Delhi High Court
Shri Prabhat And Others vs Union Of India And Others on 30 August, 2013
Author: Vibhu Bakhru
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 30.08.2013
+ LPA 12/2009
SHRI PRABHAT AND OTHERS .... Appellants
versus
UNION OF INDIA AND OTHERS .... Respondents
Advocates who appeared in this case:
For the Appellants : Mr Kanwar Udai Bhan.
For the Respondents : Mr Digvijay Rai for R-2/AAI.
Mr Sanjay Kumar Pathak for R-4/Nodal
Officer.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED, ACTING
CHIEF JUSTICE
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The present appeal challenges the order dated 12.02.2008 passed by
a learned Single Judge of this Court in W.P.(C) No.1115/2008. The
appellants had filed the writ petition challenging the order dated
01.08.2007 passed by the Nodal Officer rejecting the claim of the appellant
for allotment of an alternative plot in lieu of the land occupied by them in
the village of Nangal Dewat. The learned Single Judge had held that in
order to be eligible for allotment of alternative lands, a person must satisfy
the two conditions of eligibility as specified in the scheme which was
adopted for the purpose of allotment of alternative plots. The two
conditions being that a person should be in physical possession of the land
in 2007 and the name of the person must be included in the list of original
allottees of 1958. The Committee constituted to look into the issue of
allotment of alternative land had not found the appellants to satisfy this
eligibility criteria and hence, had rejected their claim for allotment of
alternative land. The Nodal Officer (Respondent No. 4 herein) also rejected
the claim of the appellants on the same basis. The learned Single Judge
having found no infirmity in adopting the eligibility criteria dismissed the
writ petition filed by the appellants.
2. The scheme for allotment of alternative plots to persons belonging
to the communities to whom the land had been allotted earlier and the
eligibility criteria framed thereunder has already been upheld by a Division
Bench of this Court in the judgment delivered on 16.04.2013 in the case
titled as Bhoop Singh v. DDA & Ors.: LPA No.260/2008. It is contended
by the learned counsel appearing for the appellants that he is not assailing
the scheme but is limiting the challenge in the present appeal to the
decision of the Nodal Officer/Committee in finding the appellants not
eligible for allotment of an alternative plot. It is contended that the
appellants fulfil the specified criteria and, thus, ought to be allotted an
alternative plot. Thus, the only question to be considered in the present
appeal is whether the appellants are eligible for allotment of alternative
land as per the scheme framed by the Committee, constituted for
determination of the allotment of plots in lieu of lands recorded in the name
of communities, and adopted by the Ministry of Civil Aviation, Union of
India.
3. The relevant facts for considering the controversy in the present
appeal are as under.
4. A notification under Section 4 of the Land Acquisition Act was
issued on 28.04.1972 for acquiring the lands of village Nangal Dewat for
the public purpose of expansion of IGI Airport, New Delhi. The
notification dated 28.04.1972 was followed by a declaration under Section
6 of the said Act on 22.08.1972. Subsequently, pursuant to the land
acquisition proceedings, an award dated 14.08.1986 was passed. The said
award was challenged before this Court in W.P.(C) No. 481/1982 titled as
"Daryao Singh & Ors. v. Union of India & Ors.". The said writ petition
was disposed of on 02.08.2001 with Airport Authority of India
(Respondent no. 2 herein) making a statement that all persons whose names
appeared in the award would be allotted alternative lands in terms of the
Rehabilitation Scheme which would be framed within a period of six
months. On the said statement being recorded, the petitioners therein gave
up their challenge to the proceedings. A review application no. 9312/2001
seeking review of the order dated 02.08.2001 was filed by the Harijan and
Backward Jan Kalyan Samiti wherein a grievance was raised that names of
several persons had not been included in the list of persons to whom
alternative lands were proposed to be allotted by the Nodal Officer. In these
proceedings, it was explained by the Nodal Officer that certain lands were
recorded in the name of four communities i.e. Makbuja Jullahan, Makbuja
Chamaran, Makbuja Kumharan and Makbuja Ahle as the said lands were
not allotted to any individual but to the said communities. The Court was of
the view that alternative plots should be allotted to such communities as a
group and not to individuals comprised in the group. It would be up to the
group to divide the alternative land amongst its constituents. The prayer
made by Harijan and Backward Jan Kalyan Samiti for allotment of separate
individual plots to persons who were in occupation of the community lands
was rejected.
5. Subsequently, Harijan and Backward Jan Kalyan Samiti filed a
separate writ petition being Writ Petition (Civil) No. 17778/2006 titled
Harijan and Backward Jan Kalyan Samiti v. Union of India and Ors.
During the pendency of the said petition, a meeting took place in the
office of the Joint Secretary (Civil Aviation) on 14.03.2007 wherein it
was decided to constitute a Committee to look into the issue of eligibility
of alternative plots to persons who are in possession of land recorded in
the name of the communities in village Nangal Dewat. During the course
of submission before this court on 31.05.2007 in Writ Petition (Civil) No.
17778/2006, the following statement of the learned counsel appearing on
behalf of Airport Authority of India was recorded:
"The report of the Committee constituted by the Joint
Secretary, Civil Aviation to look into the issue of allotment of
alternative plots in respect of the land recorded in the name of
Committee in Village Nangal Dewat has been accepted by the
Ministry. The residents of land recorded in the names of
Communities would be considered for allotment of individual
plots and such eligibility would be considered on the basis of
the list of 122 persons that was prepared in the course of 1958
consolidation proceedings and this list of 122 persons would
be the outer limit for examining the eligibility of alternative
plots.
The eligibility would be considered on the basis of the same
criteria which has been evolved for considering the eligibility
of other persons in the rehabilitation scheme."
6. The village lands of Nangal Dewat consisted of old abadi as well as
extended abadi area. Whilst, revenue records had been prepared for the
extended abadi area. No such record had been prepared for the old abadi
area. In the present case, the appellants occupied lands in the extended
abadi area of the village.
7. The Committee constituted, pursuant to the decision taken during the
meeting held on 14.03.2007, recommended that individual plots be allotted
to persons occupying community lands in the old abadi area on the basis of
the survey conducted in the year 1972-73. However, for the purpose of
determining the eligibility of such persons claiming alternative plots on the
basis of lands in the extended abadi area, the Committee took the view that
the records of 1958 may be considered only as a secondary evidence and a
fresh survey be undertaken to ascertain the possession of lands in respect of
122 names that appeared in the records of 1958.
8. The Committee constituted by the Ministry of Civil Aviation adopted
the following criteria for determining the eligibility of claimants for
occupying the community lands for alternative plots:-
"Criteria for determining the eligibility of alternative plots:-
1. The list of 122 persons shall be the outer limit for
examining the claims of individual plots (as contained in
the order of Hon'ble High Court).
2. The Allottee in the list of 122 persons should also be in
possession of the land in community land. In case of his
death, his LRs should be in possession of the allotted
land. Merely the allotment of land in the year 1958
should not be the sole basis for allotment of alternative
plot.
3. The allotment of alternative plot should be considered
on the basis of area shown in the record of 1958.
However, if he is in actual possession of more/less area,
as per verification report, the plot should be considered
against the actual area in possession, but this will not be
more than the allotted area.
4. The committee was of the view that the other secondary
documents proving his possession in community land at
village Nangal Dewat, Electricity Bill etc. may also be
seen.
5. The Committee decided that the report submitted by the
verification team headed by the Tehsildar consisting
officials of different department / branches should be the
main basis for examining the claims of the individual
persons.
6. The Committee noticed that in the earmarking made in
the year 1958, the plots were numbered. However, as on
date, the position differs due to a gap of approximately
50 years. Therefore, it was considered that a person may
not be rejected merely because of reason that he is not
occupying the same plot. However, he should be in
possession of land in community land only, preferably
in the same Khasra Number.
9. In order to verify the claims for alternative plots in lieu of land
occupied by various claimants, a verification team consisting of seven
officials including representatives of Airport Authority of India and the
DDA and headed by the Tehsildar was constituted. The said team visited
the village Nangal Dewat from 29.06.2007 to 04.07.2007 to verify the land
in possession of the residents of village Nangal Dewat including the land in
possession of the claimants.
10. The Committee examined the claims on the basis of the eligibility
criteria adopted and submitted a report. Annexure-B to the report of the
said Committee constituted to examine the eligibility of 122 persons for
allotment of alternative land contains the list of claimants who were found
to be ineligible for allotment of alternative land. The relevant extract of the
said Annexure which relates to the claim of the appellants is extracted
below:-
S.No. of Name of Khasra Area Area in Name of Name of Relationship AREA Khasra Build
the list the No. in Sq. Biswa the the persons No. Up/
of 122 Original Yards claimant found in Vacant
persons Allottee possession
by the
Verification
Team
19 Surta S/o 1232/5 101 2 Prabhat, Raj Pal, Exchange 101 1232/5 Built
Thoi Rajinder, Mahender, Up
Ishwar Vijay,
S/o Surta Sanjay,
SS/o
Banarsi
20 Mawashi 1232/5 101 2 Prabhat Prabhat Purchase 175 1232/5 Built
S/o Singh Singh, Up
Maman S/o Surta Rajender
S/o Thoi SS/o Surta
11. The appellants are sons of one Surta whose name admittedly appears
in the list of 122 persons as per the records of 1958. Surta is recorded as
occupying an area of 101 sq. yards in Khasra No. 1232/5. The name of
Surta (Surta son of Thoi) is placed at serial no. 19 of the list of 122 persons
listed as original allottees. The name of one Mawashi is listed at serial no.
20 of the same list. The appellants are claiming an alternative plot of land
on the basis of the land originally recorded in the name of their father
(Surta) being his legal heirs and also on the basis of the plot of land
acquired by their father Surta from Mawashi who is recorded at serial no.
20 of the said list. The claim of the appellants has been denied as the list
annexed as Annexure-B to the aforementioned report of the Committee
indicates that some persons other than appellants are in possession of the
land which was originally recorded in the name of Surta. Thus, as per the
respondents, while the first condition that the appellant's predecessor
appears in the list of 122 persons as per record on 1958 is satisfied, the
second condition that the said person/his heirs should be in possession of
the land is not satisfied with respect to the land originally recorded in the
name of Surta. It is relevant to note that the area recorded in the name of
Surta in the 1958 list is 101 Sq. yards. The appellants have also been
denied an alternative plot in respect of the lands acquired by their father
Surta from Mawashi as Annexure-B to the aforesaid report indicates that
while the appellants are in possession of the said land neither they nor their
father were the original allottee(s) of the said land. It is further indicated in
Annexure-B that the area of the land recorded in the name of Mawashi in
1958 was 101 sq. yards in Khasra No. 1232/5. The area of land found to be
in possession of the appellants is 175 sq. yards in Khasra No. 1232/5.
12. The appellants have contended that their father was the owner and in
possession of 252 sq. yards in Khasra No. 1232/5. Admittedly, the father of
the appellants was recorded as the original allottee of a plot of land and it is
contended that in addition he had acquired the adjacent plot measuring 126
sq. yards from one Mawashi (who was an original allottee) by a sale deed
in 1966. It is submitted by the appellants that they/their father continued to
be in possession of the land originally recorded in the name of their father
and their father further added to his existing holding by acquiring the
adjacent plot in 1966 and thus their right to an alternative plot of land with
respect to the original holding as recorded in the 1958 list cannot be denied.
13. In our view, the controversy whether the appellants have fulfilled the
eligibility criteria has to be resolved in favour of the appellants for the
following reasons:
13.1 It is not in dispute that the name of the father of the appellants
appears in the list of 122 persons, who were original allottees in the record
of 1958, at serial no. 19. It is also not in dispute that the appellants were in
possession of lands in the same Khasra (i.e Khasra no. 1232/5) in June-July
2007 at the time when physical verification was undertaken by the
Verification team. Thus on a strict reading, the eligibility criteria is
satisfied. The appellants have been denied allotment of alternative lands
because they have been found to be in possession of property which was
earlier recorded in the name of Mawashi and was purchased by their father
from Mawashi in 1966 and the plot of land which was recorded in the name
of Surta in 1958 has been found to be in possession of some other persons.
It is relevant to note that the property in possession of the appellants in
June-July 2007 was a built up property and the area of the property
admittedly exceeded the area recorded in the name of Mawashi (the area in
possession of the appellants is found to be 175 sq. yards while the area
originally recorded in the name of Mawashi is 101 sq. yards). Thus,
indisputably, the appellants were in possession of lands in Khasra No.
1232/5 other than the land standing in the name of Mawashi in the 1958
list. While, the appellants have contended that they not only continued to
be in possession of the land standing in the name of Surta (serial no. 19)
but also the additional land subsequently purchased from Mawashi (serial
no. 20). Both these lands are adjoining and are in the same Khasra namely
Khasra No. 1232/5. It is further noteworthy that whereas the properties
were described as vacant earlier, the same have been built up and to that
extent the character of the property has also changed. If it is accepted that
entire land allotted to Surta has been disposed of by him, there is no
explanation as to how the appellants are in possession of land which is
significantly more than that originally recorded in occupation of Mawashi
and subsequently purchased from him. This aspect of the matter has not
been considered by the Nodal Officer. The order passed by the Nodal
Officer only records that the Committee had not found the appellants
eligible for allotment of alternative plots in lieu of land recorded in the
name of communities as the appellants did not fulfil the laid down
eligibility criteria.
13.2 The Committee was conscious of the fact that the possession on
ground would differ from records and had thus expressly provided for this
contingency in paragraph 6 of the criteria for determining the eligibility for
alternative plots. The Committee had noticed that in the earmarking made
in the year 1958, the plots were numbered. However, the possession as on
ground differed due to a gap of approximately 50 years and therefore, the
eligibility of a person was not be rejected merely because of the reason that
he was not occupying the same plot. However, it was specified that he
should be in possession of the land preferably in the same Khasra number.
The case of the appellants clearly falls within this contingency as the
appellants have been found to be in possession of the lands (which is
admittedly larger than that purchased from Mawashi) in the same Khasra
number as originally recorded and also the name of their father appears in
the list of 122 persons.
13.3 We must also add that the rationale of evolving the twin criteria
cannot be lost sight of. The purpose of adopting the twin criteria was to
ensure that those persons who had been in continuous possession since
1958 ought to be given alternative plots, since they had been living on the
land for over 50 years, which was required for the expansion of IGI
Airport, and were required to be rehabilitated. Thus, those persons whose
name appeared in the list of 122 persons but had subsequently sold or
exchanged their lands and moved out of the area would not be eligible for
claiming an alternative plot of land. Similarly, persons who had acquired
property in the community lands after 1958 would also not be eligible since
they could not be stated to be in possession as original allottees of the
community land. This rationale has been explained in the report of the
Committee constituted to examine the eligibility of the 122 persons
recorded in the list of 1958 as under:-
"Cases of Purchase / Exchange / Sale / Allottee / His LRs
Not in possession of Community Land:-
While examining the claims of the affected persons, it
has been noticed that many of the claimants are in possession
of community land but their names do not figure in the
allotment list of year 1958. Such persons are in possession of
land on the basis of purchase of such land or having exchanged
their lands. Some of the claimants submitted the claims for
alternative plots merely on the basis of the name of their
Father/Grand Father etc. were figuring in the list of 122
persons but they are not found in actual possession in
community land at the time of verification. The Committee is
of the view that these persons do not fulfil the two fold
criteria i.e. names in the allotment list of 1958 and
possession of community land. Unless the claimant qualifies
both conditions, he cannot be considered eligible for allotment
of alternative plot."
The purpose of the scheme has also been explained by a Division Bench of
this Court in the case of Bhoop Singh (supra) as under:-
"9. The scheme framed by the Government, in the year
2007, to allot alternative plots to the persons who satisfied
the twin requirements of being in possession at the time of
preparation of the list of 1958 as well as at the time of
inspection in June-July, 2007, was not challenged in the
writ petition filed by the appellants. Though the appellant
challenged the communication dated 1.8.2007, sent to
them by the Nodal Officer, they chose to challenge the
scheme on the basis of which their claim was examined
and rejected by the Nodal Officer.
Even if we proceed on the basis that challenge to
the communication dated 1.8.2007 could also be
construed as challenge to the scheme on the basis of
which the claim of the appellants was rejected by the
Nodal Officer, we find no merit in the challenge to the
scheme. In the absence of any legal right vested in the
appellants to claim alternative plots from the respondents,
it was for the government to decide to what extent and on
that basis it wanted to rehabilitate those persons whose
names appear in the list of 1958, despite the fact that they
had no legal right to obtain alternative plots from the
Government by way of their rehabilitation. Unless it is
shown that the criteria laid down by the government was
irrational, arbitrary or discriminatory, the Court would
not be justified in interfering with the decision taken by
the government in this regard. We find nothing arbitrary
or discriminatory in the government deciding to
rehabilitate only those persons who were occupying the
community land not only in the year 1958 but also in the
year 2007, the purpose being to rehabilitate only those
who continued to occupy the aforesaid land throughout
since the time it was divided amongst the members of the
community. The Government of India, in our view, was
not unjustified in deciding not to allot alternative plots to
those who had already parted with possession of the
community land to others by way of sale, transfer or in
some other manner. Having already taken advantage of
the community land by selling or transferring it to
outsiders, these persons cannot be allowed to derive yet
another advantage from the same community land by way
of allotment of alternative plots to them. As regards those
whose names did not appear in the list of 1958, we are of
the opinion that since these persons did not possess the
community land at the time it was divided amongst its
members, they cannot claim allotment of alternative plots
on the strength of acquisition of the community land from
those who were occupying the said land in the year
1958."
Now, examining the case of the appellants from this standpoint, i.e. the
purpose for which the twin criteria had been adopted, we find that the case
of the appellants falls within the criteria adopted to examine the eligibility
of the persons for allotment of alternative lands. Indisputably, the
appellants have been living on the community lands since over 50 years
and, thus, the appellants cannot be held to be ineligible on account of any
discrepancy between the land records and the land physically occupied by
them.
14. We accordingly, allow the present appeal and set aside the impugned
order dated 12.02.2008 passed by the learned Single Judge and also the
order dated 01.08.2007 passed by the Nodal Officer/Additional District
Magistrate (South-West). We further remand the matter to the Nodal
Officer (respondent no. 4) to consider the allotment of alternative lands to
the appellants. However, we clarify that respondent no. 4 will determine
the entitlement of the appellants on the basis of only two biswas of land
which originally stood recorded in the name of the father of the appellants
(i.e. Surta S/o Thoi). We further direct the respondents to allot an
alternative plot of land to the appellants as per their entitlement.
15. Parties are left to bear their own costs.
VIBHU BAKHRU, J
BADAR DURREZ AHMED, ACJ
AUGUST 30, 2013
RK
