R.S. Kathuria vs Union of India and Others

Vipin Sanghi, J.—By this order, I propose to decide the following preliminary issue: "Whether this Court has jurisdiction to entertain the present suit?" This preliminary issue was framed by the Court on 23.3.2005, since the defendant had relied upon the decision of the Supreme Court, reported as Hatti Vs. Sunder Singh, to contend that the jurisdiction of this Court is barred u/s 185 of the Delhi Land Reforms Act, 1954 (DLR Act for short) from trying the present suit. According to the defendants, the relief of declaration of Bhumidhari Rights falls within the exclusive domain of the Revenue Assistant, and that is the relief claimed by the plaintiff in the suit.

Apart from the aforesaid objection, the defendants also advanced lengthy arguments on the issue of maintainability of the suit and jurisdiction of this court to entertain the suit in the light of the provision contained in the Land Acquisition Act, 1894. (LA Act for short). This objection has also been dealt with in this order.

BACKGROUND FACTS

The present suit has been filed by the Plaintiff seeking a declaration that he is the Bhumidhar of certain lands and that the Defendants have no right, title or interest in the said land. He is also seeking the relief of maintenance of status quo for preservation of the suit property.

Plaintiff purchased Bhumidhari rights in certain agricultural land measuring 84 Bighas and 11 Biswas situated in Village Malik Pur Kohi also known as Rangpuri in the National Capital Territory of Delhi from the original Bhumidhars of the said lands by way of a duly registered sale deed dated 18.04.1967. Prior to such purchase, a Notification No. 4(98)/64/H&H dated 23.01.1965 u/s 4 of the LA Act, 1894 was issued by the then Chief Commissioner of Delhi in respect of some of the land so purchased by the Plaintiff. Thereafter a declaration vide notification No. F. 4(98)/64-L&H dated 26.12.1968 was issued u/s 6 of the LA Act. Notice u/s 9(1) of the LA Act, was issued on 15.01.1981 in respect of land of the Plaintiff measuring 80 Bighas and 7 Biswas. Plaintiff preferred a writ petition challenging the said acquisition proceedings by filing Civil Writ No. 586/1981 before this Court on ground of undue delay in the finalisation of the acquisition process. On 24.03.1981 the Civil Miscellaneous Application (C.M. No. 865/1981) filed in the above writ was taken up, and the court passed an order directing the Respondents (including the Defendants herein) to maintain status quo with regard to possession of land. However, subsequently the writ petition was dismissed by a Full Bench of this Court and the appeal was also dismissed by the Hon''ble Supreme Court. Validity of the acquisition proceedings was upheld.

Plaintiffs Contentions

The said order dated 24.3.1981 was served on the Respondents on 31.03.1981. Allegedly on the same date an award was signed and possession report was prepared, whereunder the possession of the acquired land was recorded as having been taken by the Land Acquisition Collector. The said possession report is a fake document and possession of the suit land was never taken by the defendants. Plaintiff continued to be in possession and was duly recorded in the Girdawri as being in cultivatory possession of the land in the years 1981-82 and 1982-83. The alleged possession report does not mention the time of commencement of proceedings, nor does it make any reference to any notice being given to the Plaintiff of the passing of the award. No member of the Revenue Staff participated in the alleged process. The entire alleged process of taking possession is thus, an eyewash and fraudulent, and possession of the land was never taken.

In 1991 the DDA (one of the respondents in the aforesaid writ petition) filed a contempt petition against the plaintiff, being CCP No. 357/1991, claiming that the order directing maintenance of status quo was never communicated to the officials of the Respondent in the Writ Petition (the Defendants in this case) and it was the Plaintiff who had violated the said status quo order by raising illegal construction on the said land. The said Contempt Petition came to be dismissed on merits on 2.07.1999.

By a false report No. 451 dated 11.06.1981 received from LAC(D), entries in revenue records were changed in favour of the defendants, both in regard to ownership and possession. Application dated 13.07.1982 was moved by the Plaintiff before the Tahsildar, Mehrauli seeking correction of entries in Khasra Girdwari. An order was passed by the concerned SDM on 09.03.1983 on the basis that the land stood acquired, and if the applicant was still in possession then it amounted to encroachment. An appeal was preferred to the Additional Collector who remanded the matter back. In the meanwhile, executive instructions were passed directing revenue authorities not to record the name of actual tiller/occupier in the land records, if land was recorded in the name of Gaon Sabha or the Government. This was followed by a necessary amendment in the Delhi Land Revenue Rules, 1962. The Plaintiff assailed the amendment to the Rules by way of a Writ Petition being WP(C) 4094/1992, which came to be allowed vide order dated 05.12.2001.

The Plaintiff moved another application for correction of entries in the Khasra Girdwari which was linked with the earlier application pertaining to Khasra Girdwari of Rabi 1981, Kharif 1981 and Rabi 1982 etc. The Halqa Patwari carried out inspection of the land and submitted his report dated 18.12.2001 which confirms the actual possession of the Plaintiff in respect of the suit land.

Plaintiff has always been in actual physical cultivatory possession of the entire land continuously and without any interruption since the said land/was purchased in the year 1967 and that the Plaintiff was never dispossessed u/s 16 of the LA Act and as such the acquisition proceedings were never completed and land never acquired. Thus, the Plaintiff remains the absolute right holder as Bhumidhar without any interruption since 1967.

The suit has been filed to remove any cloud on the right/title of the Plaintiff, cast by the fake and false alleged subsequent proceedings whereby the possession is claimed to have been taken over by the Defendants, in violation of an order directing maintenance of status quo as aforesaid.

For that purpose a civil suit lies before this Court for the declaration of his status as a Bhumidhar. Since, his status as a Bhumidhar never came to be validly revoked, the present suit is maintainable and the Civil Courts jurisdiction is not barred.

DEFENDANTS CONTENTIONS

The land acquisition proceedings are complete and final, as the challenge of the Plaintiff to the notification u/s 4 and the declaration u/s 6 of the LA Act failed and the acquisition proceedings have been upheld even by the Hon''ble Supreme Court. Moreover, the possession of the suit land was validly taken over and the same was handed over to the Delhi Development Authority on 31.3.1981. Therefore, the land came to be vested in the government and was also handed over to the DDA. Thus, there is no question of Plaintiff being in possession of the land, and since the land was never released from acquisition, the Plaintiff cannot claim to be a Bhumidhar. How and when the Plaintiff came to possess the land is not known.

The suit is an attempt to obtain an order of release of land u/s 48 of the LA Act. Plaintiff being a Rank Trespasser is not entitled to the relief claimed under the Specific Relief Act. The provisions of the DLR Act are not applicable after issuance of notification u/s 4 of the LA Act, and the Plaintiff cannot therefore be granted relief of Declaration as sought for. Even if Plaintiff is entitled to the relief of declaration of his rights as a Bhumidhar in respect of the suit land under the provisions of the DLR Act, the same can be claimed only before the Authorities constituted under the said Act. As aforesaid, reliance has been placed on the judgment of the Supreme Court in Hatti vs. Sunder Singh (Supra) wherein the court held that the jurisdiction of the Civil Court is clearly barred u/s 185 of the DLR Act, read with the First Schedule thereof.

Allegation that the possession was not validly or in fact taken and that the possession proceedings are false and fabricated are refuted. The Plaintiff has acquired the suit land in question after the notification issued u/s 4 of the LA Act and as such the plaintiff is not the owner of the land and thereby not entitled to claim Bhumidhari rights.

OBJECTION BASED ON DLR ACT

Now, Section 185 of the DLR Act provides:

Cognizance of suits, etc., under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.

(2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.

(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof.

(4) A second appeal shall lie from the final order passed in an appeal under sub section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.

Schedule I (under Section 185) and Entry 4 thereof are reproduced herein below for the sake of convenience.

Before analyzing the provisions of the DLR Act we may refer to the rule of construction applicable to statutes/provisions ousting jurisdiction of the civil court.

It is well settled that a statute ousting jurisdiction of a civil court must be strictly constructed, and it is for the party seeking to oust the jurisdiction of an ordinary civil court to establish that there is no jurisdiction. (See Abdul Waheed Khan Vs. Bhawani and Others, ). "19A. In the case of Smt. Ganga Bai Vs. Vijay Kumar and Others, the Supreme Court held:

There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by any statute one may, at one''s peril, bring a suit of one''s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for maintainability requires no authority of law and it is enough that no statute bars the suit.

In Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, the Apex Court laid down, inter-alia, the following principle regarding exclusion of jurisdiction of a civil court.

Where the statute gives a finality to the orders of the Special Tribunals the civil courts jurisdiction must be hold to be excluded if there is adequate remedy to do what the civil court would normally do in a suit.

The object of the rule is, that no party/person should be left remedy less. Necessary corollary to this would be that, if no adequate remedy is provided for by a special statute through the Forum established under it for a particular purpose/situation, civil courts remedy to administer justice cannot be said to be ousted to deal with even such cases.

Column 3 of schedule 1 of the DLR Act gives the "description of suit application and other proceedings" and the entry at Sl. No. 4 in column 3 reads "Application for declaration of Bhumidhari Rights". However, it is not any application, suit or other proceedings for declaration of Bhumidhari rights which the said entry relates to. This entry in column 3 has to be read in the light of the corresponding entry in column No. 2 of the schedule, which enlists the "Section of the Act". Therefore, in order to be a suit of the nature prescribed as falling under the third column, the suit also must be one, where the rights claimed by the plaintiff/Petitioner are founded upon a right arising out of one of the section enumerated under the second column. The second column of entry 4 to the schedule refers to Sections 10, 11, 12, 13, 73, 74, 79, and 85 of the DLR Act. A plain reading of Section 185 suggests that a suit the subject matter of which falls within any one or more of the entries contained in column 2 of the Schedule to the said Act would only be hit by Section 185, and not otherwise. To state it differently, the said section does not impose a total bar of jurisdiction of the civil court, but only imposes a restriction on suits or other legal proceedings in respect of matter for which a specific provision is made in the Act. Any other construction would lead to an incongruity, namely, there will be a vacuum in areas not covered by the Act, and the remedy before the civil court would be displaced without replacing it by alternate forums to seek remedies. Section 185 cannot be said to put a sweeping and general embargo on the jurisdiction of the civil court, in all situations. [See Balawwa and Another Vs. Hasanabi and Others, ].

In Hatti (Supra) the party approaching the civil court had sought three reliefs from the court. First, a declaration that Bhumidhari issued in the name of the defendant with respect to the suit property was illegal and beyond jurisdiction; second, a declaration in his own favour u/s 11 of the DLR Act; and third, possession of the said land. The court held that these reliefs were clearly covered by entries 4, 19 and 28 in the schedule attached to the DLR Act. It was for this reason that the court observed that "all reliefs claimed by the respondent in the present suit were, thus, within the competent jurisdiction of the Revenue Assistant, and the civil court had no jurisdiction to entertain the suit." Therefore, Hatti (Supra) only lays down that a suit claiming a relief which is covered by an entry in column 2 in the first schedule attached to the DLR Act is clearly barred by Section 185. The ratio of this decision cannot be stretched to contend that all cases relating to Bhumidhari rights/agricultural land filed by a Bhumidar are necessarily barred by section 185 of the DLR Act. No doubt, the DLR Act is a complete code in itself. However, it is complete only in respect of matters dealt with it and not in respect of matters not dealt with it. Pertinently, there is no residuary provision contained in the said Act, which could be said to vest exclusive jurisdiction in the Revenue Authorities in respect of all matters, including one like the present.

A bare perusal of the sections enumerated in column 2 of Entry 4 of the Schedule shows that neither of them have been invoked by the plaintiff in the present case.

Sections 10 to 13, fall under Chapter II of the DLR Act, Part A of which deals with Declaration of Bhumidhari right, compensation and land revenue. These sections deal with rights and obligations of the various classes of tenants, existing before the commencement of the DLR Act, upon its commencement.

Section 73 and 74 pertain to admission to land by a person as a Bhumidhar/Asami respectively by the Gaon Sabha under Specific circumstances mentioned therein. Further Section 79, only lays down that in case of failure to institute a suit for ejectment against an Asami, it would entitle the said person to become a Bhumidhar in respect of the land held by him.

Lastly, Section 85 confers the status of a Bhumidhar/Asami on a person retaining possession of a holding of a Bhumidhar/Asami/Gaon Sabha without his consent for a period of 3 years, where a suit for his ejectment is not brought or a decree for dispossession is not executed within the period of limitation provided. It is evident that none of the aforementioned provisions apply to the case of the plaintiff.

ANALYSIS OF FACTS/PLEADINGS

Now, reverting to the case of the Plaintiff, it is seen that the averments as made out in the plaint read with the prayer clause invariable suggest that in the suit the Plaintiff is only seeking a declaration that he continues to be a Bhumidhar, as the possession was never legally taken by the government and the acquisition process has not been completed. Can it be said then that a suit of such a nature falls within the ambit of Entry 4 in the First Schedule of the Delhi Land Reforms Act? In my view the answer is ''No''.

On a perusal of the relevant provisions of the DLR Act it becomes clear that the Plaintiff is not claiming a declaration of his rights as a Bhumidhar under any of the provisions of the Act as mentioned herein above. The claim of the Plaintiff is that he had by way of purchase of Bhumidhari rights from the original Bhumidhars in 1967 itself, acquired Bhumidhari right. His further claim is that the land acquisition proceedings were never completed by the Government and the Plaintiff continues to be a Bhumidhar and seeks a declaration u/s 34 of the Specific Relief Act for the same. These issues cannot be adjudicated by, and no relief in respect thereof can be granted by the Revenue Assistant under the DLR Act. They can be determined only by a civil court in a civil suit.

OBJECTIONS BASED ON LAND ACQUISITION ACT

To buttress his argument that the suit is not maintainable in view of the provisions of the LA Act, counsel for the Defendant has relied on following decisions:

State of Bihar Vs. Dhirendra Kumar and others, .

S.P. Subramanya Shetty and others Vs. Karnataka State of Road Transport Corporation and others, .

Rampat Vs. Union of India (UOI) and Others, .

Nagin Chand Godha Vs. Union of India (UOI) and Others, .

Narayan Prasad Agrawal Vs. State of M.P. and Others, .

Smt. Sneh Prabha etc. Vs. State of U.P. and Another, .

Union of India vs. Shiv Kumar Bhargawa & Others, JT 1995 (6) SC 274.

Gian Chand Vs. Gopala and Others, .

Mahavir and Another Vs. Rural Institute, Amravati and Another, .

U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, .

The aforesaid decisions however are of little assistance in deciding the preliminary issue at hand. All these judgments fall in the realm of the Land Acquisition Act, and in any case are not applicable in the present case for the following reasons:

(i) The question of the validity or legality of the notifications under Sections 4 and 6 of the LA Act are not the subject matter of this suit. Therefore, the judgment at Serial No. 1 above has no relevance to this case.

(ii) The present is a suit for seeking a declaration that the plaintiff continues to be a Bhumidhar, as possession has not been legally taken from him and for an injunction against dispossession (though worded as a relief for maintenance of status quo). The plaintiff has not sought a relief that the defendants be restrained against completing the acquisition proceedings in a legal manner. The plaintiff has also not sought any injunction/direction for release of the suit land u/s 48 of the LA Act. Therefore the judgment at serial no. 2 has no application to the facts of this case.

(iii) The plaintiff is not claiming the relief that the suit lands were not covered by the notifications under Sections 4 and 6 of the LA Act. The plaintiff does not admit that actual physical possession of the land in question has been taken over by the defendants. On the other hand, in Rampat (supra), the judgment at Serial no. 3 above, the challenge was to the act of the government whereby the lands of the appellant had been included in the declaration u/s 6 and the Award under the LA Act, which had attained finality. Admittedly, in that case, the actual physical possession had been taken over by the Government. In those circumstances, the Court took the view that the acquisition proceedings could not be challenged in a civil court and, once possession had been taken, the land vested absolutely and free from all encumbrances in the Government. In this case, the plaintiff relies on the report of the Halqa Patwari of 18.12.2001, according to which, the actual physical possession of the suit lands was found to be that of the plaintiff. This position was reiterated in the later report dated 4.2.2005.

In the present case, the stand of the defendants is that, on the same day (31.3.1981) on which the order granting status quo (order dated 24.3.1981 passed in CWP No. 586/1981) was served on the Respondents/defendants herein, prior to such service at 11.30 AM, possession had been taken. I find that the oral submission in respect of the time at which the stay order was served, and also the submission that possession was taken prior to service of the stay order do not find any mention in the written statement of defendant No. 3 DDA. Pertinently, even according to the DDA, possession was taken, inter-alia, on 1.6.1983, i.e. well after the passing of, and service of the order dated 24.3.1981. The land Acquisition Collector, defendant No. 2, in his written statement claims to have taken possession on 30.3.1981 at a few places in the written statement, while at various places in the written statement, it is claimed that possession was taken on 31.3.1981. The order dated 2.7.1999 passed in CCP No. 357/1991 filed by the DDA defendant No. 2 is relevant, and a portion thereof is reproduced herein below:

...On 24.3.1981 the Court passed the following order in C.M. 865/81:-

Notice for 10.4.1981. Status quo regarding possession to be maintained in the meanwhile.

On 10.4.1981 the interim order passed on 24.3.1981 was confirmed by the court. In the meanwhile, an award was passed in respect of the above mentioned land on 30.3.1981 under the provisions of the Land Acquisition Act. Pursuant to the said award the possession of the land was taken over by the Land Acquisition Collector and the D.D.A was put in possession of the land on 31.3.1981. According to the petitioner herein the interim order passed by the High Court on 24.3.1981 was not communicated to the respondents in the writ petition and hence possession of the land was taken over on 31.3.1981 and the DDA was put in possession of the land on the same day. According to the respondent herein, the possession of the land was not actually taken over and the respondent continued to be in possession of the land on the strength of the orders passed by the High Court on 24.3.1981 and 10.4.1981 and that records were created by the authorities to show that the possession of the land was taken over on 31.3.1981. Whatever that be, it is not disputed that when the writ petition came up before the High Court on 10.4.1981 the respondents in the writ petition did not inform the court that the possession had been taken over on 31.3.1981 and consequently the court confirmed the interim order passed on 24.3.1981. Even thereafter the respondents in the writ petition did not move any application for vacating the interim order or for restraining the petitioner in the writ petition from being in possession of the land in question. The petitioner in the writ petition continued to be in possession of the land and started running a secondary school on a part of the land. The school was granted recognition for class 1 to 8 with effect from the academic session 1989-90. It was also granted affiliation for secondary classes by the CBSE on 15.10.1991. Thereupon the DDA filed this CCP alleging that the respondent herein committed civil contempt by willfully disobeying the order passed by this court in CWP 586/81 directing status quo to be maintained. The respondent has filed reply denying the allegation in the petition.

In view of the facts stated above the respondent cannot be said to have willfully disobeyed the order of the court. The writ petition was filed by the respondent challenging the land acquisition proceedings. He sought an interim order against the respondents in the writ petition against the land acquisition proceedings and his dispossession from the land. The court by order dated 24.3.81 directed that status quo regarding possession be maintained in the meanwhile. Obviously the direction contained in the order dated 24.3.1981 was to the respondents in the writ petition and not to the petitioner in the writ petition. The said order dated 24.3.1981 was confirmed by the court on 10.4.1981. The respondents did not dispute the possession of the writ petition before the court on 10.4.1981. Therefore, if the writ petition continued in possession of the land on the strength of orders dated 24.3.1981 and 10.4.1981 and started running a school in the land in his possession he cannot be said to have willfully disobeyed the order passed by the court on 24.3.1991 and 10.4.1981 by which the respondents in the writ petition were directed to maintain status quo regarding the petitioner''s possession of the land.

Consequently, the decision in Rampat (Supra), has no application to the facts of the present case.

(iv) In the present case the plaintiff has not raised a dispute as to whether or not symbolic possession suffices in law. The contention of the plaintiff is that neither symbolic possession, nor actual possession of the suit properties have been legally taken by the defendants. In my view, it is for this court to determine whether actual physical possession or even symbolic possession was taken by the defendants prior to the service of status quo order as aforesaid, and if not, the validity of the said possession proceedings in the face of the said order of status quo. The determination of these issues is not contemplated under the LA Act and, these being disputed questions of fact, can appropriately be determined in a civil suit. Consequently, the decision in Nagin Chand (Supra) at Sl. No. 4 has no application to the facts of this case.

(v) The judgment at serial no. 5 above also does not advance the submission of the defendants, since this judgment relates to a case where the land owner had challenged the award in a civil suit and the Hon''ble Supreme Court observed that acquisition proceedings could not have been challenged in a civil suit. As aforesaid the present is not a suit challenging either the acquisition proceedings or the award made by the Land Acquisition Collector.

(vi) The five decisions at serial nos. 6, 7, 8, 9 and 10 above deal with the rights of the transferee of land that has been notified for acquisition u/s 4 of the Land Acquisition Act viz-a-viz the rights of the Government. The Hon''ble Supreme Court has held that any transfer of property after it has been notified for acquisition u/s 4 would be void against the government.

The purchase of the suit property by the plaintiff was through a valid sale deed subsequent to the issuance of notification u/s 4 of the LA Act. It is not the plaintiff''s case that on account of the sale executed in his favour by his predecessor in interest, the respondents cannot proceed with the acquisition proceedings. On the basis of the said sale, the plaintiff is not claiming a higher title than that of his predecessor in interest.

It cannot be said that no transfer of property notified u/s 4 of the LA Act can take place, or the purchaser cannot ever become a Bhumidhar. It is not the Bhumidhari rights so acquired which are the subject matter of these proceedings, and the acquisition proceedings obviously do not get defeated only because the sale has taken place.

The prior issuance of the notification u/s 4 of the LA Act, in my view, does not have the effect of taking away the rights of the transferee to contend that he remains a Bhumidhar of the land, since the possession thereof has not been taken legally by the Government. No doubt such a transferee would not be entitled to challenge the validity of the notifications issued under the Land Acquisition Act, or oppose the taking of possession by the Land Acquisition authorities. He would, nonetheless, be entitled to say that his possession should not be disturbed except in accordance with law. As aforesaid, in the present case neither the acquisition proceedings are under challenge in the suit nor is the plaintiff seeking an injunction to restrain the defendants from legally taking over the possession of the acquired land. It would therefore be open to the defendant to, even now, take over possession in a legal manner and the plaintiff possibly cannot oppose the same. However, he is not precluded from saying that neither actual physical possession nor even the paper possession or symbolic possession has been taken in a legal manner.

In this view of the matter, the preliminary issue of maintainability of the suit is decided in favour of the Plaintiff and against the defendant. List the matter for framing of issues on 12th November, 2007.