Delhi District Court
Sh. Sobha Ram S/O Sh. Sohan vs Lac No:70/09/86 2 D.O.O. 30.08.2013 on 30 August, 2013
IN THE COURT OF SH. ALOK AGARWAL, ADDITIONAL DISTRICT JUDGE:
DWARKA COURTS: NEW DELHI.
LAC. No. 70/09/86
Village : Kusumpur
Award No. : 2181 C ( Suppl.)
dated 12.09.1980
In the matter of:
1. Sh. Sobha Ram S/o Sh. Sohan
( Since deceased), through his LRs
(a) Sh. Jeet Ram Rathi ( son)
2. Sh. Jai Charan Rathi S/o Sh. Tekkan
( Since deceased), through his LRs.
(a) Sh. Kawal Singh Rathi S/o Sh. Jai Charan Rathi
(b) Sh. Rajinder Singh Rathi S/o Sh. Jai Charan Rathi
( since deceased), through his LRs.
(i) Smt. Shakuntla Devi Wd./o Sh. Rajinder Singh
(ii) Deepak S/o Sh. Rajinder Singh
(iii) Ms. Meenu D/o Sh. Rajinder Singh
(iv) Ms. Nikita D/o Sh. Rajinder Singh
(c) Sh. Yudhvir Singh Rathi S/o Sh. Jai Charan Rathi
(d) Sh. Om Prakash Rathi S/o Sh. Jai Charan Rathi
(e) Sh. Satish Rathi S/o Sh. Jai Charan Rathi.
3. Sh. Rameshwar Singh Rathi S/o Sh. Tekkan
4. Balbir Singh S/o Manphool
LAC No:70/09/86 1 D.O.O. 30.08.2013
(Since deceased), through his LRs
(a) Sh. Azad Singh
(b) Sh. Mehtab Singh
Both sons of Sh. Balbir Singh
R/o Village Mohdpur, Munirka, New Delhi.
5. Sabab Singh Rathi S/o Sh. Sardar Singh
( Since deceased), through his LRs.
(a) Smt. Roshani Devi Wd/o Sh. Sahab Singh Rathi
(b) Sh. Mukesh Rathi S/o Sh. Sahib Singh Rathi
Both R/o 248A/1, Munirka, New Delhi.
(c) Smt. Geeta Rana W/o Sh. Ajay Rana
D/o Sh. Sahab Singh
R/o B5/389, SectorVIII, Rohini, Delhi85.
6. Sh. Sukhbir Singh S/o Sh. Sardar Singh
7. Sh. Jugbir Singh S/o Sh. Sardar Singh
( Since deceased ), through his LRs
(a) Smt. Sudesh Rathi Wd/o Sh. Jugbir Singh
(b) Sh. Gaurav Rathi
(c) Sh. Saurabh Rathi
8. Sh. Raghbir Singh S/o Sh. Sardar Singh
9. Sh. Khiman Singh S/o Sh. Lakhi
10. Sh. Satbir Singh S/o Sh. Bhartu
All R/o Village Mohd.pur Munirka,
New Delhi.
...Petitioners
Versus
LAC No:70/09/86 2 D.O.O. 30.08.2013
1. Union of India
Through Land Acquisition Collector
SouthWest District, Kapashera,
New Delhi.
2. Gaon Sabha (Kasoompur)
Through BDO ( SW), Najafgarh
New Delhi.
...Respondents
Filed on : 01.03.1986
Reserved on : 27.08.2013
Decided on : 30.08.2013
JUDGMENT :
1. This is a very old reference under Section 18 of the Land Acquisition Act, 1894, initially forwarded to the court by the Land Acquisition Collector on 22.05.1986.
2. Vide a notification under Section 4 of LA Act dated 23.01.1965 and declaration under Section 6 of LA Act dated 06.09.1966, a total of 838 bighas and 10 biswas of land situated in village Kasoompur was acquired by the Government for public purpose namely Planned Development of Delhi.
3. The Petitioners claimed to be the bhumidars of a piece of the acquired land as mentioned in statement under Section 19 of LA Act LAC No:70/09/86 3 D.O.O. 30.08.2013 which is extracted below: I. Name of petitioner Field No. Total Area Shar Kind N Bigha Biswa e of soil o
1. Sobha Ram S/o Sohan 436 24 596/516/2 50 B A 319 11
2. Jai Chand Rathi S/o Tekkan 639/616/545 1217 B
3. Rameshwar Singh Rathi S/o Tekkan
4. Balbir Singh S/o Manphool 605/422 118 B
5. Sahab Singh S/o Sardar Singh
6. 517 45 B Sukhbir Singh S/o Sardar Singh
7.
Jugbir Singh S/o Sardar Singh 413/2 13
8.
Raghbir Singh S/o Sardar Singh
9. Khiman Singh S/o Lakhi 36 17
10. Satbir Singh S/o Bhartu
4. There is, however, a noting in the statement under Section 19 of LA Act that the recorded owner of the land was Gaon Sabha, Kasumpur and not the petitioners. It is also recorded that the compensation had been assessed in the name of Gaon Sabha but was kept in dispute due to LAC No:70/09/86 4 D.O.O. 30.08.2013 cultivatory possession of interested persons, a list of which was enclosed. It may also be relevant to observe here that actually, no such separate list was enclosed along with the reference.
5. The Collector categorized the land in two Blocks and determined the market value of the land falling in Block 'A' to be Rs. 2500 per bigha and land falling in Block 'B' as Rs. 1500 per bigha.
6. Aggrieved by market value of the land as determined by the collector and also by the fact that compensation was not assessed in their name, the petitioners filed the present reference.
7. In their petition filed before the Land Acquisition Collector, the petitioners claimed that they and their predecessorininterest were owners of this land by purchase before the enforcement of Delhi Land Reforms Act and were, therefore, proprietors of the lands at that time. They have claimed that the order of vesting of land in Gaon Sabha at the time of enforcement of Delhi Land Reforms Act was illegal and therefore, nonest. They filed a civil suit in the court which was decreed in their favour and they were held entitled to be declared as Bhumidhars of the land.
8. Apartfrom the above, the petitioners have also claimed that even if the land had vested in Gaon Sabha, they have been in adverse position of the same since much prior to the time of vesting till the acquisition of the land. No suit was ever filed by the Gaon Sabha under Section 84 of the Delhi Land Reforms Act and therefore by virtue of Section 85, they had LAC No:70/09/86 5 D.O.O. 30.08.2013 acquired the bhumidari rights.
9. The petitioners also challenged the assessment of compensation as made by Land Acquisition Collector and claimed that they were entitled to compensation at much higher rate since the land had a potentiality for residential and commercial use.
10. Notice was issued in the petition to Union of India, DDA and Goan Sabha.
11. WS was filed by the DDA on 05.03.2001. Reply to the claim of petitioners was also called from Gaon Sabha on 17.11.2003 but the same was never filed.
12. In the meanwhile, the petitioners raised an objection to the statement under Section 19 of LA Act stating that the total area of the land belonging to them was 37 Bighas and 17 Biswas and not 36 Bighas and 17 Biswas. Notice was issued to the LAC calling for revised statement under Section 19 of LA Act. The same was, however, not filed despite several opportunities.
13. Before the objection of the petitioners could be decided, as observed in the order dated 01.03.2004, it was stated in the court by Ld. Counsel for the respondents that a separate reference under Section 3031 Act had been sent by the LAC to the court. In this view, the present petition was adjourned sinedie, granting liberty to the parties to get it revived after the decision of the said reference under Section 3031 of Land Acquisition Act.
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14. An application for revival of the reference was filed and the
reference was finally revived vide an order dated 17.09.08. It was at that time brought to the notice of the court that infact no such separate reference was ever forwarded by the LAC. Fresh notices were issued to the Union of India, DDA and Gaon Sabha vide an order dated 19.12.09. Later on, since the matter involved the title dispute also, a formal claim was filed by Gaon Sabha after some evidence was already led. With the consent of the parties, both the issues of apportionment and of enhancement were formally settled for trial on 25.09.2010 as under:
1. Which of the IPs is entitled to receive compensation? Onus on proof on parties.
2. What is the market value of the land in question? OPP
3. Relief.
15. Applications for substitution of LRs were filed and after due enquiry, they were substituted and the present position is as per the memo of parties appended to this judgment.
16. In support of his case, petitioner Rameshwar Singh Rathi tendered his affidavit towards evidence as Ex.PW1/A. He has relied upon the judgment dated 22.05.1960 and decree as Mark A and B, judgment passed in the case of Union of India Vs. Bhagwan Singh as Ex.PW1/3. He has proved certified copy of Jamabandi for the year 194950 as Ex.PW1/1 and 1950 to 1958 as Ex.PW1/2.
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17. On behalf of respondent UOI, it's counsel Shri J.R. Mathur, , Advocate tendered the award bearing No. 2181C/Suppl. Of village Kasumpur. Gaon Sabha did not lead any evidence despite having several opportunities granted to it, some of which are recorded in orders dated 17.09.2011, 18.10.2011, 31.01.2012 and 15.05.2013. However, Ld. Counsel for Gaon Sabha had filed some documents on 31.01.2012 being documents of revenue records. Since the whole claim of Gaon Sabha is based on these documents and these documents have not been disputed on behalf of petitioner, I am of the view that the said revenue record can be taken as the evidence led by Gaon Sabha in the case.
18. I have heard Sh. Jai Prakash, Advocate, appearing for petitioners, Sh. J.R. Mathur, advocate for UOI and Ms. Geetanjali Sharma, Advocate, for DDA and have perused the entire records. My findings on the issues are as under: 19. ISSUE No. 1 The dispute of title is between the petitioners and the Gaon Sabha. The claim of the petitioners that they were the proprietors of the land before coming into force of the Delhi Land Reforms Act has not been controverted by the Gaon Sabha. The Gaon Sabha's case is that the land was uncultivated and vested in Gaon Sabha at the time of commencement of Delhi Land Reforms Act by virtue of a notification issued under Section 7 of DLR Act and also by virtue of the statutory provisions contained in Section 154 of the Act.
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20. The vesting of the land in Gaon Sabha has been challenged by the petitioners as illegal. The petitioners have also proved on record the copy of the judgment passed by the Ld. Civil Court on February 22, 1960 in suit no. 232/1959 declaring the notification under Section 7 of the Delhi Land Reforms Act as illegal and without jurisdiction and also holding that the petitioners were entitled to be declared as bhumidhar of the lands.
21. However, during the course of arguments, Ld. Counsel for the petitioners agreed that the vesting of waste land in Gaon Sabha under Section 7 and Section 154 of the Delhi Land Reforms Act has been upheld by Hon'ble SC in Hatti Vs. Sunder Singh reported as 1970 (2) SCC 841 which was further upheld by the SC in Union of India Vs. Sher Singh reported as ( 1997) 3 SCC 555 and Gaon Sabha & Ors Vs. Nathi & Ors, reported as ( 2004) 12 SCC 555.
22. In Gaon Sabha Vs. Nathi it has been held ' Therefore, the legal position is absolutely clear that a person can be either a bhumidhar or an asami of the agricultural land in a village. He can also be an owner of the property of the type which is enumerated in Section 8 of the Act, like private wells, tanks, groves, abadis, trees and buildings. Except for these, all other kinds of lands and property would vest in the Gaon Sabha. The proprietors and the concept of proprietors of land stands totally abolished with the enforcement of the Act. The respondents neither LAC No:70/09/86 9 D.O.O. 30.08.2013 claimed to be bhumidhar nor asami of the land which has been acquired. The acquired land does not come within the purview of Section 8 of the Act. In such circumstances the only inference possible is that the land stood vested with the Gaon Sabha on the date of commencement of the Act and it was the Gaon Sabha which was the owner thereof and was entitled to receive the entire amount of compensation'.
23. It is also an admitted position that as held in Hatti Vs. Sunder Singh and GS Vs. Nathi ( Supra), no civil suit filed by erstwhile proprietors lay for declaration of the bhumidhari rights in view of Section 185 of the Delhi Land Refdorms Act and therefore all such decrees passed as mentioned above, were without jurisdiction. A portion of para 15 of the judgment may be quoted here as follows:
'The legal position is therefore absolutely clear and there cannot be even a slightest doubt that the civil court had no jurisdiction to entertain the suit which was filed seeking a declaration that the order of vesting of land in the Gaon Sabha is illegal'.
24. The undisputed revenue records filed by Gaon Sabha show that the land subject matter of the present petition vested in Gaon Sabha at the commencement of the Act and is being shown in the name of Gaon Sabha in Khasra Girdawari. Any Challenge to such vesting cannot be now made in view of judgment of the Hon'ble Supreme Court quoted above.
LAC No:70/09/86 10 D.O.O. 30.08.2013
25. However, the claim of the petitioners here is not only based on
challenge to the initial vesting but is mainly based on deemed acquisition of Bhumidari rights by continuous possession by virtue of Section 85 of Delhi Land Reforms Act.
26. In his affidavit PW1 has deposed that the petitioners and prior to them, their predecessorininterest were in actual possession of the land in question. Their possession is duly recorded in Jama Bandi for the year 19491950 proved on record as Ex.PW1/1. He has deposed that even after the commencement of the Delhi Land Reforms Act, the Gaon Sabha has never taken possession of the land or has never filed any proceedings of dispossess them from the land. Consequently, it is claimed that the petitioners continued to be in possession of the land till the file of its acquisition.
27. PW1 has been cross examined at length on behalf of Gaon Sabha. In reply to a question, PW1answered that the statement under Section 19 LA Act filed by the LAC itself mentions that the petitioners were in cultivatory possession of the land. He denied the suggestion that entire land was only waste land or that they had never cultivated it.
28. There is no serious challenge to the petitioners being in possession of the land before the commencement of the Act in the capacity as proprietors. Although the decree passed in their favour by the Civil Suit is null and void being without jurisdiction, the judgment indicates that the petitioners were in possession of the land at that time. Finally the Land LAC No:70/09/86 11 D.O.O. 30.08.2013 Acquisition Collector has himself noted that the land was in cultivatory possession of the interested persons. It is, therefore, clear that although the land vested in Gaon Sabha by virtue of Section 154 of the Delhi Land Reforms Act, the same was in possession of private persons. The Gaon Sabha has disputed the possession of private persons, but has not been able to place on record any proceedings initiated for ejectment of those persons under Section 84 or 86 of the Land Revenue Act or any order passed by the Revenue Assistant Under Section 86A. In such a situation, Section 85 of the Delhi Land Reforms Act squarely applies.
29. Section 85 may be reproduced as follows:
Failure to file suit under Section 84 or to execute decree obtained thereunder If a suit is not brought under [ sub Section (1) of section 84] or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of th suit or the 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 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:
Provided that ..............................
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30. The above provision therefore clearly confirs bhumidhari rights on private persons holding possession of the land belonging to another bhumidhar or to Gaon Sabha in case he is not ejected by the due process of law envisaged under Section 84 of the Delhi Land Reforms Act.
31. Still the question is whether the petitioners have proved to be in continuous possession of the entire land, subject matter of the present petition.
32. As already observed above, the possession of some interested persons over the land at the time of acquisition has been acknowledged by the LAC in the statement under Section 18. No list of such occupants was actually attached at that time but the Naksha Mumtzin filed in the court on 14.05.2012 shows the names of the petitioners as in possession of following parcels of lands:
Khasra No. 605/422 min ( 11 Bighas and 8 Biswas) Khasra No. 436 ( 2 Bigha and 4 Biswa).
33. Another piece of land in Khasra No. 517 ( 4 Bighas and 5 Biswas) is also shown to be in cultivatory possession of the same persons but their names have not been mentioned in the Naksha Mumtzin. Ld. Counsel has, however , pointed out that this khasra finds mention at page no. 27 of the Award proved by the respondents as Ex. R1. The petitiones are shown to be in possession of the land in khasra no. 517 ( 4 bighas and 5 biswas).
This entry is found under the heading 'Ownership and Occupancy' which starts from page 14 of the Award.
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34. Accordingly, it has been proved by the petitioners that they have been in continuous cultivatory possession at least of the following parcels of lands :
SL. No. Khasra No. Area
Bigha Biswa
1. 605/422 min 11 8
2. 436 2 4
3. 517 4 5
Total 17 17
35. Since they have acquired bhumidhari rights by virtue of Section 85 of Delhi Land Reforms Act, they shall be entitled to the entire compensation assessed in this case in respect of these Khasra numbers. Since no other person has filed any other claim, the Gaon Sabha, Kusumpur shall be entitled to the remaining compensation assessed in this case i.e. in respect of following Khasra Nos.
SL. No. Khasra No. Area
Bigha Biswa
1. 596/516/2 5
2. 639/616/545 12 17
3. 413/2 1 3
Total 19 Bighas
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36. Gaon Sabha has not filed any claim for enhancement of the
compensation. Accordingly Gaon Sabha shall be entitled to
compensation as assessed by LAC in respect of Khasra Nos. mentioned in para No. 35. Issue No. 1 is decided accordingly.
37. ISSUE NO. 2For the purpose of market value, the petitioners have relied upon the judgment in case of 'Union of India Vs. Bhagwan Singh & Ors. reported as 47 ( 1992) DLT 205 wherein the Hon'ble High Court has fixed the value of the land on the date of notification as Rs. 15,000/ per bigha. During the course of arguments, the petitioners have also filed a copy of certified copy of the judgment passed by Sh. O.P. Gupta, Ld. Addl. District Judge in LAC No. 5/96 . The market value is fixed at Rs. 15,000/ per bigha in this case, based on the above judgment of the Hon'ble High Court. This judgment also clarifies that the compensation will be equally payable to all the categories of the lands i.e. Block A, B and C.
38. No evidence showing that the lands of petitioners are superior to the land involved in the case of ' Union of India Vs. Bhagwan Singh & Ors. reported as 47 ( 1992) DLT 205 has been brought on record by the petitioners. Similarly no evidence showing that the lands of petitioners are inferior in any aspect than the land referred to in case of Union of India Vs. Bhagwan Singh & Ors. reported as 47 ( 1992) DLT 205 has been adduced by the respondents.
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39. It is well settled that if a compensation amount is already fixed for a land then the same amount of compensation has to be given to the other land owners whose similarly placed land situated adjacent is acquired under the same notification. There is no new evidence to persuade the Court to take a different view in this reference.
40. Therefore, in the present reference market value of land in question shall be the same as was determined by this Court in the case of ' Union of India Vs. Bhagwan Singh & Ors. reported as 47 ( 1992) DLT 205 Petitioners are therefore entitled to market value @ Rs. 15,000/ per bigha. Issue No. 1 is decided accordingly.
41. Relief : Apartfrom the market value, the petitioners will also be entitled to other statutory benefits. The award in this case has been passed on 12.09.1980 i.e. before the date, 13.04.1982 which is the date of applicability of 1984 amendment to Section 23 LA Act. Section 23 (1A) was introduced for the first time by the said amendment. By the same amendment, solatium paid under Section 23 (2) of LA Act was increased from 15% to 30%. The interest as payable under Section 28 of the LA Act was also increased from 6% for the first year to 9 % and for subsequent years, from 12 % to 15 %.
42. Applicability of the amendment to various cases, as culled out from the decisions of the Hon'ble Supreme Court in Union of India Vs. Raghubir Singh ( AIR 1989 SC 1933) and case of K.S. Paripoornan Vs. LAC No:70/09/86 16 D.O.O. 30.08.2013 State of Kerala ( AIR 1995 SC 1012), has been summarized by the Hon'ble High Court of Orissa in Arjun Sethi Vs. L.A. Collector reported as AIR 1998 Orissa 34 in the following words:
(i) If the award of the Collector is after 13.4.1982, the claimant is entitled to all the benefits of the amended Act;
(ii) If the award of the Collector is before 13.4.1982, but the award of the Civil Court in reference under Section 18 of the Act is after 13.4.1982, the claimant is entitled to the benefits under Section 23 (2) and Section 28, as amended by the Amending Act, but is not entitled to the benefit under Section 23 ( 1A) of the Act.
(iii) If the award of the Collector as well as that of the Civil Court under Section 10 of the Act in prior to 13.04.1982, the claimant is not entitled to the benefits of the amended Act in the appeals against such awards, and
(iv) If there is specific direction by the Civil Court in reference under Section 18, or in appeal regarding payment of any benefits under the amended Act and such direction had not been reversed or modified by any competent appellate forum, the executing court is bound to give effect to such direction notwithstanding the fact that the claimant was not entitled to such benefits.
43. In the light of the above law, parties in this case are entitled to the following relief:
(i) Gaon Sabha, Kusumpur is entitled to receive compensation as assessed by the LAC in respect of Khasra numbers mentioned in para 35.
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(ii) Petitioners are entitled to receive compensation @ Rs. 15,000/ per
bigha i.e. an enhancement of Rs. 13,500/ per bigha in respect of land and their shares as detailed in para 34.
(iii) Petitioners are entitled to receive solatium @ 30% on the enhanced compensation, as per Section 23 (2) of LA Act.
(iv) Petitioners are entitled to receive interest @ 9% per annum for first year from date of possession and @ 15% per annum for subsequent period till compensation is paid to the petitioners or deposited in the court.
44. The reference is answered accordingly. Let a copy of the judgment be sent to the LAC(SW) for information and necessary action. Let the compensation be calculated by LAC and disbursed to parties after deducting compensation already paid. Decree be prepared in terms of judgment and file be consigned to record room.
Announced in the open Court
on 30.08.2013 (ALOK AGARWAL)
ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
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