JUDGMENT
Sanjay Kishan Kaul, J.
1. The jurisdiction of the concerned authorities under the Delhi Land Reforms Act, 1954 (herein after referred to as ‘the DLR Act’) during the pendency of proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as ‘the LA Act’) is the principal question which arises for consideration in these two writ petitions.
2. The factual matrix in the two writ petitions is limited. The petitioners therein filed a suit for declaration before the Court of SDM/Revenue Assistant on 30th August, 1990 claiming rights to the lands as Bhumidar under Section 85 of the DLR Act. During the pendency of those proceedings, Notification under Section 4 of the LA Act was issued on 19th March, 1993 in respect of the same land and under Section 6 of the LA Act on 20th April, 1993. The concerned SDM passed a declaration on 6th September, 1993 (in Civil Writ Petition No. 4854/99) and on 20th January, 1993 (in Civil Writ Petition No. 4855/99) declaring the petitioners as Bhumidars under Section 85 of the DLR Act. The possession of the land was taken on 7th October, 1993 in view of the fact that the provisions of Section 17(1) of the LA Act were invoked and the award was published on 31st March 1995. The petitioners are also the recipients of the compensation determined as payable under the LA Act.
3. The petitioners applied for allotment of an alternative plot in terms of the scheme of the respondents on 2nd May, 1961 as amended in 1989. However, the case of the petitioners was rejected by the impugned order/letter dated 22nd July, 1999 and thus the present writ petitions have been filed seeking quashing of the said letters/orders and for a writ of mandamus directing the respondents to allot alternative residential plot to the petitioners in view of the acquired land.
4. In the counter-affidavit filed by the respondent, it is stated that as per the scheme invoked for seeking such allotment of alternative plots, the applicant must be the recorded owner of the acquired land prior to the issue of notification under Section 4 of the LA Act and must have received the compensation as original owner from the LAC/Court for his acquired land.
5. It is thus contended that on behalf of the respondents by the learned Counsel that since the notification under the LA Act was issued on 19th March, 1993 while the declaration declaring the petitioner as Bhumidar was on 6th September, 1993, the petitioners cannot be treated as the recorded owners of the land in question on the date of issuance of the notification under Section 4 of the LA Act. It is further stated that merely the fact that compensation has been paid to the petitioners would not entitle them to the alternative land since the purpose is to rehabilitate the land owners.
6. A further contention is raised on behalf of the learned Counsel for respondents that the SDM had no authority or jurisdiction to pass the declaration on 6th September, 1993 in view of the notification having been issued on 19th March, 1993 under the LA Act since on such notification having been issued, the DLR Act ceased to have force in respect of the land in question.
7. I have considered the submissions advanced by the learned Counsel for the parties on the aforesaid two issues which arise for determination in the present writ petitions.
8. Section 84 of the DLR Act provides that a person taking or retaining the possession of the land other than in accordance with the provisions of the law for the time being in force shall be liable to ejectment on the suit of a Bhumidar, Assami or a Gram Sabha, as the case may be. In terms of Section 85 of the said Act, if the suit is not brought under Section 84(1) or a decree obtained in any suit is not executed within the period of limitation, provided for the filing of the suit or the execution of the decree, the person taking or retaining possession was where the land forms part of the holding of a Bhumidar become a Bhumidar thereafter. The time period prescribed is in Schedule I SI. No. 19(iii) as three years from 1st July following the date of occupation.
9. In view of the aforesaid, in order for the petitioners to succeed in the suit for declaration as Bhumidar filed on 30th August, 1990, the said petitioners should have been in occupation of the land at least three years prior to the said date and would thus be entitled for declaration only on that ground. The actual declaration was issued by the SDM on 6th September,1993 and 21st September,1993 respectively which will consequently relate back to the eligibility of the petitioners to be declared a Bhumidar when the suit for declaration was filed on 30th August, 1990. The consequence of the declaration thus is that the petitioners would be held to be Bhumidars from 30th August, 1990. This date is prior to the issuance of the notification under Section 4 which is 19th September, 1993 and in view thereof, the petitioners must be treated as recorded owners of the acquired land as Bhumidars prior to the issue of notification under Section 4 of the LA Act.
10. It may be noticed that in Fateh Singh and Anr. v. Sewa Ram and Ors., , it has been held that merely because there was some delay on the part of the Revenue Authorities in declaring a tenant as Bhumidar under the provisions of the DLR Act or because there is no such declaration at all, the tenant entitled to acquire such rights under the Act DLR Act from the date of its commencement cannot be said to have not acquired these rights having regard to the words of Section 13(2) of the DLR Act which provides that any person who acquires Bhumidari rights under any provisions of the said Act shall have all the rights and shall be subject to all the liabilities conferred or imposed upon Bhumidars under the Act with effect from the date of acquisition of those rights. Further Sub-sections (2) and (4) of Section 15 cast an obligation on the Deputy Commissioner to declare as Bhumidars persons who have become entitled to that right under the provisions of the Act by admission or acquisition under the provision of the Act as Bhumidar. This also re-inforces the conclusion that the relevant date is when the Bhumidar is entitled to be so declared.
11. In view of the aforesaid, the ground stated in the impugned orders to the effect that petitioners were declared Bhumidar after the date of notification under Section 4 of the LA Act would not be sustainable and for that reason, the impugned orders are liable to be quashed.
12. However, another aspect of law raised by the learned Counsel for the respondents in respect of the jurisdiction of the SDM to pass the declaration under the provisions of the DLR Act. Learned Counsel for the petitioner has referred to the Division Bench judgment of this Court in Pyare v. Financial Commissioner and Ors., . It was held in the said judgment that the interest of the Bhumidar automatically gets extinguished when the land comprised in holding is being acquired under any law i.e. the LA Act and the Revenue Court would cease to have jurisdiction in the matter. In the said case, an application had been filed under the provisions of the DLR Act before the Civil Court though the notification under Sections 4 and 6 of the Act had been issued, award had been made and symbolic possession of the land had been taken over. The Division Bench observed as under:
“6. It is clear from a reading of Section 18 of the Land Acquisition Act it appears to us that the District Judge is vested with the jurisdiction to enquire into the interest which a party may have in the land. This power is a necessary concomitant to the persons to whom the compensation is payable and to the apportionment of the same amongst the interested parties. Obviously the apportionment of the compensation will depend upon the interest which a party will have in the land. We may also note that under Section 9(2) of the Land Acquisition Act, persons interested in the land can appear personally or by an agent before the Collector to state the nature of their interests in the land and the amount and particulars of their claim to compensation for such interests. The Collector, as already noted, is required to enquire into the same before making his award. It seems to us that a person can stake his claim to compensation for the land under acquisition on the ground of being possessed of Bhumidari rights. Thus, the nature of interest in the land is determinable by the Collector (Land Acquisition) under Section 11 and the District Judge under Section 18 of the Land Acquisition Act. Once the possession of the land, actual or symbolic, is taken, the land vests absolutely in the Government free from all encumbrances. Since the present case the land has been acquired by the Collector the interest of the petitioner, if any, in the land stands extinguished. This position also clearly follows from Section 67 of the Delhi Land Reforms Act, 1954. Section 67 reads as follows:
“67. Extinction of the interest of a Bhumidar. The interest of a Bhumidar in his holding or any part thereof shall be extinguished-
(a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; (bb) when a declaration in respect of such holding or part is made under Clause (a) of Sub-section (b) of Section 65A; (c) when he has been ejected in accordance with the provisions of this Act; or (d) when he has been deprived of possession is barred by limitation."
7. Thus, under Clause(b) of Section 67, the interest of a Bhumidar automatically gets extinguished when the land comprised in his holding is acquired under any law, such as the Land Acquisition Act, or any other Act relating to the acquisition of the land. Since the interest of the petitioner, assuming that he was a Bhumidar, stands extinguished under Section 67(b) of the Delhi Land Reforms Act, the Revenue Court ceases to have jurisdiction in the matter. Therefore, the application filed by the petitioner under Section 185 of the Delhi Land Reforms Act seeking declaration of Bhumidari rights was not maintainable and the Revenue Assistant rightly held that it had no jurisdiction to try the case. Both the Additional Collector and the Financial Commissioner
also took the correct view it, upholding the order of the Revenue Assistant.
The decision of the Supreme Court in Hatti (supra) to which our attention has
been drawn by Mr. Chandra is of no avail to the petitioner inasmuch as this
was not a case where Bhumidari rights of the appellant stood extinguished by
virtue of the acquisition of the land under the Land Acquisition Act. Section
185 applies in a case where the Bhumidari rights do not stand extinguished.
Once the Bhumidari rights stand extinguished, Section 185 of the Delhi Land
Reforms Act will have no application.”
13. The reading of the aforesaid Division Bench judgment, however, shows that there is no dispute on the fact that once the proceedings of acquisition are complete under the LA Act, the Revenue Court would cease to have jurisdiction under the DLR Act. However, the question is as to when such proceedings can be stated to be completed. This is relevant in view of the fact that in the present case, the declaration was issued on 6th September, 1993 while the possession was taken only on 7th October, 1993 and the award was made on 31st March, 1995. Thus, the declaration by the Revenue Court was made after the issuance of the notification under Sections 4 and 6 of the LA Act but prior to the possession being taken and the award being made and published.
14. The reading of the judgment in Pyare’s case (supra) itself makes it clear mat it is when the possession of the land is taken over, actual or symbolic, that the land vests absolutely in the Government free from all encumbrances. It is only at that stage that it can be said that the revenue authorities ceased to have jurisdiction under the DLR Act. It has been said in many words in the said judgment.
15. Learned Counsel for the respondent has also referred to the Division Bench judgment of this Court in Jaswant Kaur v. Lt. Governor, where it has been observed in para 11 as under:
“The decision of the Full Bench was noticed by a Division Bench of this Court in Smt. Kulwant Kaur v. Union of India, CWP 2720/90 decided on 24.8.90. The decision is unreported and copy thereof has been placed on record as Annexure R-1 (pages 51-54 of the paper book). Therein the Division Bench has noticed the distinction in the 1961 and 1989 schemes. The 1989 scheme specifically provides for allotment of alternative plot of land only to those persons who were the recorded owners on the date when Section 4 notification was issued.”
16. It is thus contended that in terms of the 1989 scheme applicable to the petitioner, the applicant should be recorded owner as on the date when Section 4 notification was issued. There is no dispute about the proposition since in view of what has been stated above, it has been held that the petitioner is the recorded owner at least from 30th August, 1990 as the Bhumidar of the land in question.
17. It may be further stated that in the present case, after verifying all the facts, the competent authority under the LA Act has even paid compensation to the petitioners.
18. Learned Counsel for the parties also referred to the judgment of the Supreme Court in Jethmull Bhojraj v. State of Bihar and Ors., where it has been held that the Government becomes owner of the land notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Section 17(1) of the LA Act.
19. The aforesaid is also apparent from the scheme of the LA Act itself which provides for initially the notification to be issued under Section 4 of the Act which is the publication of the preliminary notification. Thereafter, objections can be filed under Section 5A of the Act and the final declaration is issued under Section 6 of the Act. Of course, in case of emergency, the power can be exercised under Section 17 of the Act. Under Section 7, after declaration, the Collector has to take order for acquisition and under Section 11, inquiry and award is made by the Collector in respect of the compensation. Section 16 of the Act provides as under:
“16. Power to take possession–When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.”
20. It may be further noticed that in terms of Section 48 of the said Act the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. Thus, in my considered view there is no manner of doubt that the acquisition proceedings stand concluded only on the possession of the land being taken over.
21. Learned Counsel for the respondents also referred to the provisions of Section 1 of the DLR Act and the relevant portion is as under:
“1. Short title, extent and commencement.-
... ... ... (2) It extends to the whole of the Union Territory of Delhi, but shall not apply to- ... ... ... (c) areas held and occupied for public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894, or any other enactment other than this Act, relating to acquisition of land for a public purpose."
22. A reading of the said provision also shows that the provisions of the DLR Act shall not apply only when the area is “acquired under the Land Acquisition Act, 1894”. The expression “acquired” itself implies that the process of acquisition is complete for acquisition of the land under the LA Act. If this was not the position, then the Legislature would have used the expression “under acquisition” or “under the process of being acquired” or any similar expression. The intention of the Legislature is clear that it is only when the land is acquired under the LA Act would the DLR Act cease to apply to the land in question and consequently the revenue authorities would cease to have jurisdiction. As stated above, the land can be stated to be acquired only when the process of acquisition is complete by even taking over possession, physical or notional. This intention is also clear from Section 16 of the LA Act as also Section 8 of the said Act.
23. I am thus of the considered view that till the possession is taken, notional or physical, the process of acquisition Cannot be stated to be completed and the land cannot be said to have been acquired. Thus, till that date, it cannot be said that the DLR Act ceases to apply and consequently the revenue authorities cease to have jurisdiction.
24. In the factual context of the present matter, this would imply that since the possession was taken only on 7th October, 1993, the SDM was competent to issue the declaration prior to the date as has been so issued in the present cases on 6th September, 1993 and 21st September, 1993.
25. In view of the aforesaid as also in view of the fact that the impugned order dated 22nd July, 1999 has been quashed, the case of the petitioner is liable to be considered for allotment of alternative land in accordance with the said policy and in terms of the present judgment. The respondent No. 1 shall do the needful within a maximum period of three months from today and send the appropriate recommendation to respondent No. 2 DDA within the same period of time.
26. The writ petitions are allowed in the aforesaid terms leaving the parties to bear their own costs.