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2008 DIGILAW 445 (DEL)

SUNIL GUPTA v. UNION OF INDIA

2008-04-28

HIMA KOHLI

body2008
JUDGMENT Hima Kohli, J.- The plaintiff has filed the present application praying inter alia for an injunction order restraining the defendant No.5, the Land Acquisition Collector from making any award with respect to plaintiffs land comprised in Khasra No. 193 min. situated in the Revenue Estate of Village Bijwasan, Tehsil Mehrauli, Delhi, pursuant to the notification dated 18.7.1986 and declaration dated 21.7.1986 till a final decision in the suit and from restraining the defendants from proceeding further with the acquisition of land notified under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), vide notification dated 18.7.1986. 2. The plaintiff has instituted the present suit praying inter alia, amongst others, for declaration of ownership, possession and injunction against the defendants, claiming to be the lawful owner in possession of 19 Bighas 4 Biswas of land comprised in Khasra No. 193 min. situated in the revenue estate of Bijwasan, Tehsil Mehrauli, Delhi. 3. Briefly stated, the case of the plaintiff is that he is the owner of the land in dispute and to protect his right and title over the suit land, he filed a writ petition, being WP(C) No. 1804/1987 entitled Sunil Gupta v. Union of India & Ors. challenging a notification dated 18.7.1986 issued under Section 4 of the Act and a declaration dated 21.7.1986 issued under Sections 6 and 17 of the Act in relation to acquisition proceedings of the plaintiffs land. The aforesaid writ petition was dismissed by a Division Bench, vide judgment dated 17.12.2004 allowing the preliminary objections raised by the defendant/UOI (respondent in the writ petition) and dismissing the writ petition on the ground that possession of the land in question was taken much before filing of the petitions and that the plaintiff (petitioner in the writ petition) was a subsequent purchaser. While taking notice of the four sale deeds (all dated 6.3.1987) placed by the petitioners on the record, the Division Bench held that the petitioners were not the owners of the land as on the date of the notifications and even on 16.1.1987, when the possession of the land was taken and handed over to National Security Guards (NSG), defendant No.3 herein. 4. Aggrieved by the aforesaid judgment dated 17.12.2004, the plaintiff herein filed a Special Leave Petition (SLP) before the Supreme Court. 4. Aggrieved by the aforesaid judgment dated 17.12.2004, the plaintiff herein filed a Special Leave Petition (SLP) before the Supreme Court. The said SLP was disposed of vide order dated 23.8.2007 with the following observations: "The only question which arises for determination in this regard is whether the petitioner who has purchased this land after Section 4 Notification, Section 6 declaration and the alleged possession being taken was entitled to challenge the Notifications on the ground of vagueness. In our view, on the question of locus, the High Court was right in holding that the petitioner who is the subsequent purchaser was not entitled to challenge the validity of the Notifications issued under Sections 4 and 6 of the Land Acquisition Act on the ground of vagueness. However, it is asserted in the writ petition that the petitioner continues to be in peaceful possession of the lands in question. .............. ...... We make it clear that the above contentions advanced on behalf of the petitioner, namely, that the petitioner continues to be the owner, that he continues to be in peaceful possession of the land in question as alleged and that no notice under Section 9 was ever received by him and the question as to whether the Government had encroached upon a part from his land are all questions of title. Even the area which is in possession of the petitioner as claimed is one of the disputed facts. Accordingly we hold that the High Court was right in dismissing the writ petition on the ground that writ petitioner who was a subsequent purchaser was not entitled to challenge the Notification on the ground of vagueness. However, dismissal of the writ petition will not come in the way of the petitioner instituting a civil suit on title and possession in accordance with law, if so advised. We make it clear that any observations made in the impugned judgment of the High Court will not constitute expression of opinion/ finding on the question of title and/ or possession. All contentions on question of title and possession are expressly kept open. However our order shall not be construed as liberty given to the petitioner herein to file a civil suit. This is because it would be a matter of right of every citizen to seek legal remedy as he may be advised. Subject to above special leave petition is dismissed." 5. However our order shall not be construed as liberty given to the petitioner herein to file a civil suit. This is because it would be a matter of right of every citizen to seek legal remedy as he may be advised. Subject to above special leave petition is dismissed." 5. While disposing of the SLP, it was ordered that status quo as on the date of passing the order shall continue for a period of 3 months and it was observed that it would be open to the petitioner therein, plaintiff herein, to move for interim reliefs in the civil suit within the aforestated period. 6. Thereafter, the plaintiff instituted the present suit on 20th November, 2007 along with an interim application filed under Order 39 Rules 1 and 2 of the CPC. Vide order dated 21st November, 2007, after recording the statement on behalf of the defendants Nos. 2,4 and 5 that possession of the suit property was taken on 16.1.1987 which statement was opposed on behalf of the plaintiff, it was directed that there shall be status quo with regard to possession. The said interim order is continuing to operate in favour of the plaintiff. 7. It was contended by the Counsel for the plaintiff that Khasra No. 193 min. comprises 130 Bighas 6 Biswas, out of which land measuring 19 Bighas 7 Biswas and 26 Bighas 15 Biswas was acquired on two occasions by the Union of India. The attention of this Court was drawn to the status report dated 3.3.1987 prepared by the Office of the Additional District Magistrate (LA), Delhi, to state that 84 Bighas 4 Biswas of land in Village Bijwasan, Tehsil Mehrauli, Delhi was not under acquisition. Reference was made to the five sale deeds (all dated 6.3.1987) executed by the defendant No.7 in favour of the plaintiff, each one in respect of 1/5th share in the total land measuring 19 Bighas 4 Biswas, out of Khasra No. 193 min. situated in Village Bijwasan, Tehsil Mehrauli, Delhi. Further, reference was made to the notification dated 18.7.1986 under Section 4 of the Act issued in respect of 26 Bighas 15 Biswas of land out of Khasra No. 193 min., and the notification dated 21.7.1986 issued under Section 17(1) of the Act for taking possession of the land, subject matte~ of the notifications dated 18.7.1986 and 21.7.1986. Further, reference was made to the notification dated 18.7.1986 under Section 4 of the Act issued in respect of 26 Bighas 15 Biswas of land out of Khasra No. 193 min., and the notification dated 21.7.1986 issued under Section 17(1) of the Act for taking possession of the land, subject matte~ of the notifications dated 18.7.1986 and 21.7.1986. It was argued that the aforesaid notification under Section 17(1) of the Act was in fact published only on 21st May, 1987, which was much after the sale deeds dated 6.3.1987 were executed in favour of the plaintiff. It was also argued that as the notification under Section 6 of the Act was dated 21.7.1986, the defendants were required to pass an award within 2 years therefrom and taking into consideration the fact that the writ petition filed by the plaintiff was also dismissed on 17.12.2004, the defendants ought to have passed an award at least within 2 years from the date of the judgment in terms of the provisions of Section 11A of the Act. 8. Counsel for the plaintiff submitted that the revenue officials and the staff of the defendant No.5 were taking steps to make an award relating to the acquisition in respect of the land of the plaintiff without the plaintiff having received any notice under Sections 9 and 10 of the Act, hence denying the plaintiff an opportunity to file objections under Section 11 of the Act. It was, therefore, submitted that any attempt on the part of the defendants to make an award would be in violation of the provisions of Section 11A of the Act and would jeopardize the interest of the plaintiff in the suit land. 9. Counsel for the plaintiff relied on the judgment of the Supreme Court reported at VIII (2005) SLT 712=IV (2005) CLT 292 (SC)= (2005) 7 SCC 627 entitled Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai & Ors. to state that the Land Acquisition Act is an expropriatory legislation and the provisions of the statute should be strictly construed as it deprives a person of his land without his consent. 10. to state that the Land Acquisition Act is an expropriatory legislation and the provisions of the statute should be strictly construed as it deprives a person of his land without his consent. 10. In support of his next contention that while passing an interim order, the Court has only to see that the plaintiff has made out a prima facie case and that a "prima facie case" is not to be confused with "prima facie title", reliance was placed on the following judgments: 1. 1976 Rajdhani Law Reporter 550 entitled Sahab Dayal Chamanlal v. MCD; 2. 27 (1985) DLT 226 entitled Ram Singh v. Attar Singh; 3. AIR 1988 DELHI 140 entitled Mrs. Vijay Srivastava v. M/s. Mirahul Enterprises & Ors.; 4. (1992) 1 SCC 719 entitled Dalpat Kumar & Anr. v. Prahlad Singh & Ors. 11. Controverting the aforesaid stand of the plaintiff, Counsel for the defendants No.2 & 5 stated that the scope of the present suit instituted by the plaintiff was limited to possession alone and not to the acquisition proceedings and hence he was not entitled to grant of any interim relief of the nature prayed for in the application. It was further stated that out of Khasra No. 193 comprising a plot of land measuring 130 Bighas 6 Biswas in Village Bijwasan, two acquisitions had already taken place. In the first instance, land measuring 19 Bighas 7 Biswas was acquired, vide award No. 25/85-86 dated 29.1.1986, for a public purpose, namely, "Stationing of the Emergency Duty Elements of the National Security Guard". On the second occasion, another portion of the land measuring 26 Bighas 15 Biswas was notified for acquisition under Section 4 of the Act on 18th July, 1986, followed by a declaration dated 21.7.1986. While invoking the emergency provisions under Section 17 of the Act, possession of the land was taken over on 16.1.1987 and handed over to the beneficiary, defendant No.3. It was urged that the plaintiff having failed to establish the exact identity of the land in question, of which he claims ownership and possession, he cannot gain any advantage against the defendants and that as per the plaintiffs own admission, the land in question was purchased by him, by virtue of five sale deeds, all dated 6.3.1987, which were executed after issuance of notification under Section 4 of the Act and of declaration under Section 6 of the Act. Thus, it was stated that such a sale transaction entered into by the plaintiff, knowing fully well about the Sections 4 & 6 notifications, was at his own peril. 12. Reference was made by the Counsel for the defendants No.2 & 5 to the aforesaid status report dated 3.3.1987 issued by the Office of the Additional District Magistrate (LA), Delhi, to state that even prior to execution of the sale deeds, the plaintiff was well aware of the fact that land measuring 19 Bighas 7 Biswas and 26 Bighas 15 Biswas out of Khasra No. 193 has been acquired in Village Bijwasan, thus leaving a parcel of land measuring 84 Bighas 4 Biswas in Khasra No. 193. It was submitted that the plaintiff could not have made any purchase from the notified land and his challenge to the second acquisition proceedings also stood dismissed on the basis of a Division Bench judgment, subsequently upheld by the Supreme Court, and if the plaintiff had purchased land from out of the remaining 84 Bighas 4 Biswas, then he had no reason to challenge the action taken by the defendant under the Act in making an award. It was submitted on behalf of the defendants No.2 & 5 that while dismissing the SLP filed by the plaintiff, the Supreme Court had upheld the judgment of the Division Bench of this Court, whereby challenge to the acquisition proceedings were rejected and the only liberty granted to the plaintiff was with regard to the title and possession of the land, and as the plaintiff had failed to specifically identify the land stated to be in his possession out of Khasra No. 193 even in the present proceedings, he was disentitled from claiming any relief against the defendants No.2 & 5. 13. Counsel for the defendants No. 2 & 5 placed reliance on the following judgments of the Supreme Court to state that the scheme of the Land Acquisition Act is a complete code in itself and the jurisdiction of the civil Court to take cognizance of cases arising under the Act are barred by necessary implication: 1. 1(1996) CLT 208 (SC)= AIR 1996 SC 523 entitled Laxmi Chand & Ors. v. Gram Panchayat, Kararia & Ors.; 2. 1996 (3) SCC 124 entitled UP Jal Nigam, Lucknow & Anr. v. Kalra Properties (P) Ltd., Lucknow & Ors.; 3. 1(1996) CLT 208 (SC)= AIR 1996 SC 523 entitled Laxmi Chand & Ors. v. Gram Panchayat, Kararia & Ors.; 2. 1996 (3) SCC 124 entitled UP Jal Nigam, Lucknow & Anr. v. Kalra Properties (P) Ltd., Lucknow & Ors.; 3. II (1997) CLT 370 (SC)= 1997 (11) SCC 250 , entitled S.P. Subramanya Shetty & Ors. v Karnataka State Road Transport Corporation & Ors. 14. I have heard the Counsel for the parties and have carefully considered their respective submissions along with the relevant law cited by both the parties. It is undisputed that after dismissal of the SLP, the judgment of the High Court dated 17.12.2004 has attained finality and, thus, any challenge by the plaintiff to the acquisition proceedings in respect of 26 Bighas 15 Biswas of land out of Khasra No. 193 min. in Village Bijwasan cannot be a subject matter of challenge in the present proceedings. While dismissing the SLP filed by the plaintiff, the Supreme Court left open all questions of title and possession, and clarified that its order shall not be construed as a liberty granted to the plaintiff to file a civil suit. 15. To enable this Court to identify the land in respect of which relief is sought by the plaintiff in the present application, Counsel for the plaintiff was called upon to show the dimensions of the land in question from out of Khasra No. 193 min. A perusal of the five sale deeds, all dated 6.3.1987, reveals that there is no definite description of the land purchased by the plaintiff from the seller, defendant No. 7, inasmuch as in each of the sale deeds a reference is made to the defendant No.7 as the absolute owner in possession of" agricultural land measuring 19 Bighas and 4 Biswas, Khasra No. 193 min. in Village Bijwasan" and the agreement between the plaintiff and the defendant No.7 to purchase 1/5th share of the said land for a certain value. However, neither the sale deeds, nor the site plans enclosed with them throw any light on the exact dimensions of the land purchased from out of the entire Khasra No. 193 min. either collectively, or in five lots. However, neither the sale deeds, nor the site plans enclosed with them throw any light on the exact dimensions of the land purchased from out of the entire Khasra No. 193 min. either collectively, or in five lots. Thus in the absence of specifics, a shroud of ambiguity cloaks the transaction, as the plaintiff has failed to file any document to show as to the manner in which the land in question purchased by him and stated to be in his occupation, is bounded. 16. The contention of the Counsel for the plaintiff that mutation was allowed in favour of the plaintiff by the revenue authorities in the revenue records i.e. Khasra Girdawari and the Khatauni in the year 1987 is not enough to establish the dimensions of the land, in the absence of any records pertaining to the village field book or an extract from the Aksh Shajra showing the cutting of Titamma (bifurcation of the original holding into smaller chunks sold under the sale deeds) of the portion of the land in question out of the entire parcel of land comprised in Khasra No. 193. Reliance placed by the Counsel for the plaintiff on the location plan of the plot of land stated to be in the possession of the plaintiff also does not throw any light on the dimensions of the land purchased by him from out of Khasra No. 193 min. in Village Bijwasan inasmuch as it fails to reveal the location of the land subject matter of the sale deed with reference to the adjoining land. 17. The onus was on the plaintiff to prove his case by furnishing clear and unambiguous details of the dimensions of the agricultural land purchased by him from the defendant No.7 so as to establish its true and correct identity, out of the remaining 84 Bighas 4 Biswas of land in Khasra No. 193 min. which has not been notified with reference to adjoining land. In the absence of any such specifics furnished by the plaintiff, the Court cannot make any deductions as to the exact identification of the land so as to consider passing any interim orders on the application. which has not been notified with reference to adjoining land. In the absence of any such specifics furnished by the plaintiff, the Court cannot make any deductions as to the exact identification of the land so as to consider passing any interim orders on the application. The plaintiff cannot be permitted to transfer the said onus onto the shoulders of the defendants as it is the plaintiff who has approached the Court by way of the present application and it is thus for him to establish the fact that the suit land purchased by him through the five registered sale deeds, all dated 6.3.1987 constitutes a part of land comprised in Khasra No. 193 min. from out of the balance area measuring 84 Bighas 4 Biswas, which has not been notified. 18. The arguments raised on behalf of the plaintiff that the award not having been made even after a lapse of 2 years from the date of the judgment passed by the Division Bench on 17.12.2004, the notification under Section 4(1) of the Act and the declaration under Section 6 of the Act shall stand lapsed by operation of Section 11A of the Act, is answered by the Supreme Court in the case of U.P. Jal Nigam (supra), wherein it was observed as under: "3 .............. ...It is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property............ It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the possession is surrendered pursuant thereto. ............" 19. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the possession is surrendered pursuant thereto. ............" 19. In any case, any such argument on behalf of the plaintiff to the effect that the notifications issued by the defendants No. 2 & 5 under Sections 4 & 6 of the Act stand lapsed, cannot be taken into consideration in view of the settled legal position that the issue pertaining to acquisition cannot be the subject matter of a civil suit. When a civil suit itself is not maintainable and by implication, cognizance under Section 9 of the Code of Civil Procedure is barred, the question of granting the plaintiff any interim relief by accepting any argument as to the legality or validity of the notifications issued under Sections 4 & 6 of the Act does not arise. Accepting such an argument would tantamount to negating the judgment rendered by the Division Bench and upheld by the Supreme Court. What the plaintiff cannot achieve directly in a civil proceeding, cannot be granted indirectly by allowing the prayer in the interim application. 20. In any case, the plaintiff cannot challenge the validity of the notification or the regularity of the procedure adopted for taking possession of the land notified, in view of the judgment of the Division Bench holding that the plaintiff was a subsequent purchaser and possession of the land, subject matter of the writ petition, was taken much before filing of the writ petition. 21. In the aforesaid circumstances, this Court is of the view that the plaintiff has not made out a prima facie case for grant of an ad interim injunction order as prayed for in the application. The prayer made in the application is therefore declined and the same is rejected. 22. Needless to state that the opinion expressed hereinabove, is confined to disposal of the interim application and shall not be construed as an expression of opinion on the merits of the suit, wherein pleadings have yet to be completed. Application rejected.