Public Works Department & Anr vs Ashok Kumar & Anr
2015 Latest Caselaw 3888 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 15th May, 2015

+                               LPA No.71/2015

       PUBLIC WORKS DEPARTMENT & ANR.        ..... Appellants
                   Through: Ms. Zubeda Begum with Ms. Sana
                            Ansari & Ms. Vanessa Singh, Advs.

                                   Versus

       ASHOK KUMAR & ANR.                               ..... Respondents
                  Through:             Mr. Ram Kumar, Adv. for R-1.
                                       Mr. Yeeshu Jain, Adv. with Ms. Jyoti
                                       Tyagi, Adv. for LAC.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the judgment dated 4th August, 2014 of

the learned Single Judge of this Court allowing W.P.(C) No.7649/2011 filed by

the respondent No.1 by directing the appellants to restore possession of land

bearing "Khasra No.561/421 and thereafter changed to Khasra No.414" to the

respondent No.1 / writ petitioner, "ignoring the numbers of the khasras being

Khasra No.561/421 or new Khasra No.414". The appeal is accompanied with

an application for condonation of 159 days delay in filing thereof.

2. Notice of the appeal as well as application for condonation of delay was

issued. The respondent No.1 did not file any reply to the application for

condonation of delay. Thereafter, we heard the counsel for the appellants as

well as the counsel for the respondent No.1 [respondent No.2 is the Land

Acquisition Collector (LAC), Narela Circle] and reserved judgment.

3. As aforesaid, the respondent No.1 has not filed any reply to the

application for condonation of delay. Even during the hearing, the said

application was not opposed and rather the arguments were addressed on

merits. The appellants, in the application have pleaded that they came to know

of the impugned judgment, though pronounced on 4th August, 2014, only on

12th November, 2014 and wherefrom the appeal is within time. The said

application is supported by an affidavit of the Executive Engineer of the

appellant No.1. In the absence of any opposition, we accept the cause pleaded

for condonation of delay and find the same to be sufficient. Accordingly, the

delay in filing the appeal is condoned.

4. The respondent No.1 filed the writ petition from which this appeal arises,

pleading; i) that the respondent No.1 / writ petitioner vide Sale Deed dated 30th

August, 1991 purchased the land ad-measuring 1 Bigha 16 Biswas forming part

of Khasra No.561/421 of village Saleempur Majra, Madipur, Delhi; ii) that vide

Notification dated 10th September, 2002 under Section 4 read with Section

17(1) and Section 17(4) of the Land Acquisition Act, 1894, out of the aforesaid

land, land ad-measuring 1 Bigha 13 Biswas of the respondent No.1 / writ

petitioner was sought to be acquired for construction of missing link of Road

No.43; the said notification was followed by a Notification dated 5 th September,

2003 under Section 6 read with Section 17(1) of the Land Acquisition Act; iii)

that the possession of the said 1 Bigha 13 Biswas of land was accordingly taken

over and handed over on 16th April, 2004; iv) that however vide Notification

dated 24th June, 2005 under Section 48(1) of the Land Acquisition Act, the said

land was withdrawn from acquisition; iv) however the possession of the land

was not restored back to the respondent No.1 / writ petitioner and which led

him to file earlier W.P.(C) No.22140/2005 in this Court and vide order dated

23rd November, 2005 wherein direction was issued for carrying out of

demarcation of the site; v) however there were disputes about demarcation and

finally vide order dated 20th February, 2008 in W.P.(C) No.22140/2005, this

Court directed the respondent No.1 / writ petitioner to avail of the remedy

provided of Revision against the demarcation proceedings; vi) that the

respondent No.1 / writ petitioner accordingly filed a Revision Petition before

the Financial Commissioner; vii) the Financial Commissioner vide order dated

28th February, 2011 set aside the demarcation proceedings.

Thereafter, the writ petition from which this appeal arises, claiming the

reliefs of restoration of possession of land ad-measuring 1 Bigha 16 Biswas,

was filed.

5. The learned Single Judge has allowed the writ petition as aforesaid

reasoning that since in pursuance to the acquisition notifications the possession

of the land was taken over from the respondent No.1 / writ petitioner, the

appellants / respondent No.2, upon the land being de-notified from acquisition,

are liable to restore back the possession thereof to the respondent No.1 / writ

petitioner.

6. Though the reasoning given by the learned Single Judge for allowing the

writ petition, on the face thereof is simple, logical and the only one possible on

a view of the case of the respondent No.1 / writ petitioner only but on closer

scrutiny is found to be de hors the stand of the appellants in their counter

affidavit and de hors the orders in the writ petition earlier filed by respondent

No.1.

7. It was / is the case of the appellants in the counter affidavit to the writ

petition as well as in the memorandum of appeal:

(a) that the land from which the link road is passing is part of Khasra

No.565/414/1; the said land was taken over by the appellants from

the defence authorities;

(b) that though pursuant to the notifications under Sections 4 and 6 of

the Land Acquisition Act, demarcation was carried out before

possession of the land bearing Khasra No.561/421 was handed

over by the respondent No.1 / writ petitioner to the appellant on

16th April, 2004 but subsequently it was found that the said land

was part of Khasra No.414 and not of Khasra No.561/421 and

owing whereto, the land bearing Khasra No.561/421 was de-

notified;

(c) that even in demarcation pursuant to directions in W.P.(C)

No.22140/2005 earlier filed by the respondent No.1 / writ

petitioner, the position which emerged was that Khasra

No.561/421 is unascertained and that all demarcation reports of the

past in respect of the said Khasra number were set aside;

(d) that till date, there is no tatima, no demarcation giving exact

location of Khasra No.461/421 on the ground;

(e) that unless fresh demarcation is carried out no one can say where

Khasra No.561/421 is.

8. As is obvious from the aforesaid, the writ petition from which this appeal

arises was the second round of writ petition after de-notification of the land

from acquisition. Immediately after the land was de-notified from acquisition,

the respondent No.1 had filed W.P.(C) No.22140/2005 for the same relief as

claimed in the writ petition from which this appeal arises. The position then

also was that the possession of the land had been taken from the respondent

No.1 / writ petitioner pursuant to notifications for acquisition thereof and the

appellants and respondent No.2 were required to, upon the land being de-

notified from acquisition, deliver back possession thereof to the respondent

No.1. Though the reasoning given by the learned Single Judge in the impugned

order would have applied at that stage also but the learned Single Judge before

whom that writ petition was pending did not so direct and on the contrary

ordered demarcation for identification of the land, reasoning that situation at

site was uncertain and it was not definite that the land of which possession

pursuant to acquisition notifications was taken on 16 th April, 2004 was situated

in Khasra No.561/421 or not. The respondent No.1 / writ petitioner at that time

did not contend that there was no need for demarcation and that he was entitled

to the land which pursuant to acquisition had been taken over from him and

which upon being de-notified was liable to be returned to him. It is the plea of

the appellants that in fact the order for demarcation "to identify Khasra

No.561/421" was a consent order. Order dated 23rd November, 2005 in

W.P.(C) No.22140/2005 is reproduced in the memorandum of appeal in this

regard. The order in the earlier writ petition directing demarcation, has thus

attained finality. As per the report of the said demarcation, Khasra No.561/421

was heavily built upon and privately owned land. Even upon the respondent

No.1 / writ petitioner objecting to the said demarcation, the learned Single

Judge then did not hold that the said demarcation report was wrong for the

reason that possession of the land pursuant to acquisition had been taken from

the respondent No.1 / writ petitioner. On the contrary, the writ petition was

disposed of with liberty to the respondent No.1 / writ petitioner to challenge the

said demarcation report before the Financial Commissioner. The respondent

No.1 / writ petitioner was satisfied therewith and allowed the said order also to

have attained finality and preferred a Revision Petition before the Financial

Commissioner.

9. The Financial Commissioner has disposed of the said Revision Petition

vide order dated 28th February, 2011, finding that the demarcation done was not

in accordance with the rules / procedure prescribed therefor and accordingly

has set aside the demarcation report. The Financial Commissioner has however

not held that the land of which possession pursuant to acquisition notifications

was taken on 16th April, 2004 was land bearing Khasra No.561/421. The

Financial Commissioner has otherwise also not identified Khasra No.561/421.

10. The position thus remains the same as it was at the time the earlier writ

petition was filed by the respondent No.1. Neither is the situation at site certain

as yet nor is it definitely known whether the land of which possession was

taken on 16th April, 2004 was situated in Khasra No.561/421 or not.

11. The respondent No.1 / writ petitioner however, instead of applying for

fresh demarcation, preferred the writ petition from which this appeal arises and

which has been allowed merely on the logic that since pursuant to acquisition

possession of the land was taken from the respondent No.1 / writ petitioner, the

respondent No.1 / writ petitioner is liable to be put back into possession thereof,

whether it be in Khasra No.561/421 which the respondent No.1 / writ petitioner

claims to be his, or in Khasra No.565/414.

12. We have wondered that when the said relief was denied to the respondent

No.1 / writ petitioner in the writ petition earlier filed by him and which was

disposed of with the direction that the land needs to be identified, how can the

same relief be granted in the second round, without any change in

circumstances i.e. without the situation at site being certain and without it being

definitely known whether the land of which possession was taken on 16 th April,

2004 was situated in Khasra No.561/421 or not. The learned Single Judge has

totally ignored that on the same reasoning on which he has allowed the writ

petition, the respondent No.1 / writ petitioner in the earlier round had not been

found entitled to the same relief. Merely because the demarcation report was

set aside by the Financial Commissioner in Revision Petition would not change

the position. The fact that the position is uncertain today also was accepted by

the learned Single Judge also. It is for this reason only that direction for

delivery of possession of land, „ignoring the khasra number‟ was issued. We

are also unable to find any basis for the notion formed by the learned Single

Judge that Khasra No.561/421 had been changed to Khasra No.414. The claim

of the respondent No.1 / writ petitioner was for Khasra No.561/421 only and no

right with respect to land in Khasra No.565/414 has been disclosed. Thus, no

direction for delivery of possession of land in Khasra No.565/414 could have

been issued.

13. The Supreme Court, in State of U.P. Vs. Labh Chand (1993) 2 SCC 495

held that if a learned Single Judge of the High Court could entertain a second

writ petition of a person respecting a matter on which his first writ petition was

dismissed, even if in limine, by another Single Judge of the same Court, it

would encourage a unsuccessful writ petitioner to go on filing writ petition

after writ petition and have it brought up for consideration before the Judge

after another and that such a thing if allowed to happen could result in giving

full scope and encouragement to an unscrupulous litigant to abuse the process

of the High Court in that any order of any bench could be ignored with

impunity; this would lead to introduction of disorder, confusion, chaos relating

to exercise of writ jurisdiction and there could be no finality to an order.

Reference in this regard may also be made to Indian Council for Enviro Legal

Action Vs. Union of India (2011) 8 SCC 161 where it was also held that

opening the door for re-arguing would be opening a flood gate which will cause

more wrongs in the society at large at the cost of rights.

14. The case of the appellants through out has been that it as well as the

respondent No.2 LAC at the time of acquiring the land were under

misconception that the same was in Khasra No.561/421; subsequently, it was

realized that the land of which the possession in pursuance to acquisition had

been taken was in Khasra No.414 and belonged to the defence estate and

accordingly Khasra No.561/421 of which notification had mistakenly been

issued was de-notified. If that be the position, the respondent No.1 / writ

petitioner cannot be granted possession of land which admittedly is not his.

The same would result in the respondent No.1 / writ petitioner having

possession of land in Khasra No.561/421 as well as land in Khasra No.414.

15. However the same is not to be understood as meaning that the respondent

No.1 / writ petitioner is to be left remediless. The question, where the land ad-

measuring 1 Bigha 16 Biswas of the respondent No.1 / writ petitioner in Khasra

No.561/421 is still to be determined. Though as per one demarcation report,

the said land is heavily built up in private possession but that demarcation

report has been set aside by the Financial Commissioner on technical grounds.

However if on fresh demarcation, it is found that land ad-measuring 1 Bigha 16

Biswas in Khasra No.561/421 is same land as the land of which possession was

taken pursuant to acquisition notifications, then the respondent No.1 / writ

petitioner would certainly be entitled to possession thereof.

16. We, accordingly, while allowing the appeal and setting aside the

impugned judgment of the learned Single Judge allowing the writ petition filed

by the respondent No.1 / writ petitioner, dispose of the said writ petition with a

direction to the authorities concerned to upon appropriate steps for demarcation

of land ad-measuring 1 Bigha 16 Biswas in Khasra No.561/421 being taking

within one month hereof, have the said land demarcated / identified in

accordance with law within a period of six months therefrom.

17. We further direct the concerned authorities to, while carrying out the said

demarcation proceedings, also demarcate the land of which the LAC /

appellants were on 16th April, 2004 put into possession in pursuance to the

acquisition notification.

18. We yet further direct that the demarcation report to be a reasoned one.

19. In the event of it being found that the LAC / appellants were on 16th

April, 2004 put into possession of land ad-measuring 1 Bigha 16 Biswas in

Khasra No.561/421, the appellants / LAC shall remain liable to put back the

appellants into possession of the said land.

20. However if it is found that the LAC / appellants on 16 th April, 2004 were

not put into possession of land ad-measuring 1 Bigha 16 Biswas in Khasra

No.561/421 belonging to the appellants and that the land in Khasra No.561/421

is separate and distinct from the land of which possession was taken over, the

appellants / LAC cannot be made liable to put back the respondent No.1 / writ

petitioner in possession thereof.

21. Any party remaining aggrieved from the demarcation proceedings will

have remedies in law.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE MAY 15, 2015 „gsr‟