Radha Krishanan S v. Dhruv Kumar Gupta & Anr

judgment decree dated

2.12.2008 in RCA No.7/2008 passed by the Appellate Court whereby it was pleased to dismiss the appeal of the appellant against the Judgment and decree dated 31.01.2008.

¶2Appellant claimed himself to be a tenant of Dhruv Kumar Gupta, respondent No.l in respect of property No.1/5, Mukteshwar Dham Complex, Mahipalpur Road, Mehrauli, New Delhi where he alongwith his family members has been residing as a tenant. Since he apprehended threat from respondent No.l of forcible dispossession from the suit premises, he filed a suit seeking relief of permanent injunction for restraining defendants/respondents from carrying out demolition, dis-possession or otherwise obstructing and/or peaceful use suit premises by the appellant. He also prayed seeking mandate to respondent No.l to restore the shape and structure of the suit premises.

¶3Respondent No.2 DDA contested suit alleging that on

13.11.1959 a notification was Page 2of12 issued under Section 4 of the Land Acquisition Act (hereinafter referred to as 'Act') for the acquisition suit land followed by another declaration dated

7.12.1966 issued under Section 6 of the Act. On

25.3.1983 award pertaining to said acquisition being award No.83/82-83 was published. With the acquisition of land having attained finality, the possession of the land vested with the Govt. On

14.3.1997, Land Building Department Govt. handed over the possession of the suit land to respondent/DDA.

¶4After DDA took over the suit property from Land Building Department, appellant filed a civil suit No.286/2006.

¶5After completion of the pleadings of the parties, the learned Civil Judge framed the following issues on

17.1.2005:-

¶1Whether the plaintiff has any locus standi to file the suit as the land in question is duly acquired by Government? OPP. USA27/2009 Page 3of12 >-

¶6Vide Its detailed judgment decree dated

31.1.2008, the learned CivilJudge dismissed the suit of the plaintiff with the following observations:- "7 According to reports of (Kabza Karyawahi) dated 14.3.1997

1.7.2004, has already been transferred to Government. Transfer of has taken place in accordance with law in a peaceful manner. Hence, the plea of wrongful dispossession is not available to plaintiff. There is no right of continuing in in favour of plaintiff.

¶8In view of aforesaid facts and circumstances, the suit is not maintainable plaintiff has no locus-standi to file present suit "

¶7The First Appellate Court vide its judgment dated

2.12.2008 while upholding the judgment and decree trial court dismissed appeal appellant with the following observations:- " The argument of appellant that he had been the tenant respondent No.l would not help him in any manner. Once building constructed on land had been demolished after which the Page 4of12 :> of same was handed over to DDA, question of appellant continuing to be in possession of the said land does not arise. The photographs placed before this court by the appellant also do not assist the appellant in any manner since once actual of the land had been taken over by the DDA, no right whatsoever remains with either the appellant or the respondent no.l. In view of the aforesaid, I do not find any illegality or infirmity in judgment/decree dated

31.1.2008 passed by the Ld. Civil Judge which is hereby upheld "

¶8Now, it is to be seen if any substantial question of law arises in the second appeal filed under Section 100 CPC.

¶9I have heard Ms. Babita Puniya learned counsel for the appellant Ms. Ansuiya Salwan, Advocate appearing for respondent/DDA have perused relevant documents placed on record.

¶10Preliminary issue was framed in vide of pleadings of the appellant that he was a tenant in a portion of the suit land acquired by the Govt. in RSA27/2009 sofl2 accordance with law and procedure laid down under the Land Acquisition Act to which the possession was taken over by Land Building Department after the acquisition Award No.83/82-83 was published on 25.3.1983.

¶11It is pertinent to mention here that respondent No.l as owner of the property had first challenged acquisition proceedings in a writ petition but was unsuccessful. SLP filed against the order of this court was also dismissed. Respondent No.l in his own right as owner filed a civil suit seeking permanent injunctionagainst the respondents in the said suit including the DDA. The said suit was dismissed for want of jurisdiction. The appeal filed against the said judgment and decree of the trial court was also dismissed. Respondent No.l assailed the order of the trial court in second appeal which was also listed before this court been reserved for orders. Appellant who claimed himself to be a tenant of Dhruv Kumar Gupta has no better title in the property than that of the actual owner Dhruv Kumar Gupta. Page 6of12

¶12It is no longer res integra that the Civil Court has no jurisdiction to try a case which by necessary implication arises out of Land Acquisition Act. Section 9 of CPC vests Jurisdiction in a Civil Court to try all the civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure laid down under Act is a special procedure with a view to envisage to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The dissatisfied claimant after notification issued under Section 4 and 6 and pronouncement Award, has been specifically provided with remedy of reference under Section 18 and a further appeal Section 54 of the Act. Once is taken, it stands vested under Section 16 of the act in State with absolute title free from all encumbrances.

¶13In Laxmi Chand & Ors. vs. Gram Panchayat, Kararia & Ors., (1996) 7 SCC 218' the Supreme Court observed "3. It would thus be clear that scheme of Act is Page 7of12 complete in itself thereby the jurisdiction of the civil court to take cognizance of the cases arising Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of procedure contemplated under the Act. The only right an aggrieved person is to approach constitutional courts, viz., the High Court and the Supreme Court under their plenary power under Articles 226 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court."

¶14It is not disputed that the first Kabza Karwahi under the Land AcquisitionAct in respect of the land took place on 3.4.1996;second Kabza karwahitook place on 14.3.1997; Third Kabza Karwahi on 31.3.1997 and Last Kabza Karwahi on 1.7.2004.

¶15After taking over the possession, the Government becomes its absolute owner, free from all encumbrances.

¶16Therefore, physical of the appellant, if any, can be considered as possession of a trustee on behalf of the public at large or as a tress-passer and, therefore, this itself cannot be a ground to Page 8of12 contend that Government not taken of the suit land. Appellant has no right to claim relief sought alleging that actual was not taken and therefore he should be protected.

¶17In Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors., AIR 1975 SC 1767', in similar circumstances it was observed:- "26. In a proceeding under the Act for acquisition of land all interests are wiped out. Actual of the land becomes necessary for its use for public purpose for which it has been acquired. Therefore, taking of possession Act cannot be "symbolical" in sense as generally understood in Civil Law. Surely it cannot be a possession merely on paper. What is required the Act is the taking of actual on the spot. In the eyes of law the taking of will have the effect of transferring from the owner or the occupant land to the Government." It was further observed:- "28 It is, therefore, clear that taking of possession within the meaning of S.16 or 17(1) means taking of on the spot. It is Page 9 of12 io

¶18neither a on paper nor a "symbolical" as generally understood in Civil Law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless is taken by written agreement party concerned mode of taking obviously would be for the authority to go upon the land and to do some act which would indicate that the authority taken of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that authority taken land. The presence owner or the occupant of land to effectuate taking of is not necessary. No further notice beyond that under Section

(1) of Act is required. When possession been taken, owner or the occupant of land is dispossessed. Once possession has been taken the land vests in the Government." In Nagin Chand Godha's case (supra) while referring to Balwant Narayan Bhagde's case (supra) this court observed in para 10 as under:- "10 If a person is enjoying the possession after the has been taken, person is enjoying as a trustee on Page 10 of12 behalf of the public at large and that by itself cannot be a ground to contend that the not been taken. It is the duty of person who is occupying property to look after property to see that the property is not defaced or devalued by himself or by others. He cannot subsequently come to the Court to say that actual is not taken therefore he should be protected land be denotified."

¶19The First Appellate Court while dealing with the question of appellant being in physical possession of the property as a tenant observed in its judgment dated 2.12.2008 as under:- " The argument of appellant that he had been the tenant respondent No.l would not help him in any manner. Once building constructed on land had been demolished after which the of same was handed over to DDA, question of appellant continuing to be in possession of the said land does not arise. The photographs placed before this court by the appellant also do not assist the appellant in any manner since once actual of the land had been taken over by the DDA, no right whatsoever remains with either Page 11 of12 the appellant or the respondent no.l "

¶20In view discussion as above, I am of the considered opinion that no substantial question of law can be formulated facts circumstances of this case. The judgment decree of the trial court as upheld in the first appeal needs no interference on any question of law as none is involved. Hence, the appeal is dismissed in limine.

¶21CM APPL. Nos. 2531-32/2009 for stay also stand dismissed. V (ARUNA SURESH) JUDGE JULY 27, 2009 vk page 12of12 Is

* HIGH COURT OF DELHI AT NEW DELHI + Date of decision : 27'''July, 2009 RADHA KRISHANANS Appellant Through : Ms. Babita Puniya, Advocate Versus DHRUV KUMAR GUPTA & ORS. Respondents % Through : Ms. Ansuiya Salwan, Advocate for DDA. CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? I U D G M E N T ARUNA SURESH. I.{Oral) CM APPL.2533/2009 (exemption) Exemption allowed subject to all just exceptions. Application stands disposed of Page 1 of12 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 1. In this appeal, appellant assailed