Delhi High Court
Gaon Sabha Kakrola vs Sarbati & Anr. on 28 August, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LA.APP. 98/2007
GAON SABHA KAKROLA ..... Appellant
Through: Mr.Rakesh Tiku with
Ms. Aruna Tiku, Advocates
versus
SARBATI & ANR. ..... Respondents
Through: Mr.B.D. Sharma and
Mr.M.P. Siddiqui, Advocates for
respondent No.1.
Mr.Sanjay Poddar, Adv.
for respondent No.2.
+ LA.APP. 99/2007
GAON SABHA KAKROLA ..... Appellant
Through: Mr.Rakesh Tiku with
Ms. Aruna Tiku, Advocates
versus
MANGE RAM & ANR. ..... Respondents
Through: Mr.B.D. Sharma and
Mr.M.P. Siddiqui, Advocates for
respondent No.1.
Mr.Sanjay Poddar, Adv.
for respondent No.2.
+ LA.APP. 102/2007
GAON SABHA KAKROLA ..... Appellant
Through: Mr.Rakesh Tiku with
Ms. Aruna Tiku, Advocates
versus
FATEH SINGH & ANR. ..... Respondents
Through: Mr.B.D. Sharma and
Mr.M.P. Siddiqui, Advocates for
respondent No.1.
Page 1 of 13
Mr.Sanjay Poddar, Adv.
for respondent No.2.
DATE OF DECISION
% 28.08.2008
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. At the outset, learned counsel for the appellant
states that inadvertently Union of India was not impleaded as
a proforma respondent.
2. At an oral application filed, Union of India is
impleaded as respondent No.2. Amended memo of parties
filed is taken on record.
3. Issue notice to Union of India. Mr.Sanjay Poddar,
Advocate who is present in person has been requested to
accept notice for Union of India. Counsel accepts notice for
Union of India.
LA.APP No.98,99 and 102 of 2007
1. Heard learned counsel for the parties. The appeals
are being disposed of with consent of parties without awaiting
the Trial Court record.
2. For purpose of the disposal of the above appeals,
learned counsel for the parties state that the narration of facts
and conclusions drawn there from by the learned Reference
Court may be treated as correct and binding between the
parties.
3. A simple issue arises for consideration. Whether,
on the admitted facts, compensation apportioned between the
Gaon Sabha of village Kakrola and the first respondent(s) in
the ratio of 25% : 75% is correct.
4. All the appeals relate to land comprised in the
revenue estate of village Kakrola. The lands in village Kakrola
were acquired under the Land Acquisition Act, 1894. When
acquisition took place, disputes were pending between Gaon
Sabha of village Kakrola and the respondent(s) No.1 as also a
few other persons who are not before us today.
5. Disputes related to a claim of the respondent(s)
No.1 (originally filed before the Revenue Assistant) for being
declared Bhumidar of certain lands which were acquired. The
respondent(s) No.1 claimed, that in the year 1976, under the
20 Point Programme of the Government of India, that
uncultivated land belonging to the Gaon Sabha of village
Kakrola was allotted to them to be reclaimed and that having
reclaimed the land, they had initiated action under Section
74(4) of the Delhi Land Reforms Act, 1954 to be declared
Bhumidhar of the land. So stating, it was claimed by these
persons that if they were declared to be the Bhumidhar of the
land, entire compensation pertaining to the acquired lands
would fall to their share. Per contra, the stand of the Gaon
Sabha was that none of the respondent(s) No.1 were declared
a Bhumidhar of the land and that the Gaon Sabha continued
to be recorded as the Bhumidhar thereof and hence would be
entitled to a major share of the compensation.
6. At this stage, it would be relevant to note that with
a view to abolish the Zamindari system in Delhi, the Delhi
Reforms Act 1954 was promulgated on 24.7.1954. Not only
was the Zamindari system abolished but a system of tenure
holding was brought into force intending to vest hereditary
rights in the tiller of the land.
7. 2 kinds of tenure in holdings were recognized by
the Act. The first was a Bhumidhari right and the second was
an Asami right. Section 4 of the Delhi Land Reforms Act 1954
so stipulates.
8. Who would be entitled to be declared a Bhumidhar
and who would be entitled to be declared an Asami when
Delhi Land Reforms Act, 1954 was promulgated finds mention
in Section 5 and Section 6 respectively of the said Act.
9. The rights of a Bhumidhar and Asami stand listed
under Sections 22 to 47 of the Delhi Land Reforms Act, 1954.
10. Suffice would it be to record that there is a
difference in the right of a Bhumidhar and the right of an
Asami. Three essential attributes attach to the rights of a
Bhumidhar; being (1) permanency of tenure; (2) hereditary
character of the tenure; and (3) transferability of the tenure.
As against that, an Asami gets a lesser right. Permanency of
an Asami relates to the term of the grant (patta). It is a non-
transferable right. The right is hereditary but only for the
remainder of the period of the grant (patta) on the death of
the Asami. Reference may be made to Section 32 and Section
68 of the Delhi Land Reforms Act, 1954 to ascertain the rights
of an Asami.
11. Reverting to the facts of the instant appeals,
admitted position is that the claims of the respondent(s) No.1
for being declared Bhumidhar required adjudication under
Section 74(4) of the Delhi Land Reforms Act. Necessarily, in
terms of the mandate of Section 74(4) of the said Act the
respondent(s) No.1 had to prove their entitlement for being
declared a bhumidhar after leading evidence. Similarly, the
Gaon Sabha had a right to lead evidence to rebut the
evidence led by the respondent(s) No.1. Sub-sections (1) and
(4) of Section 74 of the Delhi Land Reforms Act 1954 read as
under:-
"74. Admission to land mentioned in sub-
clause (iii) of clause (a) of section 6 or to
waste land for reclamation - (1) The Gaon
Sabha shall have the right to admit any person
as Asami to any land falling in any of the classes
mentioned in sub-clause (iii) of clause (a) of
section 6 where-
(a) the land is vacant land,
(b) the land is vested in the Gaon Sabha,
or
(c) the land has come into the possession
of the Gaon Sabha under Section 72 or
under any other provisions of this Act.
(2) .................
(3) .................
(4) At the end of five years, the Gaon Sabha
shall report to the Revenue Assistant the extent
to which reclamation has been made. The
Revenue Assistant shall, after necessary enquiry
and after hearing the Asami, either order the
termination of the lease and his ejectment if
there has been no reclamation or extend his
lease for another period of two years. If,
however, the land has been duly reclaimed
during the period of five years or the extended
period, the Revenue Assistant shall direct the
Gaon Sabha to admit the Asami as Bhumidhar
under Section 73. The Asami on his admission as
Bhumidhar shall be liable to pay such land
revenue as shall be equal to 50 per cent of the
rent calculated at the prevailing village rate of
rent together with cesses and local rates, but he
shall not be liable to pay any compensation."
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.
13. What fell to the lap of the Reference Court under Section
30/31 of the Land Acquisition Act, 1894 was the issue of
apportionment of the compensation which necessarily had to
be decided on the claims at the stage when the land got
acquired, requiring the Reference Court to determine the
apportionment of the compensation.
14. Various factors are incorporated in a decision relatable
to apportionment of compensation. We do not intend to list
the same as they are incapable of being put in a strait-jacket.
15. Suffice would it be to note that as a bhumidar of a land,
when Gaon Sabha admits a person as an Asami under Section
74(1) of the Delhi Land Reforms Act 1954, the tenure of Asami
is 5 years requiring land to be reclaimed within said 5 years
and reclamation proved as a condition for conferring
bhumidari right in the Asami with simultaneous
extinguishment of the bhumidari right of the Gaon Sabha.
Needless to state if the Gaon Sabha succeeds in proving that
the land was not reclaimed, the right of the Asami lapses and
possession reverts to the Gaon Sabha.
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.
17. Noting a decision of the Hon‟ble Supreme Court reported
as 1994 (V) SCC 239 Inder Prasad Vs. UOI, the learned
Reference Court has apportioned compensation in the ratio of
25% : 75% between Gaon Sabha and the respondent(s) No.1.
18. The decision in Inder Prasad's case (supra) related to
apportionment of compensation between the Union of India as
a lessor and Inder Prasad as a perpetual lessee.
19. The decision in Inder Prasad's case (supra) has, in our
opinion, been wrongly applied by the learned Reference Court
for the reason in said case the rights of the parties were
crystallized as a lessor and a perpetual lessee. Apportionment
related to the lessor losing title and hence the right to receive
the rent as per the lease. The perpetual lessee lost possessory
rights. In said situation, apportionment had obviously to be
factored on capitalization of the rent which the lessor lost and
same to be paid over to the lessor from out of the
compensation determined and the remainder to be paid to the
perpetual lessee.
20. On the issue at hand, we are guided and instructed by a
decision of a co-ordinate bench of this Court reported as 117
(2005) DLT 588 (DB) Moti Lal Jain Vs. Mukhtiar Singh.
21. In Moti Lal Jain's case (supra) the Division Bench of this
Court was considering the issue of apportionment between a
Bhumidhar and a non-occupancy tenant under the Punjab
Land Revenue Act, 1887 whose claim for being declared an
occupancy tenant was pending when the subject land of the
said case was acquired.
22. The Division Bench held that the apportionment had to
be in the ratio of 40% : 60% between the owner and the non-
occupancy tenant claiming right to be declared as an
occupancy tenant.
23. The similarity between interest of an Asami and an
occupancy tenant may be noted with reference to the
provisions of Punjab Tenancy Act 1957. The non-occupancy
tenant who gets a declaration of being an occupancy tenant
gets a right enumerated under Section 5 of the Punjab
Tenancy Act 1887 i.e. a right to hold the land for a certain
fixed duration. The right is non-transferable. It is inheritable.
As noted in para 10 above, these 3 features are the features
of a right in an Asami.
24. We may note a prior decision of a Division Bench of this
Court reported as ILR 1977 (2) Delhi 687 Hanuman Perashad
etc. Vs Chuni @ Chuni Lal & Ors. In para 10 to 14, following
was observed.
„‟10. The property rights in land are a bundle of rights
to use, sell, mortgage and exploit the land. When
agricultural land is given to a tenant the owner gives
to the tenant the right to exploit the land and use the
land. The owner may reserve unto himself the
minerals under the land, if permissible under the law,
and retains unto himself the right to sell or mortgage
the land. If the owner exercises the right of sale or
mortgage he would exercise that right subject to the
right of the tenant to exploit or use the land. The
purchaser or mortgagee in such a case would then
step into the shoes of the owner and in his turn would
only have such rights as are available to him minus
the rights of the tenant. To our mind unless income is
derived from the land, mere satisfaction of owning
the land is the only other right which the owner has
and it is difficult to translate that right in terms of
money. All the same it is a valuable right.
11. In case of statutory tenant or non-occupancy
tenant the owner also has the right of reversion
available to him as the right to use the land reverts to
him on the eviction of the tenant or on the tenancy
coming to an end. In the case of statutory tenancy
such right of reversion stands postponed to at least
the life-time of the statutory tenant or unless one of
the contingencies mentioned in clauses (a) to (d) of
Section 3(1) occur. As far as apportionment of
compensation between occupancy tenants and land-
owners is concerned, the ratio adopted by judicial
decisions is to give to the tenant from 36 per cent to
80 per cent and the balance to the owner. We have
already observed that the rights of the statutory
tenant are somewhat less than an occupancy tenant.
Therefore, in our view depending upon the
circumstances of a case, compensation awarded may
even be apportioned half and half.
12. It was urged that a ratio could be worked out
between the income of the land to the owner from the
tenant, namely, the Malikana or the rent and the
income of the tenant. In our opinion, this will not be a
safe guide because sometimes the Malikana is very
much less in old tenancies and in these days of
scientific cultivation the produce of land may fetch
much more than the rent that has been agreed upon
between the owner and the tenant. Capitalisation of
the rent received by an owner may be one of the ways
of fixing the compensation to be paid for acquisition
and in determining the market value of the land but
that does not help in apportionment of compensation
or market value determined by the Land Acquisition
Collector or enhancement awarded by the District
Judge or the High Court. What is to be found out is the
value of the tenancy rights.
13. In the present case Shri Chuni and before him his
mother and before that his father have been non-
occupancy tenants of the land in question and have
been cultivating it. It is established on the record that
this family had been cultivating this land since 1934-
35. Had the acquisition taken place after the lifetime
of Shri Chuni when his son was cultivating the land,
that son would have had the same rights as
occupancy tenant within the meaning of Section 3 of
the Punjab Tenancy Act. The land had been in
cultivating possession of Shri Chuni‟s family for
almost 30 years when it was notified for acquisition. A
cultivator gets attached to his land, and particularly
when he has been in cultivating possession of it for
such a long time. Furthermore the tenure of Shri
Chuni stood protected by virtue of the Delhi Urban
Areas (Tenant Relief) Act,1961 and but for the
intervention of the notification acquiring the land he
may well have continued to cultivate it all through his
life. Shri Hanuman Pershad and his sons were getting
a return of only Rs.25 per year as rent from Shri
Chuni and no evidence was led by Shri Hanuman
Pershad etc regarding their intention to exercise any
other ownership rights than that of receiving rent.
14. Keeping in view the rights of the tiller of the soil,
which are now protected, and the rights of the owner-
landlord which in the case of a statutory tenant are
considerably restricted, the tenant in apportionment
proceedings would be entitled to a major portion of
the compensation determined by the Land Acquisition
Collector. As has been observed by us earlier,
occupancy tenant has been awarded as much as 80
per cent of the compensation in apportionment
proceedings. Having held that the right of a statutory
tenant is somewhat less than that of an occupancy
tenant, a fair estimate of share in the compensation
for a statutory tenant would be 65 per cent.‟‟
25. The decision in Hanuman Prasad's case (supra) also
follows a principle which was followed by a Division Bench in
Moti Lal Jain's case (supra) and brings out additional jural
reasons for apportionment.
26. We dispose of the appeals modifying the apportionment
effected vide impugned orders dated 15.11.2006 in LAC
No.13/02, LAC No.14/02 and LAC No.17/02 by directing that
the compensation determined on acquisition of the subject
land would be apportioned in the ratio 40% : 60% in favour of
the Gaon Sabha and the respondent(s) No.1 respectively in
each case.
27. There shall be no order as to costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
AUGUST 28, 2008
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