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Delhi High CourtIndian Cases

Smt. Krishna Kumari Uppal vs Union Of India (UoI) And Ors. on 12 August 2005

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Delhi High Court
Smt. Krishna Kumari Uppal vs Union Of India (Uoi) And Ors. on 12 August, 2005
Equivalent citations: 2007(2)SLJ107(DELHI)
Author: T.S. Thakur
Bench: T.S. Thakur, Badar Durrez Ahmed

JUDGMENT

T.S. Thakur, J.

1. Multiple rounds of litigation arising out of acquisition proceedings initiated by the respondents have failed to give quietus to the controversy. The acquisition proceedings having been upheld by the Apex Court and possession of the land in consequence thereof taken, the petitioner has come up with the present writ petition seeking return of an area measuring no more than 20.50 Sq. Yd. on the ground that the said extent of land has not been legally acquired. In a nutshell, the petitioner’s case is that she had purchased a plot of land measuring 470.50 Sq. Yd. in what was known as Sunlight Estate, New Delhi in terms of a sale deed dated 1st September, 1986 executed in her favor. The respondents, according to the petitioner, notified only 450 Sq. Yd. of land leaving out the balance 20.50 Sq. Yd. from acquisition. The petitioner now seeks return of the said excess area in this petition for a declaration and a writ of Mandamus filed by her. The short question that, therefore, falls for consideration is whether the relief prayed for by the petitioner can be granted in the present writ proceedings having regard to the fact that disputes relating to the measurement of land acquired under the Land Acquisition Act as also the quantum of compensation and the persons to whom the same is payable can all be agitated before a Civil Court under Section 18 of the Act. It is time now to state few facts:

2. Sunlight Insurance Co. Ltd. appears to have established a colony called the ‘Sunlight Estate’ in the revenue estate of Village Mohammadpur, Munirka, Delhi as early as in the year 1951. In or around 1954, the petitioner claims to have purchased a plot of land admeasuring 470.5 Sq. Yd. in the said Estate comprising revenue khasra numbers 114/116/32. Three years later, the Government issued a preliminary notification under Section 4 of the Act and invoked Section 17 in respect of a large tract of land including Sunlight Estate. Civil suits challenging the validity of the said proceedings were filed by some of the affected land owners culminating in the judgment of the Delhi Bench of the Punjab High Court in RSA No. 72D/1962 whereby the preliminary notification was quashed. This was followed by another notification under Section 4 issued in November, 1958 which was also challenged by some of the land owners in WP(C) No. 345/1969 that came to be allowed by a single Bench of this Court. An appeal preferred against the said judgment was dismissed but a Special Leave Petition filed before the Apex Court culminated in the reversal of the said judgment. The petitioner claims to have raised before the Supreme Court a plea for allotment of an alternative plot of land of the same value in the vicinity of the land acquired from her which aspect the Supreme Court declined to examine. Suffice it to say that the acquisition proceedings having been upheld, the petitioner filed a representation seeking allotment of an alternate plot of land in her favor which representation appears to have evoked no response from the authorities.

3. A fresh notification, under Section 4 of the Land Acquisition Act read with Section 17 of the Act invoking emergency provisions, was issued in December, 2001. These notifications were challenged by the petitioner in WP(C) No. 7403/2002 which was disposed of by an order of this Court dated 20th November, 2003 with the direction that the respondents should process the application filed by the petitioner for the allotment of an alternate plot. There was some controversy regarding the authority of the counsel for the petitioner to make a concession before the court withdrawing the challenge to the acquisition proceedings. Since nothing turns on that part of the controversy, it is not necessary to dilate on the same. All that need be mentioned is that an application seeking recall of the above order disposing of the writ petition was filed by the petitioner and dismissed by the court against which the petitioner filed a Special Leave Petition but later withdrew the same reserving liberty to file an appropriate writ in regard to payment of the 80% compensation before taking possession of the property and the correct determination of the compensation due to her. The possession of the land was eventually taken over by the authorities which again was challenged by the petitioner in WP(C) No. 768/2004 inter alia on the ground that compensation in terms of Section 17(3A) of the Act had not been paid. This writ petition was also disposed of on 7th May, 2004 with a direction to the Land Acquisition Collector to publish his award and to pay compensation in accordance with the same to the petitioner subject to her right to seek a reference under Section 18.

4. In compliance with the above direction, the Collector made his award determining compensation for an area measuring 1 bigha 5 biswas out of which compensation for an area measuring 9 biswas acquired from the petitioner was apportioned in her favor. The petitioner, at this stage, came up with another grievance as regards the measurement of the entire extent of land which was 470.50 Sq. Yd. but according to the respondents was measured only 9 biswas equivalent to 450 Sq. Yd. The petitioner argued in a representation filed before the SDM that the respondents had taken over an excess area of 20.50 Sq.Yd. without there being any notification under Section 4 or declaration under Section 6 of the Act and without payment of any compensation to her. This representation was followed by another representation addressed to the Collector, Land Acquisition, Kapashera.

5. The Collector by his letter dated 3rd September, 2004 rejected the demand for return of 20.50 Sq. Yd. of land on the ground that according to the revenue records, the khasra number comprising the petitioner’s land admeasured 9 biswas only, no matter it was shown to be measuring 470.50 Sq.Yd. in the registered sale deed executed in her favor. The petitioner, therefore, filed CM No. 12041/2004 in disposed of WP(C) No. 768/2004 seeking a direction for the return of the alleged excess area of 20.50 Sq.Yd. after measurement and demarcation of the premises. CM No. 14187/2004 was also moved in which the Court directed the parties to maintain status quo regarding the nature, title and possession of the subject property. The Court also appointed a Local Commissioner to inspect the property and take measurements of the same on a separate application being CM No. 14188/2004.

6. Measurements were accordingly taken by the Local Commissioner but when the civil miscellaneous applications filed by the petitioner came up for hearing before the Court, the petitioner sought permission to withdraw the same reserving liberty to seek redress of her grievances in accordance with law. The Court accordingly dismissed the applications directing the respondents to maintain status quo for a period of one week in respect of the disputed 20.50 Sq.Yd. of land.

7. The present writ petition filed by the petitioner in the above backdrop seeks a declaration to the effect that the dispossession of the respondents from 20.50 Sq.Yd. of the excess land was illegal and for a mandamus directing the respondents for return of the said excess area. The petitioner has also prayed for a mandamus directing the respondents to pay user charges to the petitioner for unlawful use and occupation of the excess area occupied by the respondents.

8. Appearing for the petitioner, Mr. Jayant Bhushan strenuously argued that the petitioner’s title deed clearly established that the area in her ownership measured 470.50 Sq.Yd. and not 450 Sq.Yd. which the respondents had notified and acquired in terms of the award made by the Collector. There was according to the Learned Counsel, no legal justification for the respondents to dispossess the petitioner of her 20.50 Sq.Yd. of land which, in law, continued to vest in her entitling her to its return. Reliance in support was placed by the Learned Counsel upon the sale deed executed in favor of the petitioner and the affidavit filed by the Collector, Land Acquisition inter alia stating that while the Revenue record shows the area belonging to the petitioner to be 9 biswas, 470.50 Sq.Yd. would, in biswas, work out to 9.3232 biswas.

9. It was per contra argued by Learned Counsel for the respondents that the acquisition proceedings were based on the measurement of the land as indicated in the relevant revenue record. This record, according to the Learned Counsel, clearly showed that the petitioner’s plot of land falling in survey number 114/116 measured no more than 9 biswas. The total area notified was, according to the revenue record, measuring 1.5 bighas comprising 3 different plots of land measuring 9 biswas belonging to the petitioner and two plots measuring 8 biswas each belonging to two others. The Collector had notified the entire land underlying the three survey numbers mentioned in the notification and determined compensation for the same accordingly. The petitioner’s case that she was entitled to compensation on the basis of the measurements in the sale deed and not the revenue record was, according to the Learned Counsel, wholly untenable. Alternatively, it was argued that the petitioner’s contention could at best give rise to a dispute regarding measurement of the land acquired from her which could be satisfactorily resolved only by a Civil Court in a reference made to it under Section 18. Reliance in this regard was placed upon a Division Bench judgment of this Court in Rooplata Malhotra v. Land Acquisition Collector and Ors. WP(C) 9957/2005 disposed of on 30th May, 2005 relating to the adjacent plot acquired under the very same notification in regard to which also dispute about measurement of the plot had arisen which could, according to the Court, be resolved in a reference under Section 18 of the Act. Reliance was also placed upon the decision of the Supreme Court in Sharda Devi v. State of Bihar and Anr. .

10. Section 18 of the Land Acquisition Act inter alia provides that any person interested, who has not accepted the award, may require the Collector to refer to a Civil Court any dispute relating to the measurement of the land, the amount of compensation or the persons to whom the same is payable or even the apportionment of such compensation among the persons interested. Section 12 of the Act makes the award of the Collector final and conclusive evidence as between the Collector and the persons interested of the true area and the value of land acquired from the owners and apportionment of compensation among them, except in cases where a reference regarding the said issue has been made to a Civil Court under Section 18 or 30 of the Act. The substance of the dispute raised by the petitioner in the present case relates to the true area comprising survey number 114-116 acquired from the ownership of the petitioner. While according to the petitioner the said survey number measures 470.50 Sq.Yd., according to the respondents and the revenue record, the survey number measures no more than 9 biswas. The Collector has, relying upon the revenue record, determined compensation for the entire khasra number and awarded the same to the petitioner. The petitioner’s contention that the measurement as given in the revenue record is erroneous and that she actually held the ownership and possession of land measuring 470.50 Sq.Yd. is not accepted. While it is true that the sale deed relied upon by the petitioner shows the measurement of the land to be 470.50 Sq.Yd., the question as to what was the total extent of the three plots underlying survey number 114/116 notified by the respondents under the preliminary notification remains to be a disputed question of fact. The notification describes the acquired land thus:

SPECIFICATION

——————————————————————-

VILLAGE TOTAL AREA KHASRA AREA
(BIGHA-BISWA) (BIGHA-BISWA)

——————————————————————-

Mohammadpur 1-05 114-116/32 0-09
Munirka 114-116/47 0-08
114-116/48 0-08

——————————————————————-

11. The above makes it evident that the total extent of land measures 1 bigha and 5 biswas comprising three plots in Survey No. 114-116. While petitioner’s plot No. 32 measures 9 biswas, the other two plots are shown to be measruing 8 biswas each. All that can, therefore, be said is that a dispute as to the true measurement of the land acquired from the petitioner has arisen, just as a similar dispute in regard to the measurement of the land of the adjacent owner had arisen and was noticed by this Court in Rooplata Malhotra’s case (supra). The proper forum for determination of the said dispute and consequential orders regarding payment of compensation of any area that has not been paid for will, therefore, be the Civil Court under Section 18 of the Land Acquisition Act.

12. Mr. Bhushan however argued that the provisions of Section 18 do not envisage determination of a dispute regarding measurement in the circumstances in which the question arises in the present case. According to the Learned Counsel, a dispute regarding measurement in order to be referable to a Civil Court ought to be a dispute between owners inter se and not a dispute vis-a-vis the Collector. Reliance was in support of that submission placed by Mr. Bhushan upon State of Bihar and Anr. v. Kundan Singh and Anr. . There is, in our opinion, no merit in that contention. A dispute in regard to quantum of compensation is a dispute between the owner and the acquiring authority or the beneficiary for whom the acquisition has been undertaken. So also a dispute regarding measurement may be a dispute not only among the owners, if there are more than one, but even vis-a-vis the Collector. Situations in which a dispute may arise in relation to the measurement of land owned by one individual only are not inconceivable. Such disputes would essentially arise if the description of the land is for any reason inaccurate. Description with precise measurements and boundaries may not give rise to a dispute but a description by reference to the khasra number may lead to such a dispute as indeed it has in the present case. The decision in Kundan Singh’s case (supra) does not lend any support to the submission of Mr. Bhushan. The Supreme Court was, in that case, examining whether an owner whose property had been acquired can in a reference under Section 18 rely upon Section 49 of the Act and insist that the entire property should be acquired instead of acquiring only a part thereof. Their Lordships held that a claim under Section 49 for acquisition of the whole of the property can be properly tried by the Court only when a reference made to it by the Collector under the second proviso to Section 49(1) and that such a claim cannot be mixed up with a claim made in proceedings sent to the Court under Section 18 of the Act. That is not the position in the instant case. The question here is not whether the whole of the property ought to have been acquired by the Collector. The question here is as to whether the property which has been acquired, namely, Survey No. 114/116/32 measures 450 Sq.Yd. as claimed by the respondent or 470.50 Sq.Yd. as alleged by the petitioner owner. Mr. Bhushan fairly conceded that the acquiring authority cannot be said to have intentionally left out 20.50 Sq.Yd. from acquisition for there was no reason why that should have been done. If that be so, as it is in our opinion, the essence of the dispute boils down to whether the plot which has been acquired from the petitioner measured 9 biswas as recorded in the Revenue record or more as claimed by the petitioner. Since the entire plot has been acquired under the notification, even if the Civil Court were to come to the conclusion that the same measured 470.50 Sq.Yd. as alleged by the petitioner, all that the petitioner would be entitled to is compensation for the said extent. There is no question of directing the delivery of possession of the alleged excess area of 20.50 Sq.Yd. to the petitioner in any such event, nor can there be a direction for return of the alleged excess on the assumption that the same has not been lawfully acquired.

13. Mr. Bhushan next argued that the report of the Commissioner appointed by this Court clearly established that an excess area of 20.50 Sq.Yd. has been taken over from the petitioner. The Court should, therefore, direct return of the excess area. We do not think so. It is true that the Commissioner has measured the property but then the Commissioner’s report is just an input for use by the competent Court called upon to determine the dispute regarding the true area acquired from the petitioner. The report may not be conclusive by itself. As observed earlier, even assuming that the dispute is eventually resolved in favor of the petitioner and it is held that her property measured 470.50 Sq.Yd. and not 450 Sq.Yd. as held in the award of the Collector, all that the petitioner could be entitled to would be compensation for the remainder of the area. The prayer for return of 20.50 Sq.Yd. of land is ex facie untenable.

14. In the result, this petition fails and is hereby dismissed reserving liberty to the petitioner to seek appropriate redress in a reference under Section 18 of the Land Acquisition Act keeping in view the observations made hereinabove. No costs.