SIMLA DEVI vs UNION OF INDIA AND ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 03.07.2024
+ W.P.(C) 5688/2015 and CM APPL. 50807/2023
SIMLA DEVI ….. Petitioner
Versus
UNION OF INDIA & ORS ….. Respondents

Advocates who appeared in this case:

For the Petitioner : Ms. Smita Maan, Mr. Vishal Maan
And Mr. Kartik Dabas, Advocates
Mr. Shubham Saxena, Advocate

For the Respondents : Mr. Pratima N. Lakra, CGSC for R-
1/UOI
Mr. Sanjay Kumar Pathak, SC for LAC with Mr. Sunil Kumar Jha, Mr. M.S Akhtar, Ms. Nidhi Thakur and Ms. Mussarrat Benzeer, Advocates
Mr. Sudhir Nandarjog, Senior Advocate with Mr. Sanjay Vashishtha, Mr. Vishal Kumar and Mr. Akash Mishra, Advocates for DDA.

CORAM:
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MS. JUSTICE TARA VITASTA GANJU
JUDGMENT
TARA VITASTA GANJU, J.:
CM APPL. 50807/2023[Application seeking recall of Judgement dated 15.11.2016]
1. The present Petition was filed seeking enforceability of Section 24 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [hereinafter referred to as “2013 Act”]. The Petitioner contended that she is the owner and is in possession of land comprised in Khasra Nos. 182 (3-14), 183 (4-09) and 243 (4-12) measuring 12 bighas 15 biswas in all in village Kotla Mahi Giran, Delhi [hereinafter referred to as “subject land”].
2. A declaration was sought by the Petitioner to the effect that the acquisition proceedings initiated under the Land Acquisition Act, 1894 [hereinafter referred to as “1894 Act”] in respect of Award No. 205/86-87 dated 19.09.1986 shall have deemed to be lapsed. It further sought for declaration that Notification No. F4(9)/64-L&H dated 06.04.1964 [hereinafter referred to as “Section 4 notification”], notification No. F4(9)/64-L&HB dated 09.12.1966 being the declaration issued under Section 6 of the 1894 Act [hereinafter referred to as “Section 6 declaration”] and the Award No. 205/86-87 dated 19.09.1986 [hereinafter referred to as “Award”] with respect to the subject land be quashed.
3. The Respondents had claimed that possession of the subject land was taken on 05.03.1997 which was disputed by the Petitioner. However, in so far as compensation was concerned, it was the admitted case of the parties that compensation had not been paid. This Court, thus, without going into the controversy of the physical possession of the subject land, passed an order on 15.11.2016 [hereinafter referred to as the “15.11.2016 order”] relying on the Judgment of the Pune Municipal Corporation and Anr. v. Harakchand Misirimal Solanki and Ors.1 and other similar judgments, declaring that in view of the fact that compensation had not been paid, the Petitioner is entitled to a declaration that the acquisition proceedings initiated under the 1894 Act with respect to the subject land are deemed to have lapsed, allowing the present Petition.
4. Subsequently, an Application seeking recall of 15.11.2016 order was filed by the Respondent No.3/DDA [hereinafter referred to as “DDA”] on 26.09.2023.
5. The Respondent No. 4/Land & Building Department [hereinafter referred to as “L&B Department”] by Notification No. F.4(9)/64-L&H dated 06.04.1964, under Section 4 of 1894 Act, notified for acquisition 625 Bighas and 12 Biswas of land in Village Kotla Mahi Giran for the purpose of “Planned Development of Delhi”. Thereafter, the L&B Department issued the declaration under Section 6 of the Act.
6. The L&B Department, in 1986-87 issued the Award in respect to Section 4 notification for the land to be acquired. The subject land of the Petitioner was also covered by the Award as being part of the land notified for acquisition.
7. As discussed above, on 29.05.2015, the Petitioner had filed Writ Petition seeking quashing of the acquisition proceedings, the Section 4 notification, the Section 6 declaration and the Award. This Petition was allowed by the 15.11.2016 order. The DDA challenged the 15.11.2016 order by filing a Special Leave Petition bearing SLP (C) No. 14781 of 2017. The SLP was dismissed by the Supreme Court by its order dated 04.05.2017, with directions to start the acquisition proceedings afresh within 6 months from the date of the order. The Supreme Court had further directed that non-compliance of same would result in lapse of acquisition, and possession of the land, if taken, was to be returned to the Petitioner. The relevant extract of the order dated 04.05.2017 passed by the Supreme Court [hereinafter referred to as “04.05.2017 order”] reads:
“5. In the peculiar facts and circumstances of this case, the appellant is given a period of six months to exercise its liberty granted under Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for initiation of the acquisition proceedings afresh.
6. We make it clear that in case no fresh acquisition proceedings are initiated within the said period of six months from today by issuing a Notification under Section 11 of the Act, the appellant, if in possession, shall return the physical possession of the land to the owner.”
[Emphasis is ours]
8. The directions passed by the Supreme Court, it is contended by the Petitioner, were not complied with as no steps were taken by the DDA to initiate fresh acquisition proceedings. Instead, the DDA filed a Review Petition bearing Diary No. 29817 of 2019, before the Supreme Court seeking review of the order dated 04.05.2017 [hereinafter referred to as “Review Petition”].
9. The Review Petition was also dismissed by the Supreme Court by its order dated 17.10.2019 both on the ground of delay as well as on merits. The relevant extract of order dated 17.10.2019 is below:
“There is delay of 807 days in filing the Review Petition for which no satisfactory explanation has been given. Even otherwise, we do not find any merit in the Review Petition. The Review Petition is dismissed on the ground of delay as well as merits.”
[Emphasis is ours]
10. The matter did not end there. The DDA then approached the Supreme Court by filing a Curative Petition being Curative Petition No. 70/2021 [hereinafter referred to as “Curative Petition”]. The Curative Petition was also dismissed by order dated 19.05.2022. The Supreme Court directed that the case does not fall within the parameters set out in the precedent for such a petition and, hence dismissed the Curative Petition. The order dated 19.05.2022 is extracted below:
“We have gone through the Curative Petition and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative, Petition is dismissed.”
11. The L&B Department and Respondent No. 5/Land Acquisition Collector [hereinafter referred to as “LAC”] jointly also filed a Special Leave Petition bearing Diary No. 14183 of 2022 against the 15.11.2016 order, which was also dismissed on 13.03.2023. The Supreme Court while noting the fact that the DDA had independently filed a Special Leave Petition, a Review Petition and a Curative Petition all of which were dismissed, found that no case was made out by the L&B Department and LAC for condonation of delay of 1117 days in its filing.
12. Thereafter, the DDA on 26.09.2023 filed the present Application seeking recall of 15.11.2016 order. The grounds for recall as set forth in the Application are that during the course of inspection of the record in another case pending before the learned Single Judge in case titled Reliance Eminent Trading and Commercial Private Limited v. Delhi Development Authority2 and while preparing a detailed Affidavit, it was discovered that the Petitioner had committed a fraud and approached the Court with a false identity.
13. In view of the seriousness of the allegation, a Coordinate Bench of this Court by an order dated 03.10.2023 directed the Petitioner to file an Affidavit clarifying the allegations made by the DDA. The said Affidavit was filed by the Petitioner on 13.10.2023 along with several documents which included the Voter ID Card and Aadhar of the Petitioner.
Submissions of DDA:
14. Learned Counsel appearing on behalf of the DDA, while acknowledging the finality of the earlier proceedings, has contended that during the preparation of a Counter-Affidavit in CS (COMM) 582/2021 captioned Reliance Eminent Trading and Commercial Private Limited v. Delhi Development Authority which was pending before the learned Single Judge of this Court, the DDA found that details with respect to legal proceedings filed by the Petitioner being Civil Suit No. 203/2019 captioned Smt. Shimla Devi v. Delhi Development Authority & Anr. before the Court of learned Additional District Judge (South East) Saket District Courts, New Delhi [hereinafter referred to as “Saket Suit”], wherein the name of the Petitioner appeared in the chain of revenue records as “Smt. Simla widow of Vedpal R/o Tuglaqabad ”. It was contended that the revenue record does not mention the Petitioner as daughter of Sh. Bihari Lal and widow of Late Sh. Ajit Singh as has been done in the present Petition. It was further contended that the address as appearing of the Petitioner in the Saket Suit is exactly the same as that in the present Petition and in order to file the present case, the Petitioner has concealed the name of her husband, i.e., Late Sh. Ajit Singh and deliberately only mentioned her father’s name Late Sh. Bihari Lal in the memo of parties in view of the Saket Suit.
15. It was further contended that the revenue record mentions the name of one “Shimla” with no suffix as “Devi” whereas all pleadings filed before the Court mentioned the name of the Petitioner as Simla Devi. The DDA has also submitted that the Petitioner could be involved with an organised crime syndicate/land mafias for grabbing of land.
16. It has further been averred by the DDA that the Petitioner was not a claimant under the Award but one Sunita Devi widow of Sh. Vedpal R/o Tuglaqabad was a claimant and the Petitioner has not filed any document before the revenue authorities to establish that she is the widow of Sh. Vedpal. Relying on a Khatoni entry with respect to the subject land, it has been submitted that the name of one Sh. Mahavir Prasad son of Om Prakash has been substituted with respect to the subject land. The sale of the subject land by the Petitioner without prior permissions from the competent authority after a notification under Section 6 of the 1894 Act has been passed is not permissible in terms of Section 4 of the Delhi Lands (Restriction on Transfer) Act, 1972 [hereinafter referred to as “1972 Act”].
17. The DDA has placed reliance on the judgments of Supreme Court in My Palace Mutually Aided Coop. Society v. B. Mahesh3 and Indian Bank v Satyam Fibres (India) Pvt Ltd.4, wherein the Court had observed that the Court in exercise of its inherent power under Section 151 of Code of Civil Procedure, 1908, can recall its judgement if obtained by fraud. The DDA has further relied on the case of Ram Kumar v. State of U.P.,5 wherein the Supreme Court has held that non-disclosure of the relevant and material documents with a view to obtain an undue advantage would amount to a fraud, and any decree obtained under a fraud would be liable to be declared as nullified. The DDA had argued that as the present Writ Petition has been filed under fraud and misrepresentation, the 15.11.2016 order ought to be recalled and declared as null and void.
Submissions of Petitioner:
18. Learned counsel appearing on behalf of the Petitioner submitted that the present Application is an abuse of the process of law especially, in view of the fact that, the issue with regard to lapse of acquisition has already attained finality by the orders passed by the Supreme Court. The attempts of the DDA to agitate the same issue over and over again requires that the DDA be saddled with exemplary costs for wasting the valuable time of the Courts.
19. Relying on the orders dated 04.05.2017 and 17.10.2019 passed by the Supreme Court including in the order dated 19.05.2022 passed in in the Curative Petition, it is contended that the present Petition was filed for a declaration that the acquisition proceedings have lapsed and that the 15.11.2016 order has already attained finality.
20. The Petitioner also sought to rely on the Judgment of the Supreme Court passed in Kunhayammed & Ors. v. State of Kerala & Anr.6, to contend that the doctrine of merger is applicable in the present case. Once an order has been passed by the Supreme Court, the order passed by this Court merges into such order and, thus, the 15.11.2016 order fails to exist. The principles laid of doctrine of merger in the Kunhayammed case are applicable to the facts of the present case. The Petitioner has further relied upon the case of Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.7 in support of applicability of the doctrine of merger to the present case, to submit that this Application is not maintainable.
21. In response to the issue raised by the DDA on the identity of the Petitioner, it has been contended that the Petitioner was married to Sh. Vedpal, and after his death she re-married late Sh. Ajit Singh. The Petitioner had two daughters from her marriage with Sh. Vedpal being Smt. Geeta and Smt. Sunita, both daughters of Late Sh. Vedpal. Late Sh. Ajit Singh, was the step brother of Late Sh. Vedpal and as is the custom in the Gujjar community, after the death of Late Sh. Vedpal at an early age, the Petitioner was remarried to Late Sh. Ajit Singh. Out of this wedlock, the Petitioner has five children. Thus, in all from both marriages, the Petitioner has seven children.
22. Learned Counsel for the Petitioner has clarified that the Petitioner is the widow of Late Sh. Vedpal son of Sh. Amichand. It was also clarified that the land in question is the ancestral land of the Petitioner from generations and the Petitioner is in cultivatory possession of the subject land.
23. In response to the existence of the name of Petitioner as “Smt. Sunita wd/o Vedpal” the counsel for Petitioner has argued it to be just a typographical error by the authorities. “Sunita” as mentioned in the recall Application, is the second daughter of Late Sh. Vedpal and the Petitioner. The Petitioner further relies on the revenue record of the subject land to submit that it does not refer to “Sunita wd/o Vedpal” but the record instead refers to “Simla wd/o Vedpal”. Thus, the entry at one place in the revenue record is a typographical error.
24. The Petitioner further contends that the averment of the DDA that the land has been sold to a person called Sh. Mahavir Prasad son of Sh. Om Prakash in contravention of 1972 Act, cannot be correct. Admittedly, it is the case of the Respondents that the land was acquired by the Government after initiation of acquisition proceedings in the year 1964/1966, thus, the question of transfer to a third party does not arise.
25. Learned Counsel has further contended that the decision of the Supreme Court in the Indore Development Authority v. Manohar Lal and Ors.8 cannot be made ground for review in the present case as the 15.11.2016 order has already attained finality. In support of this, learned Counsel for Petitioner has relied on a decision of the Supreme Court in Pradeep Kumar Maskara & Ors. v. State of West Bengal & Ors.,9 the Court had settled the law on the point that a subsequent major change in applicable law cannot be taken as a ground for review in subsequent proceeding.
26. Lastly, it is also brought to the notice of the Court by the Petitioner that after the dismissal of the SLP and Review Petition and before the filing of Curative Petition by the DDA before the Supreme Court, the Petitioner had filed an Application dated 17.09.2019, with DDA requesting for release of the subject land to the Petitioner, but the same is still pending adjudication despite the dismissal of the SLP, Review Petition and Curative Petition of the DDA. It is urged that the recall Application is just another attempt of the DDA to misuse the process of law and harass the Petitioner.
Analysis:
27. As stated above, this Petition was allowed by an order passed by a Coordinate Bench on 15.11.2016. By the said order, the Court directed that the Petitioner is entitled to a declaration that acquisition proceedings initiated under the 1894 Act are deemed to have lapsed. The 15.11.2016 order was challenged unsuccessfully by the DDA. The Supreme Court dismissed the appeal and also dismissed the Review Petition both on merits and on the ground of delay by the order dated 17.10.2019. The Curative Petition was also dismissed by the Supreme Court on 19.05.2022.
28. However, the matter did not end there, since, the L&B Department and LAC then decided that they must also challenge the 15.11.2016 order passed by this Court. Their petition however also met the same fate as the Petition filed by the DDA and was dismissed by the Supreme Court, albeit on the ground of an inordinate delay of 1117 days on 13.03.2023, by the following order:
“This is a case where the DDA which as a respondent had independently filed a special leave petition which has been dismissed. The review carried by the DDA was also unsuccessful on the ground of delay and on merits. The curative was equally unsuccessful.
In the facts of this case, we do not think that the petitioner has made out a case for condoning the delay of 1117 days. The application for condonation of delay will stand dismissed. The special leave petition will also, consequently, stand dismissed.”
[Emphasis is ours]
29. As stated above, the Petitioner has all throughout this period maintained that she has not approached the Court with wrongful facts. The Petitioner filed a detailed Affidavit dated 13.10.2023 [hereinafter “the 2023 Affidavit”] alongwith documents in support of her contentions. The Petitioner also filed a family tree clarifying that Smt. Shimla Devi and Simla devi are indeed the same person. It was explained that the Petitioner belong to the “Gujjar community” and as it is customary amongst communities in North India when the husband passes away early, his widow is normally betrothed to the husband’s brother and that is what happened in this case as well. The Petitioner was married initially to Late Sh. Vedpal and after his death she remarried to his step brother Ajit Singh. She was, thus, first the widow of Late Sh. Vedpal and, subsequently, the widow of Late Sh. Ajit Singh as well. The Petitioner had seven children, two with Late Sh. Vedpal and five with Late Sh. Ajit Singh. At one place in the revenue records, the name of one of the daughters of the Petitioner, Smt. Sunita Devi, has inadvertently been mentioned in place of the Petitioner. However, everywhere else the Petitioner’s name is mentioned. In support of these contentions, the Petitioner has filed her family tree which is reproduced below:

30. The Petitioner has relied on the Order of Sub-Divisional Magistrate dated 30.10.1980, granting Sh. Ajit Singh a death certificate of his step-brother late Sh. Vedpal, and which has been placed on the record of this Court.
31. The Petitioner has also filed several documents with the 2023 Affidavit including documents evidencing the identity and relation between Late Sh. Vedpal and Late Sh. Ajit Singh. Copies of Death Certificates of both Late Sh. Vedpal and Late Sh. Ajit Singh and documents filed for mutation of the subject land after their death have also been placed on record. In addition, the Petitioner has placed on record other documents evidencing that she was the widow of Late Sh. Vedpal initially and thereafter she remarried Late Sh. Ajit Singh, who also pre-deceased her.
32. The Petitioner has also placed on record the letter of indemnity and declarations of the year 1985 which have been filed with Central Bank of India as the claimant for the proceeds for transfer of the bank account after the demise of Sh. Vedpal to her name.
33. The 2023 Affidavit also contains the letters of the year 1982 written by the DDA in response to the Petitioner’s Application for allotment of a plot. In these documents, the DDA itself has recognised the Petitioner as Smt. Simla, wife of Late Sh. Vedpal.
34. The letters and documents filed by the Petitioner are detailed and extensive. This Court finds no reasons to disbelieve the same. Quite clearly, the Petitioner remarried after the death of her first husband Sh. Vedpal. The subject land belong to the Petitioner after being transferred from Late Sh. Vedpal, the first husband of the Petitioner, who was the recorded tenure holder of the subject land.
35. By the 15.11.2016 order, this Court declared the acquisition as lapsed. The order of the Court since challenged by both the DDA and the L&B Department/LAC before the Supreme Court and is deemed to have merged with the 15.11.2016 order. The Supreme Court in Kunhayammed case has held that when a decree or order is set aside, modified or confirmed the order of superior court which is final merges with the order passed by the Court below. The relevant extract is below:
“12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way – whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.”
[Emphasis is ours]
36. This principle was further clarified by the Supreme Court in Kaikhosrou (Chick) Kavasji Framji v. Union of India10. The relevant extract is reproduced below:
“53. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding(s) one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of the subordinate court would continue to hold the field (see S. Shanmugavel Nadar v. State of T.N.[S. Shanmugavel Nadar v. State of T.N., (2002) 8 SCC 361]).”
[Emphasis is ours]
37. The challenge to the 15.11.2016 order was dismissed by the Supreme Court as was the Review Petition and the Curative Petition. The Supreme Court by its order dated 17.11.2016 in the Review Petition has set forth that the matter was examined on merits. Thus, quite clearly the 15.11.2016 order has merged in the final orders of the Supreme Court. In addition, since the Respondent failed to initiate proceedings after the 04.05.2017 order was passed, the acquisition of the subject land has lapsed.
38. The Petitioner has also rightly contended that the Application for recall has been filed seven years after 15.11.2016 order was passed and the issue of identity of the Petitioner was already raised by the DDA in its Counter-Affidavit filed to the present petition. The Petitioner in its Rejoinder Affidavit had clarified that the Section 4 notification and the Section 6 declaration was issued after the husband of the Petitioner, Late Sh. Vedpal had died. By an order No. 704/80-81 dated 29.01.1982, the Naib Tehsildar had mutated the name of the Petitioner as wife of Late Sh. Vedpal being the legal representative and successor-in-interest of said Late Sh. Vedpal, in the subject land.
39. The Petitioner has also clarified in her 2023 Affidavit that she has not sold the land to any Mahavir Prasad or any other person and the land continues to be in her name. The Respondents, on the other hand, allege that the Petitioner is in league with ‘land mafia’ of the area and is trying to usurp the land. This submission of the Respondents appears to be far cry from the truth. Indisputably, the subject land was the subject matter of acquisition proceedings initiated by the Respondents and pursuant to which an Award dated 19.09.1986 was passed. The Petitioner has placed on record documents in support of her contentions. It is also not disputed that the Petitioner has filed legal proceedings including the Saket Suit and has also placed on record letters dated 10.11.2009 addressed to the Respondent No.5/LAC as well as the revenue authorities, wherein she has raised a complaint about the presence in the revenue records, of the name of the said Sh. Mahavir Prasad, son of Sh. Om Prakash. In these letters and Application(s) for cancellation of mutation in the name of said Sh. Mahavir Prasad, it is clearly set out that the Petitioner has not sold the land to any Sh. Mahavir Prasad or any other third party. These letters have been received and acknowledged by the LAC in the year 2009 itself. The Petitioner has also challenged as to how an NOC can be issued for transfer of such land in view of the fact that by virtue of the Award, the land vested with the Government. In these circumstances, the contention of the Respondents of sale/mutation in the name of a third party is also without any merit.
40. There is no cavil with the judgments relied upon by the Respondents, that a Court can recall its judgment if it has been obtained by fraud or by non-disclosure of relevant documents and an unfair advantage has been gained by a party. These judgments, however, have no applicability in the circumstances of the present case, as discussed above.
41. In view of the aforegoing discussions, this Court finds no reason to recall the 15.11.2016 order. The Application (CM APPL. 50807/2023) is accordingly dismissed. The file be consigned to record.

TARA VITASTA GANJU, J

VIBHU BAKHRU, J

JULY 03, 2024/SA

1 (2014) 3 SCC 183
2 CS (COMM) 582/2021
3 2022 SCC OnLine SC 1063
4 (1996) 5 SCC 550
5 2022 SCC OnLine SC 1312
6 (2000) 6 SCC 359
7 (2019) 4 SCC 376
8 (2020) 6 SCC 304
9 2015 (2) SCC 653
10 (2019) 20 SCC 705
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