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2015 Supreme(Del) 1011
IN THE HIGH COURT OF DELHI AT NEW DELHI
V.K. SHALI, J.
Delhi Development Authority – Appellant
Versus
Shish Pal & Others – Respondents
R.S.A. No. 15 of 2009
Decided On : 30.6.2015
For the Appellant:Mr. Ajay Verma, Advocate.
For the Respondent:Mr. R.K. Dhawan, Ms. Richa Dhawan and Ms. Archana Chaudhary Advocates.
The court emphasized the discretionary power to condone delay to advance substantial justice and criticized the appellate court for commenting on the merits of the matter after dismissing the application for condonation of delay.
Headnote:
Land Acquisition - Ownership Dispute - Land Acquisition Act, 1894, Evidence Act, 1872, Limitation Act, 1963, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - S. 16 of the Land Acquisition Act, 1894, S. 114(e) of the Evidence Act, 1872, S. 5 of the Limitation Act, 1963, S. 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Fact of the Case:
The respondent filed a suit for permanent injunction against the appellant/DDA claiming ownership of a property, alleging illegal demolition by the DDA. The trial court decreed in favor of the respondent. The appellate court dismissed the appeal by the DDA, citing failure to prove physical possession of the land as a prerequisite for acquisition under the Land Acquisition Act, 1894.
Finding of the Court:
The court found that the delay in filing the appeal was not substantial and should be condoned to advance substantial justice. The appellate court erred in commenting on the merits of the matter after dismissing the application for condonation of delay, thereby closing all doors for reassessment of the case on its merits.
Issues: Ownership dispute, jurisdiction of civil court, condonation of delay, possession under Land Acquisition Act, 1894, applicability of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Ratio Decidendi: The delay in filing the appeal should be condoned to advance substantial justice, and the appellate court erred in commenting on the merits of the matter after dismissing the application for condonation of delay.
Final Decision: The appeal was allowed, and the matter was remanded back to the trial court for reconsideration by a different judge, treating the application for condonation of delay as deemed to have been allowed.
V.K. SHALI, J.
1. This is a regular second appeal filed by the appellant against the judgment dated 07.04.2008 passed in RCA No. 123 of 2005. The first appellant court upheld the judgment/decree dated 01.04.2005 passed by the trial court by virtue of which the suit no. 0373/85 was decreed in favour of respondent/plaintiff.
2. Briefly stated the facts of the case are that a suit for permanent injunction was filed by the respondent/plaintiff against the appellant/DDA claiming ownership of the suit property being property measuring 45’ X 20’ (2 Biswa) forming part of Khasra No. 1275 in the village Tughlakabad. It was alleged in the plaint that on 29.04.1985 the DDA and its officials illegally started to demolish the suit property which was averted by timely intervention of the respectable person of locality. It was prayed in the aforesaid suit that the DDA and its officials be restrained from demolishing the suit property or in any way dispossessing or interfering with the possession of the respondent/plaintiff illegally and forcibly other than by due process of law.
3. The aforesaid stand of the respondent/plaintiff was vehemently contested by the appellant/DDA on the grounds that the suit land was an acquired land by virtue of Award No. 50-A, supplementary 1969-70 and the physical possession of the land was taken over on 28.05.1985 and thereafter vide notification dated 01.06.1985 the same was placed at the disposal of the DDA. Therefore the respondent/plaintiff had no title, right interest in the suit property. Further the maintainability of the suit was challenged before the trial court.
4. The learned trial court held that the defendants have failed to prove their case and that the respondent/plaintiff is in legal possession of the suit property passed a decree in favour of the respondent/plaintiff vide order dated 01.04.2005. Subsequently DDA filed an appeal along with an application under S.5 of the Limitations Act 1963 with a prayer for condonation of delay of 127 days. Vide order dated 07.04.2008 the ld. appellate court dismissed the application for condonation of delay while giving concurrent finding to the effect that the appellant/DDA had failed to prove that the physical possession of the suit property vested with it which is the pre requisite for a land to be an acquired land as per the Land Acquisition Act, 1894 and therefore the appeal was held bereft of any merit.
5. Relying on the judgment rendered in Commissioner, Bangalore Development Authority vs. Brijesh Reddy & Another, (2013) 3 SCC 66 it is contested by the learned counsel for the appellant/DDA that the civil court has no jurisdiction to go into the issue of acquisition.
6. It is further contended that the courts below failed to appreciate that the Land Acquisition Act 1894 does not make any differentiation/classification in actual and symbolic possession. It is stated that all that S. 16 of the Act lays down is that when the possession is taken free from all encumbrances then the acquisition proceeding is complete. In support of the aforesaid the learned counsel for the respondent has relied on Tamil Nadu Housing Board vs. A Viswam, (1996) 8 SCC 259 and Nagin Chand Godha vs. Union of India & Others, 2003 (70) DRJ 721 (DB).
7. The learned counsel for the appellant has contended that the first appellate court and the trial court instead of putting the onus of proving their case upon respondent/plaintiff, desired appellant/DDA to defend its case from first instance without respondent/plaintiff discharging its obligation to do so. In furtherance of the aforesaid submission it is averred that it is incorrect that no documents relating to possession were placed or proved before the court, as the Award-50 A (Ex-DW1/1), Notification dated 11.06.1985 (Ex-DW 1/2) and the possession report (Mark ‘A’) are a matter on record.
8. Relying on the findings rendered in Tamil Nadu Housing Board (supra) it is contented that the presumption under S. 114(e), Evidence
