Raico Pvt. Ltd. vs Competent Authority And Ors.
2002 Latest Caselaw 1600 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner filed the writ petition for quashing of the impugned orders, directing that the excess land of the petitioner under the urban Land (Ceiling & Regulations) Act, 1976 [hereinafter called 'Act' for short] in respect of property bearing No. W-83, Greater Kailash-II, New Delhi be delivered to the respondents.

2. During the pendency of the writ petition, the Urban Land (Ceiling & Regulations) Repeal Ordinance, 1989 [hereinafter called the 'Ordinance' for short] was issued. In terms thereof, the Act aforesaid has been repealed. Section 3 is the saving clause and the relevant portion is as under:

3. (1) The repeal of the principal Act shall not affect--

(a) the vesting of any vacant land under Sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.

3. The Ordinance also provides that all proceedings relating to the matter shall abate, subject to the saving clause. The said section is as under:-

4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Ordinance, before any court, tribunal or any authority shall abate:

Provided that this section shall not apply to proceedings relating to Sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are related to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.

4. In view of the aforesaid, there is no doubt that the proceedings against the petitioner would abate unless possession of the property has been taken over. Learned Counsel for the petitioner also referred to the judgment of the Supreme Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors. where it was held that if the courts have granted status-quo order regarding possession and nothing is in record to show that possession has been taken over by the state, the proceedings will abate as the possession was still with the claimants.

5. On the last date of hearing, in response to the application of the petitioner CM No. 14173/99, learned Counsel for the respondent had stated that the possession of the land was already taken over. However, today, none is appearing for the respondents.

6. Learned Counsel for the petitioner has referred to the orders of stay passed on 30/1/1987, restraining the respondents from dispossessing the petitioner in pursuance to the impugned orders. Subsequently, an application was filed, being CM No. 1024/87, stating that the respondents had taken over the possession of the plot on 20/1/1987 and, therefore, seeking modification of the order that both the parties should maintain status-quo as on that date. Learned Counsel for the petitioner did not object to the interim order being modified in so far as actual situation of the plot is concerned but requested that a Local Commissioner be appointed to report to the Court the state of affairs on the said land in order to avoid possible future disputes and a Local Commissioner was so appointed. But at the time, nobody thought that the Act would be repealed and thus, the proceedings in pursuance to the said orders, as also certain court proceedings, become material for determining the issue of possession.

7. It is relevant to reproduce para 3 of the report which is an under:-

3. The plot in question (W-83) abuts plot No. W-81 & both are open land with no super-structure on them plot No. W-83 is corner plot. Both the plots, put together, are fenced by common barbed wire on three sides, the fourth side being the boundary wall of a built up property adjoining plot No. W-81. There is no demarcation of plots No. W-81 & W-83. On the said plots two sign boards, reading:

"PRIVATE PROPERTY, RAICO PRIVATE LIMITED NO TRESPASSING"

were found. One of these boards seemed to be on plot No. W-81 and the other one, facing the main road leading to Tara Apartments, was on plot No. W-83 on the plot in question (W-83) some weeds and wild grass could be seen on the major portion of it.

8. It is also relevant to note that subsequently an application was filed by the petitioner being CM No. 1558/97, praying for direction to the respondents to consider the application of the petitioner dated 6/9/1995 for grant of exemption under Section 20 of the Act on payment of Shelter Fund without insisting on withdrawal of the present writ petition. A direction was issued to the respondents to decide the application of the petitioner in accordance with law. This order dated 7/5/1997 also refers to the communication dated 12/7/1996 of the respondents to the following effect.

"To

Ms. Vinita Chandra

M/s.Raico Pvt. Ltd.

Udyog Mandir Compound

7/C, Bhagoji Keer Marg

Mahim

Bombay -- 400 016

SUB: Regarding grant of exemption under Section 20 of ULCR Act, 1976 in respect of plot No. W-81 & W-83, Greater Kailash, New Delhi.

Madam,

With reference to your application on the above cited subject, I am directed to say that your case for grant of exemption under Section 20 of ULCR Act, 1976 can only be considered once the court case is withdrawn, stay vacated and peaceful possession of the plot acquired under Section 10 is handed over by you to the Department."

9. Learned Counsel for the petitioner, thus, submits that not only the Local Commissioner finds that both the adjacent plots of the petitioner had been bounded but the own stand of the respondents in the communication dated 12/7/1996 is that the application of the petitioner can be considered after withdrawal of proceedings and "peaceful possession of the plot acquired under Section 10 is handed over by you to the Department".

10. On perusal of Annexure-R1 to CM No. 1024/87, and Annexure-R4 to the counter affidavit being the same document it shows that this site plan duly signed was the sole documents relied upon to show that the possession has been taken over on 20/1/1987. The said document is signed by the Junior Engineer and the official of PWD Department i take over possession and by Shri K.L. Chugh of Land & Building Department of having handed over the possession. However, the submission in the application that the same was done in the presence of the representatives of the petitioner, is not borne out from the said document. Interestingly, para 6 of the application, as originally typed out, had an averment that the possession was taken over on 20/1/1987 "from the representatives of the petitioner" but the same was scored out. This aspect shows that no possession was taken over from any representatives of the petitioner. The handing over and taking over of possession requires one party to hand over possession and the other to take over possession. The respondent department merely by exchanging documents between themselves, can not hand over and take over possession.

11. In vie of the aforesaid, I am of the considered view that the proceedings under the Act against the petitioner in respect of excess land have abated and thus all the impugned orders stand abated.

12. Needless to say that all interim orders stand vacated.

13. Writ petition stands disposed of. dusty under the signature of the Court Master.