Delhi High Court
Shri Balendu Lohiya And Ors vs Union Of India & Ors on 10 May, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 4/2014 & CM APPL. 1882/2014, 1883/2014
Pronounced on: 10th May, 2016
SHRI BALENDU LOHIYA AND ORS ..... Appellants
Through: Ms. Geeta Luthra, Senior Advocate with
Ms. Shivani Luthra Lohiya and Ms.
Shreya Singh, Advocates
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms. Anjana Gosain & Mr. Vishu
Agrawal, Advocates for R-1
Mr. Ajay Verma, Advocate for DDA
Mr. Anand Yadav and Mr. Ajeet Prasad
Aggarwal, Advocates for respondent
Nos. 5, 8 (i to iii) and 9 (i to iv)
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is an execution first appeal filed by the appellants against the
order dated 09.12.2013 passed by the learned Additional District
Judge-V, Central District, Tis Hazari Courts, Delhi accepting the
objections of the DDA and dismissing the Execution Petition No.
22 of 2013 filed by Balendu Lohiya and Another (appellant
herein).
2. Before dealing with the submissions made by Ms. Geeta Luthra,
the learned senior counsel for the appellants, it would be pertinent
here to give the brief background of the case.
3. So far as the appellants are concerned, they along with respondents
No.5 to 9 in the suit bearing No.170/2004 titled Balendu Lohiya &
Ors. vs. Union of India and Ors. in the first instance filed a writ
petition in the Delhi High Court for allotment of an alternative plot
of land on account of acquisition of land belonging to one Shri
Harish Chand Lohiya, their predecessor-in-interest. The said writ
petition was disposed of with the observations that the matter
involved appreciation of facts and could not be looked into by the
writ court. An SLP against the said order was also taken out which
was also disposed of on 27.01.1987 with the direction that the
appropriate remedy would lie for the appellants by filing a suit for
declaration with consequential relief.
4. In view of the aforesaid observations of the Apex Court, Balendu
Lohiya and three others filed the aforementioned suit for
declaration with consequential relief of mandatory injunction as
against the Union of India, Land & Development Office, Land
Acquisition Collector, DDA and the private respondents No.5 to 9.
The case which was set up in the suit was that the appellants were
the descendants of one Harish Chand Lohiya who owned a parcel
of land which was described in the plaint as Plot No.6 and 7,
falling in Khasra No.639/446, Factory Road, Delhi. The appellants
were the children of said Late Harish Chand Lohiya from the
second wife while as respondents No.5 to 9 were the legal heirs of
Harish Chand Lohiya from the first wife. It was alleged that the
land owned by Late Shri Harish Chand Lohiya in village Arakpur,
Bagh Mochi was acquired by Award No.20-A/74-75, dated
29.03.1975 by respondents No. 1 to 4. It was alleged that the
policy of the government was that on account of the acquisition of
the aforesaid land belonging to Harish Chand Lohiya every adults
lineal descendant were to be allotted 500 sq. mts. of land for their
bona fide residential purpose. It was accordingly prayed that since
the land belonging to Harish Chand Lohiya was acquired by
respondents No.1 to 4, consequently the appellants as well as
respondents No.5 to 9 were entitled to a parcel of land measuring
500 sq. mts. to each of the adults lineal descendants.
5. So far as respondents No.1 to 4 are concerned, they contested the
claim of the appellants although they are alleged to have admitted
that the land in question bearing Plot No.6 & 7, belonged to Harish
Chand Lohiya, however, it was stated that the same was validly
acquired by them. So far as respondents No.5 to 9 are concerned,
they admitted that the land in question originally belonged to
Harish Chand Lohiya but stated that on the basis of the family
settlement in 1941, the said land was mutated in their favour in the
revenue record and in the records of L&DO in principle they did
not contest the plea of alternative allotment.
6. The learned trial Court without framing issues and by reference to
various other pleadings in the connected matter which were filed
by some other persons of the locality, L&DO/DDA in those cases
assumed that there was an admission about the factum of land in
question being owned by Harish Chand Lohiya and that the same
was acquired and mutated in the records of the Government in the
year 1936-37 and further that there was a policy for allotment of a
500 sq. mts. of plot to the adults lineal descendants and passed the
judgment in the following terms:-
"A decree of declaration is being passed
declaring the lease hold rights to vest with late Sh.
Harish Chand Lohia s/o Bengali Mal in respect of plot
No.6 and 7 falling in Khasra No.639/446, Village
Arakpur Bagh Mochi Factory Road, Delhi acquired vide
award No.20A dated 29.3.1975.
It is further directed that the plaintiffs No.1 to 4
and defendant No.5 to 9 are entitled to the benefits of
policy of the Government for allotment of residential
plots being the first adult lineal descendants of late Sh.
Harish Chand Lohia. There is no order as to costs."
7. It may be pertinent here to mention that the relief which was
claimed by the appellants in the Execution Petition as under:-
"A) Allotment of residential plots measuring 500 sq.
meters each to Plaintiffs 1 to 4 and Defendants 5 to 9 in
terms of Judgment Decree dated 11/4/05.
B) An ad-interim injunction may be granted
restraining the respondents from
auctioning/selling/allotting 9 x 500 sq. meteres of land in
Jasola/Dwarka/some other South Delhi Colony.
C) Pass such order or further orders as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
8. A perusal of the record reveals the following points:-
(i) That the Court passed the aforesaid judgment under Order 12
Rule 6 CPC.
(ii) That the Court observed that the land bearing No.6 & 7,
Factory Road, village Arakpur, Bagh Mochi belonged to one
Harish Chand Lohiya predecessor-in-interest of the
appellants.
(iii) That the appellants and respondents No.5 to 9 are entitled to
benefit of policy of the Government for allotment of a
residential plot being first adults lineal descendants of Late
Harish Chand Lohiya.
(iv) That no specific direction was given to allot a particular plot
of land by respondents No.1 to 4. On the contrary, it was
simply stated that the appellants were entitled to benefit of
the policy of the government for allotment of an alternative
plot of land measuring 500 sq. mts.
9. The aforesaid direction passed by the learned trial court clearly
envisaged that the appellants were required to do something more
before filing an execution application. They were required to apply
to the Government for allotment of an alternative plot of 500 sq.
mts, subject to their establishing their eligibility and then their
cases would have been recommended to the DDA for allotment on
nazul land by the L&DO or by the Central Govt.
10. On the contrary, the appellants who were originally four in number
but only two of them Balendu Lohiya (since deceased) and Daksh
Lohiya filed an execution petition before the learned ADJ for
allotment of an alternative plot of land of 500 sq. mts. out of plot
No.6 & 7, contending that they were entitled to a parcel of land as
directed by the learned ADJ.
11. Curiously enough in the execution petition not only the appellants
claimed allotment of plot for two of them but also claimed plot of
land of 500 sq. mts. for the other two plaintiffs who had not filed
execution petition as well as for respondents No.5 to 9 to the suit.
12. The respondent/DDA filed objections to the execution petition
raising the objection to its maintainability of the execution petition
on the following grounds:-
(i) That the DDA and the Government has already filed an appeal
against the judgment and the decree and although there was no stay
in the same but till the time the appeal is decided, the appellants are
not entitled to the execution of the decree.
(ii) No recommendation for the allotment has been made in favour of
the decree-holder. The allotment is governed by the procedure laid
down by the Hon'ble High Court in the matter of Ramanand vs.
Union of India, AIR 1994 Delhi 29.
(iii) DDA has no role to play in the allotment of plot of land. It only
makes a plot of land available on the basis of the recommendation
received from the government.
(iv) That the decree-holder, namely, the appellants are not entitled to
stay against the auction of the plot of land at Jasola, which has been
obtained by the appellants, as the execution has to be in terms of
the decree and the same does not talk about the plots of land at
Jasola or any other place.
13. The aforesaid objections of the respondent/DDA were accepted by
the learned trial Court and accordingly, the execution petition was
dismissed.
14. The appellants feeling aggrieved by the aforesaid dismissal of the
execution petition has filed the above mentioned execution appeal.
15. Ms. Luthra, the learned senior counsel for the appellants has
contended that the learned executing court has fallen into serious
error by going behind the decree and commenting on the judgment
and the decree by relying upon the judgment of a Division Bench
passed in LPA No.1106-07/2005, titled Union of India & Ors. vs.
Smt. Gunwati Devi (deceased) through LRs and Others.
16. It may be pertinent here to mention that the letter No.14/33/67-L1
which was relied upon by the executing court is a letter allegedly
containing the policy of the Government of India for allotment of a
plot of land measuring 500 sq. mts. to such of the oustee whose
land has been acquired was held to be constituting the policy in the
suit. This letter was written to the L&DO by the Ministry of
Works & Housing, Govt. of India and in Gunwanti's case only it
was not accepted to be constituting a policy by the Division Bench
which set aside the order of the learned Single Judge. Then how
could such a letter be treated to be as a policy letter for conferring
benefit on the applicant decree holder in the present case.
17. It was contended by Ms. Luthra that based on such judgment of the
Division Bench, the trial court could not have dismissed the
execution petition.
18. I do not agree with the submissions made by Ms. Luthra that the
Division Bench judgment which declared that letter dated
22/23.10.1984 did not constitute the policy could be ignored by the
executing court and the observations passed by the learned Judge
that too without going into the merits of the matter. Obviously, the
High Court Division Bench order being superior and the doctrine
of precedent being in place the judgment and the decree passed by
the trial Court cannot be given effect to. Moreover, the High Court
being a court of records, its judgments are binding so far as its
subordinate courts are concerned. Therefore, I do not agree with
the contention of the learned senior counsel that the letter by virtue
of which the learned ADJ has directed for allotment of land
measuring 500 sq. mts. to the appellants could be construed to be a
policy much less they are entitled to any parcel of land as alleged
by them.
19. The second submission made by the learned senior counsel that by
doing so, the learned trial Court has gone behind the decree is not
at all correct proposition and the executing court is well within its
right to take cognizance of the pronouncement passed by the
Division Bench of its own State and to see if the trial Court
judgment is contrary to the Division Bench judgment and therefore
it cannot be permitted to hold sway in favour of the plaintiff. I feel
that it cannot be said that the learned ADJ has gone behind the
decree in order to reject the execution petition of the appellants on
this ground.
20. The next contention of Ms. Luthra is that the decree has to be
interpreted in the light of the plaint and from the circumstances and
as far as possible the decree has to be given effect to in order to
bring to its logical conclusion. This has been said so, on account of
the fact that the operative portion of the judgment does not
specifically show that any particular plot should be allotted to the
appellants. The contention of Ms. Luthra has been that the
predecessor-in-interest of the appellant Harish Chand Lohiya was
the owner of parcel of land, bearing Plot No.6 and 7 which was
agreed to be released by the Union of India in terms of the letter in
question to be made available to the appellants to be allotted of 500
sq. mts. to the adults lineal descendants. These plots which were
released are shown in the plan attached to the suit as Plot No.6 and
7 and they are deemed to have been released under Section 31(3) of
the Land Acquisition Act, 1894 and cannot be treated to be the
release of the land which is passed under Section 48 of the Act.
21. Ms. Luthra tried to bring out the distinction between the release of
the land under Section 31(3) of the Act in comparison to Section
48 of the Land Acquisition Act. It was contended that although in
Section 31 (3) an oustee would not be entitled to any compensation
and the allotment would made of an alternative plot of land to him
in lieu of the compensation while as under Section 48 of the Act
the land is deemed to have been acquired and thereafter the land is
de-notified by the Govt. It has been contended that this distinction
has been recognized by the Apex Court in number of judgments
including the judgment of our High Court in Diwan Singh vs. Govt.
of NCT of Delhi, (2011) 121 DRJ 148 (DB); Sri
Veerabhadreshwara Industrial Training College vs. State of
Karnataka, MANU/KA/1610/2001; and Abhinanda Housing Pvt.
Ltd. vs. P.S. Govt. of A.P.A., MANU/AP/0858/2006. It has been
contended that the 500 sq. mts. plots have to be allotted to the
appellants under Section 31(3) because they have not been given
any compensation.
22. There is no dispute about the fact that Section 31(3) and Section 48
of the Land Acquisition Act, 1894 operate in different situation. In
the first instance, i.e. under Section 31(3) while the land is in the
process of acquisition the govt. may leave a portion of the land for
bona fide residential use of the oustee while as the remaining land
may be acquired for which he may or may not be paid
compensation. While as under Section 48, the entire parcel of land
stands acquired for a public purpose which may be de-acquired on
representation of the oustee in case it is not required this is called
release of the land. The present case is neither a case of release
under Section 48 nor of acquisition of the same a portion under
Section 31 (3) therefore distinction is not relevant for our purposes.
23. On the contrary, Mr. Verma, the learned senior standing counsel
for the DDA has contended that even though if it is assumed that
the learned ADJ has held the appellants to be entitled to an
allotment of plot of land measuring 500 sq. mts. to each of the
lineal descendants, still the mode of allotment has to be in terms of
Ramanand vs. Union of India, AIR 1994 Delhi 29.
24. In Ramanand's case the mode of allotment is that if a person is
held to be entitled to an alternative plot of land, he has to apply to
the appropriate Government, which may be State or the Central
Government. It will examine its eligibility and once the eligibility
has been satisfied by a person then it will send the recommendation
for allotment of a plot of land to such an oustee to the DDA which
control the nazul land and it would in turn allot the land to such an
oustee.
25. In the instant case, it has been contended by Mr. Verma that even
learned ADJ in its penultimate paragraph has specifically talked
about that the appellants are entitled to plot of land "if eligible". It
has been further stated that in terms of Ramanand's (supra) case
the appellants had to apply to the L&DO and the acquisition
authority for being allotted an alternative plot of land then they
would have checked its eligibility for allotment of a parcel of land
in terms of the circular applicable and recommended the names of
the appellants, if found eligible to the DDA for allotment. It has
also been contended by Mr. Verma that it is really very strange that
although the prayer in the suit was for allotment of land to the
appellants who were four in number and to the respondents No.5 to
9, who were the descendants of Late Shri Harish Chand Lohiya
from the first wife, yet the execution petition has been filed by only
two of the appellants, one of whom has since died and it has been
contended in the execution petition that the allotment of land may
be made in favour not only to the appellants but also in favour of
respondents No.5 to 9.
26. So far as the filing of the execution petition on behalf of other
beneficiary is concerned, Order 21 Rule 15 permits that. But I feel
even in such case the other beneficiary must either file affidavits in
support of execution petition or at least sign vakalatnama in favour
of the counsel. This has not been done. Anyhow not much turns
on this and therefore this point is ignored.
27. It has been contended that whosoever feel aggrieved by the
judgment and decree before executing court, he has to apply by
way of execution petition and support the execution petition by
filing his/her affidavit. In the instant case this is a surrogate
execution petition which has been filed by the appellants not only
for themselves but also for the respondents and the two of the other
appellants, who are not parties in the execution petition nor they
have filed their affidavits. It has been contended that this exercise
has been done by the appellants only in order to cover the land
which is very valuable in the city of Delhi.
28. I have carefully considered this submission of Ms. Luthra, as well
as Mr. Verma. I find considerable force in the submissions made
by Mr. Verma that there is absolutely no occasion for the executing
Court to go into the question as to whether the land is to be allotted
to the appellants was released under Section 31(3) or under Section
48 of the Land Acquisition Act. That question is totally irrelevant,
unsafe to be dealt with in the instant case. The question to be dealt
with in the instant case even if we assume that the appellants were
entitled to plot, what is the modus operandi to be followed by the
respondents No.1 to 4 for allotment of such land. The only modus
operandi which is envisaged by the respondents and which has
found a seal of approval in the form of Ramanand's case (supra) is
that a party would apply to the appropriate Government for
allotment of alternative plot of land on account of acquisition of
their land or the acquisition of land of their predecessor-in-interest;
their eligibility would be determined and then after determination
of the eligibility the appropriate Government would recommend
the name of such a person along with the size of the plot which is
to be allotted to him by the DDA. The DDA controls the entire
nazul land. It would make parcel of land available in terms of the
said recommendation available to the appropriate Government it
will allot the plot of land to him. Apart from this exercise, there is
no method of allotment of land as alleged by the appellants.
29. Therefore, I feel that the execution petition which has been filed by
the appellants is rightly rejected by the learned executing court on
the ground that there is no specific direction for allotment of parcel
of land nor the appellants followed the procedure which is
envisaged in Ramanand vs. Union of India, AIR 1994 Delhi 29.
Accordingly, this contention of Ms. Luthra is also dismissed.
30. One of the arguments which has been made by the learned senior
counsel for the appellants is that the land in question, that is, plot
No.6 and 7 which has been utilized by the appellants deserve to be
protected by passing an ad interim order in as much as in respect of
this vary parcel of land the respondents has declared it to be nazul
land and they are well within its right to retrieve the same.
31. If one has a look at Order 21 Rule 11 (2) it gives the details of that
the execution application when filed in writing must contain. The
relevant sub-rule (2) is reproduced as under:-
"(2) Written application--Save as otherwise provided by
sub-rule (1), every application for the execution of a
decree shall be in writing, signed and verified by the
applicant or by some other person proved to the
satisfaction of the court to be acquainted with the facts of
the case, and shall contain in a tabular form the
following particulars, namely:--
(a) ............;
(b) ............;
(c) ............;
(d) ............;
(e) ............;
(f) ............;
(g) ............;
(h) ............;
(i) ............
(j) the mode in which the assistance of the Court is
required whether-
(i) by the delivery of any property specifically decreed;
(ii) ............;
(iii) ............;
(iv) ............;
(v) ............;"
32. A perusal of the aforesaid sub-rule would clearly show that when a
party requires assistance of a Court for delivery of a property then
it must not only specifically state as to how and in what respect the
assistance of the Court is required and what is the specific property
which has been decreed in his favour.
33. In the instant case if ones sees the operative portion of the
judgment which has already been reproduced hereinabove, it does
not give any specific property number or the plot number which is
to be allotted to a particular applicant/decree-holder. In the
absence of such a direction, the decree itself, in my view is an
inchoate. Even if it is considered that the decree was inchoate, the
absence of such specific number can be explained by the fact these
alternative plots were to be allotted to the decree-holder if found
eligible as has been observed by the learned Court itself while
passing the judgment. For determining the eligibility of the decree-
holder they had to apply to the Appropriate Government which had
acquired their land, they would consider their application and if
found eligible would have recommended their names to the DDA
for the allotment of nazul land and thereupon specific plots would
have been allotted to them. This is precisely further explained by
Ramanand's case wherein it has been held that alternative
allotment of a plot cannot be claimed as a matter of right. It is only
the discretion on the part of the Appropriate Government.
Therefore, I feel that the submissions of Mr. Verma, the learned
standing counsel of the DDA has a considerable force that there is
no illegality or impropriety in the rejection of the execution
application of the appellants by the trail Court.
34. The submission of Ms. Luthra that while executing the decree the
Court has tried to go behind the decree or that it has to interpret the
decree in the light of the averments made in the petition to give
effect to the decree does not apply to the facts of the present case.
35. I do not find that the learned executing court by dismissing the
execution petition on the strength of the order passed by the
Division Bench holding that the letter in question on the strength of
which the trial Court had passed an order for declaring the
applicant/decree-holder to be eligible for allotment of alternative
plots of 500 sq. mts. itself having been set aside, the executing
court was bound by the Division Bench order.
36. Similarly, there was no occasion for the executing court to go into
the averments and then give effect to the decree when the
applicants/appellants are not entitled to any plot of land at all.
37. Ms. Luthra, the learned senior counsel for the appellants has cited
judgments on lis pendense in case titled Rajender Singh & Ovs. Vs.
Santa Singh & Ors., (1973) 2 SCC 705; and Lov Raj Kumar vs. Dr.
Major Daya Shankar, AIR 1986 DEL. 364, to contend that the one
person Ukil and one more person have been allotted land during
the pendency of the execution petition from the plot of land in
question and therefore, they are bound by the doctrine of lis
pendense, does not convince the Court that any order is warranted
on that score. So far as the said persons are concerned, it appears
from the record that they were put in possession by the orders of
Hon'ble High Court before the letter in question being declared as
not constituting as a policy.
38. In view of the aforesaid facts and circumstances of the case, I feel
that there is no illegality in the order passed by the executing court
dismissing the execution petition of the appellants holding that the
appellants are not entitled to any specific plot of land in terms of
the judgment and the decree as has been sought to be executed by
them. Accordingly the present appeal stands dismissed.
39. Pending applications also stand disposed of.
40. Interim orders, if any, stands vacated.
V.K. SHALI, J.
MAY 10, 2016
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