Delhi High Court
Pyari Rauthan vs Land Acquisition Collector / ... on 6 March, 2018
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 06th March, 2018
+ W.P.(C) 7356/2016
PYARI RAUTHAN ..... Petitioner
Through: Mr.Pankaj Vivek, Ms.Manpreet, Mr.Anurag
and Mr.Atul Tripathi, Advocates.
versus
LAND ACQUISITION COLLECTOR / A.D.M. & ORS.
..... Respondents
Through: Mr.Yeeshu Jain, Standing Counsel with
Ms.Jyoti Tyagi, Advocate for
respondent/LAC.
Mr.Virender Pratap Singh Charak and
Ms.Shubhra Parashar, Advocates for
respondent no.4/UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. On 13.02.2018, when the matter was taken up for hearing, we were
informed that the counter affidavit has been filed and on the basis of
this statement the order was dictated. Subsequently, it was found that
the counter affidavit of the LAC was not on record. Accordingly, the
matter was listed today for directions.
2. Ms.Joyti Tyagi, counsel for the LAC clarifies that in fact, the counter
affidavit was filed on 28.08.2017 but the same was not taken on record
and returned under objections raised by the Registry.
3. Counter affidavit has been refiled today by Ms. Jyoti Tyagi, counsel
for the LAC and the same is taken on record.
4. This is a petition under Article 226 of the Constitution of India filed
by the petitioner seeking a declaration that the acquisition proceedings
with respect to the land i.e. residential plot no.25 area measuring 200
square yards out of Khasra No.624/2-625/2 situated in the revenue
estate of village Roshanpura, abadi known as Shyam Vihar, Delhi
(hereinafter referred to as 'the subject land') is deemed to have lapsed
in view of Section 24 (2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (hereinafter referred to as '2013 Act'), as neither the
physical possession has been taken nor compensation has been paid to
the petitioner.
5. Counsel for the petitioner submits that in this case, plot no.25 area
measuring 200 square yards out of Khasra no.636 situated in the
revenue estate of village Roshanpura, Delhi was transferred in favour
of the petitioner by Shri Kundan Singh through registered General
Power of Attorney & Will coupled with Agreement to Sell, affidavit
and receipt dated 25.02.1999. However, it has now been learnt that
the plot falls in Khasra No.624-625 of Village Roshanpura. Actually
this colony was carved out by one Shri Kundan Singh @ Kundan Ram
who was holding POA/authority for sale of plot in Khasra Nos.624,
625, 629, 633, 636 etc. and he had carved out these dozens of plots,
one of which was purchased by the petitioner. The petitioner had no
means of knowing the actual Khasra number as the same was in the
knowledge of the seller Shri Kundan Singh @ Shri Kundan Ram,
therefore, she believed all along that the Khasra numbers mentioned
were correct, however it was learnt by her in 2016 that her plot falls in
Khasra No.624-625 of Village Roshanpura which is situated just near
to Khasra No.636 of Village Roshanpura. Therefore, Shri Kundan
Singh @ Shri Kundan Ram executed fresh General Power of Attorney
and Addendum to the Agreement to Sell, Possession Letter and
Affidavit admitting delivery of possession of Plot No.25 situated in
Khasra No.624-625 of Village Roshanpura at the time of sale itself on
25.02.1999. He further submits that the Provisional Certificate of
Regularization was issued in favour of the colony where the land is
situated being Shyam Vihar, an unauthorized colony.
6. A Notification under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as 'the Act') was issued on 07.04.2006, a
Notification under Section 6 of the Act was issued on 04.04.2007 and
an Award bearing No.08/2008-09 was passed on 14.11.2008. Counsel
for the petitioner submits that neither physical possession has been
taken nor compensation has been tendered to the petitioner. He also
submits that his submission is further fortified by the stand taken by
the LAC in the counter affidavit.
7. Counsel for the LAC submits that the subject land vests in Gaon
Sabha, thus, the petitioner would not be entitled to claim any
compensation. Mr.Jain has also opposed this petition also on the
ground that the petitioner is not the rightful owner. In support of his
submissions, he relies on paras '5 & 6' of the counter affidavit, which
read as under:
"5. That as per Item 7 of the Statement A the subject land
is vested in Gram Sabha. In view of the above the petitioner is
required to prove his competence to file the present writ petition.
Even otherwise the petitioner herein purchased the said land
unauthorisedly in an unauthorized colony. Thus the petitioner
have no right, title or interest in or to the land in question.
6. That as per records available with this office,
possession of the subject land comprised in Khasra Nos.636/2
(4-10), 624/2(3-14) and 625/2(2-12) situated in village
Roshanpura has not been taken due to built up. Further, notice
U/s 12(2) cannot be served to the petitioner as he is not the
recorded owner in respect of the land".
8. Counsel for the petitioner submits that the objection raised by Mr.Jain,
as far as title of the land is concerned, be kept open to be decided in
appropriate proceedings. Counsel submits further that an identical
issue regarding the Gaon Sabha had arisen before another Division
Bench of this Court in the case of Sanjeev Solanki Vs. Delhi
Development Authority and Ors, W.P. (C) 1999/2015, decided on
24.01.2017. Counsel submits that a similar view has also been
expressed by this Court in the case of Parshotam Joshi vs. Govt. of
NCT of Delhi & Ors., W.P. (C) 4255/2016, decided on 08.11.2017.
9. We have heard the counsel for the parties.
10. As far as the objection raised by the counsel for the LAC with regard
to the land being vested in the Gaon Sabha is concerned, we deem it
appropriate to follow a decision rendered by a Division Bench of this
Court in the case of Sanjeev Solanki (supra), paragraph 5 of which
reads as under:-
"5. While we have declared that the subject acquisition
has lapsed, it is made clear that this would not amount to
giving title to the petitioner or perfecting the petitioner's title
inasmuch as Mr.Jain has taken the plea in the counter-
affidavit filed on behalf of the respondent no.2 that the Gaon
Sabha has been shown as the recorded owner. This fact is
disputed by the learned counsel for the petitioner. But, we are
not entering into the controversy of title which may be sorted
out elsewhere. Insofar as the acquisition is concerned, the
same has lapsed because neither physical possession was
taken over nor compensation was paid."
11. On reading of the counter affidavit, it leaves no room for doubt that
neither the physical possession of land i.e. residential plot no.25 area
measuring 200 square yards out of Khasra No.624/2-625/2 has been
taken nor the compensation has been tendered.
12. Accordingly, the petitioner is entitled to a declaration that the
acquisition proceedings in respect of the land subject matter are
deemed to have lapsed. It is declared accordingly. However, we make
it clear that we have not expressed any opinion on the title of the
above land. The question of title of the subject land is left open to be
decided in the appropriate court of jurisdiction.
13. The writ petition stands disposed of in above terms.
CM No.30221/2016 (stay)
The application is disposed of, in view of order passed in writ petition.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
MARCH 06, 2018
ssc
