Rakesh Kumar And Ors. vs Rambir Singh
1992 Latest Caselaw 421 Del

JUDGMENT

Santosh Duggal, J.

(1) This revision petition is directed against the order in appeal, whereby petitioner's appeal was dismissed against the order passed by the trial judge on 12th December, 1988 granting prayer of the respondent (plaintiff in the suit) with regard to possession of the suit land, and further restraining the petitioners (defendants in the suit) from digging the land any further.

(2) The land is situated in village Rewla Khanpur, Union Territory of Delhi. and is subject to the provisions of the Delhi Land Reforms Act, 1954 (for short the Act). The petitioners claim leasehold rights in the land, by virtue of a lease, alleged to have been executed on 17th August, 1983 by the Bhumidhar of the holding, namely, Ram Kanwar, from whom the plaintiff in the suit claims to have purchased the said land.

(3) Apart from the question that the courts have found on the basis of the khasra girdawari that the plaintiff was in possession of the land and entitled to protection against dispossession during pendency of the suit petitioner's opposition to the grant of injunction has been rejected for the reason that they were claiming title on the basis of lease, which was void under the provisions of the Act, inasmuch as the said lease was admittedly for the purpose of a brick kiln. Both the courts below have taken the view that any transfer of a holding which is in contravention of the provisions of the Act, particularly Chapter Iii, cannot confer any rights on the transferee, by virtue of the provisions of section 42 of the Act. It has further been noted that the only purpose permissible for letting out a holding is that for agricultural purposes, and consequently the lease, in the present case, which on petitioner's own showing was for a brick kiln, would be void.

(4) I find no illegality or infirmity in the view taken by the courts below. The provisions of section 23 of the Act lay down in very clear and categorical terms that a Bhumidhar or Assami shall not be entitled to use his holding or part thereof for industrial purposes, other than those immediately connected with any of the purposes referred to in section 22. The purposes which are recognised by this provision are those connected with agriculture, horticulture or animal husbandry which may. at the most, include pisciculture and poultry farming. The user for purposes other than those contemplated by section 22 is permissible only if the holding is located within the belt declared for the purpose by the Chief Commissioner by notification in the Official Gazette or where on an application being presented in the prescribed manner, sanction for use other than the permissi ble one is accorded by the Chief Commissioner.

(5) The petitioners stake their claim to the land by virtue of the lease executed in their favor by the Bhumidhar. It is axiomatic that the Bhumidhar cannot create a lease for a purpose which he himself was not authorised to carry on under section 23 read with section 22 of the Act. The purpose of a brick kiln is not even remotely connected with agriculture, horticulture or animal husbandry. What the Bhumidhar could not do, he could not create a lease to enable his lessee to do. The lease is, therefore, void being in contravention of the provisions of the Act. It is not even petitioner's case that the land was situated in a notified belt or there was any sanction of the Chief Commissioner, which has to be a prior sanction, apart from the fact that in this case even ex facto sanction is not pleaded. 1. therefore, do not find any error in the view taken by the courts below that the lease was not in conformity with the objects of the Act, and is rather in contravention of the provisions of the Act, and cannot prima facie create any right in favor of the petitioners.

(6) Mr. Kapur placed reliance on the provisions of section 44 of the Act which provide that where a Bhumidhar other than one referred to in section 36 has let out his holding or any part thereof, the lessee will, notwithstanding anything contained in any law or contract or document of lease, become and be deemed to be a purchaser. The learned counsel contended that the petitioners have to be deemed to be owners by operation of section 44, and cannot be divested of their rights.

(7) This argument suffers from a basic fallacy because it goes without saying that the lease contemplated in section 44 is a lease that is valid and lawful and not one which is void or involves contravention of the provisions of the Act.

(8) An additional ground has been mentioned during hearing by learned counsel for the respondent to the effect that even the lease period of the petitioners has expired with effect from 16th August, 1991. This factual position is not disputed by Mr. Kapur. The petitioners have, therefore, no subsisting right or interest in the land, even as lessees.

(9) In view of the above, the revision petition is dismissed. The observations made herein are, however, without prejudice to the respective contentions of the parties in the suit.

(10) The parties are left to bear their own costs.