Jogender Singh & Anr. vs Govt. Of Nct Of Delhi & Ors.
2010 Latest Caselaw 2457 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on : 17.12.2009
%                                                    Date of decision : 07.05.2010


+                            WP (C) No. 5393 / 2007

JOGENDER SINGH & ANR.                                            ...PETITIONERS

                                Through:        Mr. Anand Yadav and Ms.Anita
                                                Tomar, Advocates.

                                          Versus

GOVT. OF NCT OF DELHI & ORS.                                    ...RESPONDENTS

                                Through:        Mr. Najmi Waziri, Adv.
                                                for Respondent Nos. 1 to 4.

                                                Ms. Anusuya Salwan, Adv.
                                                for Respondent No. 5.

                                                None for Respondent No. 6.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.      Whether the Reporters of local papers
        may be allowed to see the judgment?                             Yes

2.      To be referred to Reporter or not?                              Yes

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


SANJAY KISHAN KAUL, J.

1. The petitioners are residents of Village Kanjhawla and claim to

be members of Gaon Sabha of Village Kanjhawla, Delhi.

2. The petitioners have a two-fold grievance. The first grievance

is that the land of the Gaon Sabha which was designated for

purposes of development of a Growth Centre cannot be _____________________________________________________________________________________________

utilized for any other purpose more specifically the scheme of

the Government to construct housing for urban poor.

3. The second grievance is that the elections to the village

panchayats have not been held for a long period of time and

the mandate of the Part IX of the Constitution of India (for

short, ‗the Constitution') was being defeated by the Gaon

Sabhas being managed by administrators other than elected

panchayats.

Utilization of Gaon Sabha Land to Construct Housing for Urban Poor

4. The petitioners have explained the historically significant

aspects of land holding in Delhi. The land of the village is

stated to have been held by a class of villagers/land holders

known as Biswadar, i.e., holder of share/shares in coparcenary

villages. The said class was stated to be also known as

Malikan Deh or Village Proprietary Body. It is this class of

villagers / land holders who were the owners of the land of the

whole village. The biswadars held two types of lands, i.e., (i)

land included in their holdings; and (ii) the land which is known

as common land or Shamlat Deh Land. The second category

of land being the Shamlat Deh, this proprietary class had their

shares as per ownership in the village, but lands were owned

jointly. The character of these lands was abadi land, gora deh,

waste land and land of the other common use as recorded in

the revenue records. The commentary ―Customary Law‖ by

Rattigan defines such village common land in the colloquial

term as Shamlat Deh and Abadi Deh and included uncultivated

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(Banjar and Pasture Land), the abadi and inhabited village site

and gora deh or vacant space reserved for extension of village

dwellings and adjoining the village sites. The commentary by

Minoti Chakravarti Kaul in the book titled ―Common Land and

Customary Law‖ also defines the common land by giving the

historical significance pointing out that in all those areas of

Punjab which had settled villages prior to British entry, and

which combined arable farming with pastoral activities, there

were extensive common lands or banjar kadim held

collectively by the malikan deh or village proprietary body.

Apart from this there were other categories of uncultivated

lands held in common such as the abadi-deh or the residential

area, the catchment areas or johads, the area around the

village site or the gora deh and the wood lot. The Malikan Deh

had a bundle of rights in these categories of land of which the

principal ones were the right to hold and to partition, the right

to manage and the right to use. Such common lands were

central to the system of village management where the

private and arable land was generally held in scattered strips

while the residential and pastoral land was arranged in

compact holdings.

5. It is in the aforesaid circumstances that the petitioners

pleaded that the Malikan Deh, a proprietary body, had the

right to manage and right to use the common lands as also the

right to transfer the lands or to give the said lands to a

particular class or persons. In pursuance to such rights, the

said proprietary class in Delhi and other villages of Punjab

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gave lands to other residents of village for residence and also

to other uses i.e. lands to the persons who were supporting

and supplementing the economy of the village.

6. The lands of the villagers in Delhi Tehsil are stated to have

been governed by the Punjab Land Revenue Act, 1887 and

Punjab Tenants (Security of Tenure) Act, 1950 till Delhi Land

Reforms Act, 1954 (‗DLR Act‖ for short) came into force. It is

under the DLR Act that the persons or bodies holding land

either as proprietor or tenants or sub-tenants were declared as

Bhumidars as per Sections 11 and 13 of the DLR Act. The

Delhi Land Reforms Rules, 1954 were also framed. The

material Section 7 of the DLR Act vested the rights of

proprietors in waste land/pasture land of common utilities in

Gaon Sabha. The significance of the DLR Act coming into force

was that all lands of common utilities which were owned by

the proprietors of the villages and which were commonly used

by the villagers were vested in Goan Sabha and proprietors

were divested of their ownership. Insofar as the agricultural

land in Delhi was concerned, the persons holding such land

became Bhumidars of the land and there was also a class of

tenure holders. The provisions of DLR Act provided for the

mode, manner and transfer of land and consequences of its

contravention resulting in vesting of the land in the Gaon

Sabha. Similar were the consequences if the bhumidar or

asami left the land uncultivated for two consecutive

agricultural years. Another material provision is Section 154 of

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DLR Act which provided for certain lands to vest in the Gaon

Sabha on the commencement of the DLR Act.

7. In order to appreciate the controversy, it is necessary to

reproduce the provisions of Section 7 and Section 154 of the

DLR Act which read as under:

―7. Rights of proprietors in waste lands, pasture lands or lands of common utility etc. to vest in Gaon Sabha and compensation to be paid for them. - (1) All rights of an individual proprietor or proprietors pertaining to waste lands, grazing or collection of forest produce from forest or fish from fisheries lands of common utility, such as customary common pasture lands, cremation or burial grounds, abadi sites pathways, public wells, tanks and water channels, or Khalihans, whether covered by an existing contract between such proprietor or proprietors and any other person or not, shall with effect from the commencement of this Act be terminated in accordance with the provision of sub- section (2) and the said contracts, if any, shall become void with effect from such commencement:

                        ...       ...       ...       ...       ...       ...       ...       ...

               (2)    On the commencement of this Act, the Deputy

Commissioner shall pass an order in respect of the proprietor or proprietors of each village either singly or collectively divesting the individual proprietor or proprietors of the rights mentioned in sub- section (1) and vesting those rights in the Goan Sabha or in any person or authority appointed by the Chief Commissioner under section 161 with effect from the commencement of this Act and stating that a compensation equal in value to four times the amount of annual land revenue assessed at the last settlement for the cultivable and uncultivable waste area of the village shall be paid by the government to the proprietor or proprietors concerned.‖

―154. Vesting of certain lands etc, in Gaon Sabha. - On the commencement of this Act -

(i) All lands whether cultivable or otherwise, except land for the time being comprised in any holding or grove,

(ii) All trees (other than trees in a holding or on the boundary thereof or in a grove or abadi) or planted by

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a person other than a proprietor on land other than land comprised in his holding,

(iii) Public wells,

(iv) Fisheries,

(v) Hats, bazaar and meals, except hats, bazaar and meals held on land to which provisions of clauses

(a) to (c) of sub- section (1) of section 11 apply,

(vi) Tanks, ponds, water channels, pathways and abadi sites,

(vii) Forest, if any.

Situate in a Gaon Sabha Area, shall vest in the Gaon Sabha :

Provided that if the uncultivated area situate in any Gaon Sabha area is, in the opinion of the Chief Commissioner, more than the ordinary requirements of the Gaon Sabha, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha under this section and may make such incidental and consequential order as may be necessary.

(2) Where any land which is vested in the Central Government under sub-section (3) or sub-section (4) of section 150, is held immediately before such vesting by an Asami of a Gaon Sabha, then, notwithstanding anything contained in clause (b) of sub-section (2) of section 1, and so long as it is held by such Asami, the provisions of this Act shall continue to apply to such land subject to the modification that all references therein to Gaon Sabha and Gaon Panchayat shall in relation to such land be construed as references to the Central Government."

8. A reading of the provisions of Section 7 of DLR Act shows that

the rights of the proprietors in the categories of land

mentioned in the said Section vested in the Gaon Sabha for

which compensation was paid to the proprietors in the manner

provided in the said Section. It is nobody's case that such

compensation has not been paid. Section 154 of DLR Act

provides for vesting of certain categories of land in the Gaon _____________________________________________________________________________________________

Sabha. The proviso to Section 154(1) refers to uncultivated

area located in any Gaon Sabha which is more than the

requirements of the Gaon Sabha. Such land, if in the opinion

of the Chief Commissioner, is more than the ordinary

requirements of Gaon Sabha, can be excluded from vesting in

the Gaon Sabha and incidental and consequential orders in

this behalf can be passed.

9. We may at this stage itself deal with one of the pleas of the

petitioners, al beit a feeble attempt, arising from the

interpretation of the aforesaid Sections.

10. Learned counsel for the petitioners pleaded that the land

which was proprietary in terms of Section 7 of the DLR Act was

divested of that proprietary characteristics as it became the

common land on compensation being paid and vested in the

Gaon Sabha.

11. The said land was, however, pleaded as land which could

not be dealt with under proviso to Section 154 of DLR Act as

the same would have to be dealt with as per Section 7 of the

DLR Act. This plea was in furtherance of the claim that the

land which vested in the Gaon Sabha under Section 7 of the

DLR Act could never be taken away from the Gaon Sabha.

12. The aforesaid plea is only stated to be rejected. It is a

plea based on complete misreading of the two Sections.

Section 7 of the DLR Act only refers to the rights of individual

proprietors pertaining to certain kinds of lands which on

payment of compensation as provided in the said Section

would vest with the Goan Sabha while Section 154 of the DLR

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Act talks of vesting of certain lands in Gaon Sabha which

include lands whether cultivable or otherwise, except land for

the time being comprised in any holding or grove. There are,

of course, other lands mentioned under Section 154 of the DLR

Act. The land referred to under Section 7 of the DLR Act was

the land in which all members of the village had an interest

though the proprietors had special rights. It is these special

rights which were acquired and extinguished on payment of

compensation and the common interest of the villagers in the

land continued. It is thus abundantly clear that Section 7 of

the DLR Act refers to acquiring and vesting of the rights in the

Gaon Sabha which were originally the rights of the proprietors

in the common utility land and thus such land on being vested

in the Gaon Sabha can certainly be dealt with as per proviso to

Section 154 of the said Act. The expression in Section

154(1)(i) is that ―all lands whether cultivable or otherwise‖.

The proviso to Section 154 refers to the uncultivated area

situated in the Gaon Sabha, which in the opinion of the Chief

Commissioner, is in excess of the ordinary requirements of the

Gaon Sabha and it can thus be excluded from vesting in the

Gaon Sabha.

13. We are fortified in our view by the Judgment of the

Supreme Court in Hatti v. Sunder Singh, Supreme Court

Reports (1971) 2 SCR 163 where it was observed as under :

―Sections 6, 11, 13 and 154 of the Act read together, thus, show that, after the Act came into force, proprietors of agricultural land as such ceased to exist. If any land was part of a holding of a proprietor, he became a Bhumidar of it. If it was part of a holding of some other person, such as a tenant _____________________________________________________________________________________________

or a sub-tenant etc., he became either a Bhumidar or an Asami, whereupon the rights of the proprietor in that land ceased. Lands, which were not holdings of either the proprietor or any other person, vested in the Gaon Sabha. In the case of proprietors, their rights in the land continued to exist only in respect of holdings which, under the definition, must have been either their sir or khud kasht at the commencement of the Act. If it was not sir or khud kasht of a proprietor, it would not be his holding and, consequently, such land would vest in the Gaon Sabha under Section 154, the result of which would be that the rights of the proprietor would be extinguished. It appears that it was in view of this scheme of the Act that, under Section 84, the right to institute a suit for possession was granted only to a Bhumidar, or an Asami, or the Gaon Sabha. The Act envisaged only these three classes of persons who would possess rights in agricultural land after the commencement of the Act. Proprietors as such having ceased to exist could not, therefore, institute a suit for possession. This aspect of the case has been lost sight of by the High Court and the lower courts, because it appears that their attention was not drawn to the provisions of Section 154 of the Act, under which all lands of proprietors, other than those comprised in their holdings, vested in the Gaon Sabha, thus extinguishing their proprietary rights.‖

14. We may also note at this stage that in terms of the

notification dated 25.01.1990 of the Administration of Union

Territory of Delhi, the pradhans, up-pradhans and Panchas or

members of the Gaon Panchayats whose terms had expired

on 24.12.1989 were required to hand over the entire records

to the Deputy Commissioner, Delhi and it is the Deputy

Commissioner, Delhi who has thereafter been discharging,

exercising and performing the functions of pradhans, up-

pradhans and Panchas or members of the Gaon Panchayats.

Insofar as the lands forming subject matter of dispute is

concerned, it is about 12 years ago that a Scheme for

development of Growth Centres in the land adjoining in some

villages in Delhi was floated with the object of ensuring that _____________________________________________________________________________________________

the villages of Delhi form an intrinsic part of the overall

development of the City/State. The proposed Growth Centres

were stated to be self-centered regarding manner of operation

and other daily needs. It is in furtherance thereto, the land

which was considered as excess land in Village Kanjhawla was

leased out by the Gaon Sabha to Delhi Administration. A sum

of Rs.12,19,62,700/- was transferred to the Kanjhawla Gaon

Sabha in the year 1996. However, the Scheme never worked

out. The respondents have pointed out that in terms of the

Master Plan for Delhi 2021 and the Zonal Plan thereunder in

respect of the area in question, 19 villages of Delhi came

under urbanizable area (areas in transition) and 10 villages in

the peripheral green belt. The surplus area in Kanjhawla

Village is shown as residential (urbanisable area) and thus

more residential quarters are planned in the said surplus /

unutilized excess lands to accommodate the ever growing

demand for housing in Delhi. The growing development needs

of Delhi made it imperative that the excess lands of the Gaon

Sabha should be put to optimum and planned use. It is in this

context that an exercise was undertaken under Proviso to

Section 154 of the DLR Act to determine the lands that were in

excess of the ordinary requirement of the Gaon Sabha.

15. A Survey was conducted of the Gaon Sabha areas and

the data collected was examined. It was found that the

certain tracts of uncultivated and unused lands in the Gaon

Sabha Area were surplus or more than the ordinary

requirements of the Gaon Sabha. It is in pursuance to such

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exercise, the LG of Govt. of NCT of Delhi (Chief Commissioner)

in terms of the Order dated 04.01.2008 was pleased to declare

these lands as being excluded from vesting in the Gaon Sabha

and such lands could be utilized to meet the development

exigencies. It has been emphasized by respondents in their

additional affidavit affirmed on 29.04.2008 that certain well-

thought out parameters/norms were set for assessment of

land in excess of the ordinary requirements of the Gaon Sabha

and such parameters are in accordance with MPD-2021.

16. The land requirements of Village Kanjhawla were also

examined according to 13 norms. The extent of scrutiny done

and the parameters followed have been set out in the

additional affidavit, which we feel should be re-produced

hereunder to get a holistic picture of the factual matrix of any

land sought to be declared as excess land for Village

Kanjhawla. The norms read as under:

―i. Present population of Village Kanjhawla (2007) : 9570 (based on 2001 census)

ii. Projected population in villages of Delhi in 2021, including migratory population (percentage increase registered in 2001 census over the 1991 census may be taken as the basis to project the 2021 population)

 Projected population of village Kanjhawla in 2021 :

11005

The requirement of all basic facilities has been assessed with reference to the present population as well as population projected in 2021.

iii. Area required for extended village abadi

The Lal Dora Abadi Area, prior to the land consolidation exercise in 1995-96 was merely 240 bighas. However, post consolidation exercise, the extended Abadi Area has increased ten-fold to 2438 bighas.

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iv. Area required for cottage industries

In the case of M.C. Mehta v. UOI, the Hon'ble Supreme Court of India had directed all polluting industrial units to be shifted out of non-conforming areas to conforming areas. In the North West District the following industrial areas are located:

a) Narela

b) Wazirpur

c) Mongolpuri

d) Lawrence Road

e) Bawana (merely 6 kms from Kanjhawla Village and is the largest industrial area in Delhi)

f) Badli

300 square yards for cottage industries for those who do not have lands. All applications for allotment of industrial plots are done through Delhi Small Industries Development Corporation (DSIDC)

v. Area required for hospitals, dispensaries: Master Plan 2021 norms (Table 3.1)

a) 1 Dispensary for a population of 10,000 (area 8000 to 1200 sq. meters)

b) Hospital with 100 beds (D Category) for a population of upto Rs 1 lakh (0.5 to 1 acre)

Dispensary/Health Centre

 A dispensary/health centre already exists at Village Kanjhawla (in Khasra No.153)  Maharishi Valmiki Hospital (100 bedded) is located about 7 kms away in Village Pooth Khurd  Baba Saheb Ambedkar Hospital at Rohini  Sanjay Gandhi Hospital at Mongolpuri (10 kms away)  Raja Harishchand Hospital at Narela  Land has been allotted for a 50 bed hospital 3 kms away in Village Jaunti

Private Hospitals

 Max Hospital at Pitampura (12-13 kms)  Maharaja Agrasen Hospital at Punjabi Bagh (350 bedded)

Veterinary Hospital

 A Veterinary Hospital also exists in Village Kanjhawla.

vi. Area required for educational purposes such as primary secondary and vocational centes i.e. ITIs etc. _____________________________________________________________________________________________

Master Plan 2021 norms (Table 13.3)

Primary School 1 Unit for a population of 10,000 Plot area 0.2 -0.4 ha Sr.Secondary School 1 Unit for a population of 10,000 Plot Area 0.6 to 0.8 ha N.B. Present population of Village Kanjhawala is under 10,000 however,

Schools

 1 Boys' Senior Secondary School,  1 Girls' Senior Secondary School (Khasra No.142/113) and  Haryana Shakti Secondary School, already exist in Village Kanjhawla (Khasra Nos.151 and 152)  At about 3.5 kms away, in Village Karala, two more Sr.Secondary Schools (one for boys and one for girls) exist.

 At Village Ladpur, about 0.5 kms another Secondary School exists.

Colleges

 At Village Ghevra, about 3 kms away, there is a technical institute called Sir Chhotu Ram Institute of Technology.

 At Bawana, about 6 kms away, there is a degree college for women named Aditi College.

vii) Provision of commercial area for grocery stores, other merchandise shops, shops for seeds and fertilizers, milk booths, barber shops, tailors hops, LPG, FPS,etc.

 Mobile PCO's have been given to handicapped persons and they are available in the village.  Grocery and seed and fertilizer shops exist in the village along with tailor and barber shops. However, there are no norms for opening the latter types of shops, as these are dependent upon private enterprise and locally available skills.

viii) Area required for bus terminals, taxi stands, cycle/rickshaw stand, Patwar Ghar

 A Bus Depot is located in the village. A private taxi stand also exists which normally has 4-5 taxis parked.

 Offices of the Deputy Commissioner, Sub Divisional Magistrate and the ADM alongwith the Patwar Ghar are located in the Village area.

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ix) Institutional/office space for Post Office, Banks, PCOs, Police Stations, etc.

 Branches of the State Bank of India and the Central Bank of India, Panchyat Ghar, Post Office and 5 village Chaupals are located within the Village. The Chaupals are used by various communities for marriage purposes and other social gatherings.  A Fire Station in Bawana is merely 6 kms away.  The Village population qualifies for only a police post. However, a full-fledged police station, with staff quarters, exists in the village. It is good enough to cater to the policing needs of a population of over 2.5 lacs, including nearby villages like Ladpur, Karala, Madanpur, Dabas, Rani Khera, Ghevra, Savda.

x) Sports Complex, playground, Community Park, Barat Ghar, Cinema Halls.

Master Plan 2021 norms Banquet Hall for a population for 10,000 (area required 1 acre)

 A Multi Purpose Community Hall exists on an area of 1.5 acres. Out of this the built up area consists of 1100 sq yards about 1500 yards of this land has been earmarked for construction of a Banquet Hall. The remaining once of land is used by the villagers as a play ground.

 At Kanjhawla Chowk a new chaupal has been built on an area of 700 sq yards along with a temple. The plot area is 9 bighas 4 biswas. The remaining area is used as park by the residents of the Village.

xi) Area required for cremation ground and graveyard:

In Village Kanjhawla there are two cremation grounds (Khasra Nos.30, 24/2, 25, 17/9 and one graveyard)

xii) Grazing grounds and areas around the water bodies:

A water body called Khwaja Ka Talab exists in the village and plans are afoot to have the same further developed by the Flood and Irrigation Control Department of the GNCTD.

xiii) Circulatory area A four lane (about 100' wide) circulatory area for access of fire tenders and ambulances exists in the village. The main arterial road links the village to Rohtak Road, Bawana, Pitam Pura and Haryana Border.‖

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17. The aforesaid parameters were thus considered along

with the factum of population growth of the village being only

5 per cent between 1991 to 2001 from 8182 to 8613. Till 2007

it rose to 9570, a 10 per cent increase. The Lal Dora Abadi

Area, prior to the land consolidation exercise in 1995-96 was

merely 240 bighas but post-consolidation exercise, the

Extended Abadi Area has increased ten-fold to 2438 bighas. It

has thus been pleaded that all requirements have been taken

care of and it is through the aforesaid surveys that the

conclusion was reached that an area of 956 bighas in Village

Kanjhawla was in excess of the current and projected

requirements of the village. Thus, the LG declared 956 bighas

in the village as surplus as per the notification dated

04.01.2008.

18. Learned counsel for the Govt. of NCT of Delhi, however,

subsequently clarified on 17.09.2009 that though the exercise

by the respondents under proviso to sub-section (1) of Section

154 of the DLR Act has been undertaken, though something

more may be required to be done, the notification has yet not

been issued as the respondents were awaiting the fate of the

present litigation.

19. If we examine the aforesaid factual matrix as set out in

the additional affidavit in the background of the existence of

power under Proviso to Section 154 of the DLR Act, we find

that an elaborate exercise has been undertaken with relevant

data at command to work out the requirements of the village

Kanjhawla. It is trite to say that more and more area of Delhi

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has got urbanized over a period of time requiring development

of infrastructure. Villages have really ceased to be villages.

The declaration of excess land is not sought at the whim and

fancy of the LG, but based on the hard facts and empirical

data. The LG would have to, thus, come to a conclusion about

the availability of the excess area after considering various

requirements in the context of projected population of Village

Kanjhawla in 2021. This is not an isolated exercise carried out

for village Kanjhawla but for various villages in order to find

out the requirements of each village and the existence of

excess land, once it is declared as surplus could be used for

infrastructural development. Learned counsel for the Govt. of

NCT of Delhi conceded the right of the petitioners to make a

representation or to be heard before completion of the

exercise under the proviso to sub-section (1) of Section 154 of

the DLR Act.

20. The facts of the present case show that initially the area

was sought to be utilized for growth centres. These growth

centres were to be set up with the object of promoting

infrastructure facilities not necessarily confined to a village but

to all adjacent areas. The Scheme did not take off. The

petitioners, and for that matter, no other villagers had any

objection to such development of growth centres when the

Gaon Sabha land was leased out in the year 1996 and even a

sum of over Rs.12 crore was deposited with the Gaon Sabha.

The grievance of the petitioners stems from the current use of

the land as it is their plea that either the land should be

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utilized for growth centres or reverted back to the Gaon

Sabha.

21. We have held aforesaid that the land in question does

fall within the purview of exercise of power under proviso to

Section 154 of the DLR Act. The land in question is common

land which vested in the Gaon Sabha as per Section 7 of the

DLR Act. On completion of a detailed exercise, the land has

been found to be in excess of the ordinary requirements of the

village and is now sought to be excluded from vesting in the

Gaon Sabha and to be utilized as per MPD-2021. Housing for

urban poor is a major problem in Delhi. It is in furtherance to

this object that the land is sought to be utilized. The village

needs are sought to be taken care of as per the exercise and

thus we find nothing arbitrary or illegal in the Govt of NCT of

Delhi seeking to utilize the land which has been declared

surplus/excess under Proviso to Section 154 of DLR Act in

accordance with MPD-2021 and the lay-out plan drawn in

pursuance thereto. The proposal for utilization of land for

growth centres was cancelled and the land has been

transferred to DSIDC for housing project. There is, thus, merit

in the stand of the Govt. of NCT of Delhi that the writ petition

is premature as the exercise has not been completed by

issuance of a notification though the material has been placed

before the L.G.

22. The petitioners pleaded that the 69th Constitutional

Amendment made in the year 1991 effective from 01.02.1992

provided for special provisions with respect to Delhi by

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inserting Article 239AA in the Constitution. The relevant

clause 3(a), (b) and (c) of Article 239AA read as under:

―239AA. Special provisions with respect to Delhi.--

(3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.

(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:

Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:

Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.

The aforesaid clause shows that in respect of entries 1, 2 and

18 of the State List, the Delhi Assembly does not have powers

to make law. Entry 1 refers to Public Order, Entry 2 refers to

Police and Entry 18 refers to land. Entry 18 reads as under:

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―Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.

It has thus been pleaded that the Govt. of NCT of Delhi has no

power to make any law in respect of the land.

23. We fail to appreciate the relevance of the aforesaid plea

for the reason that the DLR Act came into effect after having

been passed by the then State Legislature Assembly on

20.07.1954. No challenge to that law is laid or can be

sustained. The powers that are sought to be exercised are in

pursuance to the existing statute being the DLR Act and no

further law is to be brought into force. The plea is thus

meaningless.

24. We, thus, find that the challenge on the part of the

petitioners is really to the possibility of a proposed notification

under the proviso to sub-section (1) of Section 154 of the DLR

Act, which notification is yet to be issued. The Deputy

Commissioner has sent the report to the L.G. The L.G. will

apply his mind to the exercise carried out by the Deputy

Commissioner and in the process of the said exercise, the L.G.

can give an opportunity to the petitioners to make a

representation in respect of the report of the Deputy

Commissioner before taking a final view in the matter. The

challenge is, thus, clearly premature.

Elections to Panchayats

25. The petitioners have sought to raise what, in our opinion,

is a completely non interlinked issue of the absence of elected _____________________________________________________________________________________________

panchayats. The object appears to be to link this issue to the

first issue only because the powers are being exercised by the

Deputy Commissioner losing sight of the fact that the first

grievance really arises from the exercise of power by the LG as

per proviso to Section 154 of the DLR Act and the Deputy

Commissioner only makes the recommendations in respect of

the excess land after carrying out the necessary empirical

exercise based on the ground realities.

26. Be that as it may, the issue having been raised though in

our considered opinion it has no bearing on the first issue, we

proceed to deal even with this aspect of the matter. The facts

germane to this issue are that the lands vested in the Gaon

Sabha in terms of the DLR Act and were administered by the

Gaon Panchayats. The Gaon Panchayat was the executive

body for every Gaon Sabha. All the Gaon Panchayats in Delhi

were however superseded by the Administrator of Union

Territory of Delhi vide notification dated 25.01.1990 and all

duties, powers and functions of the Gaon Panchayat were to

be decided, exercised and performed by the Deputy

Commissioner. Thereafter, no elections have been held for

Gaon Panchayats

27. The Constitution (73rd Amendment) Act, 1992 effective

from 24.04.1993 came into being. The objective was to bring

into place an effective local self government through

Panchayats as referred to in Part IX of the Constitution and the

Municipalities referred to in Part IXA of the Constitution latter

being incorporated by the Constitution (74th Amendment) Act,

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1992 effective from 01.06.1993. The petitioners pleaded that

Articles 243-243O deal with Gaon Sabhas, Constitution of

Gram Panchayats, their duration, power and authority. Article

243L makes the provisions of Part IX applicable to Union

Territories. Article 243K stipulates that the superintendence,

direction and control of the preparation of electoral rolls and

conduct of elections to the Panchayats would be done by State

Election Commission. Article 243G deals with powers,

authority and responsibilities of Panchayats in respect of

implementation of schemes for economic development and

social justice as may be entrusted to them including those in

relation to the matters listed in the Eleventh Schedule of the

Constitution. The Eleventh Schedule in turn in Entry 2 deals

with land improvement, implementation of land reforms, land

consolidation and soil conservation. Entry 10 deals with Rural

Housing and Entry Nos. 13 and 29 deal with maintenance of

community assets. Article 243N provides for any law relating

to Panchayats in force in a State immediately before

commencement of the Constitution (Seventy-third

Amendment) Act, 1992 which is inconsistent with the

provisions of Part IX, would continue to be in force until

amended or repealed by a competent Legislature or until the

expiration of one year from such commencement, whichever is

earlier. Thus, any law inconsistent with Part IX of the

Constitution stood repealed after one year thereafter. The

petitioners pleaded that Article 243E provides for duration of

Panchayats and in case of dissolution of Panchayats, the

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elections have to be held prior to the expiration of period of 6

months from the date of dissolution as per sub clause 3(b).

The grievance is that such elections have not been held.

28. The petitioners also make a grievance about inadequacy

of rural planning while making the Master Plan and funds

allocation for the said purpose. The land measuring 945

bighas and 17 biswas allotted and released to the Rural

Development Department for setting up the growth centres on

lease basis vide letter dated 29.03.1996 and the lease was for

a period of 99 years. The Rural Development Department was

to use the land for the purposes for which it was allotted.

Even the consolidation proceedings were on during the

relevant time. The petitioners pleaded that the Government

cannot exercise authority in respect of Gaon Sabha. The

villagers are stated to be suffering on account of urbanization

process and their interest is not being looked after. The

petitioners further pleaded that on the one hand the power is

sought to be exercised by the respondents under proviso to

Section 154 of DLR Act while on the other hand the mere

existence of rural areas is sought to be challenged by giving

the same as reason for not holding elections to the

Panchayats. The Delhi Panchayati Raj Act, 1954 (‗The DPR

Act' for short) is stated to be applicable to only such of the

rural areas of Union Territory of Delhi except the land owned

by the Central Government or local authority etc. The

provisions of DLR Act are applicable only to rural areas to

which the provisions of DPR Act are applicable.

_____________________________________________________________________________________________

29. The stand of the State Election Commission as per its

affidavit affirmed on 03.10.2007 is that Section 507 of Delhi

Municipal Corporation Act, 1957 (‗The DMC Act' for short)

provides for a Corporation with the previous approval of the

Government to declare by a notification in an official gazette

that a portion of rural area ceases to be included thereunder

and should be included in the urban areas. The State Election

Commission as per Article 243ZA of the Constitution has been

undertaking periodic exercise of holding elections to

Municipalities in Delhi, the last such exercise being in April,

2007. It has been pleaded that no voter shall be entitled to

participate / vote for two different fora of local self

government. Nothing more has been said.

30. The Govt. of NCT of Delhi in this behalf has filed an

additional affidavit affirmed on 05.05.2009 as well as the

counter affidavit to the amended petition. It has been

explained that Part IX of the Constitution requires setting up of

Gram Panchayats in rural areas and thus the DPR Act was

enacted to provide such Gram Panchayats in rural areas of the

NCT of Delhi. Part IXA of the Constitution lays down the form

of local self government in non rural areas in the form of

Municipalities. Article 243Q of the Constitution mandates

creation of Municipality in the form of :

a) A Nagar Panchayat for a transitional area that is to say an

area in transition from a rural area to an urban area.

b) A Municipal Council for a smaller urban area; and

c) A Municipal Corporation of a larger urban area.

_____________________________________________________________________________________________

Article 243Q (2) defines a transitional area, a smaller urban

area and a larger urban area to mean such area as the

Government may specify by a public notification having regard

to the population of the area, the density of the population

therein, revenue generated for local administration,

percentage of employment of non-agricultural activities,

economic importance or other factors as deemed fit. Article

243Q reads as under:

―243Q. (1) There shall be constituted in every State,--

(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;

(b) a Municipal Council for a smaller urban area; and

(c) a Municipal Corporation for a larger urban area,

in accordance with the provisions of this Part:

Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.

(2) In this article, ―a transitional area‖, ―a smaller urban area‖ or ―a larger urban area‖ means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.‖

31. A notification dated 31.05.1994 was issued by the LG of

NCT of Delhi under Article 243Q(2) of the Constitution whereby

the entire area falling within the local limits of New Delhi _____________________________________________________________________________________________

Municipal Committee was declared as ―smaller urban area‖

and the entire area of National Capital Territory of Delhi

except the areas falling within the local limits of the New Delhi

Municipal Council and the Delhi Cantonment Board as ―larger

urban area‖. Not only that in pursuance to powers conferred

under Article 243P(c) dealing with Metropolitan areas, the

entire area of National Capital Territory of Delhi except the

area falling within the local limits of the Delhi Cantonment

Board was declared as ―metropolitan area‖. We may notice

that ‗metropolitan area' is defined under Article 243P(c) as

under:

―(c) ―Metropolitan area‖ means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part;‖

32. It is thus the submission of Govt. of NCT of Delhi that

once the entire area of Delhi has been notified as either

transitional area or smaller urban area or larger urban area or

metropolitan area under Part IXA of the Constitution, it comes

out of the ambit of Part IX of the Constitution and ceases to be

rural area for purposes of provision of Gram Panchayat in NCT

of Delhi and thus there was no requirement of holding

elections for Gram Panchayats as was earlier required under

DPR Act. In the absence of such Gram Panchayats and the

residuary powers vesting in Chief Commissioner (LG) of Delhi

under Section 160 and 161 of DLR Act, the Chief Commissioner

(LG) has made alternate arrangement for carrying out the

_____________________________________________________________________________________________

work of Gaon Sabha or Gram Panchayat inasmuch as the

Deputy Commissioner of the area concerned is the Chief

Executive Officer through whom Gram Sabha Area is

administered.

33. The Govt. of NCT of Delhi has clarified in its counter

affidavit to the amended writ petition that the land never

vested in the Central Government under Section 507 of the

DMC Act though all village areas in Delhi are covered under

Section 2(10) of the DMC Act and thus that Act is applicable to

the entire area of the Capital Territory of Delhi except New

Delhi and Delhi Cantonment areas. The respondents have also

strongly protested at the endeavour of the petitioners to

exclude a class of persons (particularly economically weaker

sections) from being entitled to be accommodated in a

housing project that may be constructed near the Village

Kanjhawla.

34. The Govt. of NCT of Delhi has also clarified that no

notification under Section 507 of the DMC Act has been issued,

but have pointed out that the same will be imperative only

when the character of a rural area is actually transformed from

rural to urban, while, in the present case, the area in question,

which was found to be in excess of the ordinary requirements

of the Gaon Sabha was held to be excluded from vesting in the

Gaon Sabha, was notified as ‗metropolitan area'. The same

remains under the administrative control and management of

the Chief Commissioner (LG) of Delhi under Section 161 of the

DLR Act.

_____________________________________________________________________________________________

35. A reference has been made to the Judgment in Saij Gram

Panchayat v. State of Gujarat; AIR 1999 SC 826 to advance the

plea that Article 243Q of the Constitution can change the

coverage of lands in Gaon Sabha / Panchayat area to the

coverage of the same in a municipal area by a public

notification. It is in view thereof the plea has been raised that

such a notification was issued under Article 243Q of the

Constitution and thus the area of villages in Gaon Sabha area

would be under the municipal jurisdiction of the DMC Act

exclusively and the DPR Act would not be applicable to the

area of Delhi. The statutory democratic institution for

representation of people through Municipal Council is well in

place for the past over 17 years.

36. Learned counsel for the respondents have also referred

to few other judgments to advance their plea. In

K.P.Raveendran and Anr. v. State of Kerala and Ors; AIR 2005

Kerala 319, it has been observed in the context of Article 243Q

of Part IXA of the Constitution that a rural area after its

transition to an urban area thereby becoming a smaller urban

area or a larger urban area in terms of Article 243Q cannot be

converted to be a rural area. Thus, the impugned de-linking of

certain urban areas from the municipalities for being treated

as rural areas was held to be unconstitutional and void. A

municipality could never be converted to a village panchayat

and it was wholly impermissible in the constitutional context in

which Part IX and Part IXA have separately provided that two

_____________________________________________________________________________________________

types of local self government institutions could

simultaneously govern.

37. Learned counsel also referred to the observations of the

Supreme Court in State of UP and Ors. v. Pradhan Sangh

Kshettra Samiti and Ors; 1995 Supp(2) SCC 305 where it was

observed that the concept of a village cannot be confined by

defining it as habitat according to anthropological concept, nor

can village be determined according to the aspirations,

chauvinism and wishes of the villagers as that would be

against unity and integrity and social and economic progress

of the country as well as contrary to the ideals of the Preamble

to the Constitution and the Court cannot substitute its concept

of a village for that determined by the State Govt. These

observations were made in the context of definition of a village

under Section 2(t) of the U.P. Panchayat Raj Act, 1947 and the

acceptance of revenue village as a village by Governor under

Section 2(t) was held as not inconsistent with Article 243G of

the Constitution.

38. We have given a deep thought to this controversy

arising from the claim of the petitioners that despite elections

to the Municipalities, there is separate intrinsic right of the

village residents to claim elections to the Panchayats in view

of the provisions of Part IX of the Constitution. This plea has to

be examined in the context of both Part IX and Part IX-A of the

Constitution as well as the DMC Act and the notification issued

by the State Government as also the law enunciated aforesaid.

_____________________________________________________________________________________________

39. The objective of incorporation of Part IX and Part IXA of

the Constitution cannot be lost sight of. The system of local

self government was not achieving the objective and, thus, it

was considered appropriate to bring into place an effective

local self government through Panchayats and Municipalities.

The different areas go through transitions from village to small

urban areas and/or to larger urban areas. All this has been

envisaged under various provisions of the Constitution

incorporated in Part IX and Part IXA.

40. It is not in dispute that elections to the Municipal

Corporation have been held from time to time, the last such

exercise being in April, 2007. The petitioners and similarly

situated persons have had an opportunity to elect Municipal

Councillors. The question, thus, arises that having elected

Municipal Councillors, whether the petitioners and other such

members of the village are further entitled to have an elected

Panchayat? In our considered view, the answer to this

question is in the negative.

41. The petitioners cannot be said to have a right to

participate and vote for two different fora of local self

government. We take note of the fact that a notification dated

31.05.1994 was issued by the Lieutenant Governor of NCT of

Delhi under Article 243Q(2) in terms whereof the entire area of

NCT of Delhi except the area falling within the local limits of

NDMC and Delhi Cantonment Board was declared as ‗large

urban area'. Not only that the entire area of NCT of Delhi

except the area falling within local limits of Delhi Cantonment

_____________________________________________________________________________________________

Board was declared as ‗metropolitan area' in pursuance to a

notification dated 31.05.1994. The area of the petitioners,

thus, squarely falls within the ambit of Part IXA of the

Constitution. The observations in K.P. Raveendran and Anr.'s

case (supra) of the Kerala High Court are, thus, material to the

effect that once an area has become a small or a large urban

area in terms of Article 243Q of the Constitution, the same

cannot be converted to be a rural area and that it was

impermissible in the context of the Constitution as Part IX and

Part IXA of the Constitution providing for two types of local self

government institutions, which could not simultaneously

govern.

42. The plea of the petitioners is predicated on the fact that

on the one hand the respondents were seeking to exercise

powers under Section 154 of the DLR Act while simultaneously

claiming that there was no rural area for which Panchayat

elections had to be held. This plea is negated on account of

the fact that once the local self government is provided

through elections to the Municipal Corporation, the

administrative matters envisaged under the DLR Act are dealt

with by the Deputy Commissioner of the area concerned, who

is the Chief Executive Officer through whom Gaon Sabha area

is administered under the overall administrative control and

management of the Chief Commissioner (LG of Delhi) under

Section 161 of the DLR Act. This is so as the area is in

transition and the land has not lost its real character though it

is forming part of the metropolitan area. What is important is

_____________________________________________________________________________________________

the fact that the power is sought to be exercised under the

proviso to Section 154 of the DLR Act by the Chief

Commissioner (LG) of Delhi, though inputs are given by the

Deputy Commissioner, the details of which are set out

hereinabove. We find nothing erroneous in this process.

43. We may add at this stage that since there cannot be a

dual representation of local self government, the Municipal

Councillor elected from the ward of the village of the

petitioners is the elected representative. The administrative

matters envisaged under the DLR Act are being dealt with by

the Deputy Commissioner of the area concerned, who is not an

elected person. In view of there being an elected

representative, it is appropriate that the views of the Municipal

Councillor is also taken into account by the Chief

Commissioner (L.G.) before coming to a final conclusion

whether to issue a notification under the proviso to sub-section

(1) of Section 154 of the DLR Act or not.

44. We are, thus, of the considered view that as elections

have been held to the Municipal Corporation including in the

wards covering the area of Village Kanjhawla, the petitioners

cannot claim a right of having another local self government

body in the form of the Panchayat and claim a right of

elections to be held in that behalf. There is, thus, no merit

even in this second issue raised before us.

CONCLUSION :

45. We are, thus, of the view that the first challenge is

premature while there is no basis for claiming elections to the _____________________________________________________________________________________________

Panchayats. However, in order for the Chief Commissioner

(L.G.) to come to a final conclusion whether a notification

under the proviso to sub-section (1) of Section 154 of the DLR

Act is to be issued or not, the petitioners should be given a

right to file a representation as village residents and the views

of the Municipal Councillors of the zone concerned should also

be ascertained. It is only after doing the needful that the Chief

Commissioner (L.G.) should take a final decision in respect of

the issuance of a notification under the proviso to sub-section

(1) of Section 154 of the DLR Act.

46. The writ petition stands disposed of with the aforesaid

directions leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

MAY 07, 2010                                                  AJIT BHARIHOKE, J.
dm

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