Sudhan vs Union Of India & Ors.
2010 Latest Caselaw 3464 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 21st July, 2010
                   Judgment Delivered on: 26th July, 2010

+                   RSA No. 6/1986

SUDHAN                                     ...........Appellant

                    Versus

UNION OF INDIA & ORS.                      ..........Respondents

                          WITH

                    RSA No.7/1986

SHIV CHARAN                                ............Appellant

                    Versus

UNION OF INDIA & ORS.                      ..........Respondents


       Appearance on behalf of appellants :
                             Mr.J.P.Sengh Sr. Advocate with
                    `        Mr.B.S.Saini & Mr.Sumit Batra,
                             Advocates.

       Appearance on behalf of respondents:
                             Mr.Rajesh Katyal, Advocate for R-1.
                             Ms.Ruchi Sindhwani, Advocate for
                             R-2 &R-3.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. These two appeals have been directed against the impugned

judgment dated 4.11.1985 passed by the Court of Additional

District Judge endorsing the finding of the first Court dated

22.7.1980 whereby the suit of the plaintiffs/appellants had been

dismissed.

2. Briefly stated the facts of the case are as follows:-

(i) The appellants before this Court namely Sudhan Singh and

Shiv Charan along with another person Prehlad had filed

three respective suits namely suit nos.1186/73,1174/73 and

suit No.1185/73 against the Union of India.

(ii) Proceedings qua Prehlad are not relevant as he has not

filed any appeal.

(iii) Appellants/plaintiffs Sudhan and Shiv Charan were in

cultivatory possession of land in their respective khasras as

described in their respective plaints. This land is situated in

village Ghalibpur, Delhi. Their contention was that they are

bhumidhars of the said land and are in the cultivatory

possession from the time of their forefathers.

(iv) Appellants had become bhumidhars of the land in terms

of the decree of Civil Court dated 21.4.1962 and the land was

accordingly transferred in their name by report no.194.

(v) Appellants learnt that the possession of the suit land had

been taken over by the government on 27.6.1971 vide report

no.192.

(vi) Respondents/defendants have further threatened to take

over the physical possession of the land, which action is

without jurisdiction and against the provisions of Delhi Land

Holding (Ceiling) Act 1960 (hereinafter referred to as the

„said Act‟).

(vii) Contention of the appellants is that the provisions of the

Act and the Rules framed therein have been flouted; without

following the procedure as contained under Section 6 of the

said Act, the order of vesting of the land with the government

was passed illegally on 27.6.1971.

(viii) Respondents in their written statements had taken the

objection of the bar of jurisdiction of the Civil Courts to

entertain such a suit in terms of Section 24 of the said Act.

Their contention was that the procedure as contained in the

said Act has been followed and due notice had been given to

Hargobind who was the owner and in possession of the

excess land at the relevant time i.e. period between

10.2.1959 up to 16.4.1962 (the date of the promulgation of

the said Act). Notice was not required to be served on the

present appellants who had become bhumidhars in terms of

the collusive decree of the Civil Court only on 21.4.1962.

(ix) Trial Court framed five issues. While disposing of issue

no.1, it was held that the jurisdiction of this Court was barred

under Section 24 of the said Act. The testimony of the

witnesses including that of the appellants/plaintiffs had been

examined. Reliance upon Section 6(2) of the said Act had

been placed. It was held that in terms of the decree dated

21.4.1962 the appellants had become bhumidhars only on the

said date; as such prior to that period i.e. during the relevant

period which was between 10.2.1959 to 16.4.1962 the land

was deemed to be held by Hargobind. It was further held

that the demarcation in terms of the possession report,

Ex.DW-1/C and Ex.DW-1/4 had evidenced that the actual

physical possession had been taken over on 27.6.1971. The

finding of the Civil Judge and the written statement of the

defendant Ex.PW-2/1 in the said suit proceedings which were

then pending in the Court of Sh.P.K.Jain, Sub Judge where

the appellants were also a party were also relied upon to

endorse a finding that the plaintiffs were not in possession of

the suit land at the relevant time as it had been declared

excess and allotted to the said defendants. Suit was

dismissed.

(x) Additional District Judge endorsed the finding of the Trial

Court. Reliance upon provisions of Section 25 of the said Act

had also been made.

3. This is a second appeal before this Court. On 22.1.2010, the

following substantial question of law had been formulated:

" Whether Civil Court had the jurisdiction to entertain the suit?"

4. Counsel for the appellants has addressed arguments at

length. It is submitted that admittedly even as per the finding of

the two Courts below the notice of the proceedings under Section 6

and 9 of the said Act had been notified to Hargobind only and not

to the present appellants. This has caused a gross miscarriage of

justice; the appellants were the affected persons and under Section

6 of the said Act they were mandatorily required to be notified.

For this proposition, reliance has been placed upon a judgment of

this Court report in ILR (1975)I Delhi Daryao Singh & Anr. Vs. The

Competent Authority & Ors. wherein while expounding the

provisions of Section 6 of the Delhi Land Holding (Ceiling) Act

1960, the Court had held that "all persons affected" should be

given an opportunity of being heard; contention of the petitioners

that they did not receive any notice from any authority constituted

under the said Act had been upheld and the proceedings under the

said Act had been quashed.

5. Learned counsel for the appellant has also placed reliance

upon AIR 1972 Delhi 260 Hoshiar Singh Vs. The Deputy

Commissioner and Anr. to substantiate his submission that

ownership of the land has no relevancy to the proceedings under

Section 6 of the said Act and provisions of Section 6 have to be

complied with qua a bhumidhar.

6. Counsel for the appellants has also placed reliance upon 50

(1993) DLT 492 (SC) Shiv Kumar Chadha Vs. M.C.D. & Ors. , AIR

1969 SC 78 Dhulabhai & Ors. Vs. The State of Madhya Pradesh and

Anr. to substantiate a submission that even where the special

statute has an exclusivity clause and the jurisdiction of the Civil

Court is barred, nevertheless in special cases where there has been

a "jurisdictional error" on the part of the statutory body a suit is

maintainable. It is submitted that in this case admittedly the

notice under Section 6 of the said Act had been issued only to

Hargobind and not to the present appellants who were the directly

affected parties; the procedure of the said Act not having been

followed in true letter and spirit; there has been a jurisdictional

error on the part of the Courts below. This could only have been

rectified by way of suit which the plaintiffs had filed and which had

been dismissed arbitrarily and unfairly.

7. Arguments have been countered by the learned counsel for

the respondents. It is stated that the parameters of entertaining a

second appeal are only confined to a substantial question of law as

has been formulated by this Court on 22.1.2010; the factual

submissions made by the appellants cannot be gone into; this Court

is not doing a fact finding inquiry. The finding of the Courts below

calls for no interference.

8. The Delhi Land Holding (Ceiling) Act 1960 was promulgated

w.e.f. 16.4.1962 which was a statute to provide for the imposition

of ceilings on land held in the Union Territory of Delhi and for

matters connected therewith. This is contained in the Preamble of

the Act. Section 3 which is the part of Chapter II deals with ceiling

of holdings; any person either by himself or through his family

whether as a bhumidhar or as an assami cannot hold land in excess

of that mentioned in Section 3(1) of the said Act.

9. Procedure for the determination of excess land is contained

in Section 6. It presupposes a return of the excess land to be filed

under Section 4. On receipt of this return the Competent Authority

shall after giving the persons affected an opportunity of being

heard hold an inquiry with due recourse to the provisions of

Section 7 and 8 of the said Act. Section 6(2) deals with the

determination of this excess land; it specifically states that at any

time during the period between appointed date and the

commencement of the Delhi Land Holding (Ceiling) Amendment

Act 1976 notwithstanding any transfer the said land shall be

deemed to be land held by the transferor.

10. The Trial Judge had placed reliance upon provisions of

Section 6(2) of the said Act. It clearly stipulates that all lands held

prior to the date of commencement of the said Act i.e. prior to

16.4.1962 notwithstanding any transfer shall be deemed to be held

by the transferor. Applying this provision, the Trial Court had

endorsed a finding that admittedly the appellants had become

bhumidhars in terms of their civil decree only on 21.4.1962 and as

such prior to this period i.e. the period prior to commencement of

the said Act i.e. preceding 16.4.1962 the disputed land was held by

Hargobind. The plaintiffs/appellants have in fact not disputed that

the notice had not been issued to their predecessor i.e. Hargobind;

their contention being they were the affected persons and as such

should have been notified.

11. This submission of the learned counsel for the appellants has

no force. The factual finding of the Trial Judge that prior to

16.4.1962 the land vested with Hargobind was an infallible finding.

Trial Judge had relied upon the testimony of PW-5 Sudhan (the

plaintiff) who had categorically admitted that Hargobind was

having the possession and ownership of the disputed land between

10.2.1959 to 16.4.1962. This is a factual finding endorsed by the

Appellate Court as well. In view of this fact finding as also the

statutory provision as engrafted in Section 6(2) of the said Act,

notice was not required to be issued to the appellants.

12. That apart Ex.DW-4/1 which is the order passed by the

Competent Authority on 17.2.1968 has specifically recorded the

presence of the present appellants. Their averment in para 4 of the

plaint (which was filed on 30.10.1973) that "it was only sometime

back that the plaintiff learned that the suit land had vested with

the government" was clearly a false and dishonest averment; as

way back as on 17.2.1968 they knew that the Competent Authority

had directed the respondent/Hargobind to follow the procedure

under Section 7 of the said Act and to select the area which he

wishes to retain. The suit for injunction filed by the plaintiff was

liable to be dismissed on the ground of such a patently false

disclosure as well; relief of injunction being discretionary which

the court is not bound to grant, such relief should be refused to a

person who does not come to the court with clean hands.

13. The finding of the two Courts below cannot be faulted with.

The contentions raised by the appellants in the present appeals

were the very same which have been raised before the two Courts

below. Finding of facts have been endorsed by the said two Courts

below. Both the two Courts below have conclusively held that at

the relevant time Hargobind was the bhumidhar; it was he who was

in cultivatory possession of the disputed land. Procedure of

Section 6 had been followed qua him. The submission of the

appellants/plaintiffs that they were not notified was even otherwise

incorrect as on 17.2.1968 presence of the appellants had been

marked before the Competent Authority. In fact the presence of

Hargobind was not recorded; it is obvious that Hargobind has no

interest left in the land; after the decree of 21.4.1962 the

bhumidari stood transferred in the name of the

plaintiffs/appellants; they were contesting all proceedings. Order

dated 17.2.1968 of the Competent Authority was confirmed on

7.8.1968 (Ex.DX) by the Additional Collector; it did not lie in the

mouth of the appellants to state that they were unaware of the said

proceedings; principles and rules of natural justice have been

complied with.

14. The prayer made in the present suit was that the

defendants/Union of India should be permanently injuncted from

dispossessing the plaintiffs from the disputed land. This prayer is

related to the act of the Competent Authority and the order passed

by it on 27.6.1971 which was to direct the revenue staff to take

possession of the said land. This was pursuant to the order dated

17.2.1968 whereby the plaintiffs/appellants in their presence, had

been notified that the respondent Hargobind will select the area

which he wishes to retain which was an order passed in terms of

the Section 7 of the said Act. Besides the fact that the procedure

followed by Competent Authority was clearly in accordance with

law and in terms of the provisions of the said Act, it was not for the

Civil Court to decide as to whether the plaintiffs/appellants had

been duly notified under Section 6 of the said Act or not. The order

dated 17.02.1968 was challenged and the Appellate Authority i.e.

the Additional Collector endorsed the finding that the decree dated

21.04.1962 was a collusive decree.

15. Under Section 24(2) of the said Act there is a complete bar

on the Civil Court to entertain any suit or proceeding in so far as it

relates to any matter which the Competent Authority or the Deputy

Commissioner is empowered by or under this Act to decide. The

questions raised in the suit were all matters in the domain of the

Competent Authority & the Deputy Commissioner. There is no

jurisdictional error committed by the Competent Authority or the

Additional Collector which would entitle the appellants/plaintiffs to

maintain a suit against the government. Courts below had rightly

held that the jurisdiction of Civil Court is barred.

16. The judgment in the case of Daryao Singh (supra) relied

upon by the learned counsel for the appellants would not apply to

the facts of the instant case. In that case the petitioner Daryao

Singh and Narain Singh had purchased land from one Mange Ram

by means of a registered sale deed. Thereafter without notice

either to Mange Ram or to Daryao Singh and Narain Singh

proceedings under the Delhi Land Holding (Ceiling) Act had been

taken. Notice under Section 6(3) of the said Act had been issued

only on 1.3.1976 i.e. much after Mange Ram had been declared

bhumidhar; neither Mange Ram nor the petitioners, Daryao Singh

or Narain Singh had been informed of the proceedings under the

said Act; Deep Chand had been notified when he by an order of the

Revenue Assistant dated 31.10.1967 was declared not to be a

bhumidhar and Mange Ram had been declared as bhumidhar; it

was in these circumstances that the Court had held that the

"person affected" i.e. Mange Ram and the petitioner had to be

notified. The facts in this case are distinct. Ex.DW-1/4 which is the

order of the Competent Authority of Sh.S.S.Malhotra has clearly

recorded the presence of both appellants i.e. Shiv Charan S/o Ram

Nath as also Sudhan S/o Mir Singh. This order dated 17.2.1968

was passed in their presence. This order had been upheld on

07.08.1968 (Ex. DX) which orders have since attained a finality.

Even otherwise in the judgment relied upon by learned counsel for

the appellants the question of the bar of the jurisdiction of the Civil

Court had not been gone into; it was in a writ petition, facts of

which are clearly distinct.

17. The second judgment of Hoshiar Singh (supra) relied upon by

the appellants is also distinct on facts; the proposition that not

ownership but bhumidari is relevant qua the provisions of Section

6(2) of the said Act is an undisputed proposition. However, in the

instant case, the appellants have been declared bhumidhar only on

21.4.1962; the relevant period is the period prior i.e. between

10.2.1959 to 16.4.1962.

18. There is no fault in the findings of Courts below.

19. The substantial question of law is accordingly answered as

follows. The Civil Court had no jurisdiction to entertain the suit as

has been held by both the Courts below and rightly so. Second

appeal is without any merit. It is dismissed.

20. Trial Court record be sent back. File be consigned to record

room.

INDERMEET KAUR, J.

JULY 26, 2010 nandan