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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 1117/2007
ZILE SINGH ..... Appellant
Through : Mr. Rajiv Virmani, Sr. Advocate with
Mr. Atul Shankar Mathur and Ms.
Shruti Verma, Advocates
versus
LAND ACQUISITION COLLECTOR AND ORS..... Respondents
Through : Mr. Rajiv Bansal and Mr. Rahul
Bhandari, Advocates for DDA
Mr. Yeeshu Jain, Advocate for
LAC/Nodal Officer
Mr. Digvijay Rai, Standing counsel
for AAI
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 31.01.2013 This appeal is directed against the order dated 30.05.2012 dismissing the WP(C) 304/2007 filed by the appellant. Dismissing the writ petition, the learned Single Judge inter alia held as under:
"65.2 The facts in brief are that the petitioners Sh. Zile Singh and Sh. Nafe Singh both sons of late Sh. Mehar Singh are residents of village Nangal Devat. It is stated that as per the records Sh Mehar singh was the owner and was in possession of land measuring 169 sq. yds and 276 LPA 1117/2007 Page 1 of 5 sq. yds in khasra No. 1243 and 1814 sq. yds in khasra No. 1247/4 in the extended abadi. His name figured in the Survey Report and the Naksha Muntazamin. As far as the petitioners are concerned, it is claimed that in the Survey Report they are shown as having equal half share in respect of 103 sq. yds in khasra No. 1243. It is accordingly claimed that this independent holding should be adding to their share in their father‟s property and they should, therefore, get two separate plots instead of one plot jointly.
65.3 The Court has carefully examined the relevant entry in the Survey Report where the names of the two petitioners are shown under the column of the owner of the house and it is indicated "Makaan Kabzaan" and then the two petitioners‟ names are mentioned. It is clear that the petitioners are shown as having equal share only in the structure and not in the land beneath the structure. 65.4 In that view of the matter, it is not possible to find any entitlement for these petitioners in terms of the order dated 18.5.2005 of this Court. In the said order, it was held that in order that a legal heir is entitled for an individual alternate plot, the names should appear "separately in the Survey Report and Naksha Muntazamin in respect of distinct holdings." The word „holdings‟ here is indicative of land and not merely the structures. In that view of the matter, no error can be found in the impugned order of the Nodal Officer."
2. It would, thus, be seen that the writ petition was dismissed on the ground that in the relevant entry, the appellants were shown as the owners only of the house but not of the land underneath the house, and therefore, they owned only the superstructure and not the land beneath the LPA 1117/2007 Page 2 of 5 superstructure. Noticing that in terms of the order of the Court dated 18.05.2005, in case of a legal heir his name should appear in respect of „holdings‟ which was indicative of land and not merely the superstructure, the learned Single Judge found no fault with the order of the Nodal Officer, whereby he had rejected the claim of the appellants for allotment of separate plots of land in their individual names. The learned counsel for the appellants submits that the view taken by the learned Single Judge as regards the ownership of the land beneath the superstructure in question is factually incorrect and not only the superstructure but the land beneath it is also owned by the appellants.
3. We have perused the order passed by the Nodal Officer on the application of the appellants for allotment of plots in lieu of the land in village Nangal Devat. It was claimed before the Nodal Officer that the appellants were recorded owners having one-half share each of land measuring 277 sq yards comprised in khasra No. 1243 shown at SRS No. 288 house No. 50 at page 66 of the Survey1971-72 and were also owner of the half share each of 276 sq. Yards comprised in khasra 1243 reflected at SRS No. 303 house No. 54/2 page 67 of the Survey 1971-72 which had been LPA 1117/2007 Page 3 of 5 wrongly recorded in the name of their father, whereas the exclusive owners in possession of the same. They also claimed that the land admeasuring 276 sq. yards was wrongly recorded in the name of their father due to some inadvertent mistake/error during the survey. The Nodal Officer observed that the appellants had failed to produce any document regarding ownership of the land claimed to be in their possession. He also observed that even though the land was under their possession but he same was Shamlath Deh i.e., the land meant for common utilities which could not be added to the share of the appellants.
4. Learned counsel for the appellant submitted that there was no material before the Nodal Officer to conclude that the aforesaid land was Shamlath Deh (the land meant for common utilities). This position was not disputed by the learned counsel for the respondent.
5. Thus, the question whether the land comprised in khasra No. 1243 of village Nangal Devat was owned by the appellants or not is a question of fact which could not have been decided in the writ petition and obviously cannot be decided in this appeal. Considering the fact that in his order holding the land to be land meant for common utilities, the Nodal Officer LPA 1117/2007 Page 4 of 5 has not referred to any document on the basis of which such a conclusion came to be drawn by him, we are of the considered view that the matter needs to be remitted back to him to pass a fresh order in this regard after hearing the appellants, giving them another opportunity to produce such documents as they may like to produce in support of their claim and examining the other relevant record including the Revenue record, if any, which may disclose the land in question to be the land for common utilities/Gaon Sabha land.
6. During the course of arguments, we were informed that presently there is no officer appointed as the Nodal Officer to adjudicate this claim and the concerned officer in this regard would be the ADM (Revenue) of New Delhi district. We, therefore, set aside the impugned order dated 30.05.2007 as well as the order passed by the Nodal Officer and direct the Nodal Officer to pass a fresh order in terms of the directions given hereinabove within a period of three months from the date of receipt of a copy of this order.
CHIEF JUSTICE V.K. JAIN, J JANUARY 31, 2013/„raj‟ LPA 1117/2007 Page 5 of 5