Delhi High Court
Shri Ganga Dutt vs Union Of India & Ors. on 10 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 10.3.2011
+ RSA No. 124/2009 & CM No.14115/2009 (for stay)
SHRI GANGA DUTT ...........Appellant
Through: Mr.Lalit Kumar, Advocate.
Versus
UNION OF INDIA & ORS. ..........Respondents
Through: Mr.Rakesh Mittal for DDA/R-3.
Mr.Kirti Uppal, Advocate for
R-4.
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. (Oral)
CM No.14116/2009 (for exemption)
Allowed subject to just exceptions.
RSA No. 124/2009 & CM No.14115/2009 (for stay)
1. This appeal has impugned the judgment and decree dated
13.8.2009 which has endorsed the finding of the trial judge dated
27.11.2004 whereby the suit filed by the plaintiff seeking a
declaration, permanent injunction against the defendant to the
effect that he should not be dispossessed from the suit property i.e.
property bearing Khasra Nos.70/22 and 70/23 situated in Village
Badli, Delhi and further praying that the report of possession dated
12.11.1981 be declared illegal and non-binding upon the plaintiff
had been dismissed.
2. Plaintiff claimed to the owner of the aforenoted suit property.
It was in the physical cultivatory possession of the plaintiff. The
said land was acquired by Award No.35 dated 10.11.1981. There is
no dispute to this fact. The contention raised before this Court is
that after the passing of Award on 10.11.1981 no physical
possession of the suit land was taken. The possession memo dated
12.11.1981 was a formality and not binding upon the plaintiff. No
notice of taking possession had been given to the plaintiff. Present
suit was accordingly filed.
3. In the written statement the defence was that the suit land
had been acquired and physical possession of the same had been
taken and handed over to the DDA on 12.11.1981.
4. Issues were framed. Oral and documentary evidence was
led. Issue no.3 is relevant for the controversy in dispute. It reads
as follows:
"Whether the plaintiff is entitled for the relief of declaration as
prayed for ?OPP"
5. The first court i.e. the trial court had held that the report of
the possession dated 12.11.1981 pursuant to the Award had been
proved as Ex.PW-4/3. The contention of the plaintiff that he had
crops standing on the land therefore physical possession of the
land had not actually been taken over had been rejected. Attention
has been drawn to the document dated 12.3.1985 of the Land
Acquisition Collector (LAC) wherein it had been recorded that
compensation will be paid to the applicant only when he
surrenders possession to the government and files an affidavit to
the said effect. Counsel for the appellant has submitted that this
order of the LAC has clinched the issue. This document by itself
established that the physical possession of the land had not been
taken over. Compensation to the applicant had also not been paid.
The document dated 12.3.1985 was admittedly not filed before the
trial court. This had been filed before the first appellate court.
Trial court had dismissed the suit on 27.11.2004. It had held that
the plaintiff is an encroacher upon the government land as physical
possession of the suit land had been taken over. Reliance has also
been placed on various authorizes of the Apex Court to hold that no
injunction can be granted against a true owner.
6. The impugned judgment had endorsed this finding. It was
held that the physical possession of the land had been taken over
and the proceedings under Section 6 of the Land Acquisition Act in
fact stood completed.
7. In 1995 IV AD (SC) 389 Laxmi Chand Vs. Gram Panchayat
Kararia the Apex Court while dealing with the objection to
acquisition proceedings under the Land Acquisition Act the Apex
Court had noted:
"The scheme of the Act is complete in itself and thereby the
jurisdiction of the Civil Court to take the cognizance of the case
arising under the Act is barred. The Civil Courts were held to be
devoid of the jurisdiction to give declaration on the invalidity of
the procedure contemplated under the Act and only High Court
and Supreme Court were held to have power under Article 226
and Article 136."
8. In AIR 1996 SC 3377 Tamil Nadu Housing Board Vs. A.
Viswam Apex Court had held that the recording of a memo/
panchnama is proof of possession. Ex.PW-4/3 had proved this.
9. The impugned judgment suffers from no infirmity; no
interference is called for.
10. Substantial questions of law have been embodied on page 2
of the appeal. They read as follows:
"i. Whether the possession of the appellant can be protected by
this Hon'ble Court under the circumstances when the possession,
as per the admission of the DDA/LAC is still with appellant despite
passing of the acquisition award as mentioned in the proceeding of
acquisition dated 26.11.84 wherein the Collector has mentioned
that no compensation can be paid to the appellant till the
possession is handed over to the Collector?
ii. Whether the Respondent can dispossess the appellant in view of
the order passed by Lt. Governor on 12.12.2007 whereby the
status of the land has been termed as private land in view of
clause 1 of the notification dated 12.12.2007 (copy of order dated
122.12.2007 is enclosed herewith as annexure A-2)?
iii. Whether the suit land still vests with the Government in terms
of section 16 of the Land Acquisition Act and more particularly in
the backdrop of the fact that it has been admitted by the
respondents that the physical possession has not been take over
by the appellant?
iv. Whether the appellant who admittedly is in the settled and
legal possession of the suit land, has a right to protect the same
from any third person and/or the Government?
v. Whether the order dated 12.12.2007 issued by the Lieutenant
Governor of Delhi, to the effect that suit land falls in the category
of private land, since the physical possession of the same is with
the appellant, and more particularly no compensation having been
taken by the appellant, would not be rendered ineffective, if the
admitted possession of the appellant is disturbed.
vi. Whether the appellant is not entitled for the injunction as
prayed for in the suit to protect his settled possession upon the
suit land."
11. Oral and documentary evidence had established that the
physical possession of the land had been taken over by the
defendant on 12.3.1981 vide Ex. PW-4/3. If the plaintiff was
aggrieved by this possession memo he could not assail it by way of
a suit; this was not the remedy or the forum as has been held by
the Apex Court in the case of Laxmi Chand(supra). No substantial
question of law having arisen, the application as also pending
application is dismissed in limine.
INDERMEET KAUR, J.
MARCH 10, 2011
nandan
