Ajay Beri v. Estate Officer-III (Delhi Urban Shelter Improvement Board) & Anr

11. Learned counsel for the respondent submitted that admittedly after passing of the order dated 2nd April 2013 by Estate Officer, the possession of the land in question was taken over way back in May 2013. It is submitted that there has never been any dispute about the fact that the subject land in question was acquired under the provisions of the LA Act. In this respect, an Award bearing No. 1691 dated 23rd March 1964 was passed. Learned counsel submitted that the challenge of the petitioner to the order passed by the Estate Officer solely premised upon the allegation that though the land in question was acquired, however the physical possession of the subject land never vested with the Government and therefore, could not have been treated as public premises. It is submitted on behalf of the respondent that the instant case has a checkered history and there has been multiple rounds of litigations between the parties. However, the sum and substance of the litigation is that the Predecessorin-Interest of the petitioner had been running a factory on the subject land which was sought to be acquired and during the first round of litigation i.e. CWP 197/1964 vide letter dated 17th November 1965 and 8th December 1965, an assurance was given by Delhi Administration that the possession of the subject land will not be taken over till an alternative allotment is made.

12. Learned counsel for the respondent submitted that it is petitioner‟s own case that on 26th February 1971, allotment of Plot No. 235, situated in Block B of Okhla Industrial Area, Phase-I, New Delhi was made (hereinafter “alternative plot”). Thereafter, Predecessor-in-Interest of the petitioner preferred another writ petition being CWP No. 39/1972. It is submitted that ground (II) of the said writ petition clearly shows that there is a categorical admission to the effect that on 26th February 1979, allotment of alternative plot was made in favour of the Predecessor-in- Interest of the petitioner. The sole grievance agitated in the said writ petition had been that neither there is any development nor the alternative plot has been demarcated and there was no provision of the electricity or water, therefore, it was not possible to shift the factory to the alternative plot.

13. The aforesaid writ petition came to be disposed of by this Court vide judgment dated 26th February 1979 by directing that the possession of the petitioner shall not be disturbed from the subject land for a period of 30 months from the date the petitioner is handed over possession of the alternative plot. Admittedly, the possession was handed over way back on 29th March 1996. Therefore, the period of 30 months for which the physical possession of the subject property could not have been taken over in terms of the order dated 26th February 1979, passed by this Court, expired way back on 28th September 1998. Although the petitioner had taken over the possession of the alternative plot and as per the available record has already sold out the same, but the possession of the subject land was not surrendered. Rather, the petitioner went on filing one case after another with a view to scuttle any attempt of taking over the physical possession of the land in question.

14. Learned counsel for the respondent has referred to the judgment of Hon‟ble Supreme Court in the matter of Indore Development Authority vs Manoharlal and Ors. (2022) 8 SCC 129 and relied upon contents of paragraphs 246 to 273 of the same. It is further submitted that the said land measures only about 4 Bighas 3 Biswas i.e. less than 1 Acre and the same was part on a very large chunk of acquired land measuring about 283 acres. The possession of the entire acquired land was taken way back on 10th June 1965 by drawing a panchnama and as well as making endorsement on the plan. The petitioner has never raised any doubt about the preparation of panchnama in respect of the entire land measuring about 283 acres.

15. Learned counsel for the respondent submitted that therefore, the plea of the petitioner premised on “Physical Possession” is liable to be discarded and rejected. No other plea, ground or argument has been raised on this aspect. Therefore, the instant writ petition is devoid of any merit and liable to be rejected. Insofar as the challenge to the demand letter dated 21st February 2021 is concerned, the same is equally misconceived. The said demand letter has been called upon to make payment of damages towards occupation of the subject land beyond the time allowed by this Court vide judgment dated 26th February 1979 passed in CWP No. 31/1972. In the event the petitioner complies with the said demand letter, nothing would survive, however, if the petitioner does not comply with the said demand, the answering respondent would be constrained to invoke its legal remedies for recovery which, obviously, would be in the shape of proceedings under Section 7 of the PP Act. It is submitted that nothing is more to be read in the said demand letter. Therefore, the instant petition is devoid of any merit and is liable to be dismissed.

16. It is further submitted that the impugned order passed by the learned District Judge was back on 7th February 2020 and the instant writ petition has been preferred in May 2022. Thus, there is evident and unexplained delay of 2 years in filing the writ petition, which is liable to be dismissed on the ground of delay and laches.

FINDINGS AND ANALYSIS

17. I have heard learned counsel for the parties at length and perused the documents and relevant judgments cited at Bar.

18. In the instant case, the land of Khasras No.824, 825 and 826 of Village Madipur was acquired vide Award No. 1691 dated 23rd March 1964 and the formal possession of the aforesaid mentioned Khasras were taken over by the then Tehsildar, JJ, MCD from Land & Housing Department on 10th June 1965 under JJR Scheme, Madipur. By virtue of this acquisition and taking over of the possession of the land by the then Tehsildar, respondent became the owner of the land in question. In the instant case, the land in question was first given to DDA by LAC, thereafter, DDA handed over this land to MCD/ Slum Cluster Residential Scheme on 10th June 1965. The entry to this effect is also on record. But, on the contrary, petitioner herein has vehemently submitted that M/s. Imperial Tehnical Works has purchased the land bearing Khasras No. 824 to 826, Village Madipur through a purported sale deed dated 30th November 1967 executed on Rs.2/- stamp paper by one Sh. Dharambir and Sh. Manohar Lal, both sons of Sh. Tulsi Ram. The petitioner is also claiming that the possession of the land was not taken over by the LAC from him after acquisition; the said acquisition is not effective.

19. The Estate Officer-III, Delhi Urban Shelter Improvement Board, has passed order dated 2nd April 2013 under sub Section 1 of Section 5 of the PP Act. The relevant portion of the said order is reproduced herein below for proper adjudication of the matter:- “In view of above facts and reasons recorded above, I, the undersigned, am satisfied that Sh.Ajay Barry resident of K-78; Hauj Khas, New Delhi also at Khasra No.824, 825 & 826 village Madipur or whosoever is claiming through him or is unauthorized occupation of the Public Premises specified in the Schedule below:

SCHEDULE Land bearing Khasra No.824 (measuring 3 Bighas 10 Biswas), 825 (measuring 0 Bigha 16 Biswas)& 826 (measuring 0 Bigha 17 Biswas) measuring about 4125 Sq. yards. Now, therefore, in exercise of powers conferred on me under Sub-Section (1) of Section 5 of the Public Premises (Eviction of Unautharised Occupants) Act, 1971, I hereby order the said Sh.Ajay Barry and all persons, who may be in occupation of the land bearing Khasra No.824, 825 & 826 village Madipur or any part thereof to vacate the said premises within 15 days of the date of publication of this order. In the event of refusal or failure to comply with this order within the period specified above the said Sh.Ajay Berry and all other persons concerned are liable to be evicted from the said premises i.e. the land bearing Khasra No.824, 825 & 826 village Madipur, if need be, by the use of such force as may be necessary. Petitioner Department is also at liberty to file the claim for assessment of damages under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for unauthorized occupation of the Public Premises described in the Schedule above separately against Sh.Ajay Berry or whosoever is claiming through him or is in unauthorized occupation of the Public Premises the specified in the Schedule above. This file may be consigned to record and order to all concerned may be issued.”

20. The petitioner herein filed an appeal bearing PPA-05/2016 before District & Sessions Judge (West), Delhi on the ground that the Estate Officer has not appreciated that Deputy Housing Commissioner, Delhi Administration, Delhi vide letter dated 21st March 1967 acknowledged that the possession of the land in question had not been taken over by the LAC, referring to the earlier letter of LAC dated 15th October 1965, which suggested that the land in question was a built up property even prior to issuance of notification under Section 4 of the LA Act. It is also contended that the Estate Officer has not appreciated that the physical possession of the land was never taken over by the LAC. Another ground for challenging the Estate Officer‟s order in the appeal is that vesting of the land in Government has never taken place as the actual possession was never taken over by the DDA/LAC/Slum Department.

21. The aforesaid appeal was rejected by the Appellate Court vide order dated 7th February 2021. The operative portion of the same reads as under:-

22. In the instant petition, it is an admitted fact that the land in question was acquired under the provisions of LA Act, 1894. It is also an admitted fact that an award bearing no. 1691 was passed on 23rd March 1964. The challenge of the petitioner to the order passed by learned Estate Officer as well the order passed in the appeal solely premised upon the allegations that though land in question was acquired, however, the „physical possession‟ of the same continued to remain with the petitioner. It is also the case of the petitioner that the title of the land in question had never been vested with the Government and therefore, it could not be treated as public premises so as to invite the applications of the Public Premises Act.

23. In the present case, the petitioner has been offered alternative plot by the department and which was handed over to him way back on 29th March 1996. It is also brought to the notice of this Court that vide order dated 26th February 1979, the Coordinate Bench of this Court directed that the possession of the land in question shall not be disturbed for a period of 30 months from the date of handing over the possession of the alternative plot to the petitioner. Admittedly, the possession of alternative plot was handed over in the year 1996. Therefore, the period of 30 months for which the physical possession of the subject property could not have been taken over in terms of the order dated 26th February 1979, passed by the Coordinate Bench of this Court in WP(C) 31/1972, expired way back on 28th September 1998. The relevant portion of order dated 26th February 1979 reads as under:- “It is really strange that despite repeated opportunities being taken by the parties, respondents could not sort out this case out of court. There is no valid stand which the respondents could or have taken before us. We accordingly accept the petition, make the rule absolute and issue a writ to the respondents that they are directed not to disturb, interfere or intermeddle in any manner with the possession of the petitioners‟ factory land at Rohtak Road or the factory called the “Imperial Technical Works” situated in village Madipur at Mila 6/3, Rohtak Road, Delhi till 30 months from the date the petitioners are given possession of either plot No.235, Block-B (measuring 2420 sq.yds.) in Okhla Industrial Area, Phase-1 or any other plot in a developed industrial area having electricity and water. In the circumstances of the case, we feel, the petitioners are also entitled to costs as against respondents 1, 2 and 4.”

24. During the course of enquiry before the Estate Officer, it has come in the evidence that Deputy Housing Commissioner, Delhi Administration wrote a letter to LAC in reference to earlier letter dated 15th October 1965 providing that the factory of „M/s. Imperial Technical Works‟ at Village Madipur be not disturbed unless an alternative plot is offered to it for shifting the present site to a conforming area in one of the Industrial Schemes of the DDA. There is also another letter dated 4th May 1981 written by Mr. K.K. Satyapaian, Deputy Director (NL), DDA to one Mr. V.K. Khanna, Under Secretary, Land and Building Department, pointing out that development work was held up due to want of inter alia the land in question and requesting for necessary instructions to be passed to the LAC for handing over the land on 8th May 1981. In response to letter dated 4th May 1981, a letter dated 23rd May 1981 was written to the effect that vacant possession of the land under reference may be taken over under Section 16 of the LA Act in consultation with the DDA. It is also matter of record that Kabza Karwahi was also taken by the LAC on 10th December 1981.

25. The Estate Officer, after conclusion of the trial and after perusing the entire documents on record, reached to the conclusion that the physical possession has already been taken by the respondent authority for the purpose for which acquisition has taken place. The petitioner has already been offered an alternative plot and the same has been handed over to him. The possession of the alternative plot was taken over by the petitioner vide File No. F-6A(32)69/LSB(1) on 29th March 1996. The main grievance of the petitioner is that the actual possession of the land in question was not taken over by the concerned authority.

26. In the case of Sham Lal v. Rajinder Kumar 20 (1994) 30 DRJ 596, this Court held as under:-

27. The ratio of the aforesaid judgment is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property.

28. In the case of Indore Development Authority vs. Manohar Lal (2020) 8 SCC 129, the Hon‟ble Supreme Court held as under:-

251. One who enters or remains in possession on land of another without a privilege to do so, is also treated as a trespasser. On the strength of Full Bench decision of Patna High Court in S.M. Yaqub v. T.N. Basu, Mitra, has referred to the observation that the possession should not be confused with occupation. A person may be in actual possession of the property without occupying it for a considerable time. The person who has a right to utilise the whole in any way he likes. Possession in part is good enough to infer that the person is in possession of the rest. Learned Author has referred to Jowitt‟s Dictionary of English Law, Ed. 1969, so as to explain what constitutes possession. “There are three requisites of possession. First, there must be actual or potential physical control. Secondly, the physical control is not possession unless accompanied by intention hence if a thing is put into the hand of a sleeping person he has no possession of it. Thirdly, the possibility and intention must be visible or evidence by external signs for if the thing shows no signs of being under the control of anyone, it is not possession.” AIR 1949 Pat 146.

256. This Court in V. Chandrasekaran v. Administrative Officer dealt with the concept of vesting under the 1894 Act. The facts of the said case indicated that the appellants and the officials of the State and Development Board connived with each other to enable the appellant to grab/encroach upon the public land, which was acquired and falsified the documents so as to construct flats thereon. Considering the gravamen of the fraud, the Chief Secretary of the State was directed to trace out such officials and to take suitable action against each of them. It was also held by this Court that alienation of land subsequent to notification under Section 4(1) is void and no title passes on the basis of such sale deed. This Court held that once land vested in the State free from all encumbrances, it cannot be divested. Once land has been acquired, it cannot be restored to tenure- holders/persons interested, even if it is not used for the purpose for which it is so acquired. Once possession of land has been taken, it vests in the State free from all encumbrances. Under Sections 16 and 17, the acquired property becomes the property of the Government without any limitation or condition either as to title or possession. Reliance has been placed on Fruit and Vegetable Merchants Union (supra):

257. In National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad, the concept of vesting was considered. This court observed that vesting means an absolute and indefeasible right. Vesting, in general sense, means vesting in possession. Vesting may include vesting of interest too. This Court observed thus:

259. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same. In Municipal Corporation of Greater Bombay & Ors. v. Hindustan Petroleum Corporation & Anr167, this Court discussed the concept of vesting in the context of Section 220 of the Bombay Municipal Corporation Act. It has referred to various decisions including that of Richardson v. Robertson, (1862) 6 LT 75 thus:

15. We are, therefore, of the view that the word “vest” means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act.” (emphasis supplied)

260. The word „vest‟ has to be construed in the context in which it is used in a particular provision of the Act. Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, section 24(2) does not contemplate divesting of the property from the State as mentioned above.

261. Now, the court would examine the mode of taking possession under the Act of 1894 as laid down by this Court. In Balwant Narayan Bhagde (supra) it was observed that the act of Tehsildar in going on the spot and inspecting the land was sufficient to constitute taking of possession. Thereafter, it would not be open to the Government or the Commission to withdraw from the acquisition under Section 48(1) of the Act. It was held thus:

262. In Tamil Nadu Housing Board v. A. Viswam (supra) it was held that drawing of Panchnama in the presence of witnesses would constitute a mode of taking possession. This court observed:

265. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, this Court ruled that under compulsory acquisition it is difficult to take physical possession of land. The normal mode of taking possession is by way of drafting the Panchnama in the presence of Panchas. This Court observed thus:

29. In view of the aforesaid ratio laid down by the Constitution Bench in Indore Development (Supra), the possession of the land in question in the instant petition has already been taken over by the concerned authority. It is also pertinent to mention here that a large chunk of the land was acquired for the development and the land in question is merely a piece of the said acquisition. The development has already taken place for which the large chunk of the land was acquired. After perusing the documents and contentions made in the petition as well as the counter and rejoinder affidavit, I have reached at the conclusion that the petitioner has already taken the advantage and benefit from the Government in the nature of alternative plot. He continued to unlawfully occupy the public land in question to the detriment of the public purpose despite ceasing to hold any legal or equitable right to hold on to the possession of the land in question. It is also matter of record that the land in question was transferred to the MCD, Slum Clearance Scheme on 10th June 1965 much before the execution of the sale deed in favour of the petitioner dated 30th November 1967 and there is no iota of evidence available on record that the petitioner was the owner of the land on the date of passing of Award bearing No. 1691 dated 23rd March 1964 or he had any right or interest in the same.

30. Vide the Demand Letter dated 21st February 2021, the petitioner has been called upon to make payment of damages towards occupation of the land in question beyond the time allowed by the Coordinate Bench of this Court vide its order/judgment dated 26th February 1979 passed in CWP No. 31/1972. In the event the petitioner complies with the said demand letter, nothing could survive, however, if the petitioner does not comply with the said demand, the respondent has all legal right to invoke its legal remedies for recovery under Section 7 of the PP Act. Therefore, demand letter dated 21st February 2021 is merely precursor to the proceedings under Section 7 of the PP Act.

31. I have also perused the impugned order passed by the Estate Officer as well as the order of Appellate Court. The Appellate Court, while passing the detailed and reasoned order discussed all the legal aspects pertaining to the instant matter and found that there is no illegality in the order passed by the Estate Officer.

SCOPE OF WRIT JURISDICTION

32. In the instant writ petition, I have to consider the scope of writ jurisdiction while adjudicating any quasi-judicial and administrative order.

33. Under Article 226 of the Constitution of India, High Courts have the power to adjudicate upon an impugned order along with the power to entertain writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. While adjudicating upon an impugned order, the scope of writ jurisdiction is narrowed to examining the contents of the order which is before the Court. Any consideration beyond assessment of the impugned order, including investigation into evidence and questions of facts would amount to exceeding the jurisdiction. While examining the challenge to an impugned order, the Court has to limit itself to the consideration whether there is any illegality, irregularity, impropriety or error apparent on record.

34. In Nagendra Nath Bora vs. Commr. of Hills Division and Appeals AIR 1958 SC 398, the Hon‟ble Supreme Court made the following observations while examining the scope of interference by High Courts in an order impugned and what would constitute an error apparent on record:-

35. The Hon‟ble Supreme Court in Union of India vs. P. Gunasekaran, (2015) 2 SCC 610, elaborating upon the extent of exercise of writ jurisdiction, held as under:-

36. Further, the Hon‟ble Supreme Court in Sarvepalli Ramaiah vs. District Collector, Chittoor (2019) 4 SCC 500, made the observations as reproduced hereunder, while examining the scope of Article 226 of the Constitution of India:-

37. Further in Sanjay Kumar Jha vs. Prakash Chandra Chaudhary, (2019) 2 SCC 499, the following observations were made by the Hon‟ble Supreme Court:-

38. The law, as has been interpreted by the Hon‟ble Supreme Court, is clear that a High Court exercising its writ jurisdiction shall not appreciate evidence and must not interfere in the order impugned unless there is a gross illegality or error apparent on the face of record. Hence, this Court will also limit itself to the question of law and the contents of impugned order.

CONCLUSION

39. In view of the aforesaid discussions, facts and circumstances and law laid down by the Hon‟ble Supreme Court on the issue of taking possession as well as scope of writ jurisdiction as discussed above, I do not find any cogent reason to interfere with the impugned order. The impugned order does not suffer from any illegality. The writ petition stands dismissed. Pending application, if any, stands disposed of.

40. The judgment be uploaded on the website forthwith.

JUDGE AUGUST 30, 2022 Aj/ak