Shri Om Prakash Sabharwal vs Uoi & Anr.
2010 Latest Caselaw 3394 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Date of decision:   20th July, 2010

+                      W.P.(C) No.3448/1987

     SHRI OM PRAKASH SABHARWAL            ..... Petitioner
                   Through: Mr.J.P.Sengh, Sr. Advocate
                            with Ms.Garima Kapoor, Adv.

                  versus

     UOI & ANR.                        ..... Respondents

Through: Mr.Arun Birbal, Adv. for R-1 Ms.Sangeeta Chandra, Adv for the DDA Mr.Sanjeev Anand, Adv with Mr.DibyaNishant Advocate.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No.

GITA MITTAL, J(ORAL)

1. This writ petition makes challenge to a notification dated

3rd September, 1957 under Section 4 of the Land Acquisition

Act, 1894 and a declaration under Section 6 thereunder dated

3rd April, 1964 in respect of the land over which the petitioner

claims ownership which forms a part of Khasra No. 601/483,

village Hamayunpur in the Union Territory of Delhi inter alia

Government of NCT of Delhi.

2. The facts giving rise to the present writ petition to the

extent necessary are briefly noticed hereafter. The petitioner

claims to have purchased by a sale deed dated 18th November,

1950, 556 sq. yards of land out of 2 bighas of land owned by

Sardar Prithipal Singh in Khasra No. 601/483 in village

Hamayunpur. This deed evidences that the plot which was

purchased by the petitioner was bounded on the North by the

land of Mr. A.K. Ghatak; South by 16 feet road; West by 16 feet

road and; on the East by the land of Sardar Prithipal Singh. It is

urged that the possession of Om Prakash Sabharwal, who had

filed the writ petition, is evidenced in the years 1984-85 and

1985-86 by the Revenue record which is in the nature of Khasra

Girdavari drawn up in the year 1987. This revenue record

reflects the petitioner (Om Prakash Sabharwal) as being in

possession of 0.5 biswas of land in khasra No. 601/483/30/1.

3. It appears that on 3rd September, 1957, the then Delhi

Administration issued a notification under Section 4 of the Land

Acquisition Act, 1894 proposing to acquire 203 acres of land in

village Hamayunpur which inter alia included Khasra No.

601/483. This notification was succeeded by a declaration

under Section 6 of the Statute which was made on 3rd April,

1964. It is noteworthy that the declaration was made in

respect of the land admeasuring 9 bigha and 12 biswa in village

Hamayunpur which included inter alia Khasra No. 601/483/1/1,

601/483/2 and 602/483/2.

4. All the parties before the Court have placed reliance on

the Award No.2121 dated 29th June, 1968 which came to be

made by the Land Acquisition Collector in respect of the land

which was the subject matter of the afore noticed notification

and declaration. So far as the land in respect of which this writ

petition is concerned, the award has recorded that an area

measuring 8 biswa out of the Khasra No. 601/483/1/1 (00-03)

and 601/483/2 (00-05), on which the house of Sh.S.P.Sen Gupta

stands, is excluded from the proceedings in accordance with

the D.O.Letter No. F.7(52)/62-L&H dated 29th February, 1968

from the Land & Building Department, Delhi Administration.

5. We may notice that the said Award has also noted at

serial No.3 that Mr.Om Prakash Sabharwal (the petitioner

herein) was the owner of land measuring 5 biswas in Khasra

No. 601/483/2 and that one Revti Kumar s/o Shiv Dass Ghatak

was recorded as owner of 3 Biswas of land which is also

included in Khasra No. 601/483/1/1.

6. The perusal of the record of the claims made before the

Land and Acquisition Collector shows that Om Prakash

Sabharwal, who filed a claim in respect of the said land in

Khasra No. 601/483, had demanded compensation @ Rs.35/-

per sq. yards without furnishing any proof thereof.

7. We may also notice that one Sh.S.P.Sen Gupta for himself

as well as on behalf of Sh.Krishna Parshad Sen Gupta had

demanded a compensation for 400 sq. yards out of Khasra No.

601/483/2, 601/483/1 and 602/483/2 @ Rs.100/- per Sq.yards

for the land and Rs.40,000/- for the structures. Sh.S.K.Ghatak,

had filed a claim for 500 sq. yards of land out of Khasra No.

601/483 @ Rs.30/- per sq. yards.

On a consideration of the material placed before him, we

find that the Land Acquisition Collector was of the opinion that

fair and reasonable market price for the land would be @

Rs.5000/- per bigha and he directed that the same be awarded

8. The petitioner places reliance on several communications

addressed to the authorities seeking denotification of the land

which was owned by him. In this behalf, a copy of a letter

dated 27th June, 1968 has been placed wherein reference is

made to 566 Sq. yards of land in Khasra No. 601/483, Village

Hamayunpur which is owned by him and another plot of land

measuring 500 sq. yards owned by Sh. A.K. Ghatak. This letter

records that "a part of the area in these two plots is built-up

and that the same has been released from the acquisition in

the name of Sh.Sen Gupta and the number of this plot is B-

4/161 of Safdarjang Scheme". The petitioner requested de-

notification on the ground that the entire area of the plot under

reference be de-notified and not the built-up portion alone.

9. Mr.J.P.Sengh, learned senior counsel for the petitioner has

contended that this communication was followed by reminders

dated 3rd October, 1975, 7th May, 1976, 3rd February, 1970 and

18th February, 1977 and other requests to the respondent to

denotify the said land inter alia for the reason that the

petitioner therein is owning no other piece of land or property

in Delhi.

10. Our attention is drawn to the communications from the

various authorities in the Delhi Administration including a letter

dated 21st December, 1969 from the Assistant Housing

Commissioner(I), Delhi Administration, Delhi who informed the

petitioner in response to his letter dated 27th June, 1968 that

the petitioner's request for release of land from acquisition

could not be acceeded to and that in case the petitioner does

not own any other residential house in Delhi, his request for

allotment of an alternative plot on usual terms and conditions

would be considered. The same stand was reiterated in the

subsequent communication from the respondent.

11. The petitioner contends that out of 556 sq. yards of land

in Khasra No. 601/483 which was owned by him, by virtue of an

award No. 2121 dated 29th June, 1968, the respondents were

required to acquire only 250 sq. yards (5 biswas) of land and

that he continued to remain the owner in possession of

remaining 306 sq. yards of land. The petitioner further

contends that no action for acquisition of land has been taken

and that the petitioner had sought permission to raise

construction on his land.

12. It was urged that no response to the petitioner's request

for permission to construction on this land was received.

However, on 19th November, 1987 when the petitioner's father

visited the site, he found that one Sh. Naresh an agent of

Smt.Gurnam Kaur was intending to encroach upon the land of

the petitioner and start construction activity thereon.

13. In this background, the petitioner apprehending that the

respondents were attempting to take forcible possession of his

land in violation of Section 11(A) of the Land Acquisition

(Amendment) Act, 1984 and transfer title in the land to

Smt.Gurnam Kaur, respondent No.6, filed the instant writ

petition urging that there is no acquisition in respect of the land

admeasuring 350 sq. yards over which the petitioner has title

by virtue of the Sale Deed dated 18th November, 1950. It was

further submitted that such acquisition after 30 years of the

issuance of the notification dated 3rd September, 1957 of the

statute was illegal and no reason for the inordinate delay from

the date of the publication of the notification directing

acquisition was disclosed which would have therefore lapsed.

While challenging the notification dated 3rd September, 1957

and declaration dated 3rd April, 1964, the petitioner has made a

prayer for restraining the respondents from interfering in his

occupation/possession and right, title and interest in the

subject land.

14. When the writ petition came up for hearing, by an order

passed on 9th December, 1987, this Court recorded the

statement of the counsel for the petitioner that the petitioner

would not carry out any construction activity on the disputed

land without the permission of this Court. This court also

restrained the respondents from interfering in the petitioner's

possession and directed the respondents to maintain status

quo with regard to the title of the petitioner. Respondent No. 6

was also restrained from carrying out any construction activity

on the disputed land till the next date of hearing.

15. The Delhi Development Authority has filed a counter

affidavit on record dated 7th March, 2006 explaining the

position with regard to the possession of the land vide award

No.2121 dated 29th June, 1968. It is also pointed out that the

unacquired land out of Khasra No. 601/483 consists of the area

bearing No.601/483/2 (5 biswas) and that this was in the nature

of a passage "thoroughfare, which was being used by public for

the purposes of passing on and of which was a vacant land".

The DDA has enclosed a copy of the site plan to clarify the

factual position.

It is noteworthy that the DDA had also pointed out that

unacquired land was in Khasra No. 601/482 which included the

built-up portion which is in the nature of a house of Sh.S.P.Sen

Gupta which was left from acquisition as noted in the Award No.

2121. The DDA stated that in the light of the facts mentioned

in the affidavit, it appeared that the petitioner's land had been

encroached by Shri S.P. Sen Gupta in the year 1993.

16. It appears that the petitioner had filed a contempt petition

in the year 1993 against the officials of the DDA premised on

the contention that they were permitting construction on the

area owned by him. In the contempt petition being CCP

No.292/1993, the petitioner contended that the officials of the

DDA, by permitting construction, interfered with the petitioner's

possession in violation of the order dated 9th December, 1987

which was confirmed by the Division Bench of this Court. This

petition came to be disposed of by the court by an order passed

on 16th October, 1996 wherein the learned Single Judge noted

that in the writ petition it was the plea of the petitioner that one

Smt.Gurnam Kaur was claiming to be the owner of the land

whereas the petitioner had not sold the land to her. The

learned Single Judge consequently held that so far as the DDA

was concerned, it was clear from the beginning that this portion

was not acquired by the DDA and it was lying vacant. In this

background, contempt notice was discharged.

17. We find that the claim by the writ petitioner in this case

revolves around the basic question as to the location of the

unacquired portion of 306 sq. yards of land as per the sale

deed dated 18th November, 1950. The DDA has contended that

this land was not the subject matter of the Award No. 2121.

The petitioner and the DDA have filed the site plans on record

which show conflicting locations with regard to the said land in

Khasra No. 601/483.

18. At this stage, it becomes necessary also to notice the

stand of the Land & Acquisition Collector on record. In an

affidavit dated 30th March, 2006 filed by the Land & Acquisition

Collector, it has been explained that as per the revenue

records, the land in question forms part of khasra No.30 which

before division was admeasuring 8 bigha 14 biswas. It is

explained in this affidavit that Khasra No. 30 was divided into

different khasra numbers including khasra no. 601/483/30 (1-

1), 602/483/30 (0-19), 484/30 (4-1), 485/30 (1-16) and 486/30

(1-00).

19. It is also pointed out that so far as the present case is

concerned, the land in question falls under khasra No.

601/483/30/2 which was notified in the declaration dated 3rd

April, 1964 under Section 6 of the Land Acquisition Act. The

total area in respect of which this declaration was made

measuring 9 bigha 12 biswa including the land falling in Khasra

No. 601/483/1 min, 601/483/2, 602/483/2 besides others. The

built-up structure built on the land measuring 0-8 biswa

belonging to Sh.S.P.Sen Gupta were left out of the Award

announced by the Land Acquisition Collector. In view of the

discrepancies with regard to the subject land, the aks shijra

was prepared which has been placed on record.

20. Hereafter, the parties are at variance. It transpires that so

far as the identification and demarcation of the subject land is

concerned, it is contended by the Land & Acquisition Collector

in his afore-noticed deposition that after issuance of notice

dated 3rd March, 1968, the demarcation proceedings were

conducted on 6th March, 1968 in the presence of Sh.S.P.Sen

Gupta, Om Prakash Sabharwal and Sh.A.K.Ghatak. These

proceedings have been placed before us. According to the

respondent no.2, Sh.S.P.Sen Gupta had allegedly purchased the

land measuring 400 sq. yards (0-8 biswa) in Khasra No.

602/483 and constructed a house. It has further been pointed

out that no entry or mutation in the revenue record in his

favour with regard to such purchase was effected at any point

of time. However, during the demarcation proceedings, it was

found that the house which was constructed by Sh.S.P.Sen

Gupta did not stand in Khasra No.602/483 but was actually

standing in Khasra No.601/483/1(0-3) and 601/483/2(0-5).

21. These submissions on behalf of Land Acquisition Collector

have been vehemently disputed by Mr. J.P. Sengh, learned

senior counsel for the petitioner contending that the alleged

notice dated 3rd March, 1968 was never served upon him. It is

further pointed out that, upon inspection of the record during

the pendency of the writ petition, it has been found that the

notice only calls upon the petitioner to produce his documents

of title before the issuing authority. The petitioner vehemently

challenges the submission that any demarcation proceedings

were undertaken in his presence.

22. We may notice herein that Mr.Sanjeev Anand, learned

counsel appearing for respondent No.7, who claims to be the

successor in interest of the land/property which was purchased

and owned by Sh.S.P.Sen Gupta, has also challenged the

demarcation proceedings dated 6th March, 1968 and contended

that the findings recorded by the Land & Acquisition Collector

are totally incorrect.

23. The above narration shows that the only fact on which the

parties to the present writ petition agree is the fact that 05

biswas of land over which the petitioner is asserting title, was

not the subject matter of any acquisition proceedings taken by

the land acquiring authorities under the provisions of the Land

Acquisition Act, 1894. However, there is a dispute with regard

to the location of the subject land as well as the person who is

in possession therein. Nothing has been placed before us

which would evidence the possession by either the Land

Acquisition Collector or the DDA over the subject land.

24. The contention and claim before us, therefore, is

premised on a wholly disputed question of fact which cannot

appropriately be looked into by this court in exercise of

extraordinary jurisdiction under Article 226 of the Constitution

of India. The claim of the petitioner is contested by the Land

Acquisition Collector contending that the respondent No. 7 is in

possession of the land over which the petitioner asserts title,

which is disputed by the petitioner who has in fact laid a claim

against the statutory authorities.

25. Be that as it may, these are matters which require

extensive evidence and are areas into which we cannot enter

upon in these proceedings. The record would disclose that

despite the pleas taken by the respondents on record at no

point of time, the petitioner made a prayer for appointment of a

local commissioner or a demarcation even till date. Today, 55

years since notification under Section 4 of the Land Acquisition

Act and 23 years since filing of the writ petition have passed.

It is submitted that the entire area is heavily built up. It has

also been pointed out that nature of the land has changed and

permanent marks may not be traceable so as to carry out a

meaningful demarcation to even identify which would be

essential to resolve the controversy.

26. We may notice that in the sale deed dated 18th November,

1950, the land was identified by boundaries. However, no site

plan was enclosed therewith so as to identify the actual

position of this land which formed part of the larger khasra.

For these reasons, we are unable to grant any relief in the

present writ petition for the reason that it raises disputed

questions of fact and is therefore hereby dismissed. We make

it clear that we have expressed no opinion on the merits of the

case, the rival contentions or the claim of the petitioner. In

case, any other remedy in accordance with law is available to

the petitioner to seek relief and redressal, it shall be open to

the petitioner to invoke the same in accordance with law.

GITA MITTAL, J

J.R. MIDHA, J JULY 20, 2010 sv/aa