Zile Singh vs Land Acquisition Collector And ...
2013 Latest Caselaw 469 Del

$~R9.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 1117/2007

      ZILE SINGH                                         ..... Appellant
                          Through :    Mr. Rajiv Virmani, Sr. Advocate with
                                       Mr. Atul Shankar Mathur and Ms.
                                       Shruti Verma, Advocates

                          versus

      LAND ACQUISITION COLLECTOR AND ORS..... Respondents
                   Through : Mr. Rajiv Bansal and Mr. Rahul
                              Bhandari, Advocates for DDA
                              Mr. Yeeshu Jain, Advocate for
                              LAC/Nodal Officer
                              Mr. Digvijay Rai, Standing counsel
                              for AAI
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN
                     ORDER

% 31.01.2013

This appeal is directed against the order dated 30.05.2012 dismissing

the WP(C) 304/2007 filed by the appellant. Dismissing the writ petition, the

learned Single Judge inter alia held as under:

"65.2 The facts in brief are that the petitioners Sh. Zile Singh and Sh. Nafe Singh both sons of late Sh. Mehar Singh are residents of village Nangal Devat. It is stated that as per the records Sh Mehar singh was the owner and was in possession of land measuring 169 sq. yds and 276

sq. yds in khasra No. 1243 and 1814 sq. yds in khasra No. 1247/4 in the extended abadi. His name figured in the Survey Report and the Naksha Muntazamin. As far as the petitioners are concerned, it is claimed that in the Survey Report they are shown as having equal half share in respect of 103 sq. yds in khasra No. 1243. It is accordingly claimed that this independent holding should be adding to their share in their father‟s property and they should, therefore, get two separate plots instead of one plot jointly.

65.3 The Court has carefully examined the relevant entry in the Survey Report where the names of the two petitioners are shown under the column of the owner of the house and it is indicated "Makaan Kabzaan" and then the two petitioners‟ names are mentioned. It is clear that the petitioners are shown as having equal share only in the structure and not in the land beneath the structure. 65.4 In that view of the matter, it is not possible to find any entitlement for these petitioners in terms of the order dated 18.5.2005 of this Court. In the said order, it was held that in order that a legal heir is entitled for an individual alternate plot, the names should appear "separately in the Survey Report and Naksha Muntazamin in respect of distinct holdings." The word „holdings‟ here is indicative of land and not merely the structures. In that view of the matter, no error can be found in the impugned order of the Nodal Officer."

2. It would, thus, be seen that the writ petition was dismissed on the

ground that in the relevant entry, the appellants were shown as the owners

only of the house but not of the land underneath the house, and therefore,

they owned only the superstructure and not the land beneath the

superstructure. Noticing that in terms of the order of the Court dated

18.05.2005, in case of a legal heir his name should appear in respect of

„holdings‟ which was indicative of land and not merely the superstructure,

the learned Single Judge found no fault with the order of the Nodal Officer,

whereby he had rejected the claim of the appellants for allotment of separate

plots of land in their individual names. The learned counsel for the

appellants submits that the view taken by the learned Single Judge as

regards the ownership of the land beneath the superstructure in question is

factually incorrect and not only the superstructure but the land beneath it is

also owned by the appellants.

3. We have perused the order passed by the Nodal Officer on the

application of the appellants for allotment of plots in lieu of the land in

village Nangal Devat. It was claimed before the Nodal Officer that the

appellants were recorded owners having one-half share each of land

measuring 277 sq yards comprised in khasra No. 1243 shown at SRS No.

288 house No. 50 at page 66 of the Survey1971-72 and were also owner of

the half share each of 276 sq. Yards comprised in khasra 1243 reflected at

SRS No. 303 house No. 54/2 page 67 of the Survey 1971-72 which had been

wrongly recorded in the name of their father, whereas the exclusive owners

in possession of the same. They also claimed that the land admeasuring 276

sq. yards was wrongly recorded in the name of their father due to some

inadvertent mistake/error during the survey. The Nodal Officer observed

that the appellants had failed to produce any document regarding ownership

of the land claimed to be in their possession. He also observed that even

though the land was under their possession but he same was Shamlath Deh

i.e., the land meant for common utilities which could not be added to the

share of the appellants.

4. Learned counsel for the appellant submitted that there was no material

before the Nodal Officer to conclude that the aforesaid land was Shamlath

Deh (the land meant for common utilities). This position was not disputed

by the learned counsel for the respondent.

5. Thus, the question whether the land comprised in khasra No. 1243 of

village Nangal Devat was owned by the appellants or not is a question of

fact which could not have been decided in the writ petition and obviously

cannot be decided in this appeal. Considering the fact that in his order

holding the land to be land meant for common utilities, the Nodal Officer

has not referred to any document on the basis of which such a conclusion

came to be drawn by him, we are of the considered view that the matter

needs to be remitted back to him to pass a fresh order in this regard after

hearing the appellants, giving them another opportunity to produce such

documents as they may like to produce in support of their claim and

examining the other relevant record including the Revenue record, if any,

which may disclose the land in question to be the land for common

utilities/Gaon Sabha land.

6. During the course of arguments, we were informed that presently

there is no officer appointed as the Nodal Officer to adjudicate this claim

and the concerned officer in this regard would be the ADM (Revenue) of

New Delhi district. We, therefore, set aside the impugned order dated

30.05.2007 as well as the order passed by the Nodal Officer and direct the

Nodal Officer to pass a fresh order in terms of the directions given

hereinabove within a period of three months from the date of receipt of a

copy of this order.

CHIEF JUSTICE

V.K. JAIN, J JANUARY 31, 2013/„raj‟