Delhi District Court
Shri Surat Singh (Since Deceased) vs Gaon Sabha Of Village Palam on 5 October, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
LAC No. 133/09/03
In the matter of :
Shri Surat Singh (since deceased)
Through LRs
i) Rajbir Singh
ii) Randhir Singh
iii) Chand Singh
iv) Balwan Singh
v) Mahabir Singh
vi) Sukhbir Singh ... Petitioners
Versus
1. Gaon Sabha of Village Palam, Delhi
Service to be effected through it Pardhan
2. Union of India ... Respondents
Award No. : 157 of 198586
Village : Palam
Filed on : 13.09.1989
Adjourned sine die on : 06.02.1991
Revived on : 21.05.2003
Reserved on : 03.10.2011
Decided on : 05.10.2011
JUDGMENT :
1. This is a consolidated reference under Section 18 as well as under Section 3031 of the Land Acquisition Act, 1894.
2. As per statement under Section 19 of L.A. Act, subject LAC No. 133/09/03 Page No. 1/17 matter of this reference is land in Field No. 120/8/2 (28) and 120/9/3 (116) total measuring 4 bigha and 4 biswa.
3. This land was acquired vide award no. 157/8687. Petitioner is not the recorded owner of this land. Therefore, compensation was deposited by LAC in a recurring account and reference was sent to this court for adjudication of title dispute as well as for enhancement of market value.
4. Case of the petitioner is that the petitioner was in cultivatory possession of the land in question since the year 195354 and Gaon Sabha never filed any suit for ejectment within statutory period of limitation with the result that all the rights of the Gaon Sabha were extinguished and petitioner became bhumidar under law.
5. For various reasons assigned in the claim petition, additionally, the petitioner has prayed for enhancing the compensation to Rs. 500 per Sq. Yds.
6. Earlier , on the written statement of Union of India, following issues were framed on 14.11.1990:
i) To what enhancement in compensation if any, are the petitioners entitled ?
ii) Relief.
7. However, the reference was adjourned sine die on 06.02.1991 on the request of counsel for petitioner till the decision of title dispute in reference under Section 3031 of L.A. Act. LAC No. 133/09/03 Page No. 2/17
8. While praying for adjourning the matter sine die, petitioner did not realize that this was a consolidated reference for enhancement in market value as well as for decision of title dispute.
9. It appears that this fact was realised by the petitioner on 22.01.2003 when he filed application for revival of reference which was revived vide orders dated 21.05.2003.
10. As title over land in question was disputed, following additional issue was also framed on 21.05.2003:
i) To what extent of land is the claimant entitled to receive compensation in view of the statement U/s 19 where it is mentioned that claimant is not the recorded owner? OPP.
11. DDA was also impleaded as a respondent being the beneficiary on 05.10.2006. Ministry of Urban Development was also impleaded as a respondent because during pendency of this reference, Gaon Sabha of village Palam had ceased to exist and entire revenue estate of village Palam was urbanised under Section 507 of DMC Act and the successor of Gaon Sabha after urbanization is Central Govt. through its Secretary, Ministry of Urban Development, New Delhi. Reliance can be placed on Section 150 (3) (d) of Delhi Land Reforms Act, 1954 in this regard.
12. Only Gaon Sabha filed claim petition and DDA, the beneficiary and Ministry of Urban Development abdicated their responsibilities and left the entire burden on Gaon Sabha to defend the LAC No. 133/09/03 Page No. 3/17 interests of Ministry of Urban Development.
13. It is to the credit of Gaon Sabha that even after its existence came to an end due to operation of law, it assisted the court by contesting claim of petitioner and filed on record revenue documents to rebut claim of petitioner knowing fully well that even if Gaon Sabha succeeds, the benefit would go to Ministry of Urban Development.
14. Be that as it may, claim of Gaon Sabha is that it was the recorded bhumidar and in possession of the land in question. Land had vested in Gaon Sabha and it was prayed that the entire compensation be given to Gaon Sabha.
15. Ld. Predecessor of this court , vide orders dated 12.01.2007 framed further following issues:
i) Whether Delhi Land Reforms Act is applicable to the land in dispute, if so, its effect? OPD
ii) To what enhancement of compensation the petitioner is entitled to?
iii) Relief.
16. Petitioner, Shri Surat Singh, filed his evidence by way of affidavit where similar facts were deposed as were deposed in his claim petition. Following documents were exhibited:
i) Exhibit PW1/1 to PW1/3 :Khasra Girdawari for the year 198182 to 198384.
ii) Exhibit PW1/4 :Daily Diary for the LAC No. 133/09/03 Page No. 4/17 year 198182 iii) Exhibit PW1/5 :Rojnamcha dated 16.02.1984 iv) Exhibit PW1/6 to PW1/9 :Shajra Aks, Khatonis and Jamabandi v) Exhibit PW1/10 :Judgment of Hon'ble High Court of Delhi in RFA No. 718/90 enhancing compensation of land acquired vide same award to Rs.47,224 per bigha. 1.
17. Petitioner was partly cross examined on 30/03/2007 when he stated that the recorded owner/bhumidar of the land in question is Gaon Sabha but he claimed that he was in possession of the land in question for more than 15 years. He relied upon khasra Girdawari for the year 198384 to show his possession and claimed that he had handed over the possession to Govt. after its acquisition in the year 1986.
18 . Unfortunately, cross examination of this witness could not be completed as he passed away on 17.05.2007.
19. After LRs of the petitioner were substituted on record, Sh. Mahavir Singh, one of the six LRs of petitioner also entered the witness box as PW4 and deposed similar facts as were deposed by his father in his evidence by way of affidavit.
20. In his cross examination, PW4 stated that he does not LAC No. 133/09/03 Page No. 5/17 remember whether any crop was cultivated on the land in question at the time of its possession or not. This was inspite of stand of this witness that he used to help his father in cultivation. He conceded that neither he knows provisions of Delhi Land Reforms Act nor he knows who was the recorded owner.
21. A neighbour of petitioner appeared as PW2. This witness, Sh. Om Prakash Sharma, deposed that he also had agricultural land adjacent to the land in dispute and petitioner also had agricultural land adjacent to land in question. He deposed that Sh. Surat Singh was cultivating the land in question since 195354 and land was wrongly vested in Gaon Sabha. It was agricultural land and was not 'Banjar'. He further deposed that the petitioner remained in cultivatory possession till its acquisition and is entitled to receive its compensation. This witness exhibited khatoni for the year 197778 of village Palam to show that he was cosharer of agricultural land in khasra No. 107//2/1 (112), 9(416), 10(40) and 12(212) as Ex.PW2/1.
22. In his cross examination, PW2 stated that petitioner had filed a suit for declaration of bhumidari rights in his favour which was still pending before the Revenue Assistant. However, he retracted his statement later on and stated that the petitioner had not filed any such suit before the Revenue Assistant. He denied the suggestion that Gaon Sabha was the recorded owner of the land in question. LAC No. 133/09/03 Page No. 6/17
23. Another neighbour of petitioner appeared as PW3. This witness, Sh. Satbir Singh, filed his evidence by way of affidavit and deposed similar facts as were deposed by PW2 Sh. Om Prakash Sharma.
24. In his cross examination, PW3 deposed that crop wheat was standing on the land in question at the time of its acquisition.
25. Evidence of PW4 is already noticed in earlier paragraphs and PW5 was office Kanungo from Tehsil Najafgarh. This witness was examined to prove khasra girdawaris for the years 198283 and 198384 which were already exhibited as Ex.PW1/2 to Ex.PW1/4 respectively.
26 . Last witness of petitioner was PW6, Patwari from Tehsil Palam, SDM Office Najafgarh, Delhi. He was examined to prove khatoni for the year 197778 for khasra No. 120/8/2, 9/1 and 9/3 which was already exhibited as Ex.PW1/8 and for proving AksSizra for the year 195354 which was already exhibited as Ex.PW1/6.
27. On behalf of Gaon Sabha, its BDO entered the witness box as RW1 and tendered the certified copies of khasra girdawaris for the years 1981 to 1986 as Ex.RW1/2 to Ex.RW1/6.
28. Arguments were addressed by Sh. B.D.Sharma, learned Counsel for petitioner and Sh. M.K.Sharma, learned Counsel for Gaon Sabha.
29. Issue wise findings are as under: On 21.05.2003, issue LAC No. 133/09/03 Page No. 7/17 pertaining to title of land in question was framed which is "To what extent of land is the claimant entitled to receive compensation in view of the statement under section 19 where it is mentioned that claimant is not the recorded owner?"
30. Case of petitioner is that on account of some wrong entry in the revenue records, the land in suit was vested in Gaon Sabha.
31. Therefore, petitioner admits that it is not the recorded owner of the land in question.
32. Petitioner has claimed compensation on the basis of cultivatory possession over the land since 195354.
33. Petitioner's case is that since the recorded owner Gaon Sabha had not filed any suit for ejectment within the statutory period, all rights of Gaon Sabha were extinguished and the petitioner became bhumidar under the law.
34. Petitioner has relied upon documentary as well as oral evidence to show his possession over land in question.
35. In oral testimony, petitioner relied upon evidence of two neighbours of same village who deposed that they had agricultural land adjoining land in question and therefore they had seen the petitioners in cultivatory possession of land in question since 195354.
36. PW2 Sh. Om Prakash was cosharer of land in khasra Nos. 107/12/1, 9,10 and 12. Khatoni Ex.PW2/1 shows his bhumidari LAC No. 133/09/03 Page No. 8/17 over named khasra Nos. However, AksSizra Ex.PW1/6 does not show that PW2 had agricultural land adjacent to land in question. Therefore it is not proved that being a cultivator of adjoining land, he had seen petitioner cultivating the land since 195354. Although he stated in his evidence by way of affidavit that the land had vested in Gaon Sabha, but during his cross examination, in his zeal to support the case of petitioner, he denied that Gram Gabha was the recorded owner. To avoid admitting that Gaon Sabha was the recorded owner, he stated that as he has not seen the revenue records and he can not tell the name of recorded owner of land in question. This witness stated boldly that the petitioner had filed suit to declare him bhumidar of the land in question which was still pending before Revenue Assistant. At this stage, further cross examination was deferred due to power failure and after resumption of his cross examination on restoration of electricity supply, he stated that he does not know if any such suit was filed by petitioner or not.
37. For vacillating stands taken by this witness , his evidence is not trustworthy. He is covillager and was examined only to support case of petitioner. He did not prove his agricultural land was adjoining land in question. He was not ready to admit that the recorded owner of land in question was Gaon Sabha inspite of his having so stated in his evidence by way of affidavit. Sometimes he stated that the petitioner had filed a suit against Gaon Sabha for LAC No. 133/09/03 Page No. 9/17 declaring petitioner bhumidar of land in question and in next breath he stated he does not know if any such suit was filed by petitioner against Gaon Sabha or not. Contrary to his tall claims of cultivating land adjacent to land in question, he could not tell the name of recorded owner of land in question. Therefore, evidence of this witness is rejected.
38. Oral testimony of PW3 Sh. Satbir Singh was also relied upon by the petitioner to show his cultivatory possession over land in question.
39. This witness could not prove that he or his father had any agricultural land in village Palam leave aside land adjacent to land of the petitioner. Contrary to admission by PW3 in his evidence by way of affidavit that Gaon Sabha was the recorded owner as land had vested in Goan Sabha, he was not ready to admit this fact in his cross examination. He persisted with his case that at the time of acquisition, crops of wheat were grown over land in question whereas in Ex. PW1/6 which is khasra Girdawari of the year 198586, land in question is 'Banjar' and 'nil' crop is shown in column No. 18 'class of land and in column No. 7,10,13 'crop' respectively.
40. Therefore evidence of PW3 is also rejected for his failure to prove that his father was bhumidar of agricultural land adjoining land in question, for his refusal to tell the truth that Gaon Sabha was the recorded owner and for his speaking contrary to LAC No. 133/09/03 Page No. 10/17 records that wheat crop was cultivated before acquisition of land whereas land is Banjar as per revenue records i.e. khasra girdawari.
41. Documentary evidence relied upon by petitioner is Ex.PW1/1 which in khasra girdawari for the year 198182. As per this, possession of petitioner is recorded over land in question.
42. Adverse possession of petitioner is also admitted by Gaon Sabha in English Translation of Khasra Girdawari for the year 198283 which is Ex.PW1/3.
43. But adverse possession of petitioner is not shown in khasra Girdawari Ex.PW1/4, Ex.PW1/5 and Ex.PW1/6 which are khasra girdawaris w.e.f. 198384, 198485 and 198586. No crop is shown cultivated over land in question. Kind of soil is 'Banjar' and remarks column is 'nil'.
44. Therefore, three years prior to acquisition of land adverse possession of petitioner is not shown over land in question.
45. For the purposes of claiming bhumidari rights for adverse possession for 3 years, reference is to be made to Section 84 and 85 o the Delhi Land Reforms Act, 1954 which are as under: Section 84 Ejectment of persons occupying land without title - (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and
a) where the land forms part of the holding of a Bhumidhar or Asami, or
b) where the land does not form part of the holding of a LAC No. 133/09/03 Page No. 11/17 Bhumidhar or Asami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be, and shall also be liable to pay damages.
Section 85 Failure to file suit under section 84 or to execute obtained thereunder If a suit is not brought under section 84 or a decree obtained in any such suit is not executed within the period of limitation provided for filing of the suit or execution of the decree, the person taking or retaining possession shall
i) where the land forms part of the holding of a Bhumidhar, become a Bhumidhar thereof;
ii) where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;
iii) in any case to which the provisions of clause (b) of (subsection (1) of Section 84) apply, become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha.
46. As per schedule 1 prepared under Section 185 of DLR Act, period of limitation to file a suit for ejectment is 3 years.
47. No benefit of above provisions of law can be given to petitioner as he has shown his adverse possession only for 2 years i.e. 198182 and 198283 whereas petitioner claimed to be in adverse possession since 195354. In any case, three years prior to acquisition of the land, petitioner was not in adverse cultivatory possession of the land in question.
48. Faced with this situation, counsel for the petitioner argued that adverse possession of petitioner is proved in the year 198182 and 198283. Gaon Sabha had admittedly not filed any suit LAC No. 133/09/03 Page No. 12/17 for ejectment of petitioner. Therefore, presumption is that the petitioner was in adverse possession at the time of acquisition of the land as well.
49. Counsel for petitioner relied upon Ex.PW1/5 which is Rojnamcha report as per which ADM/RA had directed not to record adverse possession over land of Gaon Saba. Relying on such orders, petitioner has argued that the possession of petitioner had continued till taking of possession by Govt. but due to illegal directions, his possession was not shown.
50. Petitioner has also relied upon Ex.R1/P1 which is order of BDO who was RW1 not to issue P5 on Gaon Sabha land without consent of BDO (SW), Najafgarh.
51. This direction was passed in the year 2010. Land stood acquired in the year 1986. Therefore this order has no bearing on decision of this reference.
52. So far as submission of petitioner that possession of petitioner be presumed till acquisition in absence of ejectment suit of Gaon Sabha is concerned , same is also rejected because in the Delhi Land Reforms Act, there is no provision for presuming possession of a person who was shown in adverse possession in earlier years and is not shown in possession in later years if Gaon Sabha had not filed a suit for ejectment.
53. Substantive rights of bhumidari over Gaon Sabha land LAC No. 133/09/03 Page No. 13/17 due to adverse possession can not be decided on the basis of conjectures and surmises.
54. There may be multiple reasons for leaving the adverse possession of Gaon Sabha land such as its unproductivity or inability of petitioner to continue to cultivate the same for personnel reasons like illness etc.
55. Therefore, where a person is not found in adverse possession of Gaon Sabha land at least 3 years prior to its acquisition, he can not draw benefit of Section 84 and 85 of the DLR Act.
56. Petitioner did not initiate any proceedings to declare him the bhumidar of the land in question inspite of claiming adverse possession for 3 decades. Except for stray entry of possession for 2 years in favour of petitioner, there is nothing to prove adverse possession of petitioner over land in question which is rather baffling in view of claim of petitioner that he was in adverse possession since 195354.
57. So far as Rojnamcha Report Ex.PW1/5 directing patwaris not to record possession over Gaon Sabha land is concerned, petitioner should have challenged those directions and should have insisted on recording his possession over land in question. It is not uncommon that such directions were indeed challenged by several other persons and had obtained favourable orders. Reference can be placed on the judgment of Sh.Balbir Singh Vs. ADM (Revenue): LAC No. 133/09/03 Page No. 14/17
57(1995) DLT 547 (DB), Additional District Magistrate (Revenue) Delhi Administration Vs. Siri Ram:AIR 2000 SC 2143 and RS Kathuria Vs. Administrator of UT of Delhi:90(2000) DLT 773(DB). This petitioner should have also challenged illegal orders of ADM. In absence of any such challenge, it can not be presumed that although petitioner was in illegal possession but due to orders of ADM his possession was not recorded.
58. A person who wants to get the benefit of bhumidari due to adverse possession over Gaon Sabha land must prove by evidence on record that he had remained in possession for 3 years prior to acquisition. No other explanation for failure to show adverse possession will help such a person.
59. Therefore, this issue is decided against the petitioner and in favour of Gaon Sabha. But compensation will not be paid to Gaon Sabha but would be payable to Ministry of Urban Development who is successor of Gaon Sabha. Reference can be made to section 153 (3)
(a) and (d) of Delhi Land Reforms Act, 1954 which are as under: [(3) If the whole of a Gaon Sabha area ceases to be included in rural areas as defined in the Delhi Municipal Corporation Act, 1957, by virtue of a notification under section 507 of that Act, the Gaon Sabha constituted for that area shall thereupon stand dissolved and on such dissolution,
a) all properties, movable and immovable, and all interests of whatsoever nature and kind therein including moneys held in Gaon Sabha Area Fund, vested in the Gaon Sabha immediately LAC No. 133/09/03 Page No. 15/17 before such dissolution, shall, with all rights of whatsoever description, used, enjoyed or possessed by such Gaon Sabha, vest in the Central Government;
d) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Gaon Sabha may be continued or instituted by or against the Union of India;
60. Reliance can also be placed in this regard on Judgment of Hon'ble High Court of Delhi in the case of "Prem Vs. Union of India, LA Appeal No. 323/2007 dated 28.08.2008.
61. Issue No. 1 framed on 12.12.2007 is whether Delhi Land Reforms Act is applicable to the land in dispute, if so, it effect? This issue has only academic value as issue of title is decided against the petitioner. However, in view of the judgment of Hon'ble High Court in the case of Indu Khurana Vs. Gram Sabha in W.P.(C) No. 4143/2003 and Sardar Singh and another Vs. Government of NCT of Delhi and another: WP(C) No. 6789/2008 dated 05.08.2010, it is held that after urbanization, Delhi Land Reforms Act, 1954 ceases to apply to a land where said act was earlier applicable .
62. Issue No. 1 framed on 14.11.1990 and issue No. 2 framed on 12.12.2007 are with regard to market value of the land in question. In view of judgment of Hon'ble High Court of Delhi in the case of "Rameshwar Solanki Vs. Union of India" RFA No. 718/1990 dated 3rd February 1995 it is held that market value of land in question would be Rs.47,224 per bigha. However, finding on this issue is of no LAC No. 133/09/03 Page No. 16/17 consequence because issue of title is decided against petitioner.
63. No relief can be given to the petitioner in this reference which is hereby answered holding that compensation lying deposited in recurring deposit shall be payable to Ministry of Urban Development who shall depute any of its official to file requisite documents for the release of this compensation in favour of the said ministry.
64. Let decree be drawn accordingly and a copy of this order be sent to LAC (SW) and a copy be also sent to Secretary of Ministry of Urban Development, New Delhi.
65. While concluding, this court hopes that the secretary of Urban Development will pay attention to such references in future where said Ministry is successor of Gaon Sabha and substantial amounts are at the stake and will appoint advocates to defend the interests of Ministry which job at present is left to counsel for Gaon Sabha, a body whose existence ceases to exist after urbanization of land. It is also hoped that at least Ministry will take steps to take the compensation where references have been decided in favour of the Ministry and compensation is lying blocked in bank FDRs, Treasury and Recurring deposits etc. Announced in the open Court on the 5th of October, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 133/09/03 Page No. 17/17