Delhi High Court
Dcm Limited vs Delhi Development Authority on 19 March, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.02.2013
Decided on: 19.03.2013
+ RFA (OS) 104/2012 & C.M. NO.18873/2012
DCM LIMITED ..... Appellant
Through : Sh. Sanjeev Anand, Sh. Abhas
Kumar and Ms. Anubha Surana, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through : Sh. Harish Malhotra, Sr.
Advocate with Ms. Shobhana Takiar,
Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S. RAVINDRA BHAT
%
1. In the present appeal, the judgment and order of 19.09.2012,
dismissing CS 1085/1991, has been impugned.
2. The plaintiff - which has filed the present appeal (and is hereafter
referred to as "DCM" or "the plaintiff" variously), claimed a declaration and
decree for permanent injunction in respect of land situated at Baghraoji,
Delhi. The DCM contended that some of its other lands were taken-over by
the Delhi Improvement Trust as it was required for realignment of drain
known as "Daryai Nala" and in exchange it was allotted the suit land. The
plaintiff also stated that physical possession of the land allotted and made
over to it was given sometime in 1942-1943 and ever since it was in
RFA(OS)104/2012, C.M. NO.18873/2012 Page 1
continuous, exclusive and uninterrupted possession and enjoyment as the
owner. The DDA initiated the proceeding under the Public Premises
(Eviction of Unauthorised Occupants) Act, [hereafter referred to as "the
1971 Act"]. The notice under the 1971 Act was issued sometime in 1990
and proceedings were commenced by the DDA, the defendant thereafter.
The Estate Officer proceeded with the matter. During the pendency of those
proceedings, the DCM filed CS 1085/1991 claiming declaration that it was
the owner in possession and seeking a decree of declaration restraining the
defendant DDA from dispossessing it. The DDA filed written statement
urging various contentions. It also averred that the suit was not maintainable
on the ground that notice in terms of Section 53A of the Delhi Development
Authority Act had not been issued. The DDA objected to the maintainability
of the suit, however, on the ground that it was barred by Section 15 of the
Public Premises Act. The DDA filed an application, I.A. No. 11206/1992, in
terms of the provisions of Order VII Rule 11 Code of Civil Procedure (CPC)
for rejection of the suit, on the ground that notice under Section 53B had not
been served. It also pleaded that DCM's argument that it was the owner and
entitled to a declaration, was not made-out because of Section 15 and further
that in the absence of any title document, such a plea was untenable.
3. By a judgment and order dated 08.08.1995, a learned Single Judge of
this Court accepted the application for rejection of the suit only on the
ground that the provisions of Section 53B had not been complied with.
However, the other ground for rejection of the suit was not accepted. It was
observed that:
"In the suit the plaintiff is seeking declaration of its title
also on the basis of having acquired the same by adverse
RFA(OS)104/2012, C.M. NO.18873/2012 Page 2
possession for which prima facie, on the basis of the
averments made in the plaint it cannot be said that the
jurisdiction of the civil court would stand ousted.
Ultimately on evidence being led, in case it is found that
plaintiff had acquired no title by adverse possession, it
might be held that the property falls under the definition
of public premises and in that eventuality Civil Court will
have no jurisdiction. The Court at this stage has to look
only at the averments made in the plaint and nothing
else. Defendant must be taken to admit, for the sake of
arguments, the allegations as made in the plaint that are
true in the manner and form in which those are made. In
case allegations in the plaint are taken as a whole, it
would be seen that plaintiff's claim is that it has
remained in continuous possession of the suit property
without any interruption, openly, peacefully and in
assertion of its right as an owner for a period of more
than 12 years before proceedings were commenced under
the Public Premises Act. Since title has been acquired by
holding adversely, its possession cannot be disturbed.
This objection also is not sufficient to reject the plaint."
4. Though DCM's argument was that the suit could not be rejected
at the threshold and, therefore, required a trial, was accepted, the
Court proceeded to reject the plaint on the ground of non-compliance
with the provisions of Section 53B. Consequently, the DCM preferred
an appeal, i.e. RFA 17/1995 which remained pending on the file of
this Court for a considerable period of time. By the judgment of a
Division Bench, dated 29.05.2009, that appeal was allowed and the
Court held that having regard to the circumstances, what emerged was
that DDA was aware of the appellant's claim consequent upon which
notice under Section 53B was unnecessary. The Division Bench by its
judgment directed the suit to be listed for directions before the learned
RFA(OS)104/2012, C.M. NO.18873/2012 Page 3
Single Judge on 15.07.2009. Consequently, the suit was listed on
many dates of hearings and by order dated 12.11.2009, it was noticed
that the materials and statement recorded by the Estate Officer could
be treated as evidence of the parties' respective cases; the suit was
listed for framing issues on 29.01.2010. Thereafter, it was again listed
on subsequent dates.
5. In the meanwhile, during the pendency of the suit, the Estate
Officer had proceeded to adjudicate upon the DCM's objections with
regard to maintainability of proceedings under the 1971 Act and by
order dated 30.03.2001, directed its eviction from the suit properties.
By virtue of order of the Division Bench in RFA 17/1995, dated
25.08.1999, the Estate Officer (who had been restrained from issuing
a final order in the eviction proceedings) was permitted to pass an
order but also directed to send it to the Court in a sealed cover. In
these circumstances, the matter was listed before the Single Judge on
21.08.2012. He was of the opinion that the order of the Estate Officer
in favour of the defendant/DDA, directing the plaintiff's eviction
would operate as res judicata and also operate as estoppel against the
plaintiff DCM. In these circumstances, the matter was further listed
for hearing on 19.09.2012. By the impugned judgment, the learned
Single Judge dismissed the suit in terms of the decision of larger
Constitution Bench of the Supreme Court in Ashoka Marketing
Limited & Anr. v. Punjab National Bank and Ors 1990 (4) SCC 406.
The learned Single Judge relied upon paras 33 to 35 of the said
judgment in Ashoka Marketing (supra) to say that the contention with
regard to maintainability of a suit that raises bona fide disputes or
RFA(OS)104/2012, C.M. NO.18873/2012 Page 4
issues of fact relating to title of premises claimed to be public
premises, has to be rejected. Learned Single Judge was of the opinion
that since the Constitution Bench rejected that contention, the suits by
which the lessees claim to be owners are not maintainable once the
premises fall within the definition "public premises". He also relied
exclusively upon paras 10 to 16 of the Estate Officer's order dated
30.03.2001. Thereafter, in the impugned judgment, the learned Single
Judge proceeded to reject other contentions of the plaintiff/DCM in
the following terms:
"12. Learned counsel for the plaintiff very vehemently
sought to argue that the subject suit has to be decided
inasmuch as Section 9 of CPC mandates this Court to
decide all civil suits. I cannot agree. Section 9 CPC itself
states that a civil Court will decide a suit unless
cognizance of the same is expressly or impliedly barred.
Once there is a specific bar of jurisdiction of the civil
Court with respect to matters which can be decided by
the Estate Officer, and Section 15(a) of the Public
Premises Act, 1971 clearly requires the issue with regard
to the nature of occupation of a person i.e whether
authorized or unauthorized, and all aspects thereto, to be
decided by the Estate Officer, the civil Court
jurisdiction's is barred.
13. I may note that in the earlier Public Premises Act
of 1958, the Supreme Court had held the same to be
constitutionally invalid because the Governmental
authorities could pick and choose/discriminate between
two sets of persons, by initiating civil proceedings
against one set of person and approaching the Estate
Officer for the other set of persons; and therefore the
1958 Act was struck down. In the present 1971 Act, the
discrimination which existed in old law was removed and
every proceeding which fell in the jurisdiction of the
RFA(OS)104/2012, C.M. NO.18873/2012 Page 5
Estate Officer had necessarily and only to be tried in
terms of Section 15 by the Estate Officer and not by the
civil Court. I have therefore to act in furtherance of the
intendment of the legislature in bringing in the Section 15
of the Public Premises Act, 1971.
14. In view of the above, the present suit is barred by
principles of res judicata. Also, the present suit cannot be
tried under Section 9 CPC inasmuch as there is a bar to
the jurisdiction of the civil Court under Section 15(a) of
the Public Premises Act, 1971. I therefore dismiss the
suit as the civil Court has no jurisdiction in terms of
Section 15(a) of the Public Premises Act, 1971 and also
on the ground of general principles of res judicata, of
course subject to any decision in appeal against the
judgment dated 30.3.2001 of the Estate Officer."
6. Counsel for DCM argued that once the application for rejection
of plaint on ground of maintainability had been rejected - as in this
case, (on the ground of issue of title not being ad judicable by reason
of provisions of the Public Premises Act), the learned Single Judge
should not have dismissed the suit, having regard to the fact that the
Division Bench had restored the suit, after being appraised of the
eviction order. Its direction to decide the suit was made in 2009, after
the eviction order had been brought to its notice. In these
circumstances, after more than two decades, the Single Judge could
not have summarily rejected the suit, holding that it was not
maintainable by virtue of Section 15 of the Public Premises Act.
7. The appellant's counsel also relied on some of the documents,
filed before the competent authority under the Public Premises Act, to
say that the suit lands were the subject matter of legitimate exchange.
RFA(OS)104/2012, C.M. NO.18873/2012 Page 6
Since the erstwhile Board wished to align a canal, it took over DCM's
property; the latter was offered land, evident from letters written on
behalf of the Governor General of British India, contemporaneously in
1941-42, offering the suit lands in exchange. It was submitted that
these letters were not produced by the DDA, but obtained from the
official archives. These, and related documents established that DCM
had been given the lands in exchange. Even though the Estate Officer
did consider the matter, the fact remained that he could not have given
a ruling in favour of the plaintiff, because of the limited nature of his
mandate and jurisdiction, which was to decide whether the eviction
notice had been issued in accordance with law. The question whether
DDA or the government agency had title, or had acquired title or
whether it continued with DCM, could not have been gone into by
him. Counsel submitted that the learned single judge fell into error in
giving primacy to Section 15 and holding that the determination by
the Estate Officer constituted res judicata. That principle operated
only when the decision is rendered by a competent court or tribunal;
the Estate Officer could not be described as such.
8. Learned counsel relied on the judgment reported as Govt. of
A.P. V. Thummala Krishna Rao AIR 1982 SC 1081, in which the
Supreme Court, while elaborately considering the scope of a similar
provision under Sections 6 and 7 of the A.P. Land Encroachment Act,
1905, held that:
"the Government cannot take a unilateral decision in its
own favour that the property belongs to it, and on the
basis of such decision take recourse to the summary
RFA(OS)104/2012, C.M. NO.18873/2012 Page 7
remedy provided by Section 6 for evicting the person who
is in possession of the property under a bona fide claim
or title."
It was submitted that in the light of the above decision, the Estate
Officer, who acted in terms of the Public Premises Act, could not
possess jurisdiction or competence to decide whether the suit lands
were the property of the DDA or the Central Government. As far as
the decision in Ashoka Marketing (supra) was concerned, learned
counsel submitted that the Supreme Court rejected the submission
made that complicated questions relating to the termination of leases
should be decided by civil courts. There was consequently, no blanket
or authoritative ruling that the Estate Officer had jurisdiction to decide
whether the premises were owned by the public authority or the
Government.
9. Counsel for DDA argues that by virtue of Section 15(a) of the
Public Premises Act, 1971, the jurisdiction of the Civil Court is barred
with respect to issues that fall within the domain of the Estate Officer.
Section 15(a) states that a civil Court will not have jurisdiction to
entertain any suit or proceeding in respect of eviction of a person who
is in unauthorized occupation of the public premises. The issue of
eviction of anyone in unauthorized occupation of public premises will
necessarily include a decision by the Estate Officer on the defence of
an occupant who urges that he is not an unauthorized occupant of
public premises. If the appellant's plea is accepted, then in all such
defences, the eviction proceedings cannot continue before the Estate
Officer on the ground that the individual is not in fact an unauthorized
RFA(OS)104/2012, C.M. NO.18873/2012 Page 8
occupant. Here, the appellant has argued this aspect before the Estate
Officer which has been duly decided by him under the Public
Premises Act. The judgment of the Estate Officer, subject to any
decision in the appeal, will operate as res judicata. If there are certain
issues which the present plaintiff ought to have raised, but did not
raise, then the principles of constructive res judicata will apply
against the plaintiff. Counsel submitted that the findings of the single
judge on this aspect are unimpeachable.
10. DDA also argued that the suit land is Nazul Land, according to
Ex DW-3/5, agreement through which the Government placed lands at
the disposal of the Delhi Improvement Trust. It specified that the
lands transferred to the Trust could be conveyed by it in the form of
conveyance approved by the Government. On the other hand, argued
learned Senior Counsel for the DDA, no Exchange deed or any other
conveyance transferring the suit land through exchange had been
proved. This belied DCM's contention that it was owner of the suit
lands.
11. DDA's senior counsel relied on the observations of the Estate
Officer that the Exchange document requires compulsory registration
under Section 17 of the Indian Registration Act. The absence of any
Exchange deed or any other conveyance deed in respect of the Nazul
land, much less registered documents on record, also showed that no
exchange of land took place. Oral exchange of land could not take
place. It was argued that ownership of Khasra No.487-488 of DCM
was not proved by it. It failed to prove its title in Khasra No.487; the
RFA(OS)104/2012, C.M. NO.18873/2012 Page 9
existence of mutation entries did not amount to proof of title. Counsel
also argued that the Naib Tehsildar (Nazul) proved that the suit land
was owned by DDA as Nazul land by proving Jamabandi and Aks-
Shajra Ex DW-2/1 and DW-2/2 before the Estate Officer. In cross-
examination, he proved that no re-alignment of Daryai Nala took
place nor was there any entry of exchange of any land.
12. Learned counsel for DDA also relied on the decision of the
Supreme Court in Mandal Revenue Officer vs Goundla Venkaiah &
Anr. 2010 (2) SCC 461 to say that the Supreme Court had considered
and distinguished the earlier judgment in Thummala Krishna Rao
(supra) and held that in terms of the Special Act, to prevent land
grabbing, the competent authority could decide questions of title. It
was submitted that for these reasons, the appeal is without merits and
should be dismissed.
13. It would be necessary, in view of the rival contentions, to first
analyse relevant provisions of the Public Premises Act. The Act
provides for the eviction of "unauthorised occupants" from "public
premises". Section 2(c) defines "premises" as "any land or any part of
a building and to include garden, grounds and outhouses appurtenant
to the building or fittings affixed thereto". Section 2 (e) defines
"Public premises". The definition is in three parts. Section 2 (e) (1)
takes in premises belonging to, or taken on lease or requisitioned by,
or on behalf of, the Central Government, as well as premises placed
by that Government under the control of either House of Parliament
for providing residential accommodation to the members of the staff
RFA(OS)104/2012, C.M. NO.18873/2012 Page 10
of the Secretariat of either House of Parliament. Section 2 (e) (3)
includes premises belonging to certain local authorities in the Union
Territory of Delhi. Section 2 (e) (2) includes premises belonging to or
taken on lease by, or on behalf of, various kinds of bodies, such as
Universities, Institutes of Technology Board of Trustees of Major Port
Trusts and the Bhakra Management Board. It takes in any premises
belonging to or taken on lease by, or on behalf of, a government
company or its subsidiary. It also takes in "any corporation (not being
a company as defined in Section 3 of the Companies Act, 1956 or a
local authority) established by or under a Central Act and owned or
controlled by the Central Government".
14. The Act envisions appointment of an Estate Officer, who is a
high ranking officer of the Government or of the relevant statutory
authority, in respect of public premises controlled by that authority.
The Act enables the Estate Officer to call upon "unauthorised
occupants" of public premises (meaning persons occupying such
premises without authority or continuing in occupation after the
authority to do so has expired or has been determined for any reason)
to show cause why they should not be evicted and to proceed to evict
them, if need be, after considering the cause, if any, shown by the
persons concerned in response to a notice served on them. It also
contains powers to remove unauthorised constructions, demolish
unauthorised constructions, dispose of property left on public
premises by unauthorized occupants, require payment of rent or
damages in respect of public premises and so on. Section 4 requires
RFA(OS)104/2012, C.M. NO.18873/2012 Page 11
the Estate Officer to issue show cause notice to the person concerned
before ordering eviction. Section 5 requires him to take the evidence
that may be adduced by the parties concerned, give them fair and
reasonable opportunity of being heard and then pass an order in which
reasons are required to be recorded in writing. Thirty days' time is
required to be given before the order of eviction could be enforced.
The procedure to be followed either by the Estate Officer or by the
District Judge, while hearing an appeal, is not provided in the Act but
is required to be provided under the Rules made by the Central
Government under Section 13 of the Act. The rules show that while
recording evidence, the Estate Officer is not bound to record the
evidence verbatim but may record a mere summary of the evidence.
An order passed by the Estate Officer, under the provisions of the Act,
is appealable, the Appellate Authority being the District Judge or such
other judicial officer of not less than 10 years experience as a District
Judge, and subject to the above right of appeal, the orders passed by
the Estate Officer are final. Section 15 bars the jurisdiction of courts
to entertain any suits or proceedings in respect of, inter alia, the
eviction of any person who is in unauthorised occupation of public
premises. These are the broad contours of the provisions of the Public
Premise Act.
15. The question which this Court has to address itself to is whether
the impugned judgment, in concluding that by virtue of Section 15 of
the Public Premises Act the jurisdiction of the Civil Court is barred, is
erroneous. The provision reads as follows:
RFA(OS)104/2012, C.M. NO.18873/2012 Page 12
"15. Bar of jurisdiction. No court shall have jurisdiction
to entertain any suit or proceeding in respect of--
(a) the eviction of any person who is in unauthorised
occupation of any public premises, or
(b) the removal of any building, structure or fixture or
goods, cattle or other animal from any public premises
under section 5A, or
(c) the demolition of any building or other structure
made, or ordered to be made, under section 5B, or
(cc) the sealing of any erection or work or of any public
premises under section 5C, or
(d) the arrears of rent payable under sub- section (1) of
section 7 or damages payable under sub- section (2), or
interest payable under sub- section (2A), of that section,
or
(e) the recovery of--
(i) costs of removal of any building, structure or fixture
or goods, cattle or other animal under section 5A, or
(ii) expenses of demolition under section 5B, or
(iii) costs awarded to the Central Government or
statutory authority under sub- section (5) of section 9, or
(iv) any portion of such rent, damages, costs of removal,
expenses of demolition or costs awarded to the Central
Government or the statutory authority."
16. Section 5 of the Act enables the Estate Officer, after issuing
notice to an occupant, if he is satisfied that the public premises are in
unauthorised occupation, to direct eviction through an order. The
DDA argued - and the learned single judge accepted, that by virtue of
the decision in Ashoka Marketing (supra), the jurisdiction to decide
whether the premises were owned by the Government, or the
concerned agency entitled to invoke the Act, was with the Estate
Officer. This is on the premise that a submission in that regard had
been rejected by the Supreme Court. The exact passage which dealt
RFA(OS)104/2012, C.M. NO.18873/2012 Page 13
with the contention is reproduced for convenience:
"Another submission that has been urged by Shri
Ganguli is that the question whether a lease has been
determined or not involves complicated questions of law
and the estate officer, who is not required to be an officer
well versed in law, cannot be expected to decide such
question and, therefore, it must be held that the
provisions of the Public Premises Act have no
application to a case when the person sought to be
evicted had obtained possession of the premises as a
lessee. It is true that there is no requirement in the Public
Premises Act that the estate officer must be a person well
versed in law. But, that, by itself, cannot be a ground for
excluding from the ambit of the said Act premises in
unauthorised occupation of persons who obtained
possession of the said premises under a lease. Section 4
of the Public Premises Act requires issuing of a notice to
the person in unauthorised occupation of any Public
Premises requiring him to show cause why an order of
eviction should not be made. Section 5 makes provisions
for production of evidence in support of the cause shown
by the person who has been served with a notice under
Section 4 and giving of a personal hearing by the estate
officer. Section 8 provides that an estate officer, shall, for
the purpose of holding any enquiry under the said Act
have the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908, when trying a suit in
respect of the matters specified therein namely: (a)
summoning and enforcing the attendance of any person
and examining him on oath; (b) requiring discovery and
production of documents; and (c) any other matters
which may be prescribed. Rule 5(2) of the Public
Premises (Eviction of Unauthorised Occupants) Rules,
1971, requires the estate officer to record the summary of
evidence tendered before him. Moreover Section 9
confers a right of appeal against an order of the estate
officer and the said appeal has to be heard either by the
district judge of the district in which the public premises
RFA(OS)104/2012, C.M. NO.18873/2012 Page 14
are situate or such other judicial officer in that district of
not less than ten years' standing as the district judge may
designate in that behalf. In shows that the final order that
is passed is by a judicial officer in the rank of a district
judge.
A similar contention was raised before this Court in
Maganlal Chhagganlal (P) Ltd. v. Municipal
Corporation of Greater Bombay & Others, [1975] 1 SCR
1 wherein the validity of the provisions of Chapter VA of
the Bombay Municipal Corporation Act,' 1888 and the
Bombay Government Premises (Eviction) Act, 1955 were
challenged before this Court and the said contention was
negatived."
17. It would be apparent from the above extract, that what was
considered and rejected was the contention that a "question whether a
lease has been determined or not involves complicated questions of
law and the estate officer, who is not required to be an officer well
versed in law, cannot be expected to decide such question". The
possibility of the respondent (in the Public Premises eviction
proceeding) setting up a rival contention regarding title, did not
engage the attention of the court. Furthermore, there is no provision in
the Public Premises Act enabling an occupant to raise a counter claim
seeking declaration that he is the true and lawful owner on substantive
grounds, or even urging title by prescription or adverse possession. In
these circumstances, it is held that mere issuance of a notice under
Section 4 would not divest a civil court from exercising its
jurisdiction. There could also be situations where even before a show
cause notice is issued, the occupant might approach the court, seeking
declaration of title, or seeking injunctive relief in respect of his
RFA(OS)104/2012, C.M. NO.18873/2012 Page 15
possession. In such cases, ousting jurisdiction of the civil court can be
only on the ground that an Estate Officer issues notice under Section
4. The unreasonableness of such conclusion is highlighted because,
then, the character of the premises, i.e whether it belongs to the
concerned public agency, cannot be gone into. In other words,
jurisdiction of the civil court to examine and decide on questions of
title and incidental matters, is left to the contingency of issuance or
otherwise of notice under Section 4.
18. In the light of the above discussion, it would now be necessary
to discuss the case law relied on by the parties. In Thummala Krishna
Rao (supra), the Supreme Court had occasion to deal with Sections
6 and 7 of the A.P. Land Encroachment Act, 1905. Like the Public
Premises Act, the Andhra Pradesh enactment provided for summary
procedure to evict unauthorised occupants. The Supreme Court dealt
with a contention similar to the one urged by DCM in the present
appeal, and observed that:
"The summary remedy for eviction which is provided for
by Section 6 of the Act can be resorted to by the
Government only against persons who are in
unauthorized occupation of any land which is "the
property of Government". If there is a bona fide dispute
regarding the title of the government to any property, the
Government cannot take a unilateral decision in its own
favour that the property belongs to it, and on the basis of
such decision take recourse to the summary remedy
provided by Section 6 for evicting the person who is in
possession of the property under a bona fide claim or
title. The summary remedy prescribed by Section 6 is not
RFA(OS)104/2012, C.M. NO.18873/2012 Page 16
the kind of legal process which is suited to an
adjudication of complicated questions of title....
What is relevant for the decision of that question is
more the nature of the property on which the
encroachment is alleged to have been committed and the
consideration whether the claim of the occupant is bona
fide. Facts
, which raise a bona fide dispute of title
between the Government and the occupant must be
adjudicated upon by the Ordinary courts of law. The
Government cannot decide such questions unilaterally in
its own favour and evict any person summarily on the
basis of such decision. But duration of occupation is
relevant in the sense that a person who is hl occupation
of a property openly for an appreciable length of time
can be taken, prima facie, to have a bonafide claim to the
property requiring an impartial adjudication according
to the established procedure of law.
The conspectus of facts in the instant case justifies the
view that the question as to the title to the three plots
cannot appropriately be decided in a summary inquiry
contemplated by sections 6 and 7 of the Act. The long
possession of the respondents and their predecessors-in-
title of these plots raises a genuine dispute between them
and the Government on the question of title,
remembering especially that the property, admittedly,
belonged originally to the family of Nawab Habibuddio
from whom the respondents claim to have purchased it.
The question as to whether the title to the property came
to be vested in the Government as a result of acquisition
and the further question whether the Nawab encroached
upon that property thereafter and perfected his title by
adverse possession must be decided in a properly
constituted suit. May be, that the Government may
succeed in establishing its title to the property but, until
that is done, the respondents cannot be evicted
summarily."
RFA(OS)104/2012, C.M. NO.18873/2012 Page 17
A similar issue arose in State of Rajasthan v. Padmavati Devi and Ors
1995 Supp. (2) SCC 290, where the Supreme Court dealt with
provisions of the Rajasthan Land Revenue Act, 1956. The Court first
noticed the relevant provision and then the facts:
"2. Under Section 91 of the Act a person in occupation of
Government land without lawful authority is to be
regarded as a trespasser and he can be summarily
evicted from such land by the Tehsildar after serving on
such person a notice requiring him to show cause why he
should not be so evicted therefrom.
3. In the instant case, Section 91 of the Act has been
invoked on the basis that the land is recorded as "Sawai
Chak" in the revenue records for the year Samvat 2015
(1958 A.D.) and that in the Parcha Khatani dated
February 9, 1953 that was given to Praduman Ojha, the
husband of respondent No. 1, there is no mention of this
land...."
The Court then concluded that the summary procedure available for
the Government could not oust the jurisdiction of the civil court to
examine questions pertaining to title, claimed by an alleged
unauthorized occupant, in a civil suit:
"6. As noticed earlier Section 91 of the Act prescribes a
summary procedure for eviction of a person who is found
to be in unauthorised occupation of Government land.
The said provisions cannot be invoked in a case where
the person in occupation raises bonafide dispute about
his right to remain in occupation over the land. Dealing
with similar provisions contained in Section 6 of the
Andhra Pradesh Land Encroachment Act, 1945, this
Court in Government of Andhra Pradesh v. Thummala
Krishna Rao and Anr. 1982 (3) SCR 500, has laid down
that the summary remedy for eviction provided by
RFA(OS)104/2012, C.M. NO.18873/2012 Page 18
Section 6 of the said Act could be resorted to by the
Government only against persons who are in
unauthorised occupation of any land which is the
property of the Government and if the person in
occupation has a bona fide claim to litigate he could not
be ejected save by the due process of law and that the
summary remedy prescribed by Section 6 was not the
kind of legal process which is suited to an adjudication of
complicated questions of title. For the same reasons, it
can be said that summary remedy available under
Section 91 of the Act is not the legal process which is
suited for adjudication of complicated questions of title
where the person sought to be evicted as an unauthorised
occupant makes a bona fide claim regarding his right to
be in possession. In such a case the proper course is to
have the matter adjudicated by the ordinary courts of
law."
It is not without significance that the Constitution Bench judgment in
Ashoka Marketing (supra) and the judgment in Padmavati Devi were
authored on behalf of the Court, by the same learned judge, Mr.
Justice S.C. Agarwal. Furthermore, Padmavati Devi (supra) was by a
3 judge Bench. The decision in Thummala Krishna Rao (supra) thus
stood approved by a 3 member judgment, after Ashoka Marketing
(supra).
19. The respondent DDA had relied on Goundla Venkaiah (supra)
to say that the decision in Thummala Krishna Rao is no longer good
law. It would be necessary to notice that in Goundla Venkaiah, the
Supreme Court was concerned with provisions of the Andhra Pradesh
Land Grabbing (Prohibition) Act, 1982 ("the Land Grabbing Act").
The Court pertinently noticed the facts:
RFA(OS)104/2012, C.M. NO.18873/2012 Page 19
"This appeal is directed against order dated 20.6.2000
passed by the Division Bench of the Andhra Pradesh
High Court whereby it allowed the writ petition filed by
the respondents, quashed the orders passed by the
Special Tribunal and the Special Court under the Andhra
Pradesh Land Grabbing (Prohibition) Act, 1982
(hereinafter referred to as the `Land Grabbing Act') and
declared that the respondents have acquired title over the
schedule property by adverse possession."
The Supreme Court then noticed provisions of the Land Grabbing
Act:
"The definition of expression `land grabbing' is very
wide. It covers every activity of grabbing of any land
belonging to Government, a local authority, a religious
or charitable institution or endowment, including a wakf
or even a private person, without any lawful entitlement
and with a view to take illegal possession of such lands.
The creation of illegal tenancies, lease andlicence
agreements or any other illegal agreements in respect of
or construction of unauthorized structures or sale or
hire, etc. are also treated as acts of land grabbing.
Section 3 declares land grabbing in any form as unlawful
and makes any activity connected with or arising out of
land grabbing an offence punishable under the Act.
Section 4(1) lays down that no person shall commit or
cause to be committed any land grabbing. Section 4(2)
lays down that any person who, on or after the
commencement of the Act, continues to be in occupation,
otherwise than as a lawful tenant, of a grabbed land
belonging to the Government, local authority, religious
or charitable institution or endowment including a wakf,
or other private person, shall be guilty of an offence
under the Act. By Section 7(1), the State Government is
empowered to constitute a Special Court for
expeditiously holding an enquiry into any alleged act of
land grabbing and trial of cases in respect of the
ownership and title to, or lawful possession of the land
RFA(OS)104/2012, C.M. NO.18873/2012 Page 20
grabbed. Section 7-A(1) lays down that every Special
Tribunal shall have power to try all cases of which
cognizance has not been taken by the Special Court
whether before or after the commencement of the Andhra
Pradesh Land Grabbing (Prohibition) (Amendment) Act,
1987. Section 7-A(2) lays down that a Special Tribunal
shall, save as otherwise provided in the Act, follow the
procedure prescribed in the Code of Civil Procedure
(CPC) in the trial of cases under the Act. Section 7-A(3)
provides for an appeal against any judgment or order
except an interlocutory order, to the Special Court on
any question of law or of fact. By virtue of Section 8(1),
the Special Court is empowered to either suo moto, or on
an application made by any person, officer or authority,
take cognizance of and try every case arising out of any
alleged act of land grabbing, or with respect to the
ownership and title to, or lawful possession of, the land
grabbed whether before or after the commencement of
the Act and pass appropriate orders including by way of
interim directions. Section 8(2) contains a non obstante
clause and gives finality to the decision of the Special
Court and the provisions of the CPC and the Code of
Criminal Procedure (CrPC) shall, insofar as they are not
inconsistent with the provisions of the Act, apply to the
proceedings before the Special Court. By Section 9, the
provisions of the CPC and Code of Criminal Procedure
have been made applicable to the proceedings of the
Special Court except insofar as they are not inconsistent
with the provisions of the Act. This Section also declares
that a Special Court shall be deemed to be a Civil Court
or, as the case may be, as the Court of Sessions and shall
have the powers of a Civil Court and a Court of Sessions.
Section 10 contains special rule of burden of proof. It
lays down that where there is an allegation of land
grabbing and the land which is subject matter of
grabbing is prima facie proved to be owned by the
Government or by a private person, the Special
Court/Special Tribunal shall presume that the person
RFA(OS)104/2012, C.M. NO.18873/2012 Page 21
who is alleged to have grabbed the land is a land
grabber and it is for him to prove the contrary."
The Court had pertinently observed in Para 15 of the above judgment,
that:
"15. The Land Grabbing Act is a self-contained code. It
deals with various facets of land grabbing and provides
for a comprehensive machinery for determination of
various issues relating to land grabbing including the
claim of the alleged land grabber that he has a right to
occupy the land or that he has acquired title by adverse
possession..."
In the judgment, the Court noticed three previous decisions, in Gouni
Satya Reddi v. Govt. of A.P. and others 2004 (7) SCC (where the
Special Court's decision was quashed and the Court held that the
occupant could not be called a land grabber, based on his assertion of
title); Mahalaxmi Motors Ltd. v. Mandal Revenue Officer and others
2007 (11) SCC 714 (where the jurisdiction of the Special Court was
upheld) and N. Srinivasa Rao v. Special Court 2006 (4) SCC 214.
Thereafter, dealing with Thummala Krishna Rao, the Supreme Court
held that:
"In that case, the principal question, which arose for
consideration, was as to whether the property in question
which was in possession of the family of one Habibuddin
for a long time and, thus, the same had not vested in the
Government by reason of a land acquisition proceeding
initiated for acquisition of the land for Osmania
University. In that case, Osmania University filed a suit
for possession which was dismissed on the premise that
Habibuddin had perfected his title by adverse possession.
Thereafter Osmania University requested the
Government of Andhra Pradesh to take steps for
summary eviction of the persons who were not in
RFA(OS)104/2012, C.M. NO.18873/2012 Page 22
authorised occupation of the said plots. The observations
made therein must be held to have been made in the
aforementioned factual matrix. It is one thing to say that
a summary proceeding cannot be resorted to when a
noticee resists a bona fide dispute involving complicated
questions of title and his right to remain in possession of
the land but it is another thing to say that although a
Special Court and/or a Tribunal which has all the powers
of a civil court would not be entitled to enter into such a
contention. Krishna Rao, therefore, in our opinion has no
application to the facts of the present case."
20. It can be seen from the above discussion that though the
Supreme Court distinguished Thummala Krishna Rao, that was on
account of the provisions of the Land Grabbing Act. It provided a
complete code, which included appointment of a Special Judge, who
had jurisdiction to decide all matters pertaining to land grabbing,
including those "with respect to the ownership and title to, or lawful
possession of" the lands in question. Thus, the remedies provided
were comprehensive, and enabled the Special Court to expressly act
as a Court, take evidence in deposition, and also exercise criminal
jurisdiction. The concerned party made subject to the Act could also
urge and seek ruling on the question of title. Having regard to these
facts, the Court does not see any change in the law. The basic
proposition that having regard to the limited nature of jurisdiction of
the Estate Officer, bona fide title disputes cannot be gone into under
the Public Premises Act, remains unchanged.
21. This Court is supported in its view with regard to the civil
court's possessing jurisdiction in cases where serious or bona fide
RFA(OS)104/2012, C.M. NO.18873/2012 Page 23
disputes of title exist, or have been raised which cannot be decided by
the Estate Officer, by the views of the Madhya Pradesh High Court,
Jharkhand High Court and Andhra Pradesh High Court ( Madhya
Pradesh Electricity Board v. Badri Prasad and Ors AIR 2003 MP
256, Shree Bajrang Hard Coke Manufacturing Corporation v Ramesh
Prasad & Ors AIR 2003 Jhar 17 and Podduturi Vasantha Reddy v.
Estate Officer, Airports Authority of India, N.A.D., AIR 2010 AP 46).
In Shree Bajrang Hard Coke, a Division Bench of the Jharkhand High
Court, while considering the scope of Section 5 of the Public Premises
Act, 1971, held that:
"14. From what has been discussed and quoted above, it
is abundantly clear that an authority under the
aforementioned Act has a very limited jurisdiction and it
has to determine only a dispute that may arise, vis-a-vis a
public premises. Upon an application made before it, it
has to proceed in a summary disposal thereto. The
question, as to whether the area formed part of the Royal
Tisra Colliery or not, consequently making it a public
premise is a question that becomes the focal point of the
instant case and it, therefore, obviously involve
determination/finding of fact. Undoubtedly, while
attempting to come to such finding, the authority may be
faced with complicated question of title as is involved in
the instant case. The authority in the aforementioned
case cannot be said to have the jurisdiction to embark
upon the domain of the Civil Court for the purposes of
adjudicating on a question of a complicated title, which
can only be done by a Civil Court. It would be extremely
unreasonable to allow a Court vested with summary
procedure to give a finding, which can only be arrived at
by a Civil Court having the necessary judicial
competence.
RFA(OS)104/2012, C.M. NO.18873/2012 Page 24
19. ...Now, under Section 5 of the aforementioned Public
Premises (Eviction of Unauthorised Occupants) Act,
1971, it is clear that a Estate Officer after following the
procedure required to be followed therein and after
reaching to a conclusion that a person is in unauthorized
occupation of a public premises, he may make an order
of eviction. The catch words that cannot be lost track of
in this provision are that, all that the Estate Officer is
required to do is that he must come to a conclusion that a
person is in occupation of an area which is already
confirmed or which has already been declared to be a
public premises. He cannot nor does he have the
jurisdiction to identify a particular piece of property and
then give a finding that, that piece of property is a public
property. This power is vested only with a Court of
competent civil jurisdiction and not in a statutory
authority, such as Estate Officer, who has been conferred
only with summary powers. If such Estate Officers are
allowed to give such finding, it would amount to
conferring them with the powers of adjudication and
delivery of judgments within the meaning of
Section 2(a) read with provisions of Order XIV of the
Code of Civil Procedure and/or principles/provisions
analogous thereto."
22. For the above reasons, it is held that the impugned judgment,
inasmuch as it holds that the Court was divested of jurisdiction by
reason of Section 15 of the Public Premises Act, cannot be upheld.
The next question is whether the decision of the Estate Officer can, in
view of this finding, be held as res judicata. This court, on this score
does not experience any difficulty in holding that the principle of res
judicata would not stand in the way of independent adjudication of a
bona fide dispute regarding title to the disputed suit lands. Once it is
concluded, as the court has done earlier, in this judgment- that the
Estate Officer was not competent to rule upon issues of title, or grant
RFA(OS)104/2012, C.M. NO.18873/2012 Page 25
declaration of title to an occupant, any determination by him would
have to be deemed as having been made without jurisdiction. As to
the finality of such decision, or whether it operates as a rule of
preclusion, was pronounced upon by a five judge Bench of the
Supreme Court, in Gulabchand Chhotalal Parikh vs State Of Bombay
AIR 1965 SC 1153, where it was emphasized that res judicata, and
constructive res judicata even vis-à-vis decisions of tribunals other
than courts, are premised on their being competent to decide the issue:
"The Code was dealing with procedure of the civil
Courts only and had therefore not to consider what
would be the effect on the trial of suits in view of the
provisions of other enactments or of general principles of
res judicata or of any other kind. It had to restrict its
provision about res judicata to the effect of decisions in a
civil suit on a subsequent civil suit and therefore enacted
s. 11 in the form in which we find it. It made one of the
condition-, for the application of a previous decision to
operate as res judicata to be that the previous decision is
made not only by a Court competent to make it but by a
Court which be competent to try the subsequent suit. This
condition must have been considered necessary in view
of the observations of the Privy Council in Misir
Raghobardial's Case(1) on account of the hierachy of
Courts under the various Acts constituting Courts of civil
judicature and it could have been felt that a decision by a
Court which is not competentto decide the subsequent
suit be not treated of a binding nature. Such an
exceptional procedure seems to have been provided as a
matter of precaution as the Court not competent to try
the subsequent suit must necessarily be a Court of
inferior jurisdiction and therefore more liable to go
wrong. Whatever the reason may be, the provisions of s.
1 1 will govern a previous decision in a suit barring a
subsequent suit with respect to the same matter in
RFA(OS)104/2012, C.M. NO.18873/2012 Page 26
controversy and general principles of res judicata in
such particular circumstances will neither be available to
bar a subsequent suit nor will be needed."
It is, therefore, held that the decision of the Estate Officer cannot act
as res judicata, or constructive res judicata, because in the first place
that officer did not possess the jurisdiction to decide upon the
Appellant's plea of being lawful owner of the properties.
23. The last question which this court has to address itself to, is
whether the Appellant indeed has pleaded a bona fide dispute. Whilst
in a sense, this Court is conscious that having first decided that the
Estate Officer could not have decided the question, the matter is no
longer moot, yet, it would be wise to deal with the issue. There is, in
the opinion of the court, some need for clarity as to what constitutes a
bona fide dispute. The court can only give some illustrations such as
long, peaceful and uninterrupted possession of the claimant; possible
cases where hostile and adverse possession is set up; genuine
interpretation of documents, etc. In this case, the appellant rests its
claim to be owner of the suit lands, upon some correspondence, and
urges that the suit lands were exchanged with its lands by the
erstwhile Improvement Board. Those letters were summoned from
Archives; their genuineness cannot be doubted. No doubt, there is no
document evidencing exchange, in accordance with Section 118 of the
Transfer of Property Act. As against this, the Appellant had countered
that those provisions had not been brought into force in the territory of
Delhi, at the relevant time. The character of possession claimed by
the Appellant also requires to be gone into.
RFA(OS)104/2012, C.M. NO.18873/2012 Page 27
24. Having regard to the overall conspectus of circumstances,
which includes the fact that earlier, the contention seeking rejection of
the plaint on the ground that it is not maintainable by reason of
Section 15 of the Public Premises Act, had not been accepted, and
eventually, the Division Bench had restored the suit for trial, this
Court is of the opinion that the learned single judge should not have -
if one may so use the expression, with due respect- precipitously
dismissed the suit (which was on the file of the court for well over 21
years) without granting the Appellant the opportunity to establish its
claims in a full hearing. For these reasons, the impugned judgment is
set aside. The respondent DDA is also directed not to give effect to
the order of the Estate Officer till conclusion of the suit, and final
judgment is rendered in it. The parties are directed to present
themselves before the learned single judge, according to roster
allocation, for appropriate directions towards further proceedings in
the suit, on 2nd April, 2013. The Appeal is accordingly allowed in the
above terms; however there shall be no order as to costs.
S. RAVINDRA BHAT
(JUDGE)
SUDERSHAN KUMAR MISRA
(JUDGE)
MARCH 19, 2013
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