* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 28.01.2011
Judgment Delivered on: 01.02.2011
+ RSA No.54/1989
RAMESH CHAND JAIN ...........Appellant
Through: Mr.Sudhir Nandarajog with Mr.Vinay
Gupta, Advocates
Versus
UNION OF INDIA & OTHERS ..........Respondent
Through: Mr.Sanjay Podar, Advocate for
respondent no.1.
Ms.Sangita Jain, Advocate for the
respondents no.4 to7 Advocates
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1 This appeal has impugned the judgment and decree dated
01.04.1989 which had reversed the findings of the trial Judge dated
25.05.1980. Vide judgment and decree dated 25.05.1980, the suit
filed by the plaintiff Ramesh Chand Jain seeking a decree of
permanent injunction restraining the defendants from acting upon
the impugned award No. 1658 or taking possession of the suit land
in pursuance of the award was decreed. Vide the impugned
judgment, the suit of the plaintiff stood dismissed.
2 The factual matrix of the case is as follows:-
(i) The plaintiffs are the owners of the land measuring 7 bighas
10 biswas in Khasra Nos. 554 & 555, Village Gandhi Piran in Delhi
RSA No.54/1989 Page 1 of 10
District. They had become owners vide registered sale deed dated
16.07.1959.
(ii) On 13.11.1959, the Government had issued a notification
under Section 4 of the Land Acquisition Act, 1894 (hereinafter
referred to as the „LAC‟) in respect of land measuring 34070 acres
of land.
(iii) On 08.04.1963, notification under Section 6 of the LAC Act
followed.
(iv) The plaintiff gave notice under Section 80 of the Code of Civil
Procedure (hereinafter referred to as the „Code‟) calling upon the
defendants not to acquire the said land in pursuance of the said
notifications which were bad. Defendants did not acceded to this
request.
(v) Present suit was filed. (vi) Written statement was filed wherein certain preliminary
objections were raised. It was stated that the suit is barred by
limitation; the plaintiffs are not the owners; no cause of action had
arisen. On merits, it was contended that the notification under
Section 4 and the subsequent notification under Section 6 were
valid notifications. The land stood acquired and possession of the
same had taken over on 17.03.1964. The suit property not being in
possession of the plaintiffs, prayer for injunction does not arise.
(vii) On the pleadings of the parties, issues were framed on
03.02.1966. They read as under:-
1. Whether there is any notification under Section 4 of the
Land Acquisition Act in respect of the suit land?
2. Whether the acquisition award in question is illegal on
grounds as alleged in the plaint?
RSA No.54/1989 Page 2 of 10
3. If issue No. 1 is proved in the affirmative, whether
notification under Section 6 mentioned in para 4 of the
plaint is valid? (objected to)
4. Whether the suit is time barred?
5. Whether plaintiffs were in possession of the suit land on
the day of institution of the same?
6. Whether the plaintiffs are the owners of the suit land?
7. Whether the suit is infructuous?
8. Whether notice under Section 80 CPC was served upon
defendants No. 2 & 3. If not to what effect?
(viii) Additional issues were again framed on 23.09.1969. They
inter-alia read as under:-
1. Whether the collector did not cause public notice of the
substance of notification u/s 4? (onus objected to)
2. Whether the declaration u/s 6 was unreasonable and
unduly delayed after Sec No. 4 notification? If so its
effect?
3. Whether the Collector did not comply with the conditions
precedent to the making of impugned declaration? (onus
objected to).
(ix) Again on 02.05.1970, following issues were framed for the
third time:-
1. Whether father of plaintiffs made an application under
Section 18 of the Land Acquisition Act and as such
plaintiffs are estopped from beginning the suit.
2. Relief.
(x) Oral and documentary evidence was led which included 8
witnesses on behalf of the plaintiff and 5 witnesses on behalf of the
defendants.
(xi) Trial Judge held that the plaintiff was in possession of the
suit property; mutation of the same had been effected in his favour;
the notification under Section 4 was bad as there was no evidence
led by the defendants to establish that the same had either been
published or notified to the non-applicant. The plaintiff was entitled
RSA No.54/1989 Page 3 of 10
to a decree.
(xii) The impugned judgment had reversed this finding. It was
held that the evidence had established that after the notifications
under Sections 4 & 6 of the LAC Act, possession had been taken
over by the Government Vide Ex. D-1 on 17.03.1964. In view
thereof, it was clear that on the date of institution of the suit,
possession of the suit land was not with the plaintiff. Suit was even
otherwise not maintainable as it was barred by time having been
filed two years after the possession was taken. It was dismissed.
3. This is a second appeal. After its admission on 23.01.1992,
the following three substantial questions of law were formulated.
They read as under:-
“1. Whether non-inclusion of khasra numbers and their
respective area purported to be acquired in the notification under
Section 4 of the Land Acquisition Act does not vitiate the
acquisition of land or the notification?
2. Whether there has been compliance of Section 4 (1) or
Section 5 (a) of the Land Acquisition Act in the facts and
circumstances of the case?
3. Whether there is a belated notification under section 6
of the Act beyond three years after Section 4 notification? If so, is
it valid and effectual in law?”
4 Thereafter on a subsequent date i.e. 28.01.2011, the
following additional substantial question of law was framed. It
reads as under:-
“Whether the suit in the present form was not maintainable?
If so, its effect?”
5 Record had been perused. On behalf of the appellant, it has
been urged that the finding in the impugned judgment is perverse.
It is pointed out that the notification dated 13.11.1959 issued
under Section 4 of the LAC Act was bad; admittedly there was no
RSA No.54/1989 Page 4 of 10
evidence before the Court to hold that a publication of the said
notification had been made in the two newspapers as is the
mandate of Section 4; there was also no evidence to show that
pasting of the said notification had been done on any conspicuous
part of the locality to enable the concerned party to file his
objections under Section 5 (a) of the LAC Act. It is pointed out that
the proceedings under the LAC Act have to be strictly construed as
a valuable right of a person is lost when his land is sought to be
compulsory acquired by the Government; “a substantial
compliance” as has been noted in the impugned judgment is not a
sufficient compliance; the compliance has to be strict. Attention
has been drawn to the notification dated 13.11.1959 under Section
4. It is submitted that the map which was appended as Annexure 1
was not a part of this publication; Annexure-2 which contains the
disputed land in Block-G has made a reference to “imaginary
lines”; it was incumbent upon the Government to have defined the
proposed acquisition of land correctly either by way of Khasra
number or its municipal number or by evidencing it in the map.
None of these has been done; it could in no manner have been left
to the imagination of the concerned person. For this reason,
objections Section 5 (a) of the Act also could not be filed. The
whole exercise being bad; it was liable to be set aside.
6 Arguments have been countered. It is pointed out that the
judgment of the Supreme Court in (1995) 4 SCC 229 State of
Bihar Vs. Dhirendra Kumar & Others followed by the Division
Bench of this Court in 2009 (7) AD (Delhi) 265 Delhi Development
Authority Vs. R.S. Kathuria has clearly held that the proceedings
under the LAC Act which are meant to be serve the public, by
RSA No.54/1989 Page 5 of 10
necessary implication ousts the powers of the Civil Courts. It is
pointed out that the notification under Sections 4 & 6 of the LAC
Act cannot be the subject matter of challenge before a Civil Court ;
at best proceedings under Article 226 of the Constitution of India
in the form of a writ are maintainable. It is submitted that in this
case admittedly the possession of the land had been taken over on
17.03.1964 vide Ex. D-1; this has not been challenged as no cross-
examination of the concerned witness had been effected on this
score; the Government having become the absolute owner of the
land; this notification cannot now be the subject matter of
challenge. For this proposition reliance has been placed upon 2001
(89) DLT 495 Ajit Singh Vs. Union of India.
7 Record has been perused. The substantial question of law
formulated on 28.01.2011 shall be answered first. The Supreme
Court in the case of Dhirendra Kumar (Supra) while dealing with
the objections to the notification under Sections 4 & 6 of the LAC
Act had inter-alia held as follows:-
“Thus, it could be seen that the Act is a complete code in
itself and it meant to serve public purpose. We are, therefore,
inclined to think, as presently advised, that by necessary
implication the power of the civil court to take cognizance of the
case under Section 9 of CPC stand excluded, and a civil court has
no jurisdiction to go into the question of the validity or legality of
the notification under Section 4 and declaration under Section 6,
except by the High Court in a proceeding under Article 226 of the
Constitution. So, the civil suit itself was not maintainable. When
such is the situation, the finding of the trial court that there is a
prima facie triable issue is unsustainable. Moreover, possession
was already taken and handed over to the Housing Board. So, the
order of injunction was without jurisdiction.”
8 In the subsequent judgment of Swaroop (Supra), the High
RSA No.54/1989 Page 6 of 10
Court relying upon the aforenoted judgment of Dhirendra Kumar
had returned a finding as follows:-
“The question is whether a civil suit is maintainable and
whether ad interim injunction could be issued where proceedings
under the Land Acquisition Act was taken pursuant to the notice
issued under Section 9 of the Act and delivered to the
beneficiary……….. We are, therefore, inclined to think, as
presently advised, that by necessary implication the power of the
civil court to take cognizance of the case under Section 9 of CPC
stands excluded, and a civil court has no jurisdiction to go into the
question of the validity or legality of the notification under Section
4 and declaration under Section6, except by the High Court in a
proceeding under Article 226 of the Constitution. So, the civil suit
itself was not maintainable. When such is the situation, the finding
of the trial court that there is a prima facie triable issue is
unsustainable. Moreover, possession was already taken and
handed over to Housing Board. So, the order of injunction was
without jurisdiction.”
9 In the present case, Ex. D-1 is the possession memo which
had evidenced that the possession of the suit land had been taken
over on 17.03.1964. This is the version of DW-1 on oath. It has
been reaffirmed by DW-4. No cross examination had been effected
either of DW-1 or DW-4 that this possession had not been taken
over by the Government on the said date. The second fact finding
Court i.e. the first appellate court in the impugned judgment had
returned a finding that it had been established that the possession
of the suit land on 17.03.1964 had vested with the Government.
The suit was filed in March, 1966 on which date the possession was
not with the plaintiff; it had already stood transferred to the
defendants.
10 In view of the ratio of the aforenoted judgments that the
RSA No.54/1989 Page 7 of 10
powers of the Civil Court by necessary implication to take
cognizance of such a suit under Section 9 of the Code is excluded,
it is clear that the Civil Court had no jurisdiction to go into the
question of validity or legality of the notification issued under
Section 4 of the LAC Act. At best proceedings under Article 226 of
the Constitution of India could be maintained.
11 It has been urged by the learned counsel for the appellant
that the law pronounced by the Supreme Court in this regard was
in the year 1995 which was much later in time then when the suit
had been filed, the suit had been filed by the plaintiff in the year
1966; the judgment of the trial Judge was rendered on 25.05.1980
and the impugned judgment had followed on 01.04.1989. All these
dates are prior in time when this law was declared by the Apex
Court in the judgment of Dhirendra Kumar. It is pointed out that it
would be inequitable if a person is non-suited on a legal
proposition which has been enunciated later in time. This judgment
has a prospective effect and could not be applied retrospectively.
12 This argument has to be noted only to be rejected. The law
i.e. the provisions of Section 4 of the LAC Act were promulgated by
the Legislature in 1894. They were only expounded and dealt with
in the judgment of the Dhirendra Kumar in 1995. It is not as if the
legislation had come into effect later on. The Supreme Court had
only enunciated the proposition that the LAC Act is a complete
Code itself and by necessary implication, the jurisdiction of the
Civil Court to take cognizance on the question of the validity of the
notification under Section 4 was ousted.
13 The substantial question of law formulated on 28.01.2011 is
answered against the appellant and in favour of the respondent.
RSA No.54/1989 Page 8 of 10
Suit was not maintainable in the present form.
14 The additional argument urged by the learned counsel for the
appellant on the substantial questions of law formulated on
23.01.1992 need not be answered in view of this finding given by
this Court on the substantial question of law as noted hereinabove.
It would, however, be relevant to state that 1996 (61) DLT 206
Roshnara Begum Vs. Union of India, a Bench of this Court had the
occasion to examine these very notifications i.e. notification dated
13.11.1959 issued under Section 4 of the LAC Act and the
subsequent notification dated 08.04.1963 under Section 6 of the
said Act. The said notifications had been up held. It had been noted
that the analogy of Sections 4 & 6 cannot be made applicable to
the further proceedings of acquisition for making awards. Sections
4, 5 (a) and 6 stand on different footings from other provisions of
the Statute. After a declaration under Section 6 has been issued in
respect of particular land, it is evident that the land which is
particularized under Section 6 may comprise of various khasras of
various revenue estates; Section 8 requires the Collector to mark
out the land and get it measured and prepared the plans of the
land which have been notified under Section 6 of the declaration.
In this view of the matter, the argument of the learned for the
appellant that the land had not been described sufficiently in the
notification under Sections 4 & 6 of the LAC is of little relevance.
The appeal against this judgment of the High Court had been
dismissed by the Supreme Court in 1997 (1) SCC 15 Murari Vs.
Union of India.
15 Even otherwise, the petitioner had also been compensated as
is evident from para 4 of the written statement to which there was
RSA No.54/1989 Page 9 of 10
no denial. It is thus clear that the possession of the defendants
having been established on 17.03.1964, all proceedings filed
thereafter challenging the notifications either under Section 4 or
under Section 6 of the Act would not be maintainable. Admittedly
the suit had been filed in March, 1966 after possession of the land
had stood transferred and vested with the Government. In view
thereof, no further discussion is required on the substantial
questions of law which were formulated on 23.01.1992.
The appeal has no merit. Dismissed.
INDERMEET KAUR, J.
FEBRUARY 01, 2011
a
RSA No.54/1989 Page 10 of 10