* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 09th December, 2009
Judgment Delivered on: 14th December, 2009
+ L.P.A. No.458/2004
BALWAN SINGH ....Appellant
Through: Mr.Ravinder Sethi, Senior Advocate
with Mr.S.K.Rout, Mr.Rajiv Kumar
Ghawana, Mr.M.K.Pradhan and
Mr.Pankaj Bhatia, Advocates.
Versus
UOI & ORS. ....Respondents
Through: Mr.Sanjay Poddar, Advocate for UOI
Mr.Rajiv Bansal and Mr.Rajan
Tyagi, Advocates for DDA.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the
Digest? No
PRADEEP NANDRAJOG, J.
1. The appellant Balwan Singh filed a writ petition
registered as WP(C) No.3901/1999. In the said writ petition he
pleaded that he was in adverse possession of land comprised
in Khasra No.271(37/9) in the revenue estate of Village Ladha
Sarai and was thus entitled to challenge the notification dated
23.1.1965 issued under Section 4 of the Land Acquisition Act
1894 and the declaration issued under Section 6 of the said
LPA 458/2004 Page 1 of 8
Act on 6.1.1969. He also stated that he was entitled to
challenge the notices issued by the Land Acquisition Collector
under Section 9 and 10 of the Land Acquisition Act 1894.
2. Prayer made in the writ petition was to quash the
notification and the declaration issued under Section 4 and
Section 6 of the Land Acquisition Act 1894 respectively. It was
further prayed that a declaration may be granted in his favour
that by virtue of Section 5-1(A) of the Punjab Tenancy Act he is
the permanent occupant of the land. It was further prayed
that the respondents be prohibited from taking possession of
the land.
3. It may be noted that there are vague pleadings in
the writ petition that the land was evacuee property and hence
could not be acquired.
4. The writ petition was dismissed vide order dated
27.2.2002 holding that Roop Chand, father of Balwan Singh
had accepted compensation in respect of the land and thus
Balwan Singh could not stake any claim in respect of the land.
Alternatively, it was held: Even assuming for the sake of
arguments, the petitioner has become owner by adverse
possession, his title cannot be determined in the present
proceedings.
5. Balwan Singh filed an appeal against the order
dated 27.2.2002 which was registered as LPA No.322/2002.
LPA 458/2004 Page 2 of 8
6. The said appeal was disposed of vide order dated
22.4.2002 noting that the stand of the Balwan Singh was that
his father had never accepted any compensation and that his
case was that being evacuee land the same could not be
acquired. The appeal was dismissed as withdrawn with right
reserved in favour of Balwan Singh to seek review of the order
dated 27.2.2002.
7. Review application being RA No.5381/2002 was
filed praying that the order dated 27.2.2002 be reviewed.
8. The same has been dismissed vide impugned order
dated 3.2.2004.
9. The instant appeal lays a challenge to the order
dated 3.2.2004.
10. Dismissing the application seeking review, the
learned Single Judge has held that even if father of Balwan
Singh did not receive any compensation it would make no
difference to the result of the writ petition. In so holding, the
learned Single Judge has held that during acquisition
proceedings neither Roop Chand nor Balwan Singh raised any
issue of the land being evacuee property and hence immune
from acquisition. Thus, said plea could not be raised for the
first time in appeal.
11. Various grounds, all mumbled-jumbled have been
urged in the writ petition and also in the instant appeal.
LPA 458/2004 Page 3 of 8
12. On 9.12.2009, after arguments concluded in the
appeal, in presence of learned counsel for the parties a short
order was penned noting the stand of the appellant in the
appeal. In the order dated 9.12.2009 it has been recorded as
under:-
“1. Mr. Ravinder Sethi, learned senior counsel for the
appellant states that the appellant is not predicting
any plea on the premise that the subject land was an
evacuee property. Counsel urges that the stand of the
appellant is that the subject land being the property
of the Union could not be acquired under any award
and thus pursuant to the award the Land Acquisition
Collector would have no jurisdiction to take over
possession of the land treating the same to be an
acquired land. Counsel states that fore-fathers of the
appellant were in continuous adverse possession of
the land and by prescription claimed title to the land.
2. Arguments heard.”
13. To appreciate the contention urged with respect to
the award, it may be noted that the lands in respect whereof a
declaration under Section 6 of the Land Acquisition Act 1894
was issued on 6.1.1969 were the subject matter of Award
No.31/86-87. In the award, pertaining to the land comprised in
Khasra No.271, at serial No.4 of the list of persons who have
staked a claim to the lands, it was recorded that Roop Chand
had claimed compensation in sum of Rs.50,000/- per bigha.
LPA 458/2004 Page 4 of 8
14. Assessing compensation it has been held that no
compensation needs to be assessed qua the said land
inasmuch as the same belongs to the Central Government.
15. It may be noted that the land was shown in the
revenue record as belonging to the Central Government
inasmuch as the recorded owner thereof had migrated to
Pakistan at the time of partition and being declared as an
evacuee property the same was vested in the Custodian of
Evacuee Properties i.e. the Central Government.
16. Thus, Shri Ravinder Sethi, learned senior counsel
for the appellant urged that there being no award pertaining to
the land in question, the Land Acquisition Collector had no
jurisdiction to take possession of the land. In that view of the
matter, learned counsel urged that it hardly mattered whether
the notification under Section 4 of the Land Acquisition Act
1894 was issued or that the declaration under Section 6 of the
said Act was issued.
17. In respect of enforcing the possessory right of the
appellant, it was urged that being in adverse possession of the
said land for a continuous period of more than 30 years, the
appellant acquired the title to the land by adverse possession
or alternatively became an occupancy tenant under Section 5-
1(A) of the Punjab Tenancy Act. Counsel urged that a perusal
of the award shows that no compensation was assessed by the
LPA 458/2004 Page 5 of 8
Land Acquisition Collector in respect of the subject land for the
reason he held that the land was of the Central Government.
18. Needless to state, as held in the decision reported
as (2003) 3 SCC 128 Sharda Devi vs. State of Bihar & Anr., the
Government cannot acquire its own land and if an award is
made in respect of the government land the same is a nullity.
19. But, the question arises whether at all the appellant
can retain possession in respect of the land claiming adverse
possession or alternatively a declaration that he is entitled to
be declared as a permanent occupant of the land under
Section 5-1(A) of the Punjab Tenancy Act in a writ proceedings.
20. According to the respondents, the question of the
appellant or his father being in adverse possession does not
arise for the reason the land is recorded in the revenue
records as uncultivable rocky area (banjar pahad). It was
urged that stray (manipulated) entries in the khasra girdawaris
under the remarks column showing Roop Chand being in
possession were neither here nor there for the reason the said
khasra girdawaris do not show any cultivation activity on the
land. The same show that the land was vacant. Counsel
urged that in respect of the vacant land the principle relatable
to possession is that possession follows title.
21. We need not dwell much on the contentions urged
for the reason whether or not Roop Chand and thereafter
LPA 458/2004 Page 6 of 8
Balwan Singh were in possession of the land in question
requires evidence to be led with respect to the entries in the
remarks column of the khasra girdawaris showing possession
of Roop Chand. Evidence would be required as to how
possession came to be recorded without any entry of what was
being cultivated on the land in question. Further evidence
would be required as to how come, after recording the land as
banjar pahad i.e. uncultivated rocky hill, possession of Roop
Chand came to be recorded. Further evidence would be
required as to whether at all Roop Chand was in possession of
the land or whether the entries are manipulated. It may be
highlighted that we find it extremely strange that for
uncultivated rocky hill land, without recording any cultivation,
possession of some person other than the recorded owner
finds entered recorded in the khasra girdawaris.
22. It is settled law that in respect of declarations
required under the Revenue Law, proceedings have to be
taken before the Revenue Authorities constituted under the
Act. Even a Civil Court has no jurisdiction on issues which fall
within the domain of revenue authorities.
23. It is settled law that writ proceedings are resorted
to enforce legal rights and not to create legal rights and then
enforce the same.
LPA 458/2004 Page 7 of 8
24. Issues of adverse possession and acquisition of title
by prescription required evidence to be led on the point,
whether at all the claimant was in possession of the land and
whether or not the possession was open and hostile to the
knowledge of the recorded owner. Surreptitious acts of
possession not to the knowledge of the owner of the property
are not enough to sustain a plea of adverse possession.
25. The learned Single Judge was perfectly correct in
passing the order dated 27.2.2002 when he noted that such a
claim could never be adjudicated in a writ proceedings.
26. Noting that the issue of land being evacuee
property was not urged before us during arguments in the
appeal, we see no merit in the appeal which is dismissed with
costs against the appellant in sum of Rs.11,000/-, to be shared
by the respondents.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
December 14, 2009
Dharmender
LPA 458/2004 Page 8 of 8