Shri Raj Singh And Another vs Union Of India And Another
2008 Latest Caselaw 1999 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                      + L.A. APPEAL No.55-56/2006

                                            Date of Hearing: 24.10.2008
                                            Date of Decision: 14.11.2008

#Shri. Raj Singh and Another        .....Appellants
!                                   Through: Mr.Rishikesh with
                                    Mr. Rajeev Dewan

                  Versus

$Union of India and Another         .....Respondents

                                  Through Mr.Sanjay Poddar for the UOI
                                  Ms.Manpreet Kaur for Gaon Sabha.

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE MANMOHAN SINGH

      1.Whether Reporters of Local papers may be allowed to
        see the Judgment?
      2.To be referred to the Reporter or not?
      3.Whether the judgment should be reported in the Digest?

A.K. SIKRI, J.

:

1. In what proportion the compensation payable on acquisition of land is

to be distributed between Bhumidhar/Asami on the one hand and

Gaon Sabha, recorded owner of the land, on the other hand, is the

question that has arisen for consideration in this appeal. Before we

proceed to discuss the prevailing law and decide this question, we

would like to take note of the relevant facts.

2. Vide notification dated 27.1.1984 under Section 4 of the Land

Acquisition Act (hereinafter referred to the 'Act') followed by

declaration dated 18.9.1984 under Section 6 of the said Act, land

measuring 1156 bigha, which included the land, subject matter of this

appeal, was acquired. The land in question comprises in Khasra

No.64/1 measuring 1 bigha 11 biswas situate in revenue estate of

village Sahupur, Delhi, the LAC determined the market value at

Rs.32,355/-.

3. Recorded owner of the land was Gaon Sabha. Before this money could

be released to the Gaon Sabha, the two appellants herein raised

objections for releasing the said compensation to the Gaon Sabha and

sought reference under Section 31 of the Act on the ground that they

were the Bhumidhars and therefore, were entitled to 75% share in the

said compensation and only 25% was payable to Gaon Sabha. The case

pleaded by them was that they were in actual physical and cultivatory

possession of the land in dispute, which was recorded in the revenue

record with effect from 1982. They also pleaded that being in

cultivatory possession, their rights as Bhumidhar had matured as Gaon

Sabha failed to initiate any proceedings for their ejectment from the

suit land within the statutory period of three years. The Gaon Sabha,

on the other hand, maintained that since it was the recorded

Bhumidhar/land owner of the land in question and in the absence of

any claim either for declaration of Bhumidhar's rights or correction of

Khasra Girdawari preferred by the appellants, only Gaon Sabha was

entitled to the entire compensation.

4. The learned ADJ vide his orders dated 5.10.2005 has held that the

appellants are entitled to 60% of compensation and Gaon Sabha would

receive 40% of compensation. While holding so, the learned ADJ has

relied upon the judgment of the Division Bench of this Court in Moti Lal

Jain v. Mukhtiar Singh, 117 (2005) DLT 538. Since the appellants claim

75% of the compensation, they have preferred these appeals.

5. Learned counsel for the appellants submitted that that the ratio of

Moti Lal (supra) was not correctly appreciated by the learned ADJ. He

referred to the judgment of this Court in Ratan Singh v. Union of India

and Ors., 1993 (26) DRJ 577 and particularly, para 16 thereof as per

which, the appellants would be entitled to 75% share in the

compensation. He also referred to a recent judgment of the Division

Bench of this Court in Rama Shankar and Another v. Mukhtiare and

Another, 2007 (98) DRJ 517 wherein the view was taken that

Bhumidhar would, in fact, get the entire compensation and Gaon

Sabha was not entitled to any share therein. His submission was that

since the appellants had claimed only 75% share, they would stick to

the same and would not raise the demand of appropriating entire

compensation.

6. Mr. Poddar, learned counsel for the respondent, on the other hand,

argued that the judgment of Moti Lal Jain (surpa) had been discussed

by the Division Bench of this Court in LA App. No.102/2007 entitled

Gaon Sabha, Kakrola v. Fateh Singh and this judgment rendered on

28.8.2008 reiterated the principle stated in Moti Lal Jain (supra)

holding that apportionment of the compensation had to be in the ratio

of 40:60 between the Gaon Sabha and such person like the appellants.

7. We have gone through these judgments. It is not in doubt that in

Ratan Singh v. Union of India (supra) the Division Bench had held that

the compensation is to be apportioned in the ratio of 25:75 between

the Gaon Sabha and the recorded owner whereas in Moti Lal Jain

(supra) the ratio determined is 40:60. However, there is no

contradiction in the opinions rendered in the two judgments. A proper

peep into the issues involved in those cases would bring out the

harmony between the two views.

8. It is not in dispute that the question of apportionment, which had

arisen in 93(DRJ) 577 (supra) was between Bhumidhar and Gaon

Sabha. The Court found that where a person other than recorded

owner was in actual cultivatory possession and declared as Bhumidhar

and had acquired that status, which was recorded in the revenue

records, he would be entitled to 75% of the compensation and Gaon

Sabha would be given 25% of the compensation awarded. On the

other hand, judgment in the case of Moti Lal Jain (supra) would

demonstrate that in those cases where Bhumidari rights of the person

in cultivatory possession had not been determined, or he was only

holding Asami right, he shall be entitled to only 60% of the

compensation and remaining 40% would be given to Gaon Sabha.

9. The legal position as contained in Delhi Land Reforms Act, 1954, in this

behalf, is doubtless. There are two kinds of tenure in holdings, which

were recognized by the Delhi Land Reforms Act (hereinafter referred to

as the 'Act'). This Act was passed with a view to abolish the Zamidari

system in Delhi and came into effect from 24.7.1954. Zamidari system

was abolished. It was substituted by system of tenure holding, which

was brought into force intending to vest hereditary rights in the tiller of

the land. These tenures, as prescribed under the Act, are of two kinds.

The first was Bhumidari right and the second was Asami right as per

provisions of Section 4 of the Act. Section 5 of the Act stipulates as to

who would be entitled to be declared as a Bhumidhar. Section 6 deals

with Asami rights. These provisions read as under:-

"5. Bhumidhar.--Every person belonging to any of the following classes shall be a Bhumidhar and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhar by or under this Act, namely:-

(a) a proprietor holding sir or khudkasht land ****+ a proprietor's grove holder, an occupancy tenant under section 5 of the

Punjab Tenancy Act, 1887, paying rent at revenue rates or a person holding land under Pata Dawami, [or Istamrari] with rights of transfer by sale, who are declared Bhumidhars on the commencement of this Act;

(b) every class of tenants other than those referred to in clause (a) and sub-tenants who are declared Bhumidhars on the commencement of this Act; OR

(c) every person who, after the commencement of this Act, is admitted to land as Bhumidhar or who acquires Bhumidhari rights under any provisions of this Act.

6. Asami.--Every person belonging to any of the following classes shall be an Asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon an Asami by or under this Act, namely:-

(a) every person who, in the agricultural year immediately before the commencement of this Act, occupied or held land--

(i) as a non-occupancy tenant of proprietor's grove;

(ii) as a sub-tenant of tenant's grove;

(iii) as a non-occupancy tenant of pasture land, or of land covered by water and used for the purpose of growing singhara and other produce or land in the bed of a river and used for casual or occasional cultivation;

(b) every person who, in accordance with the provisions of [section 36, or section 65A],

becomes a lessee of land comprised in the tenure of a Bhumidhar referred to in that section;

(c) every person who is admitted as a lessee of land referred to in sub-clause (iii) of clause (a) by the Gaon Sabha or a person authorized to do so under the provisions of this Act;

(d) every person who is a tenant of sir or a sub- tenant of an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or of a Patadar Dawami of Istamrari, with right of transfer by sale, who belongs to any of the categories of persons referred to in sub- section (2) of section 10, and every person who is a sub-tenant of tenants referred to in clause (a), (b) and (c) of sub-section (1) of section 12 to whom the provisions of sub- section (2) of section 10 applies; and

(e) every person who acquires the right of an Asami under any other provisions of this Act."

10.Different rights flow in favour of Bhumidhar and Asami, which are

stipulated in the provisions of the Act contained from Sections 22 to 47

thereof. The position is summed up by the Division Bench in the case

of Fateh Singh (supra) in the following manner:-

"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."

It is because of the difference in nature of rights that flow in

favour of bhumidars and asamis that this Court has given 60% share in

the case to an Asami and 75% to a Bhumidhar.

11.The question, therefore, is as to what was the status of the appellants

at the time of acquisition of the land in question. As per the

appellants, they were in actual physical and cultivatory possession of

the entire subject land till the date of its acquisition. Though it is

stated that they were in continuous cultivatory possession of land for

more than three years and therefore, entitled to be declared as

Bhumidhar under Section 85 of the Act, it is also admitted at the same

time that no such proceedings under Section 85 were initiated for

getting their rights declared as Bhumidhar. The appellants have

admitted that because of the acquisition of land by the Government

they could not file formal petition for declaration of Bhumidari rights in

their favour in respect of the subject land. It is also not in dispute that

in the revenue record Gaon Sabha had been shown as Bhumidhar.

12.The position which emerges from the aforesaid admitted facts is that

there is no declaration of the appellants as Bhumidhar. The Gaon

Sabha remained the recorded owner and also shown as Bhumidhar in

the revenue records. On the other hand, the appellants could only

show their cultivatory possession as on the date of acquisition of the

land. The documents produced by them relate to the years 1982-84.

As already pointed out above, notification under Section 4 in this case

was issued on 27.1.1984. Therefore, till January 1984, as per the

evidence produced on record, they had been in possession for two

years. Thus, on the basis of evidence produced, it is difficult to

conclude that the appellants had acquired Bhumidhari rights. At the

most they would be treated as having Asami rights in the land in

question. Moreover, concededly no application for declaration as

Bhumidar was filed as according to the appellants themselves, land

came to be acquired.

13.It is only on the declaration of a person as Bhumidhar that he gets the

three essential rights, namely, permanency of tenure, hereditary

character of the tenure and transferability of tenure. Before such a

person is declared as Bhumidhar, in terms of Section 74(4) of the Act

he is to prove his entitlement for being declared as Bhumidhar after

leading evidence. In such proceedings, Gaon Sabha has a right to lead

the evidence to rebut the claim of such claimants. Before that stage he

remains an Asami to which position he is admitted by the Gaon Sabha

when put in possession of land for the purpose of cultivation. The

tenure of Asami is five years requiring land to be reclaimed within that

period and reclamation proved as a condition for conferring Bhumidari

right in the Asami with simultaneous extinguishment of Bhumidari

right of the Gaon Sabha. If Gaon Sabha succeeds in proving that the

land was not reclaimed, the right of Asami lapses and possession

reverts to the Gaon Sabha. Therefore, these proceedings are of

paramount importance and only on that basis the appellants could

claim themselves to be Bhumidhar. However, no such proceedings

were even initiated in the instant case. Thus, as per the record, the

right of the appellants remained as that of Asami only. In such a case,

they would be entitled to 60% of the compensation.

14.In Fateh Singh (supra) the Division Bench considered the aforesaid

aspect in detail while applying the principle of Moti Lal Jain (supra). It

would be of interest to note that in Fateh Singh even application for

declaration as Bhumidhar was filed, which was pending but the

proceedings stood aborted as, in the meantime, the land was acquired.

Even in such a case the Court was of the opinion that those persons

could be treated as Asami only. In the present case, as noted above,

the appellants even failed to file any such petition for declaration as

Bhumidhar. It would be apt to note the following discussion in the said

case, which squarely applies to the present case as well:-

"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." 4

15.We are, therefore, of the opinion that the learned ADJ rightly held that

the appellants and Gaon Sabha shall be entitled to apportionment in

the ratio of 60:40 following the principle laid down in Moti Lal (supra).

As we do not find any infirmity in the said view taken by the learned

ADJ, which is in consonance with the law laid down by this Court, we

dismiss this appeal but without any orders as to costs.

                                                             (A.K. SIKRI)
                                                                JUDGE



November 14, 2008                                   (MANMOHAN SINGH)
hp.                                                      JUDGE