M/S Samanit Enterprises & Anr v. Delhi Development Authority & Anr

1. The present appeals are directed against a common judgment of the learned Single Judge dated 01.07.2014 rejecting three civil suits. The Single 2016:DHC:3553-DB RFA (OS) 102, 109 & 131/2014 Page 2of 6 Judge was of the opinion that the bar of constructive res judicata and principle of res judicata precluded the adjudication of the disputes in the civil suits.

2. All suits claim various rights in respect of 7 biswa property described as khasra no.52/2/2, which is the part of Village Humayunpur. Earlier proceedings CS (OS) 1441/2004, CS (OS) 1442/2004 and another connected case, i.e., CS (OS) 818/2006 were filed by various individuals claiming and insisting their rights on the said 7 biswa parcel of land. The surrounding areas were notified for acquisition by the DDA and became the subject matter of an Award - as well as subsequent Award. The initial Award included the land being khasra No.52/1. Initially khasra no.52 was bifurcated and the part of the land was left from acquisition. Consequently, the acquired land was described as khasra no.52/1; unacquired land was described as khasra no.52/2. The subsequent Award directed the acquisition of 11 biswa of the unacquired portion. As a result khasra no.52/2 was further sub-divided - khasra no.52/2/1 comprising 11 biswa became acquired land and khasra no.52/2/2 was the unacquired portion comprising 7 biswa which is part of the suit land. The writ proceedings culminated in a common order dated 08.01.2003 passed in C.W.No.533/1997 and C.W.No.534/1997, which took note of these factual developments and also inter alia the circumstance that the present plaintiffs’ properties were located not only in khasra no.52/2/2 but in the acquired portion. This was based upon the demarcation report of the local Sub-Divisional Magistrate (“SDM”). The Division Bench while disposing of the writ petitions stated as RFA (OS) 102, 109 & 131/2014 Page 3of 6 follows: - “As no further award was made after 23rd October, 1963, therefore, on expiry of period of two years from the date of coming into force of Land Acquisition (Amendment) Act, 1984, all proceedings to acquire the land under the notification aforementioned automatically lapsed by operations of provision of Section 11A of the Act. To that extent, the petitioners are justified in claiming relief in this petition that an area to the extent of 7 biswas comprised in khasra No.52/2/2 of Humayunpur is free from acquisition. Remaining part of the relief claimed in the two petitions cannot be granted to the petitioners in view of the report of the demarcation dated 20th April, 2000 of Shri Amar Singh, Sub Divisional Magistrate, Hauz Khas, New Delhi, who was so appointed to take steps to identify the land measuring 7 biswas. In his report it is stated that as per demarcation it was found that the building/plot presently occupied by the petitioners falls in Khasra No.51 which is acquired land. Northern boundary wall of 7 biswas land comprised in Khasra No.52/2/2 in 8 Ghattas i.e. 66 ft. away towards South from the building of M/s Samanit Enterprises. As such further relief as prayed for in these petitions cannot be granted. Petitioners are accordingly allowed to the extent that the land comprise in Khasra No.52/2/2 of Humayunpur measuring 7 biswas is held to be free from acquisition. The remaining part of the relief is declined.”

3. The three appellants filed suits at various points of time being CS (OS) 1441/2004, 1442/2004 & 818/2006 claiming inter alia declaration and further consequential reliefs in respect of entitlement to portions which they said belong to them; they also sought an appropriate injunction.

4. The DDA - which was arrayed as the first defendant in all the suits objected to the maintainability of the suits contending inter alia that civil action was barred on account of the matter falling within the exclusive domain of the statutory authority set up under the Delhi Land Revenue Act, 1954 and Delhi Land Reforms Act, 1954. This contention was made in the RFA (OS) 102, 109 & 131/2014 Page 4of 6 course of an application moved under Order-VII Rule 11, Code of Civil Procedure (“CPC”). This contention was accepted; learned Single Judge relied upon several authorities and also provisions of the Delhi Land Revenue Act, 1954 particularly Section 28 and Section 64. The Single Judge also additionally held that since the matters sought to be agitated were directly or substantially in issue in the previous writ proceedings, they could not be re-agitated and were consequently barred.

5. This Court has heard counsel for the parties. Learned counsel for the appellants urged that the Single Judge fell into error in holding that the provisions of Land Revenue Act apply. Reference is made to Section 64 to contend that no judicial order in fact subsisted or enured in the present case so as to justify the maintainability of the appeal. On the other issue learned counsel highlighted that the Division Bench in the writ petitions itself had left the matter open to be agitated in appropriate proceedings and that consequently in the absence of the bar to the maintainability of the civil suit, the Single Judge should not have rejected the plaint.

6. The Court has considered all these circumstances and the records. The Court is unpersuaded by the submission of the appellants that the remedy of an appeal under Section 64 is not available. As noticed by the Single Judge, Section 28 confers exclusive jurisdiction upon the Deputy Commissioner to make orders or determinations in respect of settlement of boundaries. There could not be any question that the order of the SDM which recorded in the disposal of the writ petitions was premised upon the order of determination which fell within Section 28. As the Court perceives there is no impediment to appeal under Section 64 against such order of determination. At the same time, the Court is also of the opinion that the RFA (OS) 102, 109 & 131/2014 Page 5of 6 Division Bench was clear that the present appellants had to be afforded an opportunity to agitate their grievances against the determination of the Deputy Commissioner which ultimately culminated in the disposal of the writ petition. As a consequence, this Court is of the view that the appellants’ right to appeal cannot be precluded. They are at liberty to prefer an appeal to the competent authority under Section 64. In the event appellants prefer such an appeal within four weeks from today, the said appellate authority under Section 64 of the Delhi Land Revenue Act, 1954 shall hear and decide the appeal on its merits and without in any manner being bound by the issue of limitation. We emphasis this part because the appellants maintaining civil suit in a wrong fora should not preclude them and Section 14 of the Limitation Act to that extent should not come in their way.

7. This Court is further of the opinion that the status quo which is enured in favour of the parties, i.e., the appellant and the DDA, should bind the parties till 31.12.2016. The appellate authority is directed to, in the meanwhile, decide the appeal which is preferred under Section 64 of the Delhi Land Revenue Act, 1954. All observations with respect to nonmaintainability of the action and the applicability of res judicata shall not come in the way of the present appellants’ rights to agitate the ground on merits under Section 64.

8. The revenue authorities, i.e., specially the appellate authority shall make the clear determination as to the identity of khasra no.52/2/2 and the individual or individuals in possession, as well as the character of the land, the extent and area of such possession as well as the character. RFA (OS) 102, 109 & 131/2014 Page 6of 6

9. The appeals are allowed to the above extent. All rights and contentions of the parties are reserved.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) MAY 05, 2016 /vikas/