Gulshan vs Government Of Nct Of Delhi
2008 Latest Caselaw 52 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the judgment and order dated 10th September, 2007 passed by the learned Single Judge whereby the learned Single Judge dismissed the writ petition filed by the appellant herein.

2. The appellant herein alleged that he was in possession of the land bearing khasra No. 436 (4-16), 446 (4-16) and 445 (4016), situated in the revenue estate of Village Bhalaswa Jahangirpur, Delhi to the extent of one and half share in the said khasra numbers. The said land was notified for acquisition on 15th September, 2000. Declaration under Sections 6 and 17 of the Land Acquisition Act was issued on 17th April, 2001 and the award was made on 12th April, 2002.

3. In July 2002, the appellant along with his brother Shri Yogender filed an application for compensation. On reference from the Land Acquisition Collector for adjudication, the learned Additional District Judge, Delhi by order dated 22nd March 2003, held that, though it is admitted fact that Gaon Sabha is the recorded owner of the land in question, but as the appellant and his brother were in actual, physical and cultivatory possession of land in question continuously for a period of more than 10 years prior to its acquisition, they acquired bhumidari rights under Section 85 of the Delhi Land Reforms Act and are entitled to entire amount of compensation assessed by Land Acquisition Collector i.e. Rs. 61,91,273.49. As stated by the appellant before the learned Single Judge and also before us the appellant has received the said amount in proportion to his entitlement.

4. Subsequently, on 30th July 2003, appellant also applied for allotment of an alternative plot under the Scheme of Large Scale Acquisition, Development and Disposal of Land in Delhi, 1961, in lieu of acquisition of his land. By letter/order dated 20th September, 2005 it was informed to the appellant that his request for allotment of alternative plot was rejected as he does not fulfilll the preliminary eligibility condition. The said letter is reproduced below for reference:

To

Shri Gulshan,

S/o Shri Surinder Singh, R/o House No. 82, Village Bhulswa Jahangirpur, Delhi-33

Sub: Allotment of alternative plot under the Scheme of Large Scale Acquisition, Development and Disposal of land in Delhi, 1961

Sir,

With reference to your application dated 30.07.2003, on the subject cited above, I am directed to inform you that under the policy of the department for allotment of alternative plots as a preliminary eligibility condition the applicant is required to the recorded owner of the acquired alnd(land) prior to the date of notification Under Section 4 of LA Act. In you(your) case, notification Under Section 4 of La Act was issued on 15.09.2000.

Your case was therefore considered by the allotment committee of the department and rejected on the ground that the applicant was not found to be recorded owner of the land prior to the date of notification Under Section 4 of LA Act. This issues with the prior approval of the Pr. Secretary (L and B)

Yours faithfully,

Deputy Director (Alt.)

Thus the claim of the appellant was rejected on the ground that prior to 15th September, 2000, the date on which the notification under Section 4 of the Land Acquisition Act was issued, he was not found to be the recorded owner of the land in question.

5. Being aggrieved by the aforesaid position, a writ petition was filed by the appellant. During the pendency of the aforesaid proceeding before the learned Single Judge, the appellant also sought amendment of the writ petition on the ground that the 1961 policy was arbitrary, but no amendment to the prayer clause was sought. The learned Single Judge held that as the acquisition was made in 2000, the present case is not governed by 1961 policy which stood replaced by the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981. The learned Single Judge, while dismissing the writ petition, also referred to the observation made by Full Bench of this Court in Ramanand v. Union of India reported in AIR 1994 Delhi 29, wherein it was held that no land owner has a vested or inherent right to claim allotment alternative land and such entitlement is in terms of policy and rules framed by the executive government or agency.

6. Being aggrieved by the aforesaid order, the present appeal is filed on which we have heard the learned Counsel appearing for the parties and have also perused the records placed before us.

7. It is submitted by the counsel appearing for the appellant that the appellant had acquired bhumidari rights under Section 85 of the Delhi Land Reforms Act. In this connection, counsel appearing for the appellant refers to the order dated 22nd March, 2003 passed by the learned Additional District Judge, Delhi whereby the learned District Judge held that having been in actual, physical and cultivatory possession of the land in question continuously for more than 10 years prior to its acquisition, the appellant and his brother acquired bhumidari rights under Section 85 of the Delhi Land Reforms Act.

8. Having gone through the records we are of the considered opinion that only cultivatory possession was vested with the appellant and, therefore, he did not become an owner. It is pertinent to mention that no petition under Section 85 of Delhi Land Reforms Act, 1954 was filed by the appellant and the issue before the learned Additional District Judge was only with respect to payment of compensation. Also, a Civil Court has no jurisdiction to give a declaration in respect of matters pertaining to revenue records. The appellant was not recorded as a bhumidar in the revenue records on the date when notification under Section 4 of the Land Acquisition Act was issued. No petition was also filed under the Delhi Land Reforms Act for recording name of the appellant as a bhumidar. In this connection reference may be made to the decision of the Supreme Court in Gaon Sabha and Anr. v. Nathi and Ors. reported in 110 (2004) DLT 549 (SC). The Supreme Court in the said decision held as under:

13. Section 185 provides for ouster of the jurisdiction of the civil court and Sub-section (1) thereof reads as under:

Section 185(1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule 1 shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application or proceedings mentioned in column 3 thereof.

Sub-sections (2), (3) and (4) of Section 185 provide for first appeal and second appeal in certain situations and also the forum for preferring such appeals. As discussed earlier the plaintiffs in the suit could not have sought declaration of any kind in their capacity 'as proprietor of the land' as the said concept of proprietorship stood abolished after the enforcement of the Act. They could only seek a declaration of their rights as Bhumidhar or Asami which they could do only in one of the courts mentioned in column 7 of the Schedule to the Act and not in the civil court. This position was also clearly stated in Hatti v. Sundar Singh , and relevant part of para 7 of the report is being reproduced below:

...The Act is a complete Code under which it is clear that any one, wanting a declaration of his right as a Bhumidhar, or aggrieved by a declaration issued without notice to him in favor of another, can approach the Revenue Assistant under Item 4 of the First Schedule and this he is allowed to do without any period of limitation, because he may not be aware of the fact that a declaration has been issued in respect of his holding in favor of another. A declaration by a Gaon Sabha of the right of any person can also be sought without any period of limitation. If there is dispute as to possession of agricultural land, the remedy has to be sought under Section 84, read with Item 19 of the First Schedule. All the reliefs claimed by the respondent in the present suit were, thus, within the competent jurisdiction of the Revenue Assistant, and the Civil Court had no jurisdiction to entertain the suit.

14. ...

15. The legal position is, therefore, absolutely clear and there cannot be even a slightest doubt that the civil court had no jurisdiction to entertain the suit which was filed Seeking a declaration that the order of vesting of land in Gaon Sabha is illegal. It is indeed surprising that in spite of the aforesaid Division Bench decision of the Delhi High Court which was rendered in 1973 which had settled the legal position and was a binding precedent and the decision of this Court in Hatti v. Sundar Singh (supra), which was also brought to the notice of the learned Single Judge hearing the second appeal (RSA No. 73 of 1972), he chose to bye-pass the same by some queer logic and went on to hold that the civil suit was maintainable. Once we come to the legal position that the civil court had no jurisdiction to entertain the suit, the inevitable consequence is that the decree passed in the aforesaid suit including that of the High Court is wholly without jurisdiction. In such circumstances the principle laid down in Kiran Singh v. Chaman Paswan , would come into play that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings and further a defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. Therefore, the finding that the order passed under Section 7(2) of the Act vesting the property in the Gaon Sabha is illegal recorded in the civil suit (including that by the High Court in second appeal) has to be completely ignored.

9. In this connection reference can also be made to the Division Bench decision of this Court in Jaswant Kaur v. Lt. Governor reported in 1997 (40) DRJ (DB) 703. In the said case the Division Bench of this Court referring to the decision of Supreme Court in the case of Union of India v. Shri Shiv Kumar Bhargava and Ors. held that any person who is 'owner' of the acquired land on the date of issuance of notification under Section 4 of the Land Acquisition Act shall alone will be entitled to allotment of an alternative site and the only right vested in favor of transferee subsequent to the said notification is the right to claim compensation and the same will not entitle the subsequent transferee to claim allotment of alternative plot.

10. Therefore, when it is established that the appellant was not the recorded owner of the land in question on the date of issuance of notification under Section 4 of the Land Acquisition Act, he cannot apply for the allotment of alternative plot of land. We, therefore, hold that the learned Single Judge rightly dismissed the writ petition. We find no merit in this appeal, which is dismissed.

11. We make it clear that the aforesaid decision will not be applicable to the cases where the suits under Section 85 of the Delhi Land Reforms Act, 1954 were pending at the time of issuance of notification under Section 4 of the Land Acquisition Act.