Shri Ganga Dutt vs Union of India (UOI) and Others

Indermeet Kaur, J.

CM No. 14116/2009 (for exemption)

Allowed subject to just exceptions.

RSA No. 124/2009 and CM No. 14115/2009 (for stay)

This appeal has impugned the judgment and decree dated 13.8.2009 which has endorsed the finding of the trial judge dated 27.11.2004 whereby the suit filed by the Plaintiff seeking a declaration, permanent injunction against the Defendant to the effect that he should not be dispossessed from the suit property i.e. property bearing Khasra Nos. 70/22 and 70/23 situated in Village Badli, Delhi and further praying that the report of possession dated 12.11.1981 be declared illegal and non-binding upon the Plaintiff had been dismissed.

Plaintiff claimed to the owner of the aforenoted suit property. It was in the physical cultivatory possession of the Plaintiff. The said land was acquired by Award No. 35 dated 10.11.1981. There is no dispute to this fact. The contention raised before this Court is that after the passing of Award on 10.11.1981 no physical possession of the suit land was taken. The possession memo dated 12.11.1981 was a formality and not binding upon the Plaintiff. No notice of taking possession had been given to the Plaintiff. Present suit was accordingly filed.

In the written statement the defence was that the suit land had been acquired and physical possession of the same had been taken and handed over to the DDA on 12.11.1981.

Issues were framed. Oral and documentary evidence was led. Issue No. 3 is relevant for the controversy in dispute. It reads as follows:

Whether the Plaintiff is entitled for the relief of declaration as prayed for ?OPP

The first court i.e. the trial court had held that the report of the possession dated 12.11.1981 pursuant to the Award had been proved as Ex.PW-4/3. The contention of the Plaintiff that he had crops standing on the land therefore physical possession of the land had not actually been taken over had been rejected. Attention has been drawn to the document dated 12.3.1985 of the Land Acquisition Collector (LAC) wherein it had been recorded that compensation will be paid to the applicant only when he surrenders possession to the government and files an affidavit to the said effect. Counsel for the Appellant has submitted that this order of the LAC has clinched the issue. This document by itself established that the physical possession of the land had not been taken over. Compensation to the applicant had also not been paid. The document dated 12.3.1985 was admittedly not filed before the trial court. This had been filed before the first appellate court. Trial court had dismissed the suit on 27.11.2004. It had held that the Plaintiff is an encroacher upon the government land as physical possession of the suit land had been taken over. Reliance has also been placed on various authorizes of the Apex Court to hold that no injunction can be granted against a true owner.

The impugned judgment had endorsed this finding. It was held that the physical possession of the land had been taken over and the proceedings u/s 6 of the Land Acquisition Act in fact stood completed.

In 1995 IV AD (SC) 389 Laxmi Chand v. Gram Panchayat Kararia the Apex Court while dealing with the objection to acquisition proceedings under the Land Acquisition Act the Apex Court had noted:

The scheme of the Act is complete in itself and thereby the jurisdiction of the Civil Court to take the cognizance of the case arising under the Act is barred. The Civil Courts were held to be devoid of the jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act and only High Court and Supreme Court were held to have power under Article 226 and Article 136.

In Tamil Nadu Housing Board Vs. A. Viswam (Dead) by Lrs., Apex Court had held that the recording of a memo/ panchnama is proof of possession. Ex.PW-4/3 had proved this.

The impugned judgment suffers from no infirmity; no interference is called for.

Substantial questions of law have been embodied on page 2 of the appeal. They read as follows:

i. Whether the possession of the Appellant can be protected by this Hon''ble Court under the circumstances when the possession, as per the admission of the DDA/LAC is still with Appellant despite passing of the acquisition award as mentioned in the proceeding of acquisition dated 26.11.84 wherein the Collector has mentioned that no compensation can be paid to the Appellant till the possession is handed over to the Collector?

ii. Whether the Respondent can dispossess the Appellant in view of the order passed by Lt. Governor on 12.12.2007 whereby the status of the land has been termed as private land in view of Clause 1 of the notification dated 12.12.2007 (copy of order dated 122.12.2007 is enclosed herewith as annexure A-2)?

iii. Whether the suit land still vests with the Government in terms of Section 16 of the Land Acquisition Act and more particularly in the backdrop of the fact that it has been admitted by the Respondents that the physical possession has not been take over by the Appellant?

iv. Whether the Appellant who admittedly is in the settled and legal possession of the suit land, has a right to protect the same from any third person and/or the Government?

v. Whether the order dated 12.12.2007 issued by the Lieutenant Governor of Delhi, to the effect that suit land falls in the category of private land, since the physical possession of the same is with the Appellant, and more particularly no compensation having been taken by the Appellant, would not be rendered ineffective, if the admitted possession of the Appellant is disturbed.

vi. Whether the Appellant is not entitled for the injunction as prayed for in the suit to protect his settled possession upon the suit land.

Oral and documentary evidence had established that the physical possession of the land had been taken over by the Defendant on 12.3.1981 vide Ex. PW-4/3. If the Plaintiff was aggrieved by this possession memo he could not assail it by way of a suit; this was not the remedy or the forum as has been held by the Apex Court in the case of Laxmi Chand (supra). No substantial question of law having arisen, the application as also pending application is dismissed in limine.