Delhi High Court

Mange Ram & Anr. vs Madan Jha, Fin. Commr. & Ors. on 16 July, 2009

Author: Hima Kohli

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 3403/1989


                                            Date of decision : 16.07.2009
IN THE MATTER OF :
MANGE RAM & ANR.                                      .....   Petitioners
                                Through: Mr. Rajendra Dutt, Advocate

                    versus


MADAN JHA, FIN. COMMR. & ORS.             ...... Respondents
                         Through: Mr. V.K. Tandon, Advocate
                                  for R-1 & 2.
                                  None for R-3.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? Yes.

     2. To be referred to the Reporter or not?   Yes.

     3. Whether the judgment should be reported in the Digest? Yes.



HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioners praying inter

alia for quashing the order dated 20.07.1989, passed by the Financial

Commissioner, dismissing the revision petition preferred by the petitioners

and respondent No. 3 collectively, whereunder, the order dated 18.05.1989

passed by the Additional Collector confirming the order of the learned SDM,

Punjabi Bagh, which held that the transfer of the land, subject matter of

consideration in the present writ petition, situated in the revenue estate of

village Dhansa, by respondent No. 3 in favour of the petitioners was violative

of the provisions of Section 33 of the Delhi Land Reforms Act, 1954

(hereinafter referred to as „the Act').

2. In a nutshell, the facts of the case are that the respondent No. 3

(appellant No. 1 in the revision petition), was a Bhumidhar and in possession

of land measuring 33 Bighas 12 Biswas situated within the revenue estate of

village Dhansa, Delhi. He agreed to sell his entire holdings to his nephew,

petitioner No.1 and his daughter, petitioner No.2. It is stated that prior to

the respondent No. 3 applying to the competent authority under the Delhi

Land (Restrictions on Transfer) Act,1972, for grant of a No Objection

Certificate with regard to the land in question, part of the land comprising in

Killas No. 100/12 and 100/19 was notified under Section 6 of the Land

Acquisition Act vide notification dated 25.02.1981, issued by the respondent

No. 1 on the ground that the said land was required for a public purpose,

namely, extension of Najafgarh Drain. Insofar as the remaining parcel of

land was concerned, respondent No. 3 obtained a No Objection Certificate

from the competent authority and sold the entire land in favour of the

petitioners by executing two separate sale deeds on the same date, i.e., on

07.05.1984.

3. On 25.07.1984, the SDM, Punjabi Bagh issued a notice under

Section 33 of the Act in respect of the aforesaid land sold by the respondent

No. 3 on 07.05.1984 by virtue of two separate sale deeds in favour of the

petitioners. In the meantime, the notification dated 25.02.1981 under

Section 6 of the Land Acquisition Act, in respect of the parcel of land stood

lapsed in January 1987. Immediately thereafter, the respondent No. 3

applied for a No Objection Certificate from the competent authority and after

receiving the same, executed a sale deed in respect of the remaining land in

favour of the petitioner No. 2 by executing a sale deed dated 20.01.1987.

4. Vide order dated 5.01.1989, the learned SDM held that the said

action of respondent No.3 in selling the land in 3 different installments,

amounted to violation of Section 33 of the Act and thus the land in question

was directed to be vested in favour of the respondent No. 2, Gaon Sabha.

Aggrieved by the aforesaid order dated 5.01.1989 passed by the learned

SDM, Punjabi Bagh, the petitioners preferred an appeal before the Additional

Collector. The said appeal was dismissed vide order dated 18.05.1989 and

the order of the SDM, Punjabi Bagh was upheld. Thereafter, the petitioners

and the respondent No. 3 jointly preferred a revision petition before the

Financial Commissioner, which was disposed of by the impugned order dated

20.07.1989. In the impugned order, the learned Financial Commissioner

held that the appellant No. 1 (respondent No.3 herein) had not transferred

his entire holding at one go through one transaction and failure to do so,

attracted the bar of Section 33 of the Act. Thus, the revision petition was

dismissed and the order of the SDM, Punjabi Bagh dated 05.01.1989 as well

as the order of the learned Additional Collector dated 18.05.1989 were

upheld. Aggrieved by the said order, the petitioners have filed the present

writ petition.

5. Counsel for the petitioners submits that the aforesaid order

suffers from a legal infirmity inasmuch as the Financial Commissioner failed

to appreciate that upon execution of the sale deeds, there was no other land

left with the respondent No. 3, which could have been made, subject to the

provisions of the Act on the ground that he held less than 8 standard acres

of land. He states that the learned Financial Commissioner erred in holding

that the respondent No. 3 was left with the parcel of land involved in the

notification for acquisition. He submits that after the execution of three sale

deeds, the first two on 7.5.1984 and the third one on 20.1.1987, the entire

land stood transferred in favour of the petitioners, who were members of the

family of respondent No. 3 and hence, the restriction imposed by 33 of the

Act did not apply to the facts of the present case. He further submits that in

identical circumstances, when the sale deed was executed by one vendor in

favour of different parties but on the same day, the respondent had not

treated the said transaction as a violation of Section 33 of the Act, and

hence any discrimination sought to be made in the case of the petitioners,

was illegal and arbitrary.

6. In support of his submission that there is no restriction imposed

on a Bhumidhar to transfer by sale, gift or otherwise, any land to a person

where as a result of the transfer, the Bhumidhar would be left with less than

8 standard acres of land in the Union Territory of Delhi, counsel for the

petitioner relies upon a judgment of the Division Bench of this Court in the

case of Sardar Singh vs. ADM & Ors. 1995 (32) DRJ (DB) 211.

7. In this regard, reference to Section 33 of the Act is material,

which is reproduced hereinbelow:

"33. Restrictions on the Transfers by a Bhumidhar.

(1) No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge or any such Bhoodan movement, as the Chief Commissioner may by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi:

Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered

by such transfer does not exceed one acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of section 3.

(2) Nothing contained in sub-section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him;

Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub section (1)

Explanation-For the purposes of this section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be."

8. After considering the aforesaid provision in the case of Sardar

Singh (supra), it was held by the Division Bench that Section 33 is not

applicable when the entire holding of a Bhumidhar is sought to be

transferred by virtue of an agreement to sell in favour of two purchasers.

The Division Bench observed as below:

"7. A bare reading of provision would show that there is a restriction imposed on a Bhumidhar to transfer by sale, gift or otherwise any land to any person other than the religious or charitable institution etc. where as a result of the transfer, the Bhumidhar is left with less than 8 standard acres of land in Union territory of Delhi. This restriction in sub section (1) of Section 33 is subject to what is contained in sub-section (2) of the said provision and it says that this restriction shall not apply where a Bhumidhar who holds less than 8 standard acres of land transfers his entire holding. In the instant case the holding of respondent No. 4 is admittedly less than 8 standard acres. He holds one half share in land measuring 47 bighas 3 biswas. In other words, it is about 24

bighas of land which is held by him and it is the entire holding which is sought to be transferred by virtue of agreements of sale in favour of the two petitioners. The case, thus, squarely falls in the exception contained in sub-section (2) of Section 33. When respondent No. 4 who is a Bhumidhar and holds less than eight standard acres is transferring his entire holdings there is no question of applicability of Section 33 of the Act and on that basis respondents could not have withheld the issuance of 'No Objection Certificate' which is required to be issued under the provision of the Act." (emphasis added)

9. Even in the present case, it is an undisputed position that the

land in question, which was sought to be transferred by the respondent No.

3 in favour of the petitioners, was his complete holding and after completion

of the aforesaid transaction, nothing would have remained with respondent

No.3 except for such parcel of land, which was under notification at the

relevant time. Subsequently, the notification dated 25.02.1981 in respect of

the said parcel of land, stood lapsed in January 1987 and was thereafter also

sold by the respondent No. 3 to the petitioner No. 2, his daughter, vide sale

deed 20.1.1987. Hence, the exception as contained in sub-section (2) of

Section 33 of the Act came into play and the respondents No.1 & 2 could not

have applied Section 33 of the Act to the land of respondent No.3, as the

disability imposed upon him was on account of the notification issued under