Delhi High Court

Government Of Nct Of Delhi & Ors vs Balbir Singh & Ors on 20 April, 2012

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 20th April, 2012

+                         LPA No. 18/2008

GOVERNMENT OF NCT OF DELHI & ORS            ..... Appellants
               Through: Mr. V.K. Tandon, Advocate

                                   Versus

BALBIR SINGH & ORS                                      ..... Respondents
                 Through:              Mr. Himanshu Jawa, Adv for R-1 to 3.
                                       Mr. Madan Lal Sharma, Adv for R- 4
                                       to 6.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the order dated 18th April, 2006 of the

learned Single Judge allowing WP(C) No. 8620-22/2005 preferred by the

respondents 1 to 3 and issuing mandamus to the appellants to give

possession of 21 biswas of land comprised in khasra No. 333/3, Village

Holambi Khurd, Delhi to the respondents 1 to 3 and to make the necessary

mutation entry in the revenue records qua the said land in their favour. The

appeal also impugns the order dated 27 th July, 2007 of dismissal of the

application filed by the appellants for review of the order dated 18 th April,

2006. Notice of the application was issued. The respondents 2&3 died

during the pendency of the appeal and their legal heirs were substituted.

Shri Sultan Singh, Shri Ratan Singh and Shri Amar Singh filed

CM.No.14/2010 for impleadment in the present appeal and which was

allowed on 6th May, 2011 and they were impleaded as respondents 4 to 6.

The counsels have been heard.

2. Gaon Sabha of Village Holambi Khurd passed a resolution dated 20 th

December, 1976 whereby the land admeasuring 18 biswas in Khasra No.63

of the respondents 1 to 3 and of Shri Mohan Lal (who died leaving behind

respondent no.5 Shri Ratan Singh and respondent no. 6 Shri Amar Singh as

his sons) and respondent no.4 Shri Sultan Singh was taken by the Gaon

Sabha for construction of road from village Holambi Khurd to Puth Khurd.

The said resolution recommended allotment of 2 biswas of land adjacent to

the village pond to each of the respondents 1 to 4 and the predecessor of the

respondent 5 and 6, in lieu the land so taken over. However, the land could

not be handed over and the Gaon Sabha again passed a resolution dated 25 th

October, 1985 recommending allotment of 5 biswas of land to each of the

aforesaid persons in Khasra 334/2. The said resolution was also endorsed by

the Village Development Committee, Delhi Administration vide Resolution

No. 1 dated 3rd February, 1992. In this manner 18 biswas of land belonging

to respondents 1 to 4 and to the predecessor of respondents 5 and 6 in

Khasra No.63 was exchanged with 25 biswas i.e. 5 biswas each, of land in

Khasra No. 334/2 falling in the extended abadi.

3. The respondents 1 to 3 were, in pursuance to the aforesaid, put into

possession of 5 biswas of land each in Khasra No. 334/2.

4. The respondents 1 to 3 however in the year 1993 made a

representation to the appellants claiming that they be given further land in

lieu of their land in Khasra No. 63 which had been taken over for

construction of a road; it was their case that they had been assured allotment

of 21 biswas in addition to 15 biswas of land already allotted to them. No

action was taken by the appellants on the said representation.

5. The respondents 1 to 3, after remaining quiet for nearly 8 years, filed

WP(C) No. 1212/2001 claiming mandamus for allotment of additional 21

biswas of land. The said writ petition was disposed of vide order dated 29 th

November, 2001; it was observed that the petition was highly belated and

the respondents 1 to 3 were not entitled to any relief because of delay and

laches in as much as their land was taken in the year 1976 and the first

representation for additional land was made in the year 1993; the counsel for

the respondents 1 to 3 then urged that the only relief which he was pressing

was for the representation to be decided by the appellants; this Court

observed that there could be no objection to the said relief and accordingly

directed the appellants to within ten weeks decide the representation made

by the respondents 1 to 3 in the year 1993.

6. The respondents 1 to 3 thereafter filed WP(C) No. 8620-22/2005 from

orders wherein this appeal has arisen. It was their case in the said writ

petition that notwithstanding the direction contained in the order dated 29 th

November, 2001 (supra) in the earlier writ petition for disposal of their

representation within ten weeks thereof, no decision had been taken within

the time granted; that on their continuously pursuing the matter, the

appellants out of annoyance and to teach the respondents 1 to 3 a lesson had

passed an unjust, unfair and unreasonable order in back date of 15 th October,

2004 rejecting their representation; however in the prayer clause in the writ

petition, the respondents 1 to 3 instead of impugning the said order dated

15th October, 2004 of the appellants, again sought mandamus for allotment

of additional 21 biswas of land in Khasra No.333/3 which was stated to be

lying vacant.

7. It appears that the appellants did not file response to the WP(C) No.

8620-22/2005 inspite of opportunity. The learned Single Judge accordingly

treated the averments made in the writ petition as correct and vide order

dated 18th April, 2006 supra and believing that the representation of 1993

had not been decided, allowed the writ petition by directing the appellants to

allot 21 biswas of land in Khasra No. 333/3 to the respondents 1 to 3; the

plea of the respondents1 to 3 themselves in the writ petition that the

representation stood rejected vide order dated 15 th October, 2004 was not

noticed. The claim of the respondents1 to 3 for additional 21 biswas was

predicated on the fact that the value of their land, which was taken for road,

was `1500/- per sq. yd. and that of land in Khasra No.333/3 given to them

was `700/- per sq. yd., that the said valuations were accepted by the Naib

Tehsildar on 14.11.1991; that in pursuance thereto the ADM-cum-Director,

Panchayat had on 15.06.1992 recorded that deficiency be made up by

allotment of additional 21 biswas in Khasra No.333/3 and the file was

forwarded for approval to the Lieutenant Governor but then the file got lost

in the corridors of office of Lieutenant Governor.

8. The appellants thereafter applied for review of the order, drawing the

attention of the learned Single Judge to the order dated 15 th October, 2004

rejecting the representation of the respondents 1 to 3. The learned Single

Judge however vide order dated 27th July, 2007 (supra) dismissed the said

review application observing that the order dated 15.10.2004 rejecting the

representation was wrong since the respondents 1 to 3 had not been handed

over land of equivalent value in lieu of their land taken over for road.

9. This appeal was partly heard on 03.02.2009. Finding that as per

resolution (supra), total of 25 biswas of land was to be given in lieu of land

taken for road and further finding that the respondents1 to 3 had been put

into possession of 15 biswas only, time was given to the counsel for the

appellants to obtain instructions whether the remaining 10 biswas had been

allotted to the "owners". Vide subsequent order dated 17 th February, 2009,

the appellants were directed to hand over the remaining 10 biswas of land to

the respondents 1 to 3. The appellants thereafter sought clarification of the

order dated 17th February, 2009 pleading that 25 biswas of land which was

to be given in lieu of the land taken for road construction, was to be given in

the proportion of 5 biswas each to the respondents 1 to 3 and to Shri Sultan

Singh (since impleaded as respondent no.4) and Shri Mohan Lal (whose

sons have since been impleaded as respondents no. 5 and 6). It was further

pleaded that Shri Sultan Singh and Mohan Lal never came forward to take

their 5 biswas each of land but that did not entitle the respondents 1 to 3 to

the said 10 biswas also, which belonged to Shri Sultan Singh and Shri

Mohan Lal. This Bench however vide order dated 28 th October, 2009,

finding that the names of Shri Mohan Lal and Shri Sultan Singh did not

figure in the order of allotment, dismissed the said application for

clarification and again directed the appellants to hand over 10 biswas of land

to the respondents 1 to 3. The appellants preferred SLP(C) No. 20841/2009

against the said order and in which the direction of this Bench for handing

over of 10 biswas of land to the respondents 1 to 3 was stayed. The said

SLP was thereafter converted into an Appeal No.36718-36719/2009 and was

disposed of vide order dated 6 th September, 2010 by directing this appeal to

be disposed of expeditiously and staying the operation of the order dated

28.10.2009 in this appeal, till the disposal thereof. Thereafter, as aforesaid

the respondents no. 4 to 6 have been impleaded as a party. They assert claim

to remaining 10 biswas of land and controvert the claim of the respondents 1

to 3 thereto.

10. What emerges from the aforesaid factual narration is as under:

A. that the claim of the respondents 1 to 3 for land, in addition to

15 biswas of which they have already been put in possession of,

was vide order dated 29th November, 2001 in the writ petition

earlier preferred by them, held to be highly belated and barred

by delay and laches;

B. though the writ petition earlier preferred by the respondents 1 to

3 ought to have been dismissed on this finding but on the

argument of their counsels that only a relief of consideration of

the representation was sought, direction for disposal of the

representation was issued;

C. the said representation of the respondents 1 to 3 was rejected

vide order dated 15 th October, 2004 holding that as per the

resolution, the entitlement of each of the respondents1 to 3 was

to 5 biswas of land only of which they had already been put into

possession of and they were not entitled to any additional land;

D. The said order dated 15 th October, 2004 even though referred to

in the subsequent WP(C) No. 8620-22/2005 filed by the

respondents1 to 3 was not challenged therein;

E. while allowing WP(C) No. 8620-22/2005 on 18th April, 2006

the said order dated 15th October, 2004 was not noticed and the

learned Single Judge proceeded on the premise as if the

representation had not been decided and direction for allotment

of additional 21 biswas of land was issued;

F. the resolution dated 25.10.1985 for allotment of land in lieu of

land taken for construction of road, is for allotment of 5 biswas

of land to each of the respondents1 to 4 and to predecessor of

respondents 5&6;

G. though out of 25 biswas of land which the appellants were to

give in accordance with the Resolution dated 25.10.1985, in

lieu of 18 biswas of land taken for construction of road, only 15

biswas has been given till date i.e. to the respondents1 to 3 and

the remaining 10 biswas has admittedly not been given and

remains with the appellants but as per the said Resolution, the

entitlement to the remaining 10 biswas of land is of the

respondent No.4 and the predecessor of the respondents 5 and 6

and not of the respondents 1 to 3;

H. that the respondents 4 to 6 are now staking their claim to the

said 10 biswas of land;

I. the respondents 4 to 6 claim to be illiterate, belonging to the

Schedule Caste, ignorant of their rights and thus having been

unsuccessful till now in taking possession of the land of their

entitlement; they further claim that the respondents1 to 3 have

obtained order from the learned Single Judge and in this appeal

(which was set aside by the Supreme Court) qua the said 10

biswas of land fraudulently; they seek a direction for being put

into possession of the said land;

J. the respondents 1 to 3 in response to the aforesaid stand of the

respondents 4 to 6 deny that the 18 biswas of land in Khasra

No.63 taken over for construction of road belonged to the

respondent No.4 and the predecessor of the respondents 5&6

also; they claim that the entire 18 biswas belonged to them i.e.

respondents 1 to 3 only;

11. We are unable to agree with the reasoning given by the learned Single

Judge for issuing mandamus for giving additional 21 bighas of land to the

respondents 1 to 3, for the following reasons:

(i) the learned Single Judge did not consider that in order dated

29.11.2001 in W.P.(C) No.1212/2001 earlier preferred by the

respondents 1 to 3, it had already been held that their claim for

additional land was belated and they were not entitled to any

relief because of delay and laches; the said order had attained

finality;

(ii) though in the aforesaid order a direction was given for deciding

the representation of the respondents 1 to 3 but the same could

not revive the claim to which the respondents 1 to 3 had been

held to be not entitled because of delay and laches;

(iii) the subsequent writ petition from which this appeal arises was

initially allowed vide order dated 18.04.2006, virtually ex parte

and believing the version of the respondents 1 to 3 and without

noticing that the representation had been rejected vide order

dated 15.10.2004;

(iv) that though on review, in order dated 27.07.2007 the rejection

of the representation was noticed but the same was held to be

not good for the reason of the claim of the respondents 1 to 3 of

the 15 biswas of land allotted to them in lieu of land taken over

from them being not of equivalent value and relying on the

affirmation of the said decision by the Naib Tehsildar and the

ADM-cum-Director, Panchayat;

(v) the learned Single Judge did not consider that vide resolution

dated 20.12.1976, the respondents 1 to 3 had been found

entitled only to 2 biswas of land each near pond in lieu of land

taken over for construction of road;

(vi) the learned Single Judge also did not notice that vide

subsequent resolution dated 25.10.1985, land admeasuring 5

biswas each in Khasra No.334/2 only had been agreed to be

given to the respondents 1 to 3 in lieu of their land which was

taken over;

(vii) the learned Single Judge also did not consider that the

respondents 1 to 3 at no time challenged the resolution dated

25.10.1985 finding them entitled only to 5 biswas of land each

in Khasra No.334/2 and at that time did not contend that the

same was not of equivalent value;

(viii) the respondents 1 to 3 were thus bound by the resolution dated

25.10.1985 and could not claim anything in addition thereto;

(ix) that their claim for additional land had already been held to be

belated and barred by delay and laches in order dated

29.11.2001 in W.P.(C) No.1212/2001;

(x) that the affirmation by the Naib Tehsildar and the ADM-cum-

Director, Panchayat of the claim of the respondents 1 to 3 of the

land allotted to them being not of value equivalent to their land

taken over, and the proposal to make up the deficiency by

allotment of additional 21 biswas of land to them was but a

proposal and was subject to the approval of the Lieutenant

Governor and which approval was never granted;

(xi) The Supreme Court in Bachhittar Singh Vs. State of Punjab

1962 (Suppl.) 3 SCR 713, State of Bihar Vs. Kripalu Shankar

(1987) 3 SCC 34, Laxminarayan R. Bhattad Vs. State of

Maharashtra (2003) 5 SCC 413 and Bahadursinh Lakhubhai

Gohil Vs. Jagdishbhai M. Kamalia (2004) 2 SCC 65 has held

that notings on an official file do not create any right and are

merely a stage in the decision making process and till a formal

order is passed by the Competent Authority and communicated

to the concerned party, no right accrues;