Sher Singh And Ors. vs Gaon Sabha And Ors.
1991 Latest Caselaw 431 Del

JUDGMENT

D.P. Wadhwa, J.

(1) This is an appeal against the judgment dated 22.2.1986 of Mr. GS. Dakha, Additional District Judge, Delhi, in Lac No. 257 of 1984 on a reference made under Sections 30 and 31 of the Land Acquisition Act, 1984, by the Land Acquisition Collector. By the impugned judgment the learned Additional District Judge held that the appellants were not entitled to the compensation of the subject land acquired under the aforesaid Act and award given,

(2) Shorn of unnecessary details the facts lie in a very narrow compass. The land in question came to be vested in the Gaon Sabha of Village Tekh and by notification under Section 7 of the Delhi Land Reforms Act, 1954 (.for short'Act') In that the revenue records it was described as 'gair mumkin pahar'. The appellants are some of the original owners of the land and some the vendees thereof. On coming to know of the vesting of the land in Gaon Sabha the owners filed a civil suit in the Court of Senior Sub Judge, Delhi, on 22.11.1967 for a declaration that the vesting of land in Gaon Sabha was not legal. Both Gaon Sabha and Union of India were parties to the suit. The suit was decreed by a learned Sub Judge on 29.8.1968 in favor of the owners. The Gaon Sabha and Union of India filed an appeal against the judgment and decree and it was dismissed by the then Senior Sub-Judge on 17.11.1971. A second appeal to this Court was also dismissed on 22.5.1980. Two of the issues raised in that suit were : (1) Has the civil Court no jurisdiction to try the suit ? and (2) Whether the order of Revenue Assistant vesting the suit land in the Gaon Sabha is wrong, illegal and without jurisdiction and its effect ? The issues were held in favor of the owner and against the Gaon Sabha all through. However, the second appeal which was decided by this Court was R.S.A. 73/72 and it was decided on May 5, 1980. This Court held that the decisions of the Court below were perfectly legal in holding that the order under challenge was beyond the scope of the Act and was, therefore, ultra vires and liable to be quashed and that the declaration was rightly granted in favor of the owners. The Court, however, observed that the Deputy Commissioner was still authorised to reconsider the matter in dispute and decide the same after giving the parties opportunity of being heard and after considering the facts of the case he could determine whether the land in question was waste land or land of common utility which could vest in the Gaon Sabha. The learned Judge also said that it would be open to the Deputy Commissioner also to find whether the land or any part thereof was within the holding of any one of the individual proprietors since a very large area of the land was involved and the suit was representative suit on behalf of many persons, and some part of the land might be waste land and some under proprietory cultivation and yet some part of land was not covered by the definition of "waste land" or "land of . common utility" or still it might be that- all the lands were not covered by the definition. This Court, therefore, struck down the order vesting of the land in favor of Gaon Sabha leaving the Deputy Commissioner to reconsider the matter. It is not disputed that the matter has not been reconsidered by the Deputy Commissioner and the order declaring that the vesting of land in favor of Gaon Sabha was illegal stands.

(3) Now when the award acquiring the land in question was given the Gaon Sabha still raised disputes slating that the aforesaid judgment in, Rsa 73/72 was not final and the land rightly vested in the Gaon Sabha and therefore, Gaon Sabha was entitled to compensation. This dispute was, there- fore, referred by the learned Land Acquisition Collector to the District Judge which, as noted above, was decided in favor of the Gaon Sabha. Now this appeal.

(4) Mr. Mahajan, learned counsel for the Gaon Sabha, raised a preliminary objection that since a civil Court has no jurisdiction in the matter to decide the earlier suit, the judgment and decree were non est and could be ignored by the Additional District Judge and the provisions of res judicata or principles analogous thereto were not applicable. In support of his :.submission he did refer to certain decisions to show that (1) civil Court would have no jurisdiction and (2) when the decree itself was a nullity, it was not binding. We do not think Mr. Mahajan is quite right in his submission. In this case the judgment in R.S.A. is between the parties and all the questions now raised were considered by the learned Judge there who came to the conclusion that the civil Court had jurisdiction in the matter and land was wrongly vested in Gaon Sabha though nevertheless leaving the question of vesting of land still open. It. is unnecessary for us to refer to various judgments cited at the Bar by both the parties as we find that Section 7 of the Act was inapplicable in the present case and the Deputy Commissioner could not have passed an order vesting the land in the Gaon Sabha. Under Explanation to Section 7(1) of the Act "waste land" shall include cultivable and uncultivable waste area of the village except the uncultivated areas include in the holding of such proprietor or proprietors". Further, Section 185 of the Act does not bar a suit in civil Court to challenge the vesting of land under Section 7 of the Act. This would be clear from Schedule I to the Act itself. We have already taken a view in Union of India and another v. Mamleshwar Pershad and others (R.F.A, 332/68) with reference to the word 'holding' as appearing in clause (11a) of Section 3 of the Act that land other than 'khud-kasht' of the holding of the individual proprietor cannot vest in Gaon Sabha as it has not been treated as 'waste land' by virtue of the Explanation to Section 7of the Act. This is what we said in that judgment : "READING the definition of the 'holding' as mentioned afore- said and the provisions of Sections 7 and 154 of the Act, the learned Additional District Judge was of the view that the definition of holding as given inspection 3(11a) would not be applicable. Section 3 which deals with the definitions starts with the words 'unless the context otherwise requires', this is now being objected to by the Union of India. But we find that if we literally apply the definition of holding as given in clause (11 a) of Section 3 it will certainly lead to absurdity while finding out as to what the waste land would be in explanation to the Section 7 of the Act. As noted above, 'waste land' would not include uncultivated areas included in the holdings of such proprietor or proprietors. We are, thus, of the view that land other than 'khud-kasht' of the holding of the individual proprietor did not vest in Gaon Sabha because it has not been treated as 'waste land' by virtue of exception provided under clause (i) (a) of Explanation to Section 7 read with definition of 'holding' in the Punjab Land Revenue Act, 1887. Further, same mode for purposes of vesting 'waste land' in Gaon Sabha has been adopted for purposes of Section 154 of the Act."

(5) Since we are of the opinion that the land in question could not be described as 'waste land' within the Explanation to Section 7(1) of the Act, we reaffirm the view expressed earlier in R.F.A. 332/68 that the order vesting the land in Gaon Sabha was not correct. In this view of the matter it is not necessary to consider other points raised in the appeal. The appeal is, therefore, allowed. The judgment dated 22.2.1986 of the learned Additional District Judge is set aside. The appellants shall be held entitled to compensation under the Land Acquisition Act.