Gaon Sabha vs Sh. Ram Karan And Anr.
2006 Latest Caselaw 886 Del

JUDGMENT

Swatanter Kumar, J.

1. By this judgment we will dispose of the above 8 appeals as a common question of law based on somewhat similar facts arise for consideration of the Court in these appeals. The land of the private respondents in all these appeals was acquired. After acquisition proceedings were completed, the Land Acquisition Collector vide his award No. 1/1993-94 awarded compensation for acquisition of their lands to these private respondents. The claimants own the land in the revenue estate of Village Kakrola. After passing of the award there was dispute between the Gaon Sabha and the private respondents in the present appeals in relation to the extent and entitlement of compensation payable for acquisition of their lands.

2. A reference was made by the Land Acquisition Collector under Sections 30 and 31 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') to the court of competent jurisdiction. The Reference Court vide its judgment and order dated 1.12.1998 directed that the entire compensation involved in respect of particular khasra numbers [for example - in the case of Ram Karan, Khasra No. 92/23 (4-12)] to be paid to Sh. Ram Karan being the bhumidaar of the land. Against the said judgment, the Gaon Sabha filed the above Regular First Appeals under Section 54 of the Act.

3. When these appeals came up for hearing before the Division Bench on 7.4.2005, the Court passed the following order:

07.04.2005

Present : Mr. S.S. Dalal, Advocate, for the appellant.

RFA Nos. 182 to 187/1999, 178/1999 and 190/1999

In this group of matters the appeals are filed under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') in a reference under Section 30/31 of the Act. On behalf of the revenue, it is submitted that after the acquisition proceedings, the Sub-Divisional Magistrate or the Revenue Officer had no jurisdiction to pass any order, yet on 12.12.1993 the Sub-Divisional Magistrate passed the order declaring respondents as Bhoomidars. These orders are impugned in the appeals before the Appellate Authority. It is stated that still the appeals are pending. We do not know whether it was brought to the notice of Sub-Divisional Magistrate or Revenue Assistant about the acquisition proceedings.

The Appellate Authority is directed to dispose of the appeals before the next date of hearing and the Appellate Authority order be placed on record. The appellant to approach the Appellate Authority immediately.

List for directions on 26th May, 2005.

Direct service (dusty) on usual payment.

4. Despite the above orders neither the appeals were disposed of nor any status report was filed in this Court. The Division Bench further vide its order dated 28.7.2005 expressed its annoyance on the manner in which the appeals were being prosecuted as well as the fact that the appeals had not been disposed of. Consequently, the Director (Panchayat) as well as the appellate authority were directed to inform the court regarding the status of the above appeals. Seeing the attitude of the appellate authority as well as the Director (Panchayat) in not disposing of the appeals as well as not pursuing the appeals before the High Court, particularly as in some of them, the respondents had died and the Legal Representatives of those respondents had not been brought on record for a considerable time, the court vide its order dated 26.4.2006 directed presence of both the officers in court and passed over the matter. They were heard by the court on the same date and the court found no justification in the excuses given by those officers and directed the appeals to be disposed of expeditiously, and the case was adjourned. However, by the adjourned date, the appeals were disposed of expeditiously, and in fact, within two days. The appellate authority vide its order dated 2.5.2006 allowed the appeals filed by the Gaon Sabha and in fact passed an order directing ejection of the respondents from the allotted lands.

5. In the present appeals, the Gaon Sabha, has raised challenge to the order of the learned Additional District Judge on the ground that the order is neither based upon proper appreciation of evidence nor takes notice of the legal position, as the private respondents in these appeals were not 'bhumidaars' or even 'assami'. On the other hand, the learned Counsel appearing for the private respondents while relying upon different judgments contended that the order is in consonance with the principles of law and does not call for any interference.

6. In the impugned order the learned Reference Court noticed the testimony of Sh. Ram Karan and the copies of khasra girdawaris Ex.IPW1/1 to Ex.IPW1/13. It also relied upon the statement of IPW2, Sh. R.K. Sharma, Patwari, who had deposed that during the year 1993 when he was posted in Village Kakrola, Sh. Ram Karan was in physical and cultivatory possession of the land and he had found his crops standing. Before concluding its order and granting relief to the private respondents, the reference court recorded the following noticeable findings:

11. This witness even went to the extent of saying that due to instructions of ADM (revenue) not to enter the possession of the Assami on the Gaon Sabha land, the possession of IP No. 1 has not been recorded in the revenue records.

12. A perusal of the record shows that in the khatauni the name of the Gaon Sabha has been shown as Bhumidaar while that of the IP No. 1 has been shown as Assami but while going through the judgment dated 2.12.1993 it is seen that the SDM Punjabi Bagh/Revenue Assistant Najafgarh Block has declared the IP No. 1 as Bhumidaar, in view of the provisions of Section 74(4) of the Delhi Land Reforms Act. It is worth mentioning at this stage that at the time of initiation of the said proceedings the land was not acquired and therefore the court of Revenue Assistant was competent to pass the order thus accepting an Assami as Bhumidaar.

13. Perusal of the khasra girdhawaries shows that the possession of the IP No. 1 has been reflected therein ever since the date of induction as Assami in the land by the Gaon Sabha.

16. As regards, the evidence of Gaon Sabha, Ex.G-1 is the copy of the Aks Shijra produced on record but the same is not disputed by either party because it only shows location of the land while Ex.G-2 is the copy of the khatauni showing ownership of the land in the year 1981-82 while Ex.G-3 is the copy of the khasra girdhwari for the year 1997-98 showing the Government as the owner of the land. These documents do not appear to be ;of any help to the Gaon Sabha because admittedly in the year 1981-82 Gaon Sabha was the bhumidaar though the IP was only the Assami while in the year 1997-98 the land was in possession of the Govt., since it had been acquired by the Government vide award No. 1/1993-94. These documents in my view do not come to the help f the Gaon Sabha in any manner.

17. In view of Sub-section 4 of Section 74 of the Delhi Lands Reforms Act since the Assami-IP No. 1 has developed and reclaimed the land within a period of five years (as provided under the Act) and made it fit for cultivation and had been cultivating the same as is evident from the copies of khasra girdawaris placed on record, the said Assami Sh. Ram Karan-IP NO.-1 in my view is entitled to be accepted as Bhumidar.

7. As is clear from the above recorded findings, the Gaon Sabha in fact, failed to lead any cogent and proper evidence before the Reference Court to prove its right over the lands in question. Besides that the Reference Court had heavily relied upon the order/judgment dated 2.12.1993 passed by the SDM, Punjabi Bagh, wherein Sh. Ram Karan was declared as 'bhumidaar' under the provisions of Section 74(4) of the Delhi Land Reforms Act. As we have already noticed, this judgment and order of the SDM, Punjabi Bagh, was set aside. While setting aside this order, the appellate authority has even gone to the extent of holding that 'the contention of the counsel for the respondents that respondents were 'assamis' is not valid because the respondents have never been recorded as 'assamis' in Column No. 4 of P4 i.e. Khasra girdawari.

8. In the present appeals, we are really not concerned with the merits or otherwise of this order, as the private respondents have a remedy under the provisions of the Act to file an appeal before the Financial Commissioner. However, to the extent it is necessary for us to comment upon determination of the controversy arising in the present appeals, we would have to make certain observations about this order, but the same should no way effect the application of mind by the appellate authority, in the event the respondents prefer an appeal against the order dated 2.5.2006.

9. Even before the Land Acquisition Collector, it was not the case of the Gaon Sabha that the claimants (i.e. Sh. Ram Karan in RFA No. 178/1999) was not an 'Assami'. The dispute, though relating to apportionment of compensation was revolving around the dispute whether these private respondents were entitled to entire compensation or part thereof. The private respondents were claiming to be recorded 'bhumidaars' of the land in question and thus, entitled to the entire compensation, while according to the Gaon Sabha they were only allottees of the land; the lands had been allotted to them under the 20-Point Programme by the Gaon Sabha and as such they were entitled to receive only the compensation payable to an 'assami' being in cultivatory possession of the land. Even in the order under appeal before us the whole case of the Gaon Sabha is that the private respondents in these appeals are not entitled to the entire amount of compensation as they were not the owners/bhumidars of the land. They had prayed for setting aside only that part of the order. In fact, in the memorandum of appeal filed by the Gaon Sabha it was stated that the private respondents were allotted lands under the 20-point programme by the Gaon Sabha for the purpose of reclamation and cultivation. In face of this admitted case of the parties, the observations made by the appellate authority in its order dated 2.5.2006 would be hardly of any consequence; much less can they disturb the findings recorded by the learned Reference Court in the judgment under appeal.

10. The learned Counsel appearing for the private respondents while relying upon the judgment of the Supreme Court in Fateh Singh and Anr. v. Sewa Ram and Ors and a Division Bench of this Court in the case of Sri Chand v. Land Acquisition Collector and Anr. 2005 (4) AD Delhi 401 argued that the respondents were in cultivatory possession at the relevant time and having possessed the land in that capacity for the requisite periods, they were entitled to be recorded as 'bhumidaars' which they were recorded as confirmed by the order dated 2.12.1993 and as such the entire compensation should be paid to them and they cannot be evicted from the lands. On the contrary, they would be entitled to the entire compensation and the order of the authorities is factual and, in fact, in law. During the course of hearing, the records were produced before us. Even as per the records of the respondents, in the khasra girdawaris the private respondents have been shown in cultivatory possession being the 'assamis' under the Gaon Sabha. In the khasra girdawari for the year 1977-78, 1978-79 even up to 1982-83, Sh.Ram Karan has been shown to be the person in possession of the land, though under Column No. 4 name of the Gaon Sabha is reflected. These documents were produced as Ex.IPW1/1 and IPW1/13 before the Reference Court. Truly name of Sh. Ram Karan has not been shown in Column No. 4 but at the same time on the very document relied upon by the parties, name of Sh. Ram Karan has been shown as a person to be in possession of the land and in the Khasra Girdawari for the year 1978-79, it was recorded that crops of Tomato and Bottle Gourd (ghiya) were grown in the entire land measuring about 4 bighas 16 biswas. In face of these documents which are not only admissible in evidence, but have a rebuttable presumption of correctness attached to them, under no circumstances can it be said that the private respondent, Sh. Ram Karan, was neither in possession of the land nor can it be said that he was not 'assami' of the land in question. Since the learned Reference Court has heavily relied upon the order dated 2.12.1993 which has been set aside by order dated 2.5.2006 of the appellate authority, we would not prefer to disturb that order in the present appeal as it is not a subject matter of the proceedings before this Court.

11. On the basis of the evidence produced before the Reference Court and in view of the admitted case of the parties, we are of the considered view that it cannot be said that private respondents are not 'assamis'. They, in any event, would be entitled to receive the compensation payable to them in that capacity. In fact, there is material before us to show that they were legally and lawfully declared as 'bhumidaars' but the order dated 2.5.2006 has casted a cloud on their status and the earlier order which has been set aside by this order, so relied upon by the learned Reference Court. Therefore, we would make a further conditional order that in the event the order dated 2.5.2006 is set aside by the appellate court and the appellants are held to be bhumidars in that event they would also be entitled to receive the compensation in terms of the order under appeal. The private respondents have been given the copies of the order dated 2.5.2006 in court as such if they file appeals against the said order, the Financial Commissioner shall ensure that the appeals are decided within three months from the date they are filed before him. In the event no appeals are filed the appellants would be entitled to receive only the compensation payable to them as recorded assamis. The order dated 2.5.2006 has been passed by the authorities while exercising their statutory power under the special Act i.e. The Delhi Land Reforms Act and the proceedings invoked by the parties culminating in the impugned order have been initiated under the provisions of Sections 30 and 31 of the Land Acquisition Act. Both are different and independent Acts as such, as already stated, we would not prefer to deal with the order dated 2.5.2006 in the present appeals.

12. Accordingly, all the above appeals are disposed of in the above terms, while leaving the parties to bear their own costs.