 1991 UPON hearing counsel for the parties herein THIS COURT while disposing of the petition DOTH inter-alia pass the following order:-9
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors " We direct that the petitioner (S.B Chaudhary) will put in possession of the entire land comprised in Khasra No.166 on or before May, 25,1919. Mr. Sibbal points out that the Delhi Development Authority may not be in possession of all the said land. In that case, the Delhi development authority will put the petitioner in possession of such land in said khasra of which it might be in possession, and not interfere with the possession, of any land in that Khasra No. 166 except under any order of a competent court. We understand that the Delhi Development Authority has filed a title suit in respect of the said land in the Delhi High Court. We make it clear that it will be open to the Delhi High Court in that Suit to make such final or interim orders as it thinks fit regarding that land in question on examination of the respective titles and after giving both the sides an opportunity to be heard. We clarify that the Delhi high Court may make such orders regardless of any observations or orders by us in disposing of the aforesaid Civil Appeal No. 5212 of 1990".
3. It is stated that the plaintiff in pursuance of the order of the Supreme Court of India wrote a letter dated 23.05.1991 to the Defendant No. 1 to take physical possession of the aforesaid land; that the defendant no. 1 made an endorsement on the said letter on 24.05.1991 that " I am already in possession 10 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors of the entire land in Khasra No. 166 measuring 46 Bigas 9 Biswas situated in Village Ladha Sarai, Tehsil Mehrauli, New Delhi as stated earlier vide my endorsement dated 1st Feb. 1991 on your letter No. F-2(1331)/89/SC/Legal/1129 dated 01.02.1991 from Shri. U.S Jolly, Director (Lands Management). All the averments and allegations of your ownership are denied".
4. Hence, it is prayed that a decree for declaration be passed in favour of the plaintiff and/or defendant no. 2 and against defendant nos. 1` and 3 for declaration that the suit land vests in defendant no. 2 and has been placed at the disposal of the plaintiff for purposes of development and maintenance in accordance with the provisions of the 1957 Act, for recovery of the possession of the suit land and for permanent injunction restraining the defendant no. 1, his servants and agents from creating right of any third party in the suit land or inducting any outsider in the suit land or parting with the possession thereof or making any constructions on the suit land or cutting or removing any trees from the suit land or removing earth from the suit land. It is prayed that the cost of the suit be also awarded.
11
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
5. Defendant no. 1 has contested the suit and filed a written statement. As per the averments made in the amended WS it is pleaded that the plaintiff has no right, title and interest in the suit land and the plaintiff has no locus standi to file a suit for declaration on behalf of the Union of India (D-2) because Union of India is quite competent to file a suit for declaration in its own right; that a part of the suit claimed is barred by the limitation (since in the first instance the plaintiff had filed a suit in respect of the land admeasuring 5 Bighas 4 Biswas within the time frame fixed by the Supreme Court and the subsequent amendment by which the plaintiff has also included the other land in the plaint is hopelessly time barred and, thus, the part of the claim of the suit is barred by the time) ; that the suit is not properly valued for the purposes of court fees and jurisdiction for the relief of possession as the value of the land as per the notification by the Lt. Governor is Rs.4.65 Lacs per Acre and, hence, the suit is undervalued for the purposes of court fees and jurisdiction for the relief of possession. It is pleaded that on coming into being of the 1954 Act, the suit land was not covered u/s 7(1) of the said Act as the relevant entries in the revenue record for the purposes of application of Section 7(1) was that the land should have been shown in the Khasra Girdawaris for the years 1953-54 and 1954-55 as defined in Section 7(1) r/w its explanation; that suit land was not shown in the Khasra Girdwari of the 12 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Fasli years 1953-54 and 1954-55 as a waste land, grazing or collection of forest produced from forest or fish from fisheries, lands of common utility and, hence, the suit land did not vest in the Gaon Sabha u/s 7(2) of the 1954 Act; that the competent authority u/s 7(2) did not pass any order which is a mandatory provision of the said Act in respect to the suit land. It is further pleaded that the first settlement took place in Delhi in the year 1908-09 and the suit land is recorded as "ABADI-DEH" in the Jamabandi/Bandobast (settlement record of the year 1908-09) and in the Sajra the suit land was shown as "ABADI-DEH" by putting a mark ( ) which is a sign of "ABADI-DEH"/ Lal Dora of the village of the concerned Revenue Estate; that the Abadi signifies that the houses of the members of brotherhood and of their dependants are usually built close together in some convenient part of the village and this inhabited or Abadi is excluded from the operation of the Land Revenue Act " except so far as may be necessary for the record, recovery and administration of village cesses"; that the abadi of Khasra No. 166 in 1954 was in possession of several persons who were occupying the land of entire "ABADI-DEH"; that the suit land was sold to defendant no. 1 and twenty two other persons by 17 registered sale deeds between 12.10.1987 to 28.10.1987; that the twenty two other persons sold away their rights in favour of M/s Cama Builders Pvt. Ltd and in pursuance of the said 13 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors sale deeds now defendant no. 1 and M/s Cama Builders Pvt. Ltd i.e defendant no. 3 are in actual physical possession of the entire area as owners thereof. It is pleaded that the right of the predecessors-in- interest of defendant no. 1 who were in long settled possession of the suit land of the "ABADI-DEH" was decided by the competent court of Revenue Assistant dismissing the suit for possession filed by the Gaon Sabha u/s 86A of 1954 Act and thereafter in a civil suit for injunction; that those lands which were in joint possession of all the adult members of the Gaon Sabha were vested in the Gaon Sabha under sub-section (2) of Section 7 but, the land of the "ABADI-DEH" which was in possession of individuals they were the owners of their respective land in their possession and they had absolute right to convey their title in favour of any person or persons. It is further pleaded that on the date of notification u/s 507 of the 1957 Act, the suit land was not within the definition of Section 7(1) of the 1954 and, hence, the same did not vest in the Central Government which fact is fortified from the fact that the suit land was always shown as the Gaon Sabha land in the entry of the column of ownership and the occupancy was simply show as "ABADI-DEH". Alternatively, it is pleaded that the predecessors-in-interest of defendant no. 1 and twenty two other persons who had purchased the suit land by sale deeds were declared Bhumidars u/s 85 of the 1954 Act by the Revenue Assistant and, 14 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors hence, on the date of issuance of the notification u/s 507 of the 1957 Act, the land was not within the meaning of Section 7(1) r/w its explanation; that thus the title of the suit land was never vested in the Central Government nor could it vest in the Central Government and, hence, the Central Government has no power or a jurisdiction to place the suit land at the disposal of DDA u/s 22 (1) of the 1957 Act and the whole suit is, therefore, misconceived and liable to be dismissed.
6. It is pleaded that in the first settlement of 1908-09 'in the records of right, the suit land was shown as "ABADI-DEH"'; that the Revenue Record and the Khatoni of the year 1964-65 has no relevance for deciding the controversy in dispute and the relevant entries for the purpose of deciding the controversy in the suit is the Khasra Girdwari/records of rights maintained by the Revenue Department is for the years 1953-54 and 1954-55. It is pleaded that the suit land was not the "land" within the meaning of Section 7(1) of the 1954 Act. It is pleaded that that the suit land was never vested in the Central Government is corroborated by the fact that the suit land was notified u/ss 4 and 6 of the Land Acquisition Act; that if the land was of the Central Government there was no occasion by the appropriate government to issue notification u/ss 4 and 6 of the 15 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Land Acquisition Act.
7. It is denied that the share of defendant no.1 comes to 5 Bighas and 4 Biswas. It is submitted that defendant no. 1 in his individual capacity is the owner of 5 Bighas and 4 Biswas and he is the owner in possession of 40 Bighas 17 Biswas in the capacity of being the Director of M/s Cama Builders Pvt. Ltd (Defendant no.3). It is pleaded that the suit land was never in possession of Gaon Sabha, Masood Pur and the suit land before the 1954 Act came into being was in possession of inhabitants of the Village of the Revenue Estate of village Ladha Sarai and as such the said inhabitants were the owners of the suit land and not the Gaon Sabha of village Masood Pur. It is prayed that the suit be dismissed.
8. No separate written statement has been filed on behalf of defendant no. 3.
9. In its written statement defendant no. 2 Union of India has pleaded that the suit land became the Gaon Sabha land on the enforcement of the 1954 Act as per Section 7 thereof and thereafter the area of village Ladha Sarai was declared urban area by virtue of the notification u/s 507 of the 1957 Act and all 16 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors the land stood vested in the Central Government i.e defendant no.2; that defendant no. 2 through notification no. SO 2192 dated 20.08.1974 placed all the lands of village Ladha Sarai including the suit land of Khasra No. 166 under the management and control of the plaintiff for being maintained as "Green"; that after the land was placed under the management and control of the plaintiff, the plaintiff continues to maintain the possession over Khasra No. 166 of village Ladha Sarai for an on behalf of defendant no. 2 and is developing the same as "Green". Derivative title of the plaintiff qua the suit land is not denied on the ground that the title/ownership of the suit land undoubtedly vests with defendant no.2. It is pleaded that by virtue of sub-section (3) of Section 150 of the 1954 Act, the suit land by virtue of the notification dated 20.05.1963 made under the 1957 Act stood vested in the Central Government and the effect of the said notification was also that the Gaon Sabha for village Ladha Sarai also stood abolished/dissolved. It is submitted that the officers/officials of Delhi Administration acting on behalf of defendant no.2 undertook demarcation proceedings alongwith the officials of the plaintiff on 29.11.1972 and after removal of encroachments therefrom, handed over vacant and physical possession including the physical possession of Khasra No. 166 of village Ladha Sarai to the officials of the plaintiff. The fact regarding the purchase of 17 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors any part of the land comprised in Khasra No. 166, village Ladha Sarai by defendant no. 1 is denied for want of knowledge. It is reasserted that the suit land vests absolutely in the Central Government and the DDA has been given the possession thereof through a valid notification issued by defendant no.2 and, thus, has derivative title in the suit land and that no individual much less defendant no.1 has any right in the said land and any sale or purchase with respect to the said land would be illegal. It is submitted that the said land is not agricultural, but, forms part of urban area to be developed by the plaintiff as "Green" in accordance with the provisions of master plan for Delhi. It is pleaded that the suit land was of the kind of waste land etc as described u/s 7 of the 1954 Act and the title thereof vests in defendant no.2.
10. In the replication to the WS of defendant no. 1 the plaintiff has inter alia submitted that in all notifications u/ss 4 and 6 of the Land Acquisition Act it is mentioned that though the lands bearing certain Khasra numbers or within certain boundaries are notified for acquisition but, the notification could not cover land vesting in the Union of India; that it was also so stated in the notification referred to by defendant no.1.
18
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
11. It is not out of place to mention here that a suit which is now suit no. 733/11/91 (old suit no. 316/04) was filed by Sh. Shamsher Singh and another suit was filed on behalf of Sh. Balvinder Singh and Sh. Surinder Singh which was dismissed in default in which the application for restoration being miscellaneous application no. 08/11/10 is still pending were consolidated together vide order dated 26.07.2001.
12. After filing of the WS in the present suit defendant no. 2 Union of India has not contested the suit and has preferred to remain absent.
13. On the pleadings of the parties, one of my Ld. Predecessors framed the following issues vide his order dated 07.10.2005:-
1. Whether the suit land was a waste land and had vested in Gaon Sabha on coming into force of Delhi Land Reforms Act?
2. Whether the suit land had vested in the Union of India by virtue of notification dated 20.05.1963 and was subsequently placed at the disposal of the plaintiff vide notification dated 20.08.1974? 19
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
3. Whether the defendants nos.1 and 3 had purchased the suit property from its erstwhile owners vide sale deeds dated 12.10.1987 to 28.10.1987? If so, whether the erstwhile owners, as claimed, were having any title in the suit property?
4. Whether suit has been correctly valued for the purpose of court fee and jurisdiction?
5. Whether the plaintiff is entitled to the relief of injunction, declaration and possession, as claimed in the suit?
6. Whether any proceedings under Sections 86-A of Delhi Land Reforms Act had been filed by Gaon Sabha against the Predecessor in interest of defendant No.1 and 3? If so, to what effect?
7. Whether the suit of the plaintiff is barred by limitations?
8. Whether plaintiffs No.1 to 4 (in suit titled Samsher Singh vs.S.B Chaudhary, Suit No.316/04) are in possession of 500 Sq.Yards of land each out of Khasra No. 166? If so, whether the plaintiff is entitled to the relief of injunction as claimed?
9. Relief.
20
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
14. Plaintiff has examined ten PWs. They are as follows:-
a) PW-1 Sh. R.S Dhaiya, Assistant Settlement Officer, DDA. He has filed affidavit Ex. PW-1/A and has proved certified copy of LR Form No. 2 as Ex.PW-1/X(also exhibited as Ex.PW-1/1).
b) PW-1 Sh.Rajender Prakash, Office Kanoongo. He has proved the copy of the record pertaining to Khasra No. 166, Village Ladha Sarai (LR-2 and LR-4 pertaining to the year 1953-54 as Ex. PW-1/1 (also exhibited as Ex. PW-1/X).
c) PW-2 Sh. Kailash Kumar, Sadar Kanoongo who has proved the photocopy of the Khatoni and Jamabandi in respect to the suit property for the year 1964-65 as Ex. PW-2/1.
d) PW-3 Sh. Chhatra Pal Singh, Kanoongo, Tehsil Hauz Khas, Mehrauli who has proved Khasra Girdwaries in respect to the suit property for the years 1972-73 and 1985-86 as Ex.PW-3/1 and Ex. PW-3/2 respectively. He has also proved a copy of the list of urbanized villages of Delhi as per notification bearing no. RNZ/526 dated 23.05.1963 as Ex. PW-3/3, Khatoni for the year 1985-86 in respect of Khasra no. 166Min( 2-19) and (43-10), Khatoni No. 8/8 of village 21 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Ladha Sarai, Tehsil Mehrauli as Ex. PW-3/4, Roznamcha report no.
19.09.1983 as Ex. PW-3/5, Khasra Girdwari in respect of the suit property for the years 1983-84, 1993-94, 1994-95, 1996-97,2001-02 and 2003-04 as Ex. PW-3/6, Ex. PW-3/7, Ex. PW-3/8, Ex. PW-3/9, Ex. PW-3/10 and Ex. PW-3/11 respectively.
e) PW-4 Sh. Leela Dhar Sharma, Patwari, Office of Deputy Conservator of Forest and Wild Life, Shooting Range, Tuglakabad, South who has proved the copy of notification number F.SCO.32 (c) NOTI-80-81 dt. 10.04.1980 as Ex. PW-4/1 and notification dated 24.05.1994 issued under the Indian Forests Act bearing no. F.10 (42)-I/PA/DCF/93/2012-17(I) as Ex. PW-4/2 .
f) PW-5 Sh. Rajender Prakash, Office Kanoongo who has proved the copy of Elaan form pertaining to village Kamruddin Nagar as Ex. PW-5/1.
g) PW-6 Sh.I.Lakra, Kanoongo, Record Keeper (Revenue) who has not said anything regarding the case nor has proved any document.
h) PW-7 Sh. Rajiv Kumar, SDM (HQ) who has proved no document.
i) PW-8 Sh. Brahmpal, Library Information Assistant, Delhi Public 22 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Library. He has proved the copy of government gazette dated 21.10.1954 published on 21.10.1954 as Ex.PW-8/1.
j) PW-9 Sh. S.P Bhardwaj who has tendered his affidavit Ex. PW-9/A and has proved the documents as Ex.PW-1/2 to Ex.PW-1/9 and also Ex. PW-2/1, Ex-PW-3/1 and Ex. PW-3/2 (the ordersheet dated 03.06.2010 of my Ld. Predecessor records that documents Ex.PW-1/1 to Ex. PW-1/9 mentioned in the affidavit of PW-9 have to be treated as Ex.PW-9/1 to Ex.PW-9/9). In his cross-examination PW-9 has proved the Sajra as Ex.PW-9/D-1.
k) PW-10 Sh. C.P Verma, Local commissioner who has proved his report dated 11.02.1991 as Ex. PW-10/1, copy of the site plan compared with the original site plan (Sajra) placed in the records of the Halqa Patwari as Ex. PW-10/2, rough report Ex. PW-10/3, (written as Ex. PW-1/3 in his statement recorded before the court) and twenty six photographs of the suit land prepared by him at the time of his inspection as Ex.PW-10/4 collectively (Written as Ex.PW-1/4 in his statement recorded before the court). On the other hand, defendant no. 1 has examined himself as DW-1 and has 23 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors tendered his affidavit Ex. DW-1/A and has relied upon documents Ex. DW-1/1 to Ex. DW-1/5 of which documents Ex. DW-1/4 and Ex. DW-1/5 are not filed. He has also examined DW-2 Sh. Sunder Singh, Senior Law Officer, Ministry of Urban Development, Government of India who has proved copies of the letter dated 08.04.1999 and the office memorandum dated 01.07.1999 as Ex. DW-2/1 and Ex. DW-2/2 respectively.
15. On 22.02.2012 the Ld. Counsel for the plaintiffs in suit no. 733/11/91 and M No. 07/11/10 made a statement that the present suit be decided first and suit no. 733/11/91 and M No. 07/11/10 be kept pending. Therefore, final arguments in the present case have been heard.
16. I have gone through the file carefully. My findings on the issues are as follows:-
ISSUE NO. 5
17. I take issue no.5 first. The Ld. Counsel for defendant no. 1 has relied 24 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors upon the statement of PW-9 made in his cross-examination and has contended that from his statement it stands proved on the record that at the relevant time the market value of one Acre of land was Rs.4,65, 000/- and the suit land being 46 Bighas and Nine Biswas has market value in Crores and, hence, the suit for the purposes of relief for possession has been grossly undervalued . On the other hand, the Ld. Counsel for the plaintiff has contended that the suit land being a Banjar and waste land did not have any market value at the relevant time and, hence, the suit land has been given a notional valuation of Rs. 5,0,1000/-(Rs. Five Lacs One Thousand only) and has been valued as such for the purposes of the relief of possession. He has contended that even otherwise the plaintiff is ready to deposit the deficient court fees in case this court comes to the conclusion that the suit has been undervalued for the purposes of the relief of possession.
18. In fact the suit has been valued for the purposes of redeclaration with consequential relief of possession at Rs.5,0,1000/-(Rs. Five Lacs One Thousand only). The reason as to why the suit for the purposes of the said relief has been valued at Rs.5,0,1000/-(Rs. Five Lacs One Thousand only) has not been detailed in the plaint. As stated hereinabove, the plea taken by defendant no.1 in the written statement is that the value of the land as per the notification 25 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors by the Lt. Governor is Rs. 4.65 Lacs per acre and, hence, the suit is undervalued for the purposes of court fees and jurisdiction for the relief of possession.
19. In his cross-examination PW-9 has stated that he is not aware if for the purposes of acquisition of land under the Land Acquisition Act the government had been assessing the compensation at Rs.4,65,000/- per acre. He has volunteered to say that the acquisition proceedings are done by the ADMs of the Delhi Government. He has admitted that DDA is the beneficiary of the lands which are acquired for the proposes of development at the instance of DDA and that the compensation is being assessed at Rs. 4,65,000/- per acre which has been paid by DDA for such acquisitions as per law prevalent at the relevant time. It may be that the government had been acquiring the land to be handed over to the DDA for the purposes of development by paying compensation to the land owners @ Rs. 4,65,000/- per acre. However, the case of the plaintiff from the very beginning has been that the suit land is a Banjar/waste land.
20. Defendant no. 1 has himself filed 17 sales deeds in respect of different 26 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors portions of the suit land. Vide these sale deeds the defendant no. 1 claims to have purchased different portions of the suit land from different persons for different sale considerations specified in the sale deeds. The 17 sale deeds are for a total amount of Rs. 4,44,000/- (Rupess Four Lac Forty Four Thousand Only). The sale deeds are stated to have been got executed in 1987-88. It means that as per the case of defendant no. 1 himself the market value of the suit property during that period was around Rs. 4,44,000/- (Rupess Four Lac Forty Four Thousand Only). The present suit has been filed in the year 1991. Therefore, it does not lie in the mouth of defendant no. 1 to say that the market value of the suit property at the time of filing of the suit had increased to Rs. 4,65,000/- per acre. The defendant no. 1 cannot claim a lower market value of the suit property for the purposes of purchasing the same from different persons in 1987-88 and to claim a higher and exaggerated market value for the purposes of filing the suit in the year 1991 by the plaintiff. Therefore, inspite of the fact that during the relevant time the compensation rate for acquisition purposes of one acre of land was Rs. 4,65,000/-, the defendant nos. 1 & 3 cannot take the benefit of this fact, firstly because Rs. 4,65,000/- was the rate for the purposes of acquisition of the land and secondly because in view of the fact that the defendant no. 1 had himself purchased the suit property vide different sale 27 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors deeds only for an amount of Rs. 4,44,000/-.
21. Therefore, in my considered opinion, the valuation of the suit for the purposes of court fees and jurisdiction for the relief of redeclaration with consequential relief of possession at Rs.5,01,000/-(Rs. Five Lacs One Thousand only) is not improper. Therefore, I hold that the suit has been correctly valued for the purposes of court fees and jurisdiction for the relief of possession. Accordingly, I decide this issue in favour of the plaintiff and against defendant nos. 1 and 3.
ISSUE NO. 7
22. During the course of arguments at the bar the counsel for defendant nos. 1 & 3 has not pressed this issue. Even otherwise, there is no evidence on the record to show that the suit of the plaintiff is barred by limitation. Accordingly, I decide this issue in favour of the plaintiff and against defendant nos. 1 & 3. ISSUE NO. 8
23. This issue pertains to suit no. 733/11/91 (old suit no. 316/04) and 28 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors miscellaneous application no. 08/11/10. As I have stated hereinabove, vide his statement made on 22-02-2012 the counsel for these plaintiffs has stated that the present suit be decided first and suit no. 733/11/91 (old suit no. 316/04) and miscellaneous application no. 08/11/10 be kept pending. Therefore, issue no. 8 shall be decided in those suit/proceedings. However, since there is prima facie evidence to show that the plaintiffs / applicants in suit no. 733/11/91 (old suit no. 316/04) and miscellaneous application no. 08/11/10 are in occupation and possession of some portions in the suit land, defendant no. 1 (herein) shall not dispossess them from their respective portions till the disposal of those suit and proceedings. However, the said observation shall not affect the rights of the parties to be decided on merits in those suits and proceedings. ISSUE NOS. 1, 2, 3, 5 & 6
24. All these issues are interconnected and, hence, can conveniently be disposed off together.
25. The Ld Counsel for the plaintiff has contended that at the time of coming into being of the 1954 Act village Ladha Sarai was a Bechirag Mauza i.e. an un- 29 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors inhabited village since about 1948-49 and, therefore, a waste land and by virtue of section 7(1) of the 1954 Act all the proprietorship rights in respect of any portion of the land situated in the village had terminated in accordance with the provisions of sub-section (2). According to him, in exercise of the powers conferred on the Dy Commissioner of Delhi u/s 7 (2) of the 1954 Act the Dy Commissioner had issued a notification thereby vesting all the rights in respect of the land in the Gaon Sabha constituted u/s 150 of the said Act. He has further contended that in exercise of the powers conferred on the Municipal Commissioner u/s 507 of the 1957 Act, the Municipal Commissioner had issued a notification thereby declaring the rural areas including the rural area of village Ladha Sarai to have ceased and formed part of the urban areas and, therefore, the suit land ceased to be rural area and became an urban area w.e.f. the date of the publication of the notification u/s 507 of the 1957 Act. He has contended that thereafter in exercise of the powers conferred upon the Central Government u/s 22 of the DD Act, the Central Government issued a notification and placed the suit land alongwith other lands at the disposal of the plaintiff DDA for the purposes of development and, therefore, since then it is the plaintiff DDA who has been developing the suit land as green land and has the derivative ownership in the suit land. His contention is that the plaintiff DDA has become 30 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors the owner of the suit land and has, therefore, every right to protect the same from encroachment or against use for any other purpose. He has contended that proceedings held u/s 86-A of the 1954 Act were a nullity and, hence, did not confer any right on the persons mentioned therein and consequently these persons or other persons had no legal right to execute the 17 sale deeds in favour of defendant nos 1 & 3 or any other person. According to him, it has been proved on the record that the suit land had been delivered to the plaintiff by defendant no 2 for development as green according to law and the plaintiff is entitled to the reliefs.
26. On the other hand, the Ld Counsel for defendant nos. 1 & 3 has contended that the suit land has never been shown as a part of Bechirag Mauza and that in the last settlement which took place in 1908-1909 village Ladha Sarai had been shown as abadi deh and thereafter no fresh settlement ever took place which could even remotedly show that the status of the village had been changed or it had become a Bechirag Mauza. He has contended that even in the Khasra Girdawari for the year 1985-86 (Ex. PW-3/2) the suit land has been shown to be in the bhumidari of Gaon Sabha and, therefore, the record of the plaintiff itself proves that the said land had never been vested in 31 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors the Central Government and, hence, could not vest in DDA. He has contended that defendant nos. 1 & 3 have successfully proved that vide 17 sale deeds Ex. DW-1/1 (Colly.) defendant nos. 1 & 3 had purchased different portions of the suit land from different owners in possession and, therefore, defendant nos. 1 & 3 had become the owners of the suit land. He has contended that proceedings u/s 86-A of the 1954 Act were decided by a competent authority and the appeals filed against these orders by Union of India had been dismissed as withdrawn and, thus, the orders u/s 86-A have attained finality and cannot be challenged in the present suit.
27. PW-8 has proved the copy of the Gazette Notification dated 21-10-1954 as Ex. PW-8/1. This is a copy of the notification no. F-3(43)/54GA&R dated 20-10-1954 made by the Government of Delhi thereby bringing the provisions of chapter V of the 1954 Act into operation. It was further declared that in exercise of the powers conferred by section 166 (1) of the 1954 Act the Chief Commissioner had declared that the duties, powers and functions of Gaon Sabhas and Gaon Panchayats in the State shall be discharged, exercised and performed by the Dy Commissioner till such time as the Gaon Sabhas and Gaon Panchayats were established. Therefore, the powers of the Gaon Sabhas and 32 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Gaon Panchayats were vested in the Dy Commissioner.
28. According to PW-1 whose cross-examination was not completed and PW-2 copy of LR Form No. II is Ex. PW-1/X (Ex. PW-1/1). PW-2 has stated that the said record pertains to the year 1953-54. Ex. PW-1/1 (Ex. PW-1/X) is in Urdu language. However, the plaintiff has filed its Hindi translation under the signature of Sh Md Adil, Consultant, DDA. From a perusal of the translation it becomes evident that the translator has left or overlooked certain portions of the original document Ex. PW-1/1 (Ex. PW-1/X). However, the said document is in respect of village Ladha Sarai. Khasra No. 166 (46.09) of Khewat No. 30 and Khata No. 130 has been shown to be an abadi deh. According to PW-2, the same pertains to the year 1953-54. Thus, from the said document it becomes crystal clear that in the said LR Form No. 22 for the year 1953-54 the suit land has been shown as abadi deh.
29. For the purposes of bringing a land under the purview of section 7(1) of the 1954 Act there must be evidence on the record to show that it was infact a waste land, grazing or collection of forest produced from forest or fish from 33 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors fisheries, lands of common utility etc. Unless and until this fact is proved the land does not fall within the ambit of section 7 (1) of the 1954 Act. By virtue of the provisions contained in section 7 (2) of the 1954 Act the Dy Commissioner shall vest the rights u/s 7 (1) in Gaon Sabha or in any person or authority appointed by the Chief Commissioner u/s 161 w.e.f. the commencement of the Act. However, again this power conferred on the Dy Commissioner has a restriction and that restriction is that of payment of compensation, inter alia, equal in value to 4 times the amount of annual land revenue assessed at the last settlement for the cultivable and uncultivable waste area of the village to be paid by the government to the proprietor of proprietors concerned. Therefore, unless and until the payment of the compensation assessed in the said manner is made to the proprietor / proprietors concerned of the land, vesting of the land described in para 7 (1) of the 1954 Act by the Dy Commissioner in Gaon Sabha is not legal nor legally permissible and, hence, cannot be said to be a proper and legal act on the part of the Dy Commissioner.
30. The compensation has to be assessed as per the annual land revenue assessed at the last settlement. In the present case, when did the last settlement take place in Delhi is not made known to the court by the plaintiff, 34 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors though the case of defendant nos. 1 & 3 is that the last settlement in Delhi had taken place in 1908-09.
31. Delhi Land Reforms Rules, 1954 have been made under the provisions of the 1954 Act. Rules 2, 3 & 4 are the relevant rules. If we read section 7 (1) of the 1954 Act with these three rules it would become crystal clear that after the making of the notification u/s 7(1) by the Dy Commissioner a proclamation in LR Form No. I in respect of each village of each Gaon Sabha shall be made by the Revenue Assistant and the Revenue Assistant shall direct the Kanungo to work out the compensation to be paid to the proprietors in LR Form no. 2 in the manner prescribed under rule 4 and that also a register of compensation to be paid by the State has to be maintained in LR Form 3 villagewise and certain amount has to be deducted and set off against land revenue.
32. Now in the present case there is no evidence on the record to prove that at the time of making notification Ex. PW-8/1 or before or any time after that any compensation in respect of the land to be falling u/s 7 (1) of the 1954 Act was assessed in any manner or ever paid to the proprietor or proprietors concerned. 35
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
33. In his cross-examination PW-9 has stated that assessment of the compensation with respect to the land which was vested in Gaon Sabha was to be done by Delhi Government and whether in this particular case any compensation or assessment was done must be available with the Delhi Government who is vested with the powers to enforce the DLR Act. According to him, he is not aware whether any compensation or assessment was made in this case. Therefore, the plaintiff DDA has not lead any evidence which may remotedly show that any such compensation had ever been calculated or assessed either by the Central Government or by the Delhi Government to be paid to the proprietor or proprietors of the land concerned.
34. Copy of LR Form No. 1 is Ex. PW-5/1. According to PW-5, the same is in respect of Village Kamruddin Nagar and the Elaan Form pertaining to village Ladha Sarai is not available in their office. However, the version of PW-5 is that Elaan Form pertaining to village Ladha Sarai was also issued. In his cross- examination, PW-5 has denied that no Elaan was made with respect to village Ladha Sarai. He has stated that after the Elaan Form was issued the land 36 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors vested in Gaon Sabha. Interestingly enough, he has stated that "I have not brought any document to show that a proper implementation was made in the revenue records". Thus, L.R.Form Ex. PW-5/1 is in respect of village Kamruddin. We assume that a similar LR Form had also been issued pertaining to village Ladha Sarai. Hindi translation of document Ex. PW-5/1 has been filed on the record. The LR Form / Elaan was issued u/s 7 of the 1954 Act. There is also a mention about the assessment and payment of the compensation according to the entries made in respect of the agricultural or non-agricultural land of a village or villages as on 1-07-1950 according to the last bandobust. However, as I have discussed hereinabove, there is no evidence on the record which may even suggest that any such compensation as has been prescribed u/s 7 (3) r/w the abovestated rules had ever been assessed or calculated or much less been paid to the proprietor or the proprietors of the land concerned. Therefore, in my considered opinion, one of the necessary and important ingredients of section 7 (2) of the 1954 Act is missing in the present case.
35. The plaintiff has put a reliance on the revenue record of Khatoni of the year 1964-65. PW-2 has proved the Khatoni and Jamabandi in respect of the 37 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors suit land for the years 1964-65 as Ex. PW-2/1 and has stated that the suit land is underlined in red colour in it. Ex. PW-2/1 is in Urdu language. The suit land has been underlined in red colour. Hindi translation of the document has been filed. As per this document for the year 1964-65 Khasra No. 166(2-19) has been shown as Banjar Jadid/Banjar Kadim meaning thereby pahadi land or non- cultivable land and Khasra No. 166 (43.10) as Pahar Majkur (Hilly/Rocky area). Thus, by placing reliance on this document the Ld Counsel for the plaintiff has contended that from this document it is conclusively proved on the record that the suit land was in fact a banjar or waste land or a hilly land and, thus, was covered under the provisions of section 7 (1) of the 1954 Act.
36. The contention raised by the Ld Counsel for the plaintiff appears to be attractive and well-founded. Let us see whether this contention has infact a substance or has no leg to stand.
37. Ex. PW-3/1, Ex. PW-3/2, Ex. PW-3/4, Ex. PW-3/6, Ex. PW-3/7, Ex. PW-3/8, Ex. PW-3/9, Ex. PW-3/10 and Ex. PW-3/11 are the copies of the records of the khatoni/khasra girdawaris in respect of village Ladha Sarai for the 38 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors years 1972-73, 1985-86, 1985-86, 1983-84, 1993-94, 1994-95, 1996-97, 2001-2002 and 2003-2004. In Ex. PW-3/1 Gaon Sabha has been shown as a tenure holder of Khasra No. 166(43-10) and the nature of the land has been described as banjar kadim. The same is the position in respect of the suit land described in the subsequent khatonies / khasra girdawaris which are for the subsequent periods. In Ex. PW-3/4, Ex. PW-3/6, Ex. PW-3/7, Ex. PW-3/8, Ex. PW-3/9, Ex. PW-3/10 and Ex. PW-3/11, in remarks column i.e. column no. 21 there is an entry to the effect that vide rapat no. 915 dated 19-09-83 the name of DDA has been entered in place of Gaon Sabha. In Ex. PW-1/1 (Ex. PW-1/X) Khasra No. 166 (46-09) has been shown as abadi deh and in Khata Khewat No. 43 and Khatoni No. 130.
38. Ex. PW-3/5 which is in Urdu is the copy of the order no. 91 dated 19-09-83. Some portion has also been written in English. Hindi translation of the Urdu portion has been filed by the plaintiff. From the same it transpires that vide the said order passed in pursuance of the Govt of India, Ministry of Works and Housing Notification no. SO2190 dated 20-08-1974 the Gaon Sabha land had been vested in the Central Government on the urbanization of 43 villages as specified therein. Therefore, all the Halqa Patwaries were directed 39 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors to make necessary entries of Gaon Sabha lands in each of these villages in favour of DDA in the revenue record. Thus, after the issuing of the notification dated 20-08-1974 the entries in the revenue record in favour of the DDA were ordered to be made for the first time on 19-09-83.
39. Ex. PW-1/5 is the copy of notification no. RNZ/526 dated 23-05-1963 issued under the signature of Commissioner, Delhi Municipal Corporation under clause (a) of section 507 of the 1957 Act. Vide this notification, with the previous approval of the Central Government Commissioner, DMC had declared that the part of the rural areas mentioned in the schedule shall cease to be the rural areas. The name of Revenue Estate Ladha Sarai is mentioned at Sr No. 18 of the schedule while the name of Revenue Estate Mehrauli has been shown at Sr No. 17. It means that Ladha Sarai ceased to be a rural area w.e.f. 23-05-1963. Without making any further discussion I must say that the authentication of the said document has not been disputed on behalf of defendant nos. 1 & 3. On the other hand, in his cross-examination DW-1 has admitted that village Ladha Sarai was urbanized in the year 1963. 40
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
40. Now, Ex. PW-1/6 is the copy of the notification no. SO 2190 dated 20-08-1974 issued under Sub-Section (1) of Section 22 of the DD Act. Vide this notification the Central Government had placed the lands which had vested in the Central Govt on the urbanization of the villages specified in the schedule at the disposal of the DDA for the purpose of development and maintenance of the said lands as green and for taking such steps as may be required to serve the said purpose, subject to the condition that the DDA shall not make, or cause or permit to be made, any construction on the said lands and shall, when required by the Central Government so to do, place the said lands or any portion thereof as may be so required, at the disposal of the Central Government. The name of village Ladha Sarai founds mention at Sr No. 18 and the name of village Mehrauli (Kishangarh) at Sr No. 17 in the schedule to the said notification. However, as I have stated hereinabove, orders with regard to the entries of the name of DDA in the revenue record came to be passed/made for the first time on 19-09-1983 and only thereafter entries to that effect had been made in the khatonies/khasra girdawaris w.e.f. 1983-84.
41. In his cross-examination, PW-9 has stated that the possession of the land in question was handed over by Central Govt to DDA in the year 1974 and he is 41 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors not aware whether any document regarding the same was executed at that time. He has denied that the suit land was never handed over to DDA. In view of the fact that the entry with respect to the inclusion of the name of the DDA in the revenue records was directed to be made for the first time on 19-09-1983 and there is no other document or evidence on the record to prove that the possession of the suit land had been handed over to DDA in the year 1974 or at any time prior to 19-09-83 I am not inclined to believe that the possession of the suit land had infact been handed over to the DDA in the year 1974.
42. Very interestingly enough, in his cross-examination PW-9 has admitted that in the Khasra Girdavari for the year 1985-86 (Ex. PW-3/2) the land has been shown in the bhumidari of Gaon Sabha and similar is the position in Ex. PW-3/11. However, at the same time, he has added that there is a note in Ex. PW-3/11 to the effect that vide rapat no. 91 dated 10-09-1983 the land of Gaon Sabha was recorded in the name of DDA. I have also carefully gone through the copy of the khasra girdawari in respect of village Ladha Sarai for the period 12-09-85 to 12-02-86 which is Ex. PW-3/2 and infact the Gaon Sabha has been shown as the tenure holder of Khasra No. 166 (43-10). While very carefully going through the documents Ex. PW-3/2 and Ex. PW-3/4 which both 42 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors pertain to the years 1985-86 I find that the only difference between them is that Ex. PW-3/2 is the copy of the Khasra Girdavari for the period 12-09-85 to 12-02-86 and Ex. PW-3/4 is the copy of Khatoni. Ex. PW-3/2 is in respect of savni / kharif - hadi / rabi (12.09.85 - 12.02.86) which shows that the same had been recorded with respect to the kharif crops and the rabi crops. In Ex. PW-3/4 the land of Khasra No. 166 min (2-19) has been shown to be a banjar land and khasra no. 166 min (43-10) to be a land which cannot be broken without heavy expenses. By these documents the plaintiff DDA has tried to prove that the suit land is infact a banjar or a waste land and, hence, is a land of the nature described and specified in sub-section (1) of section 7 of the 1954 Act.
43. In order to rebut the case of the plaintiff, defendant nos. 1 & 3 have relied upon document Ex. PW-9/D-1 and also the cross-examination of DW-9 and also the order passed by the SDM u/s 86A of the 1954 Act which is Ex. DW-1/2.
44. In his cross-examination PW-9 has stated that "I cannot say whether I have seen jamabandi pertaining to 1948-49. I am not aware whether the suit 43 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors land was shown as abadi deh in the jamabandi of the year 1948-49". Here, I must say at once that the onus to prove that the suit land was in fact a banjar land or a waste land prior to coming into force of the 1954 Act was on the plaintiff. The plaintiff has not proved any revenue record for the relevant period i.e. for the period prior to 1954. One of the grounds taken in the plaint is that no one had been residing in the revenue estate of village Ladha Sarai after 1947 and it was known as Mauja Bechirag. If it is so, where has the evidence gone to prove this fact. It was the duty of the plaintiff to prove by leading documentary evidence or oral evidence or both to prove this fact. Mere an assertion made in the plaint or in the written statement, as the case may be, cannot be taken to be an assertion or fact proved according to law. Such mere assertion of a fact in the pleadings is not a fact which can be said to have been proved. In his cross-examination, PW-9 has stated that he has mentioned in para 9 of his affidavit that village Ladha Sarai is Bechirag Mauja because there was no abadi in the said village since 1947 and as mentioned in section 7 (1) of the 1954 Act the land in question was banjar land i.e. Pahar etc where nobody resides.
45. In his further cross-examination, PW-9 has stated that he has worked as a 44 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors SDM in Delhi and had been dealing with general administrative matters of East Delhi District. According to him, he knows the meaning of "Shajra". He has proved the "Shajra" of village Ladha Sarai as Ex. PW-9/D-1. However, according to him he does not know whether the signs made at points A & B in "Shajra" Ex. PW-9/D-1 signify that the land is abadi deh. Ex. PW-9/D-1 is the "Shajra" of village Ladha Sarai. Signs [[ ]] [[ ]] have been made in the place where khasra no. 166 has been shown. PW-9 who had been an SDM and, therefore, presumed to be possessing sufficient knowledge of revenue matters does not know the meaning of these signs. Here, PW-10 comes to explain the meaning of these signs. PW-10 who is a former SDM, Asstt Commissioner, Land Acquisition Collector, Competent Authority, Slum etc. has proved his report as Ex. PW-10/1 and the "Shajra" as Ex. PW-10/2.
46. I must say here at once that "Shajra" Ex. PW-9/D-1 and "Shajra" Ex. PW-10/2 seem to be copy of the same "Shajra" and prepared by the same person on the same date. Therefore, the evidence of PW-10 can safely be admitted in evidence for understanding the meaning of the said signs in "Shajra" Ex. PW-9/D-1. In his cross-examination, he has admitted that "Shajra" Ex. PW-10/2 shows khasra no. 166 as abadi deh by its marking. The same signs / 45 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors markings have been made in "Shajra" Ex. PW-10/2 and also in "Shajra" Ex. PW-9/D-1. Therefore the signs / marking [[ ]] [[ ]] denote the portion meant for abadi deh.
47. In his cross-examination PW-10 has stated that he has mentioned in his report Ex. PW-10/1 that in the suit land there is no habitation or abadi in Khasra No. 166 after 1949-50 on the basis of revenue records shown to him by the Patwari at the time of his inspection. He has stated that he did not feel it necessary to obtain the copy of the said revenue record from the said Patwari. If the Patwari had infact shown any such revenue record to PW-10 at the time of his inspection and any such fact was infact mentioned in the revenue record that there was no abadi or habitation in Khasra No. 166 after 1949-50, it was the duty of PW-10 to have collected the copies of the said record from the Patwari or it was for the plaintiff to call for the said record in the court and prove it according to law. In that eventuality, defendant nos. 1 & 3 could have certainly got an opportunity to rebut the authenticity of the said revenue record or an opportunity to cross-examine PW-10 on this point. The period or the year for which the "Shajra" Ex. PW-9/D-1 (Ex. PW-10/2) pertains to does not find mention in the same.
46
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
48. In his cross-examination on behalf of the plaintiffs in suit no. 431/09 (316/04) (present suit no. 733/11/91) PW-10 has stated he is not aware whether Surender Singh, Balvinder Singh and Shamsher Singh had filed a suit for permanent injunction against DDA ; that he cannot say whether any injunction order was passed against DDA on 16-02-1978 in that suit pertaining to land in question ; that he also cannot say whether any appeal was filed by DDA against any such order passed in that suit. He has, however, categorically stated that proceedings u/s 86A of the 1954 Act were initiated against Balvinder Singh, Surinder Singh, Shamsher Singh and Kirpal Singh. However, according to him, these proceedings were without jurisdiction as the land had been urbanized by then. According to him, he is not aware whether DDA had filed any appeal against the order of the Revenue Asstt in this regard. He has stated that he cannot say whether the proceedings had been initiated at the instance of Under Secretary (Revenue), Union of India ; that he is not aware whether the aforesaid three persons were having their houses on the suit land even before the commencement of the proceedings u/s 86A of the 1954 Act but he can say that some demolitions were carried out in the suit land in the year 1972 but he cannot give the list of the properties which were demolished. Thus, the initiation of the proceedings u/s 86 A of the DLR Act against the said three persons has 47 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors become an admitted fact though the version of PW-9 is that these proceedings were without jurisdiction as the land had been urbanized by then.
49. DW-1 has stated that Ex. DW-1/2 (colly.) are the orders passed by SDM / RA in proceedings u/s 86A of the DLR Act and Ex. DW-1/3 is the order passed by Sh SL Arora, Addl. Collector, Delhi. In his cross-examination DW-1 has denied that the order of the SDM is a nullity since the village was urbanized much prior to the passing of the order or that at that time Gaon Sabha was not in existence because of the urbanization of the village or that since Gaon Sabha was not in existence after urbanization of the village, he (DW-1) in collusion with Gaon Sabha got the proceedings filed u/s 86A to grab the government land.
50. Section 86A of the 1954 Act prescribes that notwithstanding any contained in sections 84, 85 & 86, the Revenue Asstt. also may, on receiving information or on his own motion, eject any person who is liable to be ejected from any land on a suit of the Gaon Sabha under any of those sections, after following such procedure as may be prescribed. Section 84 deals with ejectment of persons occupying land without title. Section 85 deals with failure to file suit u/s 84 or to 48 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors execute order or a decree obtained thereunder. Section 86 deals with ejectment of bhumidhar to whom section 85 applies. Section 86 A thus has been couched in an unambiguous language.
51. Certified copies of the orders dated 29-04-1972 passed by Mrs Aruna Roy, Revenue Asstt., Delhi Cantt., Delhi in various cases instituted by Gaon Sabha against various persons have been filed on the record which are collectively Ex. DW-1/2. These orders prove that Gaon Sabha of Masoodpur had filed / instituted these proceedings u/s 86A of the 1954 Act against various persons such as Babu Lal, Kashi Ram, Dharam Singh, Badri Lal, Panna Lal, Jai Paul, Fakira, Hari Ram, Gurmeet Singh, Balvinder Singh etc. From a perusal of the certified copies of the orders dated 29-04-1972 it transpires that the proceedings u/s 86 A of the DLR Act had been instituted on the applications of the Under Secretary (Revenue) for Govt. of India against these persons against encroachment of Gaon Sabha land now vested with the Government with the allegations that these persons had been constructing pucca houses (recently) and that they be ejected from the land. From a perusal of the orders it transpires that the proceedings had been instituted in respect of the land situated in Khasra No. 166 (min) of village Ladha Sarai and these persons were 49 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors alleged to be in unauthorized and illegal occupation of the area. After examining the witnesses of the parties the Revenue Asstt. declared the abovestated persons to be bhumidhars on the ground that they had been in occupation of the land "for more than three years the powers of the Gaon Sabha were vested in 1963".
52. Ex. DW-1/3 is the copy of order dated 30-12-1972 passed by Sh SL Arora, Addl Collector, Delhi. From a perusal of the said order it becomes crystal clear that the Union of India had filed appeals through Sh PN Kapoor, Advocate against the orders dated 29-04-1972 passed by Smt Aruna Roy, SDM/Revenue Assistant, New Delhi in the abovestated proceedings instituted u/s 86A of the 1954 Act. From a perusal of the order Ex. DW-1/3 it transpires that the appeals had been filed against eleven separate orders passed in favour of Babu Lal, Kashi Ram, Girdhari Lal, Ramji Lal, Dharam Singh, Badri Lal, Panna Lal, Jai Paul, Fakir Chand, Hari Ram and Gurmeet Kaur. The relevant portion of the order dated 30-12-1972 reads as under:
"On 13.12.1972 when these cases were called up for appearance of the opposite parties, the learned counsel for the Union of India sought indulgence of this court to withdraw these appeals vide his application dated 13.12.1972 mentioning that the 50 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Union of India do not want to contest any more and as such intends to withdraw. The opposite parties did not put in appearance.
In view of the above, all the above mentioned appeals are accordingly allowed to be withdrawn and would thus stand dismissed. Copy be placed on each appeal file."
Thus, with the passing of the order dated 30-12-1972 by the Addl. Collector, Delhi in appeal the orders dated 29-04-1972 passed by the SDM/ Revenue Asstt. in favour of the abovestated persons attained finality. Thus, these persons were declared to be bhumidhars in respect of the portions of the land forming part of khasra no. 166 (min) of village Ladha Sarai.
53. PW-9, the then Dy Director (NL), DDA, Vikas Sadan, New Delhi, has in his affidavit Ex. PW-9/A, inter alia, stated that the defendants have wrongly relied on the decision of the Revenue Asstt dismissing the suit filed by the Gaon Sabha u/s 86A of the 1954 Act and the said decision is not at all binding on the plaintiff and Union of India as the same was without jurisdiction on the basis of the finding of facts given therein. According to the averments made in affidavit Ex. PW-9/A the said decision is a nullity and without jurisdiction and does not confer any right, title or interest in the suit land in favour of the alleged erstwhile 51 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors owners/bhumidars or defendant nos. 1 & 3 or any other person. He has also deposed that the order dated 29-04-1972 was based on the finding that there existed pucca houses since long and the Revenue Asstt. had no jurisdiction in the matter once the Revenue Asstt. held the existence of the pucca construction, though there was no such pucca construction. I must say at once that the finding of facts recorded by the Revenue Asstt. in the orders dated 29-04-1972 may be against the facts as stated by PW-9 but, however, the Union of India who is defendant no. 2 herein had filed appeals against the orders dated 29-04-1972 before the Addl Collector, Delhi and it was Union of India (defendant no. 2 herein) who had withdrawn the appeals and the appeals were accordingly dismissed as withdrawn vide order dated 30-12-1972. I fail to understand when the orders dated 29-04-1972 were a nullity, why did Union of India withdraw the appeals filed against the said orders dated 29-04-1972. It means that the finding of facts or the finding recorded by the Revenue Asstt. that the abovestated persons were the bhumidhars and thereby declaring these persons to be the bhumidhars in respect of their portions of land comprised in Khasra No. 166 (min) village Ladha Sarai was admitted to be correct and legal by the Union of India (defendant no. 2 herein). Therefore, I am of the considered opinion that the orders dated 29-04-1972 have gained finality so far as the 52 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors present suit is concerned. By filing the present suit the plaintiff DDA who claims derivative title in respect of the suit land through the Central Government i.e. Union of India (Defendant no. 2) has not sought declaration for declaring the orders dated 29-04-1972 to be null and void and, hence, not binding on the plaintiff or for that purpose on the Central Government (Union of India). Therefore, it is too late for the plaintiff to open its mouth and say that the orders dated 29-04-1972 passed by the Revenue Asstt. are without any jurisdiction and, hence, not binding upon the plaintiff or defendant no 2.
54. Here I would like to mention one important and glaring fact and that fact is that after filing the written statement the defendant no. 2 has chosen not to contest the suit and has, therefore, been proceeded ex-parte. It is, no doubt, true that the plaintiff has the locus standi to file the present suit simply on the ground that vide the order dated 5-11-1990 passed in Civil appeal no. 5212 of 1990 the Supreme Court of India has permitted the plaintiff DDA to file "appropriate legal proceedings before a court of law or other competent authority to have their rights determined" and, therefore, there is no need to look into any other fact or controversy to decide this point. Therefore, I hold that the DDA has the locus standi to file the present suit. However, in my considered 53 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors opinion, the plaintiff who came in the picture qua the suit land after the making of the notification dated 20-08-1974 has no locus standi to challenge or impugn the vires of the orders dated 29-04-1972. Therefore, I hold that the orders dated 29-04-1972 passed by the Revenue Asstt. in the proceedings instituted u/s 86A of the 1954 Act cannot be challenged in the present suit and, hence, the same are binding on the plaintiff.
55. As I have held hereinabove, the order u/s 7 (2) of the 1954 Act has been passed without complying with the mandatory provisions contained in section 7 (2) and 7 (3) relating to the assessment and payment of compensation to the proprietor or proprietors of the land concerned. There is no evidence on the record to show and prove that the Central Government or the Govt of Delhi (as stated by PW-9 in his cross-examination) had ever assessed or paid the compensation to the proprietor or proprietors as per the mandates contained in section 7 (2) and section 7 (3) of the 1954 Act. There is no evidence on the record to show that any such assessment was ever made.
56. Further, Section 7 (2) of the 1954 Act, inter alia, provides for assessment 54 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors of compensation equal in value to four times the amount of annual land revenue assessed at the last settlement for the cultivable and uncultivable waste area of the village to be paid by the Government to the proprietor or proprietors concerned or in case no such assessment of land revenue was made at the last settlement the rate of land revenue applied at the last settlement for similar areas in any other village in the same assessment circle had to be taken the rate of land revenue applicable to such areas or failing this the rate of land revenue applicable to such areas had to be computed at 75% of the land revenue assessed on the lowest class of the soil in the village. Section 7 (3) of the 1954 Act, inter alia, provides that the amount of compensation had to be calculated separately for each village for the respective proprietor or proprietors in accordance with rules made under the Act and the payment was to be made in not more than four installments in the manner provided u/s 7 (3) of the Act. Sub-section (4) of section 7 of the 1954 Act provides that where the amount of compensation is not paid by the due date specified in sub-section (3) such amount shall be paid with interest thereon at the rate of 2 ½ % PA from the said date until payment. As I have stated hereinavbove, no such evidence has been led on the record by the plaintiff. There is even no evidence on the record to prove as to when the last settlement was made after 1908-09 despite there 55 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors being provisions in this behalf contained in sections 112, 113 & 114 of the 1954 Act. Therefore, in my considered opinion, the making of Elaan Form pertaining to village Ladha Sarai which according to PW-5 is not available in their office on the pattern of LR Form No. 1 in respect of village Kamruddin Nagar which is Ex. PW-5/1 was not proper so far as the present case is concerned. The said LR Form, if any, in respect of village Ladha Sarai including the suit land was issued without complying with the provisions of section 7 (2) and section 7 (3) of the 1954 Act inasmuch as there is no evidence on the record to prove that any such compensation was ever assessed and paid to the proprietor or proprietors concerned and, hence, the suit land could not vest in the Gaon Sabha of village Masoodpur which Gaon Sabha of Masoodpur according to his own admission made by DW-1 in his cross-examination was the Gaon Sabha in whose jurisdiction the suit land was/ is situated. Therefore, even otherwise there is no illegality in the order dated 29-04-1972 passed by the Revenue Assistant in the proceedings instituted u/s 86A of the 1954 Act.
57. The case of the plaintiff is that the suit land had been placed at its disposal by the Central Government for developing and maintaining the same as green. In order to prove this fact the plaintiff has examined PW-4 who has proved the 56 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors copy of notification no. F SCO.32 (C) NOTI-80-81 dated 10-04-1980 and Ex. PW-4/1 and copy of notification no. F.10(42)-I/PA/DCF/93/2012-17 (1) dated 24-05-1994 issued under the Indian Forests Act as Ex. PW-4/2. In his cross- examination PW-4 has stated that he is not aware which Khasra Nos of a particular revenue estate were declared as forests. He has, however, admitted that notification Ex. PW-4/1 is dated 10-04-1980 and that the said notification was applicable only for 20 years from the date of notification. He was examined as PW-4 on 6-01-2010. He has not proved any subsequent notification issued after the expiry of the period of twenty years prescribed in notification Ex. PW-4/1. PW-4 has categorically admitted that the name of village Ladha Sarai does not appear in the annexure filed alongwith Ex. PW-4/1. According to him, he does not know if the land of village Ladha Sarai was never declared as forest by any notification. Thus, as per the statement made by PW-4 the name of village Ladha Sarai does not appear in the annexure filed alongwith copy of notification Ex. PW-4/1. This is the oral statement made by PW-4. Therefore, the said statement / admission made by PW-4 can easily be ignored if the document i.e. notification Ex. PW-4/1 contains facts to the contrary.
57
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
58. Let us see the contents of the notification Ex. PW-4/1. This notification has been issued by the Development Department, Delhi Administration, Delhi under the orders of Ld Governor in exercise of the powers conferred by section 30 of the Indian Forests Act, 1927 r/w the Govt of India, Ministry of Home Affairs, Notification no. 104 J and 146 J dated 24th August and 6th December, 1950. Vide the said notification it was, inter alia, declared that the land specified in the schedule attached to Lt Governor notification no. F SCO.32 (C) NOTI-80-81 dated 10-04-1980 shall be closed for the purpose of regeneration for a period of twenty years and the rights of private persons in or over the said land shall be suspended during the said period and that the trees and class of trees in the protected forest areas mentioned in the said schedule shall be reserved w.e.f. 10-04-1980. A schedule / annexure is attached to the said notification. According to the Ld Counsel for the plaintiff the land of village Ladha Sarai is covered under item no. 7 of the schedule which reads as follows:
1. 1
2. Nehru University Afforstation
3. F-12, D.D.A. Land
4. Delhi
5. Mehrauli
6. Katwaria Sarai Ber Sarai Masood Pur 58 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
7. 200 Acres
8. North Road connecting outer Ring Rd. & Mehrauli Rd. going via Ber Sarai, Katwaria Sarai & Qutub Hotel.
South :- Mehrauli city & Qutab Minar area.
East : Mehrauli Rd. & Boundary of Quila Rai Pithora West : Nehru University complex.
Item no. 7 pertains to Tehsil Mehrauli and covers villages of Katwaria Sarai, Ber Sarai and Masoodpur. The inclusion of village Masoodpur, no doubt, indicate that the suit land may also be part of the said notification because according to his own admission made by DW-1 in his cross-examination the suit land comes under the Gaon Sabha of village Masoodpur. However, the details of the land which were covered under the said notification had not been specified. Therefore, as contended on behalf of defendant nos. 1 & 3 it is doubtful whether the suit land was also covered under the said notification. Moveover, the said notification was made for a period of twenty years. No further notification for extension of period has been proved. Therefore, in my considered opinion, the plaintiff is not entitled to derive any benefit from the said notification because even otherwise the said notification must be concerning to the forest department and not to the plaintiff.
59
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
59. Copy of notification Ex. PW-4/2 is dated 24-05-1994. Vide this notification the Lt Governor, NCT of Delhi declared the lands mentioned in schedule A as reserved forests in pursuance of the provisions of section 4 of the Indian Forests Act, 1927. According to the Ld Counsel for the plaintiff item no. III of the schedule covers the land in dispute. Item no. III is in respect of south central ridge in NCT of Delhi surrounded on North by Qutub Institutional area, South by Vasant Kunj, Kishan Ganj, East by Aurobindo Marg, Nazarika Bagh and West by Jawahar University Road, Vasant Kunj, Mehrauli (approximately area 626 ha). The submission of the Ld Counsel for defendant nos. 1 & 3 is that the said notification does not apply to the suit land because there is no specific mention of village Masoodpur in the notification. This may be one of the reasons to say that the said notification does not apply to the suit land. Moreover, the notification also does not apply to the facts of the present case simply because the suit had been instituted in the year 1991 and the said notification had been issued in the year 1994 i.e. during the pendency of this suit. There is no mention in the notification that the same had been made applicable with retrospective effect. Therefore, the notification must be held to be effective with prospective effect. That being so, the plaintiff is not entitled to derive any benefit from this notification.
60
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
60. PW-10 who was appointed as a Local Commissioner by the Court has proved his report as Ex. PW-10/1, "Shajara" as Ex. PW-10/2, rough notes prepared by him at the site as Ex. PW-10/3 and the photographs as Ex. PW-10/4 (Colly.). In report Ex. PW-10/1 he has, inter alia, pleaded that there is no habitation or abadi in Khasra no. 166 after 1949-50 and, therefore, Ladha Sarai is Bechirag Revenue Estate, though "Of Course there exists three delapidated stone-built structures, situated distantly from each other on this once Abadi-land." His report further reads as under:
"Though the Khasra Girdawri indicates possession of neither party, D.D.A. is claiming ownership and possession over it by operation of law that the rights of proprietors in village Abadi / Waste land vested in Gaon Sabha with the enforsement of Delhi Land Reforms Act in 1953-54 and then these rights passed on to D.D.A. with subsequent urbanization of this Revenue Estate. Consequently D.D.A. appears to have taken over the land and started its filling operations on the North-West portions it also laid 1 ¼ inch-irrigational pipe line all over the land and planted "Bigan -Balia" hedge alonwith its boundry common with Khasra No. 167. While D.D.A. was thus engaged in its tardy development of this land, the predecessors-in-interest of the defendant appear to have 61 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors started their attempt to establish title over this land through legal forums and it is near about 1987 that the present defendant staked his claim as a Vendee for the whole land. His managed to bring deep in the wood land towards the Eastern side of the Land, bricks, equal to 2/3 trucks load and tacked them in broken length of some small height in order to claim construction of a boundry wall which was allegedly dismantled by the D.D.A. The other thing which he did nin respect of the land is to have pitched a tent on land measuring about 15 feet x 12 feet for sheltering a Chaukidar or two. As I was told the D.D.A. s watchment and Beldars who work in Ladha Sarai and Qutab Areas round to clok under the supervision of Shri S.S. Mayar, Assistant Director, has not been able to oust him from this patch of land akin to the common boundry of Khasra Nos. 167. Shri S.S. Mayar, stated publicly that they have not done it as the defendant brought a stay order from Supreme Court which they are hounoring and on account of which the defendant's musclemen do not permit D.D.A's Beldars to irrigate the fading plants, planted by the D.D.A along the Road built between Khasra No. 166 and 167, and who have also removed D.D.A 8s angle iron-fencing from soutern side of Khasra No. 166, fixed in the style of the fencing in Khasra No. 167 and they have installed two more tents on the land of size mentioned above only yesterday. Seemingly the defendant has got a foothold over some portion of the land 62 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors towards its north-south corner contiguous to the Laldora of Mehrauli and the Pacca road, say over an area of about one acre but the D.D.A. has not permitted him to change the status-quo of the land in a tangible manner like erecting structure / removing trees. The defendant is a casual visitor on the land and is not aware of the length and breadth of it as he told me that it was not correctly demarcated to him by the officials.
On this very portion which he claims to be under his effective control, several unauthorized occupations have/come up in the form of pacca enclosures and kothas belonging to (1) Mam Chand son of Baid Ram on 4 biswas (2) Shamsher Singh on 2 biswas , (3) Matloob-ul-Rehman on 2 biswas (4) Zorish S/o Ismail on one Biswas. Besides, some others in the shape of manufacturing dung-cakes over it. Both D.D.A and the defendant lack knowledge of these occupations and encroachments as these new settlers refuse to recognise on my asking the title of both the parties and claim to be on the land in their own rights. There is tedency of more such encroachments taking place on this land and by the time the present litigation between the parties culminates into the title of either of them, the third parties rival claims on account of such occupation over a major chunk of this land is likely to set in motion another chain of litigation."63
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
61. However, in his cross-examination PW-10 has stated that he has mentioned in his report that in the suit land there is no habitation or abadi in Khasra No. 166 after 1949-50 on the basis of revenue records shown to him by the Patwari at the time of his inspection; that he did not feel it necessary to obtain the copy of the said revenue record from the Patwari. If Patwari had infact shown any such revenue record to PW-10 at the site, it was the duty of PW-10 to have collected the same from him and filed the same alongwith his report in the court but, however, PW-10 did not do so. Moreover, in view of the fact that the plaintiff has not filed nor proved any such record of the Patwari, I am not inclined to believe that the Patwari had infact shown any such record to PW-10 to show that there was no habitation or abadi in Khasra No. 166 after 1949-50.
62. In his further cross-examination, PW-10 has admitted that "Shajara" Ex. PW-10/2 shows khasra no. 166 as abadi deh by its marking. He has stated that some of the contents of the portion A to A1 on page 3 and 4 of his report Ex. PW-10/1 (reproduced hereinabove) are "hearsay based upon a representation of both the parties but not the whole portion. I did not record any separate statement of the parties present there but mentioned their version in 64 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors my report". Therefore, it becomes crystal clear that admittedly some portion of report Ex. PW-10/1 is based on hearsay evidence. It is a settled principle of law that hearsay evidence is no evidence in the eyes of law and, hence, is liable to be discarded. Therefore, the report of PW-10 who had worked as SDM, Asstt. Commissioner, Land Acquisition Collector, Competent Authority, Slum etc and who according to him has been in legal profession since 15-05-1985 and, hence, should be presumed to be well acquainted with the revenue law is liable to be discarded and is accordingly discarded.
63. Now, I shall deal with the sale deeds on the basis of which defendant nos. 1 & 3 claim to have become the owners of the suit land. The Ld Counsel for the plaintiff has vehemently contended that since the suit land situated in revenue estate of village Ladha Sarai had vested in Gaon Sabha of village Masoodpur in 1954 and the revenue estate of village Ladha Sarai had been declared as urban area vide notification made u/s 507 of the 1957 Act in 1963 and thereafter by virtue of the notification made by the Central Government u/s 22 (1) of the DD Act in 1974 the same had been handed over to the plaintiff for development as green, the individual proprietor / proprietors concerned had ceased to have been vested with any power to deal with the suit land, the predecessors in 65 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors interest of defendant nos. 1 & 3 had no legal authority to execute the said sale deeds in favour of defendant nos. 1 & 3. He has further contended that even otherwise from a perusal of the sale deeds it would become clear that the full addresses of the sellers have not been mentioned therein which fact clearly proves that the sale deeds have been got executed from fictitious persons. He has further contended that before disposing off the agricultural land permission of the competent authority is required to be obtained but the sale deeds are silent about the fact whether before executing the sale deeds any such permission from the competent authority had infact been obtained or not. He has further contended that since at the relevant time the sale deeds in respect of the agricultural land could not be got executed in Delhi and the suit land infact was not an agricultural land defendant nos. 1 & 3 had got the sale deeds executed at Mumbai. His contention is that as per the admission made by DW -1 in his cross-examination the suit land is not an agricultural land and, therefore, the sale deeds in which the use of the suit land has been described as agricultural land are of no effect and do not confer any right, title or interest in defendant nos. 1 & 3 and, hence, the sale deeds are liable to be ignored. On the other hand, the Ld Counsel for defendant nos. 1 &3 has contended that from the suggestion put to DW-1 in his cross-examination it is proved on the record 66 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors that before getting the sale deeds executed from different persons requisite permission from the competent authority had been obtained. He has contended that since it has not been proved that the suit land is a land of the nature described in section 7 (1) of the 1954 Act and, hence, never vested in Gaon Sabha or in DDA, the sellers had the legal right to execute the sale deeds in favour of defendant nos. 1 & 3. His contention is that keeping these facts in view it has been proved on the record that defendant nos. 1 & 3 have become the owners of the suit land by virtue of the abovestated sale deeds.
64. The seventeen sale deeds are Ex. DW-1/1 (Colly.). In his cross- examination DW-1 has stated "it is wrong to suggest that I had procured a false NOC from the competent authority in collusion with them". The said suggestion put to him in his cross-examination goes a long way to prove that the case of the plaintiff is infact that the NOC obtained by the defendant no. 1 from the competent authority had been obtained in collusion with them and was thus false. Thus, it should be presumed that before getting the sale deeds executed defendant no. 1 had infact obtained a NOC from the competent authority. The sale deeds are shown to have been executed by the following persons:
67
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
1. Ratti Ram R/o 982/7, Mehrauli, New Delhi through is registered attorney Mangat Ram in respect of 2 bhigas
2. Sunil Vats R/o G 35 Noida, Ghaziabad, UP through his registered attorney JP Mahendru in respect of 1.10 bhigas.
3. Ravinder Kumar R/o Village Mehrauli, New Delhi through his registered general attorney Subhash Sharma in respect of 1 bhiga
4. Upender Bhardwaj R/o H-15/19, Malviya Nagar, New Delhi in respect of 1 bhiga 10 biswas
5. Ravi R/o Village Azadpur, Delhi in respect of 3 bhigas
6. RS Fauzdar R/o Village Mahipalpur, Delhi in respect of 1 bhiga
7. Vijay Shama R/o Panchsheel Park, New Delhi through his registered attorney Mangat Ram R/o 224, Sarai Rohilla, New Delhi in respect of 1.10 bhiga
8. Mangat Ram R/o 34, Aaram Park, Delhi and Sanjay Mahendru R/o 229, Sarai Rohilla, Delhi in respect of 4 bhigas
9. Prem Nath R/o 340 Ram Nagar, Delhi and Mazar Saiad R/o Kutcha Chellal, Delhi through their registered general attorney Sanjay 68 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Mahendru in respect of 2 bhigas
10.Hukum Chand R/o Village and PO Mahipalpur, New Delhi through his registered general attorney RS Fauzdar in respect of 2 bhigas.
11.Swaran Kaur R/o 606 A, Dhirpur, Delhi through his registered general attorney Mangat Ram in respect of 1.07 bhiga
12.Anil Kumar R/o Village and PO Mahipalpur, New Delhi in respect of 2 bhiga having purchased the same from Shabir Ahmed R/o Kutcha Chellal, Delhi.
13.Dev Svaroop R/op 2982 Arya Pura, New Delhi through his registered general power of attorney JP Mahendru R/o 62 Ram Nagar, Delhi in respect of 3.02 bhigas having purchased the same from Mahesh Chand and Md Ibrahim.
14.Vipin Kumar R/o 34 Aaram Park, Delhi through his registered GA Sanjay Mahendru in respect of 1.07 bhigas having purchased the same from Abdul Gaffar .
15.SP Mahajan R/o 3/47, Roop Nagar, Delhi through registered general attorney Anil Kumar in respect of 2 bhigas having purchased the same 69 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors from Md Jahid
16.Jaswanti Devi W/o RS Fauzdar R/o Village Mahipalpur, New Delhi through registered general attorney RS Fauzdar in respect of 1 bhiga.
17.Satish Kumar R/o Village Ladha Sarai through registered general attorney Subhash Sharma in respect of 1 bhiga 15 biswas.
From the above it would become clear that the full addresses of some of the sellers have not been mentioned. However, to meet this situation the contention of the ld Counsel for defendant nos. 1 & 3 is that the rural areas do not bear house numbers and the houses situated in the rural areas can be located by the names of their respective owners / occupiers. In majority of the sale deeds it has been mentioned as to how the sellers had derived the titles in respect of the portions of the land sold by them to defendant nos. 1 & 3 and / or in the names of the person/s mentioned therein. Moreover, from the orders Ex. DW-1/2 (Colly.) passed by the Revenue Asstt. u/s 186 A of the 1954 Act detailed hereinabove it becomes crystal clear that some of the persons were even been held bhumidhars in respect of certain portions of the suit land in the year 1972. Therefore, there is every possibility that certain other persons must also be 70 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors having right, title and interest in different portions of the suit land in respect of which no compensation had been assessed or paid by virtue of the provisions contained in section 7 (2) and section 7 (3) of the 1954 Act after issuing LR Form No. 1 discussed hereinabove.
66. In Khasra Girdwavaris Ex. PW-3/6, Ex. PW-3/7, Ex. PW-3/8, Ex. PW-3/9, Ex. PW-3/10 and Ex. PW-3/11 Md Salim etc. have been shown as the tenure holders in respect of some portion of the suit land. Therefore, possibility cannot be ruled out that some of the sellers named above had infact purchased different portions of the suit land from some Muslims bretheren and these Muslim bretheren had the right, title and interest in different portions of the suit land.
67. As contended by the counsel for defendant nos 1 & 3 sale deeds in respect of the land situated anywhere in India including in Delhi can also be get executed in Mumbai which is a metropolitan city. Therefore, the mere fact that defendant nos. 1 & 3 had got executed the sale deeds in respect of different portions of the suit land in Mumbai cannot in any manner be said to an act of 71 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors fraud or dishonest intention or an act done with an ulterior motive.
68. Moreover at the time of filing of the present suit the plaintiff knew that defendant nos. 1 & 3 had claimed right, title and interest in the suit land by virtue of the abovestated sale deeds. This is so clear from ground E which states "that the person from whom defendant no. 1 alleged to have purchased the said land has no possession or title to it at the time of alleged sale". Therefore, the case of the plaintiff itself is that defendant no. 1 claimed himself to have purchased the suit land from some persons vide sale deed/s. But, however, in the present suit the legality of the sale deeds has not been challenged. The suit is not for passing a decree for declaration for declaring the said sale deeds to be null and void. Therefore, in my considered opinion, the said sale deeds cannot be declared as null and void in the present suit.
69. It is contended that Khata Khatoni numbers are not mentioned in the sale deeds and, therefore, it is not proved that the sale deeds pertain to the suit land comprised in Khata Khatoni numbers 22 (min) and 27 (min). On the other hand, the Ld Counsel for defendant nos. 1 & 3 has contended that the Khata Khatoni numbers even in the documents proved by the plaintiff do not tally with each 72 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors other and, hence, omission to mention the Khata Khatoni numbers in the sale deeds is of no much consequence and, hence, not fatal to the case of defendant nos. 1 & 3.
70. It is very true that Khata Khatoni numbers are not mentioned in the sale deeds. However, this is an undisputed fact that the said sale deeds pertain to the land comprised in Khasra No. 166 (min) of revenue estate of Village Ladha Sarai.
71. As per the averments made in the plaint the suit land comprises in Khata Khatoni Nos. 22 (min) and 27 (min).
72. In document Ex. PW-1/1 (Ex. PW-1/X) the same Khata Khatoni numbers have been mentioned. However, in Khatoni Ex. PW-3/4 Khata Khatoni number has been mentioned as 8/8. Similarly, Khasra Girdawari Ex. PW-3/6 is in respect of the land falling in Khata Khatoni numbers 13, 16, 15, 14, 12, 10 and Khasra No. 166 (min) (2-19) has been mentioned in Khatoni No. 10 and Khasra No. 166 (min) (43-15) in Khatoni No. 15. Very interestingly enough, in Khasra 73 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors Girdawaris Ex. PW-3/7, Ex. PW-3/8, Ex. PW-3/9, Ex. PW-3/10 and Ex. PW-3/11 Khasra No. 166 (min) (2-19) and Khasra No. 166 (min) (43-10) have been shown in Khata Khatoni no. 8. Thus, it is crystal clear that the revenue documents which are relied upon by the plaintiff itself are contradictory in nature and there is no conclusive proof that the suit land comprises in Khatoni Nos. 22 (min) & 27 (min). Therefore, in my considered opinion, in the facts and circumstances of the case discussed hereinabove mere omission to mention the Khata Khatoni numbers of the land in the sale deeds is not fatal to defendant no. 1 and 3's case.
73. The Ld Counsel for the plaintiff has contended that in the sale deeds the nature of the land has been described as agricultural land but infact since as per the admission made by DW-1 himself no agricultural activity is being carried out in the suit property since 1948-49 it stands proved on the record that the sale deeds had been got executed by making false averments and infact the suit property is a part of waste land or a Bechirag Mauza. On the other hand, the Ld counsel for defendant nos. 1 & 3 has contended that since the plaintiff has failed to prove that the suit land is a land of the nature described in section 7 (1) of the 1954 Act, the plaintiff cannot succeed on this ground. 74
CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors
74. It is again very true that in the sale deeds the nature of the land has been described as agricultural land. It is also true that in his cross-examination DW-1 has categorically admitted that since 1948-49 no agricultural activity is being carried out in the suit property. However, he has volunteered to say that it is abadi deh land. As I have discussed hereinabove, he has also admitted that village Ladha Sarai was urbanized in the year 1963. According to him, he does not know whether the suit land vested in Central Government being Gaon Sabha land on urbanization of village Ladha Sarai or whether the Central Government had transferred the land to the DDA vide notification u/s 22 (1) of the DD Act on 20-08-1974. He has, however, denied that DDA is the absolute owner of the suit land as per the said notification. He has stated that he has no idea whether the suit property is shown as green in the Master Plan and he is not aware that no construction activity is permissible on the suit property or on the green belt land on which the suit land is situated. However, according to him the property in question is abadi deh land and construction activity is permissible.
75. As I have discussed hereinabove in very detail, the plaintiff has failed to prove that the suit land is of the nature described in section 7 (1) of the 1954 Act 75 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors and whether before or at any time after issuing an order / notification u/s 7 of the 1954 Act the Government had complied with the mandates contained in section 7 (2) and 7 (3) of the said Act with regard to the assessment of compensation and payment thereof to the proprietor or proprietors concerned. Therefore, I am of the view that the mere description of the land in the sale deeds as agricultural land does not, in the facts and circumstances of the case discussed above, can give any benefit to the plaintiff.
76. Now, I shall discuss as to what was the effect of the suit land being notified U/Ss 4 & 6 of the Land Acquisition Act. As I have stated hereinabove, the case of defendant nos. 1 & 3 is that "the suit land was not the land of Gaon Sabha and its title was never vested in the Central Government" and "fact is corroborated by the fact that the suit land was notified under section 4 and 6 of Land Acquisition Act" ; that if the land was of the Central Government, there was no occasion for the appropriate Government to issue notification under sections 4 and 6 of the said Act. In the replication to the written statement of these defendants the plaintiff has submitted that in all notifications U/Ss 4 & 6 of the Land Acquisition Act it is mentioned that though the lands bearing certain Khasra numbers or within certain boundaries are notified for acquisition but the 76 CS 715/11/91 Delhi Development Authority Vs. S.B. Chaudhary & Ors notification could not cover land vesting in the Union Of India and "it was also so stated in the notification referred to by the defendants". However, copy of no such notification has been filed on the record which could show whether this fact as stated in the replication was infact mentioned in the said notification. Therefore, this is also a fact which may be read against the plaintiff for arriving at a conclusion that the suit land was infact not a land of the nature described in section 7 (1) of the 1954 Act.
77. In view of the above discussion, I decide these issues in favour of the defendant nos. 1 & 3 and against the plaintiff.
ISSUE NO. 9
78. In view of my findings on issue nos 1, 2, 3, 5 & 6, I hold that the plaintiff is not entitled to any relief. Accordingly, I dismiss the suit with no orders to costs. Decree sheet be prepared accordingly. File be consigned to record room.
(NK Goel) Addl. District Judge-05 (WEST) Tis Hazari Courts (Announced in the open court on 16th March, 2012)