Delhi District Court
Smt. Kaushalya Devi vs Delhi Development Authority on 25 January, 2021
IN THE COURT OF DEEPAK KUMAR-1,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI
COURTS, DELHI.
CS No: 608208/2016
CNR No. DLWT03-000048-2001
Smt. Kaushalya Devi
W/o Sh. M.K. Sharma
R/o C-2/8-9, Janakpuri,
New Delhi. ....Plaintiff
VERSUS
Delhi Development Authority
Through Its Vice-Chairman
Vikas Sadan, INA,
New Delhi. .... Defendant
Date of Filing : 07.12.2001
Date of Judgment : 25.01.2021
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. Present suit has been filed by the plaintiff praying therein to pass a decree of perpetual injunction in favour of the plaintiff and against the defendant thereby restraining the officials of the CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. defendant, servants agents employees etc. of the defendant -2- from demolishing the Samadhi and Temple constructed in the memory of late Baba Liak Ram Ji and from interfering and dispossessing the plaintiff from the property bearing No. C-2/8- 9, Janakpuri, Delhi as more particularly shown in red colour in the site plan attached.
2. It is inter-alia averred by the plaintiff that the predecessor- in-interest of the plaintiff were the owner of land comprising in Khasra No. 27/20 measuring 4 bighas 16 biswas situated in the Revenue Estate of Village Possangipur, Delhi. That in the year 1961, the fore-fathers of the plaintiff constructed a Samadhi and well in the memory of their ancestor late Baba Liak Ram Ji on 5 biswas of land out of 4 bighas 16 biswas comprising in the said khasra No. 27/20, Village Possangipur, Delhi.
It is further averred by the plaintiff that in the year 1964, the acquisition proceedings were started in the village for the acquisition of the land comprising in the aforesaid Khasra number belonging to the forefathers of the plaintiff. That the predecessor-in-interest of plaintiff raised objections for the acquisitions of Samadhi and well which were constructed by them in the memory of late Baba Liak Ram Ji. The ld. Acquisition Collector duly mentioned the objections/requests of the predecessor-in-interest of the plaintiff in his Award No. 1698 dated 31.03.1964 of village Possangipur, Delhi. Although, the land in question where the Samadhi and Well are existing was not left from the acquisition proceedings by the Ld. Acquisition Collector and a new number C-2/8-9, Janakpuri, Delhi was CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. given to the land in question, however, till this date the -3- possession of the suit property was neither taken by the Ld. Acquisition Collector nor by any authority and as such the plaintiff has been peacefully managing the same. That in the year 1965, the plaintiff and her family members constructed a Temple near the Samadhi of late baba Liak Ram Ji. That the plaintiff and her family members as well as the devotees of late Baba Liak Ram Ji are making repeated requests to the higher- authorities to allot the land in question to them. That the matter of allotment is still under consideration before the higher authorities.
It is further averred by the plaintiff that on 05.02.2001, some officials of the defendant came at the spot and threatened the plaintiff and other devotees of late Baba Liak Ram Ji either to remove the Samadhi and Mandir constructed over the suit land otherwise they would demolish the same. That the said officials on seeing the situation left the spot but while leaving threatened the plaintiff that they would come soon to demolish the Samadhi and Temple. That this court has the territorial jurisdiction to entertain and decide the present suit.
3. Thereafter, the defendant was served. Written statement was filed by the defendant in which it is inter-alia contended by the defendant that the suit land in Khasra No. 27/20 min. measuring 4 bigha 16 biswa has been acquired by award no. 1698. That the physical possession of the land measuring 4 bigha 15 biswa has been handed over to the defendant/ DDA on 21.05.1964 by the LAC/L&B. That the said land has been CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. placed at the disposal of answering defendant by virtue of -4- notification No. F8(49)63L&H dt. 03.01.1968 U/Sec. 22(1) of Delhi Development Act, 1957. That the formal possession of the remaining land measuring 1 biswa has been handed over to the answering defendant due to built up i.e. Samadhi. That the said land has been transferred to the Pankha Road Residential Scheme. That the plaintiff has illegally and unlawfully encroached upon the Govt. acquired land measuring 01 biswa by constructing a Samadhi and a nursery. That the said Samadhi is built up on a lad measuring 20 sq. yds. and on the remaining land the plaintiff is running a nursery. That the plaintiff has no right or title over the said encroached land and is liable to be evicted. That the plaintiff has, therefore, no cause of action and is not entitled for the relief claimed in the suit. That the plaintiff is a trespasser and encroacher on the govt. land and has no locus standi to file the present suit and the relief claimed. That as regard the Samadhi pooja and Shiv mandir, the plaintiff has made a concocted story in order to grab the government acquired land under the garb of present suit. That the plaintiff is in unauthorized encroachment of plot No. C-2/8-9, Janakpuri illegally and unauthorisedly. However, a Samadhi and a dead well are in existence on land measuring 20 sq. yds.
4. Thereafter, on the basis of the pleadings and submissions of the parties following issues were framed:-
ISSUES:-
(1). Whether the suit is bad for want of notice U/Sec. 53-B CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
of DD Act ? OPD -5- (2). Whether land stands acquired and has been placed at the disposal of DDA ? OPD (3). Whether the plaintiff is entitled for the relief of injunction as prayed for ? OPP.
(4). Relief.
5. Thereafter, the matter was fixed for Plaintiff's Evidence. The plaintiff examined herself as PW-1, Sh. S.K. Sharma as PW-2, Sh. R.S. Gaur as PW-3, Sh. Mahesh Nagar as PW-4, Sh. Anil Atrey as PW-5 and Smt. Kanta Verma as PW-6. Thereafter, plaintiff closed her evidence.
Subsequently, the matter was fixed for Defendant's Evidence. Defendant examined Sh. Inder Dutt, Kanoongo, DDA as DW-1, Sh. Karan Singh, office Kanoongo as DW-2 and Sh. Pramod Singh, Naib Tehsildar as DW-3. Thereafter, defendant closed its evidence.
FINDING ON ISSUE NO. 1Whether the suit is bad for want of notice U/Sec. 53-B of DDA Act ?
6. The onus to prove this issue was upon the defendant. No specific evidence was led by the defendant on this issue. It is relevant to refer the observations of the Hon'ble High Court of Delhi in the case of "Col. A.B. Singh (through LRs) V/s Shri CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. Chunni Lal Sawhney and Others (RFA No.96/2002, decided on -6- 05/10/2011)," which are reproduced hereinafter :-
"In any case, this issue is no longer res integra in as much as, it has been held by division bench judgment of this court in "Yashoda Kumari V/s MCD and Others (AIR 2004 Delhi 225)," that once there is a contest to the suit, the suit cannot be held to be barred for not giving of notice U/S 53B of DDA Act in as much as the basic object of Section 53B, like Section-80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested the suit should not be dismissed on such technical grounds."
7. The present case has been contested on merits and has gone through the rigors of trial and thus, as per the observation of Hon'ble High Court of Delhi as aforementioned, the non- service of notice U/S 53B of DD Act cannot be held to be fatal to justify the dismissal of the suit on the ground of maintainability. In the considered opinion of this court, the defendant/DDA has contested the case at length and the dismissal of the suit which was filed in the year 2001 on this technical non-compliance of Section-53B of DD Act would not be justified.
Hence, issue no.(1) is decided against the defendant and in favour of the plaintiff.
FINDING ON ISSUE NO. 2 and 3:-
(2). Whether land stands acquired and has been placed at the disposal of DDA ? OPD (3). Whether the plaintiff is entitled for the relief of injunction as prayed for ? OPP CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
8. Perusal of record shows that in the present suit, the -7- plaintiff is seeking the injunction against the DDA /defendant restraining it from demolishing the suit property and interfering peaceful possession in suit property on the ground that she is the owner of suit property and has been in peaceful possession of the same for the last many decades.
9. On the other hand, defendant has contended that the suit property has been acquired by the appropriate authority under Land Acquisition Act and has been handed over to the DDA/defendant.
10. The first issue before the court is whether the suit property was acquired and placed at the disposal of the defendant i.e. DDA. The onus to prove this issue was on the defendant. Perusal of record shows that it is undisputed fact that suit property was notified to be acquired by government under the Land Acquisition Act as the plaintiff herself has averred in the plaint that in the year 1964, the acquisition proceedings were started in the village for the acquisition of the land comprising in the Khasra No. 27/20 measuring 4 bighas 16 biswas situated in the Revenue Estate of Village Possangipur, Delhi belonging to the forefathers of the plaintiff. That the predecessor-in-interest of plaintiff raised objections for the acquisitions of Samadhi and well which were constructed by them in the memory of late Baba Liak Ram Ji. That the ld. Acquisition Collector duly mentioned the objections/requests of the predecessor-in-interest of the plaintiff in his Award No. 1698 CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. dated 31.03.1964 of village Possangipur, Delhi. It has been -8- further significantly averred in the plaint that the land in question where the Samadhi and Well are existing was not left from the acquisition proceedings. However, it has been claimed that till this date the possession of the suit property was neither taken by the Ld. Acquisition Collector nor by any authority and as such the plaintiff has been peacefully and uninterruptedly managing the same.
11. The further claim of the plaintiff is that it is the settled law that in a proceeding under the Land Acquisition Act, title of the land does not pass on to the State until physical possession of the property sought to be acquired is taken. Therefore, as per Plaintiff, neither the title nor the possession passed on to the DDA till date and accordingly as per plaintiff, the defendant has no right, title or interest to interfere in the possession of the plaintiff in respect of the suit property.
12. On the other hand, the claim of the defendant i.e DDA is that the suit land in Khasra No. 27/20 min. measuring 4 bigha 16 biswa has been acquired by award no. 1698. That the physical possession of the land measuring 4 bigha 15 biswa has been handed over to the defendant/ DDA on 21.05.1964 by the LAC/L&B. That the said land has been placed at the disposal of answering defendant by virtue of notification No. F8(49)63L&H dt. 03.01.1968 U/Sec. 22(1) of Delhi Development Act, 1957. That the formal possession of the remaining land measuring 1 biswa including Samadhi has also CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. been handed over to the answering defendant/DDA on -9- 15.07.1968. That the said land has been transferred to the Pankha Road Residential Scheme. That the plaintiff has illegally and unlawfully encroached upon the Govt. acquired land measuring 01 biswa by constructing a Samadhi and a nursery. That the said Samadhi is built up on a land measuring 20 sq. yds. and on the remaining land the plaintiff is running a nursery. That the plaintiff has no right or title over the said encroached land and is liable to be evicted. That the plaintiff has, therefore, no cause of action and is not entitled for the relief claimed in the suit. That the plaintiff is a trespasser and encroacher on the govt. land and has no locus standi to file the present suit and the relief claimed.
13. It is pertinent to mention that the present suit is merely for permanent injunction and not for declaration and possession. I have carefully gone through the pleadings, documents, testimonies of all the witnesses, material of record and case laws relied upon.
14. Perusal of plaint shows that although the plaintiff has claimed to be owner of suit property but she has not mentioned how she became owner of the suit property. The only ground on the basis of which she is claiming to be in lawful possession is that the physical possession of suit property was never taken by the DDA due to built up area.
15. Perusal of record shows that the plaintiff has relied upon CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA. the testimonies of herself as PW-1, Sh. S.K. Sharam as PW-2, -10- Sh. R.S. Gaur as PW-3, Sh. Mahesh Nagar as PW-4, Sh. Anil Atrey as PW-5 and Smt. Kanta Verma as PW-6. On the other hand, defendant has examined Sh. Inder Dutt, Kanoongo, DDA as DW-1, Sh. Karan Singh, office Kanoongo as DW-2 and Sh. Pramod Singh, Naib Tehsildar as DW-3. I have carefully gone through testimonies of all the witnesses.
16. Perusal of testimony of DW1 shows that during the cross examination, he has admitted that the possession of land ad- measuring 1 biswa in the khasra number 27/20 has not been taken till date by the defendant due to built up. It is pertinent to mention that even in the written statement, it has been averred by the defendant that the plaintiff has illegally and unlawfully encroached upon the Govt. acquired land measuring 01 biswa by constructing a Samadhi and a nursery. That the said Samadhi is built up on a land measuring 20 sq. yds. and on the remaining land the plaintiff is running a nursery. As such, it is clear from pleadings, testimony of witnesses and documents that actual physical possession of land ad-measuring 1 biswa of Khasra number 27/20 was not taken by the defendant but only symbolic possession was taken by the defendant.
17. Now the legal point to be considered is whether the claim of the plaintiff is correct that in a proceeding under the Land Acquisition Act, title of the land does not pass on to the State until physical possession of the property sought to be acquired is taken.
CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-11-18. Perusal of record shows that in the present case, ld. Counsel for the plaintiff has primarily relied upon section 24 (2) of the Land Acquisition Act by arguing that as per provisions of this section if the award is made and till 5 years no physical possession is taken or compensation is paid then said proceedings is deemed to have lapsed. Reliance has been placed upon judgment of Indore Development Authority vs. Manoharlal & Ors. Etc. S.L.P. (C ) Nos. 9036-9038 OF 2016) & others; decided on 6th March, 2020.
19. On the other hand, defendant has also heavily relied upon the judgment of Hon'ble High Court of Delhi i.e. Hoshiyar Singh Vs. DDA RSA No. 25/2002 and C.M. No. 79/2002 decided on 1222.01.2012 and Indore development Authority Vs. Manoharlal S.L.P. (C ) Nos. 9036-9038 OF 2016) & others; decided on 6th March, 2020. Reliance has been further placed upon the judgments viz. Maria Magarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through LRs. 2012 III AD (SC) 541, Union of India & Ors. Vs. Vasavi Cooperative Housing Society Ltd. & Ors. (2014) 2 SCC 269, Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs and Others (2008) 4 SCC 594, Indore Development Authority Vs. Shailendra (Civil Appeal No. 20982/2017) (2018) 3 SCC 412 and Bal Bhagwan Vs. DDA C.M (M) 416/2019 decided on 18 th December 2020.
CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
20. I have carefully gone through all the judgments relied -12- upon by both the counsels including as mentioned above.
21. It is expedient to reproduce the relevant portion of the judgment titled as Indore Development Authority vs. Manoharlal & Ors. Etc. S.L.P. (C ) Nos. 9036-9038 OF 2016) & others; decided on 6th March, 2020 wherein the Hon'ble Apex Court inter- alia observed that:-
"In Banda Development Authority v. Moti Lal Agarwal, this Court observed that preparing a panchnama is sufficient to constitute taking of possession. If acquisition is of a large tract of land, it may not be possible to take physical possession of each and every parcel of the land and it would be sufficient that symbolic possession is taken by preparing an appropriate document in the presence of independent witnesses and getting their signatures. Even subsequent utilisation of a portion of acquired land for public purpose was still sufficient to prove taking possession......
......It is a well-settled position in law that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the landowner does not get any right to ask for revesting the land in him and to ask for restitution of the possession. This Court as early as in 1976.....
...... once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to a public purpose other than the one stated in the Section 6(3) declaration......
......28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam, (1996) 8 SCC 259 after considering the judgment in Balwant Narayan Bhagde v. M.D. CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
Bhagwat, (1976) 1 SCC 700, observed that while taking -13- possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case had been rendered and held as under: (Viswam case, SCC p. 262, para 9) 9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land..... ..... 40. In Narayan Bhagde case one of the arguments raised by the landowner was that as per the communication of the Commissioner the land was still with the landowner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the landowner had re-entered the acquired land immediately after its possession had been taken by the Government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under: (Narayan Bhagde case, SCC p. 712, para 29) 29. This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting. even assuming that the appellant had re entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons, (1) that the suits/petitions were ultimately dismissed and 95 (2009) 10 SCC 501 (2) that the land once having vested in the Government by virtue of Section 16 of the Act, re-entry by the landowner would not obliterate the consequences of vesting.....
...... In view of the admitted position that the land in question was acquired under the Land Acquisition Act, LA by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
for any other public purpose. In case there is no other -14- public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution.... ......256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the land- owner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.
257. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same.... ..... Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, section 24(2) does not contemplate divesting of the property from the State as mentioned above.
259. Now, the court would examine the mode of taking possession under the Act of 1894 as laid down by this Court. In Balwant Narayan Bhagde (supra) it was observed that the act of Tehsildar in going on the spot and inspecting the land was sufficient to constitute taking of possession. Thereafter, it would not be open to the Government or the Commission to withdraw from the acquisition under Section 48(1) of the Act. It was held:-
"28........ We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, LA, it must take actual possession of the land since all interests in the CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
land are sought to be acquired by it. There can be no -15- question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.... It is further held that drawing of Panchnama in the presence of witnesses would constitute a mode of taking possession....
It is settled law that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land. (emphasis supplied). In a case titled as Banda Development Authority (supra) it was held that preparing a Panchnama is sufficient to take CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
possession. This Court has laid down thus:-16-
37. The principles which can be culled out from the above noted judgments are:
(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.
In another case titled as State of Tamil Nadu and Anr. v. Mahalakshmi Ammal and Ors., (supra), Hon'ble Apex court dealt with the effect of vesting on possession and mode of taking it and opined thus:
9. It is well-settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose.....
....... Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
vested under Section 16 divested in the illegal occupant.
-17-In another case titled as Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab & Ors168, Hon'ble Apex Court ruled that under compulsory acquisition it is difficult to take physical possession of land. The normal mode of taking possession is by way of drafting the Panchnama in the presence of Panchas.... .... It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession..... ..... merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law.
In another case titled as P.K. Kalburqi v. State of Karnataka and Ors., 169, with respect of mode of possession, Hon'ble Apex Court laid down as under:
6. Moreover, the Honble Minister who passed the order of denotification of the lands in question sought to make a distinction between symbolic possession and actual possession and proceed to pass the order on the basis of his understanding of the law that symbolic possession did not amount to actual possession, and that the power to withdraw from the acquisition could be exercised at any time before actual possession was taken. This view appears to be contrary to the majority decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, wherein this Court observed that how such possession would be taken would depend on the nature of the land.
Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there was no crop or structure standing thereon. In such a case only symbolic possession could be taken, and as was pointed out by this Court in the aforesaid decision, such possession would amount to vesting the land in the Government. Moreover, four acres and odd belonging to the appellant was a part of the larger area of 118 acres notified for acquisition...... .....Even the order of the Minister on which considerable reliance has been placed by the appellant indicates that possession of the lands was taken, CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-18-though symbolic.
In Sita Ram Bhandar Society, New Delhi (supra) this Court held that when possession of large area of land is to be taken, then it is permissible to take possession by drawing Panchnama. A similar view was expressed in Om Prakash Verma & Ors (supra) which stated that:
...... It is signed by the witnesses. We have perused the details which are available in the paper book. It is settled law that where possession is to be taken of a large tract of land (2005) 12 SCC 489 then it is permissible to take possession by a properly executed panchnama.... ..... It is not in dispute that the panchnama has not been questioned in any proceedings by any of the appellants..... In another case titled as M. Venkatesh and Ors. v. Commissioner, Bangalore Development Authority, etc.170, a three-Judge Bench of this Court has opined that one of the modes of taking possession is by drawing panchnama. The Court observed:
17......... The argument that possession of the land was never taken also needs notice only to be rejected for it is settled that one of the modes of taking possession is by drawing a panchnama which part has been done to perfection according to the evidence led by the defendant BDA.....
In T.N. Housing Board v. A. Viswam (1996) 8 SCC 259 and Larsen & Toubro Ltd. v. State of Gujarat (1998) 4 SCC 387, sufficiently support BDA that the mode of taking possession adopted by it was a permissible mode. In Ram Singh v. Jammu Development Authority 171, this Court stated that the mode of taking possession is by drawing a Panchnama. Concerning the mode of taking possession in any other land, law to a 170 (2015) 17 SCC 1 2017 (13) SCC 474 similar effect has been laid down in NAL Layout Residents Association v. Bangalore Development Authority172.... .....a person can be said to be in possession of minerals contained in a well-defined mining area even though his actual physical possession is confined to a small portion. Possession in part extends to the whole of the area. The decision does not help the cause of the petitioner. Once possession has been taken by drawing a Panchnama, the State is deemed to be in possession of the entire area and not for a part. There is absolute vesting in Government with possession and control free from all encumbrances as specifically provided in Section 16 of the Act of 1894.
In another case titled as Karanpura Development Co. v.
CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
Union of India176; it was held that drawing of Panchnama -19- is sufficient to take possession and acquisition was held to be valid. In Velaxan Kumar (supra) cannot be said to be laying down the law correctly....
..... Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
In Raghbir Singh Sehrawat v. State of Haryana178, the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P179, is confined to particular facts of the case....
..... We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken. (2012) 1 SCC 792 (2011) 7 SCC 639
272. It was submitted on behalf of landowners that under Section 24 the expression used is not possession but physical possession. In our opinion, under the Act of 1894 when possession is taken after award is passed under section 16 or under section 17 before the passing of the award, land absolutely vests in the State on drawing of Panchnama of taking possession, which is the mode of taking possession. Thereafter, any re-entry in possession or retaining the possession is wholly illegal and trespassers possession inures for the benefit of the owner and even in the case of open land, possession is deemed to be that of the owner. When the land is vacant and is CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
lying open, it is presumed to be that of the owner by this -20- Court as held in Kashi Bai v. Sudha Rani Ghose180. Mere re-entry on Government land once it is acquired and vests absolutely in the State (under the Act of 1894) does not confer, any right to it and Section 24(2) does not have the effect of divesting the land once it vests in the State. In Maria Margadia Sequeria v Erasmo Jack De Sequeria 181, approving a decision of this Court, this court clarified what amounts to "possession" in law and held:
"Possession is flexible term and is not necessarily restricted to mere actual possession of the property.... ..... A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact.....
(i) the person possessing, (ii) the things possessed and,
(iii) the persons excluded from possession. A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and master."
********** ***** ************** Principles of law which emerge in Maria Margadia Sequeria (supra) are crystallized as under:
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property."
274.....
..... When possession is to be taken over in respect of the fallow or Patit land, a mere intention to do so may not be enough....
..... If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr. Raju Ramachandran, steps in relation thereto were required to be taken by the Collector....
........276. We have seen the blatant misuse of the provisions of section 24(2). Acquisitions that were completed several decades before even to say 50- 183 (2012) 12 SCC 133 60 years ago, or even as far back as 90 years ago were questioned; cases filed were dismissed. References were sought claiming higher CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
compensation and higher compensation had been -21- ordered. Now, there is a fresh bout of litigation started by erstwhile owners even after having received the compensation in many cases by submitting that possession has not been taken and taking of possession by drawing a Panchnama was illegal and they are in physical possession. As such, there is lapse of proceedings.....
...... As held by us, section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be obliterated, without an express legal provision; in any case, even if the landowners argument that after possession too, in case of non-payment of compensation, the acquisition would lapse, were for arguments sake, be accepted, these third party owners would be deprived of their lands, lawfully acquired by them, without compensation of any sort. Thus, we have no hesitation to overrule the decisions in Velaxan Kumar (supra) and Narmada Bachao Andolan (supra), with regard to mode of taking possession. We hold that drawing of Panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under section 24(2) of the Act of 2013.... ..... 362. Resultantly, the decision rendered in Pune Municipal Corporation & Anr. (supra) is hereby overruled and all other decisions in which Pune Municipal Corporation (supra) has been followed, are also overruled. The decision in Shree Balaji Nagar Residential Association (supra) cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra (Dead) through L.Rs. and Ors., (supra), the aspect with respect to the proviso to Section 24(2) and whether or has to be read as nor or as and was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment.
363. In view of the aforesaid discussion, we answer the questions as under:
1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
as provided under Section 24(1)(b) of the Act of 2013 -22- under the Act of 1894 as if it has not been repealed.
3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.....
...... 4. The expression 'paid' does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non- deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894..... ..... 5. In case a person has been tendered the compensation, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non- payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.......
......7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
lapse of proceedings are applicable in case authorities -23- have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years..... ..... Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."
22. The contention of the plaintiff is that in the present case admittedly no physical possession of suit property has been taken till date, therefore suit property never vested in favour of acquiring authority.
23. Next contention is that in the present case, neither actual physical possession was taken more than 5 years prior to commencement of new Act, 2013 nor compensation was paid. Even till date neither actual physical possession of suit property (i.e. 1 biswa of land out of Khasra No. 27/20 measuring 4 bighas 16 biswas situated in the Revenue Estate of Village Possangipur, Delhi) has been taken nor compensation paid till date by the defendant. Therefore, under Section 24(2) of Act, 2013, the acquisition proceedings stood lapsed and plaintiff continues to be lawful owner in lawful occupation of suit property. Even no show cause notice was issued by DDA to plaintiff. Accordingly, DDA has no right to dispossess the plaintiff or to demolish her structures on the suit land without following due procedure of law, because land in question never belonged CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-24-to DDA till date.
24. I have carefully heard the arguments at length advanced by both the ld. Counsels and also perused the written arguments and case law relied upon.
25. Perusal of judgment titled as Indore Development Authority Vs. Manoharlal (supra) manifestly shows that all the contentions of ld. Counsel for the plaintiff are without any substance. As far as the contention of the plaintiff in respect of non- handing over the physical possession of the suit property to the acquiring authority is concerned, the Hon'ble Supreme Court in Indore Development Authority supra has observed that "7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2)."
26. Perusal of record shows that in the present suit, the plaintiff has not disputed the Panchnama/Memorandum prepared by the Government officials. Moreover, record in this regard has been produced by the defendant. Perusal of plaint itself shows that the plaintiff herself has averred that officials of the defendant came to the suit property to demolish it and to CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-25-take the possession thereof. As such, the memorandum prepared by the government officials is not disputed at all which clearly proves that the directives of the Hon'ble Supreme Court as issued in the Indore Development Authority Vs. Manoharlal (supra) was complied with by the defendant at the time of taking possession of the suit property.
27. The other arguments of the plaintiff is that neither actual physical possession was taken more than 5 years prior to commencement of new Act, 2013 nor compensation was paid and even till date neither actual physical possession of suit property in question has been taken nor compensation paid till date by the defendant. Therefore, as per plaintiff, under Section 24(2) of Act, 2013, the acquisition proceedings stood lapsed and plaintiff continued to be lawful owner in lawful occupation of suit property.
28. In the Indore Development Authority Vs. Manoharlal (supra), it was held by the Hon'ble Supreme Court that "3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse.
CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-26-Similarly, if compensation has been paid, possession has not been taken then there is no lapse.....""8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years....."
As such, it is now settled law that deemed lapse of the land in acquisition proceedings under section 24(2) of the Act of 2013 applies only when authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. As per the directions of the Hon'ble Supreme Court, the period of subsistence of interim orders passed by court, has to be excluded in the computation of five years.
29. Perusal of the record shows that it is undisputed fact that on 05.02.2001, officials of the defendant came to the suit property to demolish it and to take the possession thereof. The defendant has been contesting the case vigorously since then. It is relevant to note that during the cross examination of DW-1, no specific question was put to the witness to dispute or discredit possession proceedings dt. 21.05.1964 and 15.07.1968 of the suit CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-27-property (i.e. Mark-A and Mark-B). Considering the facts and circumstances of the case, in the considered opinion of the court there is no inaction on the part of DDA to take possession of the suit property. As such, in view of the law laid down by the Hon'ble Supreme Court, there is no deemed lapse of acquisition proceedings under section 24(2) of the Act of 2013.
30. As far as contention of the plaintiff in respect of non payment of compensation is concerned, the Hon'ble Supreme Court has held that in case possession has been taken but compensation has not been paid, there is no lapse of acquisition proceedings. Similarly, if compensation has been paid, possession has not been taken even then there is no lapse of acquisition proceedings. It is also held by the Hon'ble Supreme Court that "4. The expression 'paid' does not include a deposit of compensation in court. The consequence of non- deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non- deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-28-the date of notification for land acquisition under Section 4 of the Act of 1894.....
..... 5. In case a person has been tendered the compensation, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013......."
31. Perusal of record shows that in the present case, the plaintiff has nowhere stated in her claim that she applied for compensation and despite that she was not paid it. The case of the plaintiff is that she is the owner of suit property and defendant has no right to demolish the suit property or interfere in the peaceful and lawful possession in the suit property. As such in view of the judgment of Hon'ble Supreme Court, the plaintiff can always get the compensation along with the interest as stipulated under section 34 of Land Acquisition Act. Moreover, the plaint itself shows that the plaintiff has claimed that defendant came to demolish the suit property and to take the possession thereof but the plaintiff made hue and cry and the officials of the defendant temporarily stopped the demolition proceedings of the house of the plaintiff. There was no inaction on the part of defendant to demolish the property and take the physical possession thereof. As such, the plaintiff cannot take CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-29-the advantage of her own wrong.
32. Further, it appears relevant to refer the judgment of Hoshiyar Singh Vs. DDA (supra) passed by Hon'ble High Court of Delhi. Perusal of the same shows that the facts of the present case were almost similar and appeal decided by the ld. ADJ rejecting the injunction in favour of plaintiff was upheld by the Hon'ble High Court squarely. In that case also, the suit property could not be demolished due to resistance by the plaintiff.
33. As far as Issue No. 2 is concerned, in my considered view, keeping in view the observations made by the Hon'ble Supreme Court in Indore Development Authority Vs. Manoharlal and Hon'ble High Court of Delhi in Hoshiyar Singh Vs. DDA, it does not matter whether the suit property was demolished by DDA or not in the year 2001. As the Hon'ble High Court has held in Hoshiyar Singh Vs. DDA that:
"the plea that the built up areas cannot be acquired was repelled by the Division Bench of this Court in the judgment reported as M/s Prem Chand Ramesh Chand Vs. Delhi Development Authority & another 66 (1997) Delhi Law Times 110. The operative portion in paragraphs 6 and 7 read as follows:
"6. The contention that there is any policy to regularise unauthorised colonies or there is a policy decision not to acquire built up area, are concluded against the petitioner by a Division Bench decision of this Court in the case of Atter Singh Vs. D.D.A. (CW No. 3110 of 1991) decided on 10th August, 1992. In Atter Singh's case also it was alleged that the petitioner had a godown built up on an area situate in village Haiderpur on private land and no action can be taken by the respondents against the petitioner. In that case too, the Bench referred in the judgment to the same Award No. 50/80-81 made on 18th July, 1980. The contention that there was a policy of Government to regularise the unauthorised colonies and CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.-30-
also not to acquire built up area was rejected and it was observed that:
"It was further contended that unauthorised colonies on Government land are sought to be regularised. It is possible that a political decision to this effect may be taken with regard to some of the colonies but as far as this land is concerned, there have been valid proceedings for acquisition under the provisions of the Land Acquisition Act. If there was any built up area on the date when Section 4 Notification was issued, the claimants would be entitled to receive compensation in accordance with law. As far as the petitioner is concerned, we do not find that the petitioner is entitled to any compensation and in fact it is one Udai Singh who had already received the compensation. Be that as it may, merely because some of the colonies are going to be regularised cannot be of any assistance to the petitioner specially when, in the writ petition, there is no challenge to the acquisition proceedings. The proposal of excluding the land from the award which was therein 1968 has apparently been given a go bye and this has resulted in, first Notification under Section 6 being issued on 2nd January, 1969, followed by the award in 1980.
"7. The contention in respect of the policy of leaving out from the acquisition built up area has also been repelled in another Division Bench decision of this Court in Shri Bhagwan and another Vs. Union of India & ors., 1991 (2) Delhi Lawyer 59 (DB). This decision has been affirmed by a Full Bench of this Court in Roshanara Begum Vs. Union of India, 1996 (1) AD (Delhi) 6. We may also notice that the appeal filed against Full Bench has been dismissed by the Supreme Court (see: Murari and other Vs. Union of India and others, )."
34. In view of exhaustive discussion as above, issue No.2 and Issue No. 3 are decided in favour of defendant and against the Plaintiff.
FINDING ON ISSUE NO. 4 :-
4. Whether the plaintiff is entitled for the relief claimed?
(OPP) CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.
-31-35. It is pertinent to mention that the present suit is merely for permanent injunction and not for declaration and possession. In the present suit, plaintiff is seeking a decree of permanent injunction against the defendant restraining defendant from demolishing the suit property built up and to restrain from interfering in the peaceful possession and enjoyment of the plaintiff in suit property. Perusal of record and discussion as earlier and findings on the issue no. 2&3 manifestly shows that the plaintiff is not entitled to relief as claimed by her in the present suit as an injunction cannot be passed against the true owner.
36. In view of finding and reasoning given in Issue No.2 and 3 and material on record, present issue is also decided in favour of defendant and against the plaintiff.
RELIEF:-
37. In view of findings on the issues and reasons as given earlier, present suit is dismissed.
38. Decree sheet be prepared accordingly.
39. File be consigned to Record Room after due compliance.
Announced in the open court on 25th January, 2021.
DEEPAK Digitally signed by
DEEPAK KUMAR
(This judgment contains 31 pages) KUMAR Date: 2021.01.25 16:43:31
+0530
DEEPAK KUMAR-I
Commercial Civil Judge,
West District, Delhi.
CS. 608208/2016 Smt. Kaushalya Devi Vs. DDA.