Delhi High Court
Smt. Rajesh Bhagwati vs Govt. Of N.C.T. Of Delhi on 26 July, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th July, 2010.
W.P.(C) No.1865/2007
+ W.P.(C) 1865/2007 & CM No.9660/2008 (u/O 1 R 10 of the CPC) &
CM No.3420/2007 (for stay).
%
SMT. RAJESH BHAGWATI ..... Petitioner
Through: Mr. Rajat Aneja, Advocate.
versus
GOVT. OF N.C.T. OF DELHI ..... Respondent
Through: Mr. Som Dutt Kaushik & Mr. Saket
Kumar Srivastava, Advocates for
respondents
Mr. Shailesh K. Kapoor Advocate for
applicant in CM No.9660/2008.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner claiming to be the Bhoomidar of agricultural land in
Village Bakhtawarpur, Delhi had permitted the applicant in CM
No.9660/2008 being Tata Teleservices Ltd., to install a Cellular Tower on
the said land. Proceedings under Section 81 of the Delhi Land Reforms Act,
1954 were instituted against the petitioner, for by permitting installation of
Cellular Tower having used the agricultural land for purposes other than
agricultural. The petitioner filed his reply in the said proceeding averring
that installation of the Cellular Tower did not amount to misuse of
agricultural land. The petitioner filed this petition averring that though no
hearing had been given to him nor had he been notified of any order under
Section 81 of the DLR Act, the respondent was purporting to dispossess the
petitioner from the land. The petitioner in this writ petition thus sought
quashing of the order if any, passed in the Section 81 proceedings and a
restraint against his dispossession from the land.
2. This Court vide order dated 9th March, 2007, which continues to be in
force restrained the dispossession of the petitioner from the said land. To
verify as to what steps had been taken in the proceedings under Section 81
of the DLR Act, record thereof was requisitioned. However it is recorded in
the earlier order that the same was not traceable.
3. The counsel for the respondents has today stated that the record has
been traced and has handed over the same for perusal of the Court. A
perusal of the said record shows that a hearing was held on 1st August, 2006
i.e. after the petitioner had filed his reply and in which hearing Shri Suresh
Pal brother of the petitioner was present. The SDM, on admission in the
reply as well as of the brother of the petitioner of the tower having been
erected, made a conditional order for removal of the tower within three
months failing which the land was ordered to vest in the Gaon Sabha. The
matter was adjourned thereafter from time to time and ultimately on 1 st
February, 2007, upon the said Shri Suresh Pal confirming that the tower still
existed, the order of vesting of the land in the Gaon Sabha was made.
4. The counsel for the petitioner admits that Shri Suresh Pal is the
brother of the petitioner but states that Shri Suresh Pal had never appeared
before the SDM, neither on 1st August, 2006 nor on 1st February, 2007. It is
thus contended that the matter be remanded to the SDM for consideration
afresh.
5. The counsel for the respondent has contended that the order has
attained finality and the remedy if any of the petitioner was by way of
appeal thereagainst to the Court of Dy. Commissioner. It is further
contended that owing to the alternative remedy of appeal the writ petition be
not entertained.
6. The counsel for the applicant M/s Tata Tele services Ltd. has
contended that the applicant is a necessary and a proper party to the present
writ petition and/or to the proceedings if any under Section 81 of the DLR
Act and he having not been impleaded as a party the proceedings in any case
are bad. Reliance is placed on Section 17 of the Indian Telegraph Act, 1885
providing for removal of the tower and it is contended that the Telegraph
Authority i.e. the applicant is to be notified before such removal.
7. As far as the locus of the applicant is concerned, the rights of the
applicant flow through the petitioner only. The applicant cannot have a
better title than the petitioner. Moreover the proceedings under Section 81 of
the DLR Act were not for removal of the Cellular Tower but only for
ejectment of the petitioner on account of misuser. The applicant does not
become a necessary party to the said proceedings. The applicant is therefore
not found entitled to participation in these proceedings or participation in
these proceedings under Section 81 of the DLR Act or the appeals, revisions
etc. arising therefrom.
8. There is a presumption of the validity of official acts. It thus appears
that the brother of the petitioner must have appeared before the SDM.
Otherwise it is inexplicable as to how the name of the brother of the
petitioner appeared in the record of the said proceedings. However
notwithstanding the said fact, the SDM has not dealt with the reply of the
petitioner submitted before the SDM and has also not given any reasons for
concluding that installation of a Cellular Tower on the land is misuse within
the meaning of Section 81 of the DLR Act. The order of the SDM cannot be
sustained for this reason.
9. As far as the contention of the counsel for the respondent of the
alternative remedy of appeal is concerned, it is felt that since the contentions
of the petitioner have not been dealt with, it would not be appropriate to
direct the parties to the appellate fora for decision of the matter.
10. The matter is therefore remanded to the SDM for decision afresh by
giving an opportunity of hearing to the petitioner. The parties to appear
before the SDM on 18th August, 2010. The SDM to decide the matter within
six weeks therefrom. Till the decision of the SDM and for a period of four
weeks thereafter, no coercive action be taken with respect to cellular tower
aforesaid.
The petition is disposed of. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
26th July, 2010
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