Delhi District Court
Union Of India vs . Gaon Sabha (Dhul Siras) And Anr. on 30 July, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
LAC No. 04/11/08
In the matter of :
Union of India Vs. Gaon Sabha (Dhul Siras) and Anr.
1. Gaon Sabha of Village Dhoolsiras
District South West, New Delhi.
... IP No. 1
2. Shri Nand Ram
S/o Late Shri Gyasa Ram,
Resident of Village & Post Office Dhoolsiras,
New Delhi.
... IP No. 2
Village : Dhul Siras
Award No.: 27/200203
Filed on : 16.12.2004
Remanded back on : 04.11.2008
Reserved on : 27.07.2011
Decided on : 30.07.2011
JUDGMENT:
1. This reference was earlier decided by the learned predecessor of this Court vide orders dated 11.10.2007.
2. The said judgment was challenged before the Hon'ble High Court in L.A. A. No.714/2008 and was decided on 28.08.2008. LAC No. 04/11/08 Page 1/29
3. The Hon'ble High Court noticed that the Gaon Sabha which was the recorded owner of the land in question had ceased to exist when notification under Section 507 of the Delhi Municipal Corporation Act, 1957 came into force urbanizing rural area of revenue estate of village Dhulsiras.
4. Effect of urbanization is provided in Section 150(3) (d) of Delhi Land Reforms Act, 1957 as per which 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.
5. Noticing that while deciding the reference, in place of Gaon Sabha, Union of India was not substituted before the Reference Court and valuable rights of Union of India were decided in its absence, matter was remanded back for afresh decision after hearing Ministry of Urban Development as well as DDA, the beneficiary.
6. Notice of this reference was issued to Ministry of Urban Development but said Ministry was proceeded ex parte vide orders dated 20.01.2010 passed by the learned predecessor of this Court. DDA adopted written statement filed by Gaon Sabha.
7. Besides issues framed earlier which were (i) which of the IP and to what extent, is entitled to get the amount of compensation? OPP (ii) Relief, following additional issue was also framed by learned predecessor of this Court on 26.07.2010 after the LAC No. 04/11/08 Page 2/29 remand of the reference.
"In case, the petitioner / claimant Nand Ram is held not entitled to the compensation, then who out of the Gaon Sabha or UOI / DDA would be entitled to the compensation i.e. what would be the effect of the notification under Section 507 of DMC Act on the present case? OPP "
8. At this stage, it is relevant to note para 27, 28, 30, 31 and 32 of order passed by the Hon'ble High Court which are as under: "27. As noted hereinabove, village Dhool Siras was urbanized on 24.10.1994. Inevitable consequence thereof, as noted herein above, is the vesting of gaon sabha land in the Central Government. An issue would therefore arise as to what is the effect of the notification issued under Section 4 of the Land Acquisition Act, 1894 on 13.12.2000 and an award being published on 24.10.2002 relating to land which vested in the Central Government on 24.10.1994.
28. In respect of claims where either no proceedings were initiated under Section 74(4) of the Delhi Land Reforms Act, 1954 or were initiated after 24.10.1994, further issue would arise as to the status of said claimants.
30. But where no such proceedings were initiated or were initiated after 24.10.1994, the issue which would have to be decided would be whether these persons can at all claim apportionment predicated on the plea that they have a claim for being declared a bhumidar.
LAC No. 04/11/08 Page 3/29
31. In the later situation, Section 154(2) of the Delhi Land Reforms Act, 1954 would have to be looked into. The same reads as under: "154. Vesting of certain lands etc., in Gaon Sabha: (1) .........
(2) Where any land which is vested in the Central Government under subsection (3) of sub section (4) of Section 150, is held immediately before such vesting by an Asami of a Gaon Sabha, then, notwithstanding anything contained in clause
(b) of subsection (20 of section 1, and so long as it is held by such Asami, the provisions of this Act shall continue to apply to such land subject to the modification that all references therein to Gaon Panchayat shall in relation to such land be constructed as reference to the Central Government."
32. With respect to sub Section 2, a further question would arise, whether a person who claims to be admitted as an asami would be entitled only to be treated as an asami for the remaining period of his tenure or whether he would be entitled to urge that notwithstanding he got having predicated a claim for being declared a bhumidar till 24.10.1994, would he still be entitled to predicate a claim on said right of being treated as a bhumidar."
9. Therefore, three more questions before this Court would be (i) what is the effect of the notification issued under Section 4 of the Land Acquisition Act, 1894 on 13.12.2000 and an award being published on 24.10.2002 relating to lands which vested in the Central Government on 24.10.1994? (ii) where no proceeding under LAC No. 04/11/08 Page 4/29 Section 74 (2) of Delhi Land Reforms Act, 1954 are initiated or were initiated after 24.10.1994, whether such a person can at all claim apportionment predicated on the plea that they have a claim for being declared a bhumidar? and (iii) whether person who claims to be admitted as an asami would be entitled only to be treated as an asami for the remaining period of his tenure or whether he would be entitled to urge that notwithstanding he not having predicated a claim for being declared a bhumidar till 24.10.1994, would he still be entitled to predicate a claim on said right of being treated as a bhumidari?
10. On behalf of DDA, notification under Section 507 of DMC Act was exhibited as Ex. RW(DDA)/X1 and notification dated 19.08.2000 was exhibited as Ex. PW(DDA)/X2. Effect of second notification would be considered at a later stage. Remaining parties did not lead any fresh evidence.
11. Arguments were addressed by Shri S.S. Dalal, learned counsel for Gaon Sabha (IP No. 1), Shri B.D. Sharma, learned counsel for Shri Nand Ram (IP No. 2) and Ms. Geetanjali Sharma, learned counsel for DDA.
12. Briefly, the facts of this reference are that IP No. 1 Gaon Sabha is the recorded owner of the land in question i.e. Kh. No. 28//21 (416) in village Dhulsiras.
13. A large chunk of land of village Dhulsiras was acquired vide Award No. 27/200203.
LAC No. 04/11/08 Page 5/29
14. Land in question was also acquired in those acquisition proceedings. Compensation for the land in question was assessed by Land Acquisition Collector at Rs. 21,09,252/.
15. This compensation was not disbursed to Gaon Sabha i.e. IP No. 1 as IP No. 2 Shri Nand Ram raised objections against release of compensation in favour of IP No. 1.
16. Case of Gaon Sabha, IP No. 1 is that Gaon Sabha is the owner of the land in question and possession of land was taken by the Collector from Gaon Sabha when the land was acquired. Therefore, Gaon Sabha demanded the entire compensation.
17. IP No. 2 filed reply to the claim of IP No. 1 and denied that Gaon Sabha is the owner or was in possession of suit land; IP No. 2 had become owner due to 'long and continuous' possession and suit land is reclaimed and made worthy of cultivation; IP No. 2 is the allottee of land in question and land always remained in his possession till its possession by the Collector; BDO has admitted that suit land was allotted to IP No. 2 in his report given to Tehsildar; IP No. 1 is estopped from challenging allotment in favour of IP No. 2 as such challenge can be made within a period of six months as per Section 75 of Delhi Land Reforms Act and as no challenge was laid within six months, allotment has become final. IP No. 2 claims to be statutory bhumidar growing Rabi and Khariff crops over suit land and stated that his possession is admitted by BDO as well as Halka LAC No. 04/11/08 Page 6/29 Patwari in the report dated 10.05.2001 but 'Possession of IP No. 2 was not recorded in the revenue records by revenue authorities / halka patwari for reasons best known to them'. IP No. 2 stated that although it is mandatory for revenue officials to record possession as per site but possession of IP No. 2 was not recorded. Therefore, IP No. 2 claimed the entire compensation in his favour.
18. Case of IP No. 2 in his claim is that pursuant to resolution dated 02.06.1981, Gaon Sabha had allotted land in question to him. IP No. 2 has relied upon letter of allotment and deposit of lease money vide LR Form 37 dated 03.06.1981. He claims to have deposited lease money in the year 2001 also. He has also relied upon possession letter dated 15.06.1981. IP No. 2 has stated that he filed 'various' applications to concerned tehsildar to record his possession over land in question but to no avail.
19. It is the case of IP No. 2 that when revenue officials failed in their duty cast upon them under Section 22 (5) of Delhi Land Reforms Act, IP No. 2 moved an application before Tehsildar who asked for status report from BDO vide his letter dated 30.11.99. Vide letter dated 01.12.99, BDO confirmed allotment and possession of IP No. 2 over land in question.
20. IP No. 2 has also relied upon report of BDO dated 02.03.2002 in response to letter of Tehsildar dated 04.02.2000 admitting allotment and possession of IP No. 2 over land in question. LAC No. 04/11/08 Page 7/29 IP No. 2 has also relied upon report of Halka Patwari dated 10.05.2001 where it was stated that IP No. 2 has grown wheat over land in question.
21. In spite of reports of Halka Patwari and BDO in favour of IP No. 2, his possession was still not recorded in revenue records. Reliance is also made on demarcation report dated 28.07.99 showing allotment in favour of IP No. 2.
22. Therefore, relying upon the documents referred above, entire compensation was claimed by IP No. 2 in his favour.
23. Gaon Sabha has filed reply to the claim of IP No. 2 and stated that neither IP No. 2 is allottee nor ever remained in possession over land in question. It is denied that any resolution was ever passed by Gaon Sabha allotting the land in favour of IP No. 2 as no prior approval of such resolution was taken. Issuance of allotment letter and lease money receipt were denied as these documents were called fictitious, fabricated and procured. Reliance is placed on the fact that there is no khasra girdawari in favour of IP No. 2. Demarcation report relied upon by IP No. 2 is also denied as there was no dispute regarding measurements or boundaries of land in question so there was no need of demarcation. As such entire case of IP No. 2 is denied by Gaon Sabha.
24. On behalf of Gaon Sabha, certified copies of khasra girdawaris for the year 198384 till 19992000 for land in Kh. No. LAC No. 04/11/08 Page 8/29 28//21 were exhibited as Ex. R1 to R16. In column no. 5 "name of tenure holder if any as classified in part II of the khatauni" is crossed
(x) meaning nil, column no. 6 to 17 dealing with crops for Khariff, Rabi and Zaid and irrigated / unirrigated are nil and column no. 18 dealing with "class of land" it is noted that land in "Banjar". Remarks column is also blank.
25. On behalf of IP No. 2, Shri Nand Ram himself appeared as IP No. 2 W1 and similar averments were made in evidence by way of affidavit as were made in claim petition. Following documents were exhibited: i. Allotment letter dated 03.06.1981 as Ex. IP2W1/1. ii. LR 37 Receipt dated 03.06.1981 as Ex. IP2W1/2. iii. Possession letter dated 15.06.1981 as Ex. IP2W1/3.
26. In his crossexamination, he admitted that Gaon Sabha is the recorded owner and he had installed a boring in the suit land. He denied the suggestion that documents of allotment issued by Pardharn were bogus.
27. Second witness of IP No. 2 was the then Pardhan of village Dhulsiras who had allotted the land in favour of IP No. 2. Besides proving allotment, LR Form 37 and possession letter, he proved resolution as Ex. IP2W1/2. In his crossexamination, he stated that he had taken prior approval of Director Panchayat and had submitted the documents in the office of BDO. LAC No. 04/11/08 Page 9/29
28. Third witness examined by IP No. 2 to prove his case was one Shri Om Parkash, a co villager who deposed that he was tilling the land of IP No. 2 with his tractor and used to take charges from IP no. 2. He denied suggestions contrary to case of IP No. 2.
29. Fourth witness produced by IP No. 2 was Shri Ashok Kumar, Panchayat Secretary. He proved LR Form 37. He stated in his crossexamination that LR Form 37 was not prepared in his presence and Pardhan had not taken any approval from competent authority. This witness was re examined to prove reports dated 02.03.2000 and 03.12.1999 as Ex. IP2W4/1 and 2 and report of Halka Patwari as Ex. IP2W4/3. In crossexamination, the witness stated that there is no approval of Director Panchayat as per law in file pertaining to allotment.
30. Fifth witness produced by IP No. 2 was Shri Hem Chander, Kanungo who proved demarcation report as Ex. IP2W5/1. He stated in his crossexamination that he does not know who was in possession of land in question of the time of demarcation.
31. The sixth witness examined by IP No. 2 was Sh. M.D. Sharma, Halka Patwari, New Delhi. He was examined to prove report Ex.IP2W4/3.
32. The seventh witness examined by IP No. 2 was Sh. Durga Prasad who was Panchyat Secretary at the relevant time. He stated that he was present at the time of demarcation on 28.07.1999 LAC No. 04/11/08 Page 10/29 when demarcation report Ex.IP2W5/1 was prepared. As per his observations, the land was fit for cultivation.
33. The eighth and last witness examined by IP No. 2 was Sh. Gian Chand, Naib Office Kanungo. This witness stated that an application for mutation was entered in his office. However, nothing was exhibited by this witness.
34. The learned Predecessor of this court answered the reference in favour of Gaon Sabha mainly relying upon Rule 176 of Delhi Panchayat Raj, Rules 1959 as per which Gaon Panchayat cannot transfer otherwise than by way of lease any immovable property without previous approval of Chief Commissioner.
35. The learned Predecessor had found that in the absence of previous approval of Chief Commissioner, Gaon Sabha could not have allotted the land in favour of IP No. 2. As the alleged allotment was found to be contrary to the rules and relevant provisions, it was ordered that the entire compensation be given to IP No. 2.
36. As noted above, the matter was remanded back by Hon'ble High Court as the same was decided in absence of Union of India in whom the land had vested after its urbanization under Section 507 of DMC Act.
37. In para 40 of the judgment the Hon'ble High Court has ordered as under: "40. Needless to state this court has not expressed any LAC No. 04/11/08 Page 11/29 opinion on the merits of the controversy and at the remanded stage all contentions available and urged would be dealt with by the learned reference court".
38. Therefore, issuewise findings are given afresh. ISSUE No. 1: Sh. S.S. Dalal, learned Counsel for Gaon Sabha has relied upon amended Rule 178 of the Delhi Panchayat Raj Rules, 1959 which is as under: "Rule 178. Lease without premium: (1) In the case of a lease without premium transferring immovable property vested in the Gaon Panchayat a reasonable annual rent shall be reserved and made payable during the whole term of the lease and the lease or any agreement to grant lease shall not be made without the previous sanction of Gaon Panchayat by a Resolution and also with the previous sanction of the Director of Panchayats when term of lease does not exceed ten years and when the term exceeds the ten years but does not exceed thirty year with the previous sanction of the Development Commissioner and when the term exceed 30 years with the previous sanction of the Lt. Governor".
39. Rule 178 was amended on 25.11.1976. In the unamended Rule 178, previous sanction was not required from Director of Panchayats if the term of lease was less than 10 years. However, after the amendment the previous sanction is necessary even where lease is for less than 10 years.
40. The Gaon Sabha, in its reply to the claim petition of IP LAC No. 04/11/08 Page 12/29 No. 2, had taken an objection that resolution was passed by gaon sabha to allot land to IP No. 2 without approval. IP No. 2 was aware of the objection of gaon sabha. Inspite of specific objection of gaon sabha to lack of previous approval, no evidence was brought on record to show that such an approval was indeed taken by gram Panchayat before allotting the land to IP No. 2.
41. Evidence of village Pardhan Sh. Dalip Singh is relevant in this regard. Being the elected Pardhan of Gram Panchaya, he was well aware of legal requirement to take previous sanction of Director of Panchayats before allotting the gaon sabha land. In fact the stand of IP 2W2, Sh. Dalip Singh, in the crossexamination was that 'I had taken the approval from director panchayat in respect of allotment to Rati Ram. (The name of present IP No. 2 is Nand Ram and not Rati Ram). I have not produced any document before the court in this respect. However, I had submitted the documents with the office of Block Development Officer'.
42. In spite of such assertions of the elected Pardhan, IP No. 2 did not take any steps whatsoever to summon the records from the office of Block Development Officer to prove previous sanction of Director Panchayat.
43. Adverse inference is drawn against IP No. 2 for not summoning the records from the office of Block Development Officer to prove previous sanction in his favour.
LAC No. 04/11/08 Page 13/29
44. Similarly, IP2W4 Sh. Ashok Kumar has stated that the Pardhan had not taken any approval from competent authority regarding LR 37. The witness had also stated that there is no approval from Director Panchayat as per law.
45. The conclusion of above would be that mandatory previous sanction of Director of Panchayats is missing in this case.
46. A claimant without being bhumidar or asami can still succeed in his claim for compensation of acquired land if he is able to prove his possession over the land for a period of 3 years. Reference can be made to Section 84 and 85 of Delhi Land Reforms Act in this regard.
47. Whether IP No. 2 has shown his possession over land in question for a period of 3 years prior to its possession by the Collector?
48. Certified copies of khasra girdawaris with effect from 198384 till 19992000 are consistently showing that (i) Gaon Sabha is the recorded owner (ii) the land is 'banjar' as there is no crop shown
(iii) column No. 4 regarding tenure holder is blank and (iv) remarks column are also nil.
49. There is a presumption that all entries in the record in rights are presumed to be proved until the contrary is proved. Reference can be made to Section 41 of the Delhi Land Revenue Act, 1954.
LAC No. 04/11/08 Page 14/29
50. To rebut presumption that entires made in the khasra girdawaris are not correct, IP No. 2 has examined himself and 7 other witnesses.
51. In his crossexamination, IP No. 2 has stated that he had installed a boring in the suit land. However, in the khasra girdawaris no boring is shown. IP No. 2 has stated in its claim petition that it had deposited lease money in the year 2001 also. But there is no evidence of such deposit on the record.
52. IP No. 2 has stated that he had filed various applications to concerned Tehsildar as well as SDM for recording his possession but even a single application is not proved on record.
53. IP2W3 Sh. Om Prakash who is a covillager with IP No. 2 has stated that he was cultivating the land of IP No. 2 with his tractor. But he has not even shown that he was recorded owner of any land in village Dhool Siras as he has not filed any khatoni to show his land holding in village Dhool Siras.
54. IP2W4 Sh. Hem Chander, Kanungo claims to have prepared the demarcation report but he stated that in his cross examination that 'I do not know who was in the possession of land in question at the time of demarcation'.
55. IP No. 2 claims to be in possession since 1981. However, all the documents relied upon by IP No. 2 to rebut presumption of correctness of khasra girdawaris which do not show LAC No. 04/11/08 Page 15/29 possession of IP No. 2, are contemporaneous with the notification under Section 4 of L A Act. Therefore, they do not inspire confidence and it cannot be ruled out that they were ante dated to suit the interest of IP No. 2.
56. EX.IP2W5/1 is the demarcation report with regard to land of IP No. 2 and 3 others whose references under Section 3031 of L A Act are also pending before this court. It is baffling to see the demarcation report because there was neither any dispute with regard to measurement nor boundaries of the land in question and there was no necessity to take this report by IP No. 2.
57. Although IP No. 2 is relying upon reports of Patwari, Kanungo and BDO to show his possession over land in question but same revenue officials have shown in khasra girdawaris that land in question is 'banjar' and there was no cultivation of any crop and was not in occupation of IP No. 2.
58. Counsel for gaon sabha has referred to Rule 67 of the Delhi Land Revenue Rules, 1962. There is a detailed procedure provided in Rule 67 as per which first the Patwari has to send the list of entires in forms P5 and P5A to the Girdwar Kanungo who examines the same and after inspection and verification of the entires the list in forms P5 and P5A is sent by Girdwar Kanungo with his reports to the tehsildar having jurisdiction for confirmation of entries and tehsildar apprises the Director (Panchayat) and requires presence LAC No. 04/11/08 Page 16/29 of representative of Director (Panchayat) during inquiry for confirmation of entries. The tehsildar after confirmation of the entries refers a copy of list in forms P5 and P5A to the Patwari who records the same in column 21 of the khasra girdwari and a copy of confirmed list is also sent to Director ( Panchayat) and Revenue Assistant within 7 days of the confirmation by the tehsildar for necessary action in consonance with acts and rules.
59. If the revenue officials had found that possession over land in question was of IP No. 2 nothing would have prevented them from showing in Ex.R15 and R16 which are khasra girdwaris for the year 199899 and 19992000 that the land in question was not 'banjar' and was not vacant but was under the occupation of IP No. 2 where he was cultivating wheat. On the contrary, the khasra girdawaris continued to show the land as 'banjar' and without occupation of IP No. 2.
60. Merely a stray report by the Patwari and that too few months before the date of notification under Section 4 of L A Act is not sufficient to show possession of IP No. 2 continuously for three years prior to its acquisition leave apart showing possession from 1981 when the land was allegedly alloted to IP No. 2.
61. Therefore, IP No. 2 has failed to rebut the presumption of correctness of entries in khasra girdawaris in favour of gaon sabha, IP No. 1.
LAC No. 04/11/08 Page 17/29
62. Resultantly, this issue is decided in favour of IP No. 1. As the land in question is urbanized and vests the Central Govt the beneficiary of this compensation would have been Ministry of Urban Development New Delhi but for notification dated 19.08.2000. This notification notes that MCD has urbanized the land in question under Section 507 of DMC Act. It is also noted that as per 150(3) (a) of DLR Act the Gaon Sabha land is vested in Central Government. It is further noted that Central Government's powers under Section 22(1) of the DD Act have been vested in Lt. Governor, Delhi vide notification dated 15.02.1972.
63. Section 22 of Delhi Development Act reads as under: "22. Nazul lands. (1) The Central Government may, by notification in the Official Gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority all or any developed and undeveloped lands in Delhi vested in the Union (known and hereinafter referred to as "nazul lands") for the purpose of development in accordance with the provisions of this Act."
64. It is further noted in notification dated 19.08.2000 that the terms and conditions upon which land is placed at disposal of DDA are agreed in Resolution dated 10.05.1961 and Lt. Governor has placed Gaon Sabha land at disposal of DDA. What are the terms and LAC No. 04/11/08 Page 18/29 conditions agreed between Lt. Governor and DDA are not brought on record by any party. As land in question vested in Central Government and through it in favour of DDA before its acquisition, DDA will be the beneficiary of compensation in this reference petition.
65. The next question to be answered is the effect of notification under Section 4 of the Land Acquisition Act on 13.12.2000 and an award being published on 24.10.2002 relating to lands which vested in the Central Govt. on 24.10.1994.
66. In the case of Delhi Administration vs. Madan Lal Mongia: AIR 2003 SC 4672, in the impugned order, acquisition of evacuee property was set aside holding that evacuee property vest in Central Government and there was no need to resort to L.A. Act to acquire this land. In respect of the submission that the Central Government cannot acquire its own land, reliance was placed on the following observations made in the case of Sharda Devi v. State of Bihar reported in (2003) 3 SCC 128.
"27............................................... The state does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of the Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vests in the State. In other words, the land owned by the State on which there are no LAC No. 04/11/08 Page 19/29 private rights or encumbrances is beyond the purview of the provisions of the Land Acquisition Act. The position of law is so clear as does not stand in need of any authority for support. Still a few decided cases in point may be referred since available.
28. In Collector of Bombay v. Nusserwanji Rattanji Mistri (AIR 1955 SC 298) this Court held that when the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding thereof so that it might be in a position to pass it on absolutely for public user. An interesting argument was advanced before the Supreme Court. It was submitted that the right of the Government to levy assessment on the lands is an "encumbrance" and that encumbrance is capable of acquisition. The Court held that the word "encumbrance" as occurring in Section 16 can only mean interests in respect of which a compensation was made under Section 11 or could have been claimed. It cannot include the right of the Government to levy assessment on the lands. The Act does not contemplate the interest of the Government in any land being valued or comparable being awarded therefor.
29. In Secy. of State v. Sri Narain Khanna (AIR 1942 PC 35) it was held that where the Government acquires any property consisting of land and buildings and where the land was the subjectmatter of the Government grant, subject to the power of resumption by the Government at LAC No. 04/11/08 Page 20/29 any time on giving one month's notice then the compensation was payable only in respect of such buildings as may have been authorized to be erected and not in respect of the land.
30. In the matter of the Land Acquisition Act: Govt. of Bombay v. Esufali Salebhai (ILR (1910) 34 Bom 618) (at p. 636) Batchelor, J. held that the Government is not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside the Government, directs that the entire compensation based upon the market value of the whole and must be distributed among the claimants. The Government was held liable to acquire and pay only for the superstructure as it was already the owner of the land.
31. In Dy. Collector, Calicut Division v. Alyavu Pillay (9 IC 341 : (1911) 2 MWN 367 : 9 MLT 272) Wallis, J. observed that the Act does not contemplate or provide for the acquisition of any interest which already belongs to the Government in land which is being acquired under the Act but only for the acquisition of such interests in the land as do not already belong to the Government.
32. In Collector of Bombay v. Nusserwanji Rattanji Mistri the decisions in Esufali Salebhai case and Aiyavu Pillay case were cited with approval. Expressing its entire agreement with the said views, the Court held that when the Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition because there can be no question of the Government acquiring what is its own. An investigation into the nature and value of that interest is LAC No. 04/11/08 Page 21/29 necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition. In the land acquisition proceedings there is no value of the right of the Government to levy assessment on the lands and there is no award of compensation therefor. It was, therefore, held by a Division Bench of Judicial Commissioners in Mohd. Wajeeh Mirza v. Secy. of State for Indian in Council (AIR 1921 Oudh 31: 24 Oudh Cas 197) that the question of title arising between the Government and another claimant cannot be settled by the Judge in a reference under Section 18 of the Act. When the Government itself claims to be the owner of the land, there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. In our opinion the statement of law so made by the learned Judicial Commissioner is correct."
67. In the case of Phongseh Misao versus Collector of Land Acquisition & Ors. AIR 1977, Gauhati, 47 it is held in para 10 as under: "Para 10. No doubt, if the land belongs to the Government and none else has got any interest therein, there can be no necessity at all for the Government to go for acquisition. But there may be cases where the Government is the owner of the land but some other persons have got some limited interest, say as tenants or as licensees and such persons may have their structures or valuable trees on the land, to which they are legally entitled and which come within the definition of land under Section 3 (a) of the Act. In such a case it is always open to the Government to declare in the Notification LAC No. 04/11/08 Page 22/29 under Section 4 of the Act what is the nature of the right of the State over the land. In that case the person who may be interested in disputing the title of the Government to the land would be entitled to raise objections before the Collector and then before the District Judge and to have determination of the question of title on the evidence. This was the view expressed by a Full Bench of the Allahabad High Court in Makhanlal Vs. Secretary of State, AIR 1934 All 260. Again in some cases after the acquisition proceeding is started and the award is made, the land may vest in the Government by operation of law or otherwise. In such a case the Collector is within his jurisdiction under Section 30 of the Act to make reference to the District Judge for determination of the right of the Government of compensation which may devolve on it after the award. This was the view taken by the Supreme Court in Grant Vs. State of Bihar, AIR 1966 SC 237.
68. In the case of Inder Parshad vs. Union of India (1994) 5 SCC 239, Hon'ble Supreme Court dealt with the question of acquisition of Government land as under: "Para 5... Take a case where the Government granted the lease of agricultural land on the annual payment of rent with a covenant that the Government is entitled to resume the land when needed for public purpose or as when the Government finds that the land is required for public purpose. In terms of covenants, the government is entitled to exercise its option to determine the lease though the lessee has been complying with the condition of payment of annual premium or rent and resume the land in accordance with terms of the grant. In that event the need to take recourse to acquisition and to make compensation LAC No. 04/11/08 Page 23/29 does not arise. Take a case where the Government granted the lease of the open land with permission to the lessee to construct a building for his quiet enjoyment with appropriate covenants and the lessee with permission constructed the building and by complying with the covenants of the lease was in quiet enjoyment. The selfsame property, when required for public purpose, the Government cannot unilaterally determine the lease and call upon the lessee to deliver the possession. Therefore, the Government is required to exercise the power of eminent domain by invoking the provisions under the Land Acquisition Act for getting such land. The Collector shall have to determine the compensation towards the leasehold interest held by the lessee, if assessable separately and determine the compensation. The lessee being the owner of the superstructure and the Government being the owner of the land, if compensation is determined for both the components, then the same has to be apportioned between them. At what proportion the lessor and the lessee are entitled to receive the compensation has to be determined. In the absence of any covenant in the lease for payment and in the absence of any specific data available to him, the Collector has to determine the respective shares at which the compensation is to be apportioned between the Government and the lessee, the course open to the Land Acquisition Collector is to determine the total compensation, make an award and make a reference to the civil court under Section 30 for decision on appointment..."
69. Conclusion which can be summarized from the above is that: LAC No. 04/11/08 Page 24/29 i. where agricultural land vest in Central Government, by operation of law there is no need to acquire it.
ii. where predecessor of Central Government say Gaon Sabha had admittedly allotted land to an Asami after complying with provisions of Rule 178 of the Delhi Panchayati Raj Rules, 1957, Central Government will have to acquire 'Asami' rights of the Asami and acquisition under Land Acquisition Act would be necessary.
iii. where admittedly an illegal occupant is in possession of agricultural land when recorded owner was Gaon Sabha, by operation of Section 84 and 85 of Delhi Land Reforms Act, such an occupant becomes Bhumidar / Asami as the case may be. If such a land vests in Central Government by operation of law and if in revenue records possession of such occupant is shown for more than three years continuously, Central Government will have to acquire possessory rights of such an illegal occupant.
70. In reference in hand, land vested in Central Government in the year, 1994; admittedly so far as Central Government / Gaon Sabha is concerned neither IP No. 2 was an Asami nor in possession as per revenue records. Therefore, there was no need to acquire the land. However, this conclusion will not make any difference to the outcome of this reference because jurisdiction of reference court is restricted to reference referred to it by the Collector. Particulars of dispute referred to this Court are 'IP No. 2 has filed LAC No. 04/11/08 Page 25/29 objections against release of compensation to IP no. 1.' Moreover, claim of IP No. 2 is already rejected. Therefore, the end result would be same which is that Central Government and through it DDA would get back compensation given to Collector as would have been the case if Central Government had not acquired the land as it would have got the land for public purpose without incurring expenses.
71. First question stated by Hon'ble High Court stands answered accordingly.
72. The second and third question as stated by Hon'ble High Court in its order referred above are (ii) where no proceeding under Section 74 (2) of Delhi Land Reforms Act, 1954 are initiated or were initiated after 24.10.1994, whether such a person can at all claim apportionment predicated on the plea that they have a claim for being declared a bhumidar? and (iii) whether person who claims to be admitted as an asami would be entitled only to be treated as an asami for the remaining period of his tenure or whether he would be entitled to urge that notwithstanding he not having predicated a claim for being declared a bhumidar till 24.10.1994, would he still be entitled to predicate a claim on said right of being treated as a bhumidari?
73. The Hon'ble High Court in the case of Gaon Sabha Kakrola vs. Sarbati and Anr. ILR (2009) I Delhi 695 had dealt with the question of apportionment between a bhumidar and asami where asami had filed an application under Section 74 of Delhi Land LAC No. 04/11/08 Page 26/29 Reforms Act but before declaration could be made in his favour the land was acquired. Hon'ble High Court noted in para 12 and 16 as under: "12. It is apparent that when the acquisition proceedings resulted in the acquisition of the land commenced, the adjudicatory process contemplated by the Delhi Land Reforms Act, 1954 before the Revenue Assistant got interdicted.
16. But, with the acquisition of the land, the adjudicatory process being aborted, entitlement to receive the compensation awarded by the Land Acquisition Collector has to be decided giving weightage to the respective claims."
74. Again in the case of Raj Singh & Anr. versus Union of India & Anr. 162 (2009) Delhi Law Times 103 (DB) the dispute was regarding apportionment between Aasami and Bhumidar. In that case the Hon'ble High Court referred to its earlier judgment in L.A. Appeal No. 102/2007 entitled Gaon Sabha, Kakrola versus Fateh Singh dated 28.08.2008 and noted that in the case of Fateh Singh even application for declaration as Bhumidar was filed, which was pending but the proceedings stood aborted as, in the meantime, the land was acquired. Even in such a case, the court was of the opinion that those persons could be treated as asami only.
75. In the case of Indu Khurana versus Union of India LAC No. 04/11/08 Page 27/29 Writ Petition Civil No. 4143 decided by Hon'ble High Court on 26.03.2010, it was held that after an area is urbanized under Section 507 of D.M.C Act that Delhi Land Reforms Act ceases to apply over such land. This judgment was again follow in the case of Sardar Singh & Anr. Vs. Government of NCT of Delhi & Anr. WP(C) No. 6789/08 dated 05.08.2010.
76. If applicability of DLR Act comes to an end no one can take advantage of Section 74 of DLR Act.
77. In the case of Smt. Dhanpati versus Govt of NCT of Delhi WP (C) No. 12961/2005 dated 05.07.2010 it was held that if an asami for the reason of failure of the Revenue Assistant is required to apply for declaring him Bhumidar and such an application is accepted, the same would necessarily relate back to the date with effect from the date on which such right for declaration had accrued and it cannot be said that the applicant would become the bhumidar on the date of the declaration.
78. In view of the above, it is held that where an asami had not filed an application to declare him bhumidar before urbanization of land under Section 507 of DMC Act, he will not be entitled to claim as a bhumidar in a reference under Section 3031 of L.A. Act as Delhi Land Reforms Act ceases to apply after urbanization of the rural area. Moreover, following the judgments of LAC No. 04/11/08 Page 28/29 Hon'ble High Court noted above, it is held that the process of declaring a person bhumidar gets interdicted with the acquisition of land. Following the judgment in the case of Fateh Singh (Supra), it is held that an asami will not be entitled to claim that he had become bhumidar in case he had not got a declaration from revenue assistant that he had successfully reclaimed the land and was entitled to be declared as bhumidar.
79. Reference petition is answered accordingly. Copy of judgment be sent to the LAC(SW) for information and file be consigned to record room.
Announced in the open Court on the 30th day of July, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 04/11/08 Page 29/29