Nand Kishore Tyagi vs Gaon Sabha Rajapur Khurd & Ors.
2011 Latest Caselaw 1116 Del

*                HIGH COURT OF DELHI : NEW DELHI

                                             Reserved on : January 30, 2012
                                          Pronounced on : February 24, 2012
+
                         W.P.(C) No. 3936/2011
                                   &
                           CM.No. 8171/2011

      NAND KISHORE TYAGI                            ..... Petitioner
                   Through:          Mr. B.S. Mann & Mr. Jitin Tewathia,
                                     Advocates.

                                 versus

      GAON SABHA RAJAPUR KHURD & ORS. .....
                                                          Respondents
                         Through:    Mr. H.S. Sachdeva.
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

      %
                               ORDER

24.02.2012

1. Petitioner, as a member of Gaon Sabha, Rajapur Khurd, Delhi, challenges the legality of order of 3rd September, 2010 (Annexure P-1) of Financial Commissioner, Delhi who has set aside the order of 12th August, 2003 of concerned Additional Collector (Annexure P-7) and upholds the order of 12th October, 2000 (Annexure P-3) of the concerned SDM/ Revenue Assistant, vide which bhumidari rights have been granted in favour of respondent No.3- Sanjay Tyagi in respect of khasra Nos.15/17/1 (2-16) & 15/25/2 (2-19), admeasuring 15 bighas and 15 biswas in the Revenue Estate of Village Rajapur Khurd, Delhi.

W.P.(C) No.3936/2011 Page 1

2. The finding returned in the impugned order (Annexure P-1) is as under:-

'In my view, ld. First Appellate Authority has committed a manifest error of law by concluding that only an entry of P-5 can be considered a proof of possession. The First Appellate Court has ignored the 'Explanation' to Rule 63 of Delhi Land Revenue Rules which clearly provides that an entry in form P-5 shall not be construed as evidence of cultivator possession. The entry of possession in Khasra Girdwari cannot be placed at any lower pedestal than any other document. In my view the ld. First Appellate Court, while attaching higher degree of evidentiary value to an entry in form P-5, has ignored the fact that form P-5 was introduced, for the first time, vide an Amendment carried out in Rule 63 in the year 1983. Prior to that, entry of cultivator possession used to be made in Khasra Girdwari only. It is also observed that in the year 1989, an amendment was carried out in Rule 63 whereby a new Sub-Rule was inserted to provide that the entry of cultivator possession shall not be recorded in relation to the land vested in Gaon Sabha. Said rule remained in force till 1995 when it was struck down by a Division Bench of Hon'ble High Court of Delhi. Therefore, in my view, there is a valid and justified reason for not recording the cultivator possession of the appellant at particular point of time, as claimed.

I have already concluded that the Appellant was able to prove his possession on the land in question by producing the Khasra Girdawaries for 8 continuous years. I have also concluded that the Gaon Sabha has neither set out a case nor has made any efforts to prove as to when and how it recovered the possession from the appellant. Therefore, in my view the appellant has been able to prove his cultivatory possession thereby entitling him to be declared as Bhoomidar.'

3. Since Registry had raised the objection regarding the maintainability of this petition in view of the fact that petitioner was

W.P.(C) No.3936/2011 Page 2 not a party before the Revenue Courts, therefore, petitioner's counsel was called upon to address this Court on the aspect of locus standi of the petitioner to maintain this petition.

4. It was asserted by learned counsel for the petitioner that the impugned order unlawfully transfers the rights in respect of gaon sabha land by declaring the third respondent to be a bhumidar in the afore-noted subject land. As per petitioner's counsel, impugned order prejudicially affects the community rights and interests of the gaon sabha in the subject land and so every member of the village community including the petitioner has locus standi to challenge it, as first respondent for reasons best known to it, does not intend to challenge the impugned order. Reliance is placed by learned counsel for the petitioner upon decisions in 'Maharaj Singh Vs. State of U.P.' AIR 1976 SC 602; 'Chhotey Lal & Anr. Vs. UP Zila Adhikari/ Sub- Divisional Magistrate & Ors.' 2005 (2) AWC 1339; 'Mathai Lal Dube Vs. District Magistrate, Sant' 2000 (4) AWC 2752; 'Ram Sunder Vs. D.D.C. & Ors. (Allahabad High Court) Consolidation Case No.353/1992, decided on 10.05.2010; 'Dhan Singh & Ors. Vs. The Administrator, Union Territory of Delhi & Ors.(Delhi High Court)' W.P.(C) No.2341/1981, decided on 16.04.1982; 'B.G. Verghese & Ors. Vs. Union of India' 116 (2005) DLT 569; 'Balbir Singh & Ors. Vs. Financial Commissioner & Ors.' 114 (2004) DLT 655; 'Banglore Medical Trus Vs. B.S. Muddappa & Ors.' AIR 1991 SC 1902 & 'Dhan Singh Vs. The Administrator & Ors.' W.P.(C) No.2341/1981 decided on 16th April, 1982 to contend that members of gaon sabha have locus standi to invoke the jurisdiction of the Court for protecting the community interest.

W.P.(C) No.3936/2011 Page 3

5. Petitioner's counsel contends that first respondent i.e. the gaon sabha has failed to protect the gaon sabha land in question and so, petitioner has every right to seek redressal of the public injury to the subject land of Gaon Sabha caused by the impugned order. Thus, it is contended that petitioner being a member of the gaon sabha in question cannot be said to be intermeddler without locus standi, as the petitioner is invoking the writ jurisdiction of this Court to protect the gaon sabha land which is meant to be utilized for public purpose and for the benefit of the villagers of the gaon sabha in question.

6. After having heard learned counsel for the parties on the locus standi aspect and on perusal of the impugned order and the decisions cited, I find that many milestones have been covered on the aspect of locus standi to invoke the equitable writ jurisdiction. This Court is conscious of the pertinent observations of the Apex Court in Banglore Medical Trust (Supra), which are as follows:-

'The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation. Even in private challenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administratative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizen having faith in rule of law are rendering great social and legal service by espousing cause of public nature.'

W.P.(C) No.3936/2011 Page 4

7. In Balbir Singh (Supra), it has been ruled that all or any resident of the village has locus standi to bring it to the notice of the authorities concerned that construction of houses on the land allotted was the site of village pond and that repartition effected is prejudicial to their interest.

8. In the instant matter, had it been a case of petitioner genuinely seeking to resist the third respondent from usurping the gaon sabha land by bonafidely showing that the third respondent is not entitled to the bhumidari rights in the subject land, then petitioner would certainly have a locus standi to protect the gaon sabha land for the community interest of the villagers. But, here is a case where petitioner's stand in the writ petition of being a good Samaritan seeking to protect the common land of the village vested in the gaon sabha, is quite opposite to the stand taken by the petitioner before the Appellate Court, as reflected in the appellate order (Annexure P-7), which is as under:-

'During the pendency of appeal, one Shri Nand Kishore Tyagi s/o late Shri Baljit Singh Tyagi filed an application under order 1 rule 10 read with section 151 CPC dated 06.05.2003 for impleading him in the array of respondent on the ground that the land never remained in the possession of the present respondent and that the said land was in adverse possession of the applicant since 1990 and is still in his cultivatory possession. Gaon Sabha opposed the said application on the ground that the applicant was neither a party before Trial Court nor the impugned order makes a mention of the applicant. It has been denied that the application is, or ever was, in possession of said land. Gaon Sabha also pointed out that the applicant has not produced any document. The Gaon Sabha, therefore, argued that the applicant is not required to be made a party to the present appeal. The respondent has also opposed the said application W.P.(C) No.3936/2011 Page 5 on the grounds that the applicant should have moved the application during the pendency of suit in Ld. Lower Court. The suit land is in continuous cultivatory possession of the respondent and the applicant was never in possession of the same. Further, the possession of the respondent has also been established through order dated 27.04.1973 of the then R.A. under Section 86A of the DLR Act. Respondent have, therefore, argued that application of applicant be dismissed in view of above, and in view of the fact that the applicant Shri Nand Kishore Tyagi has not enclosed any documentary evidence of his having been in adverse cultivatory possession of the suit land since 1990, I hereby order that the said application be dismissed.'

9. Since the Appellate Court vide order (Annexure P-7) had allowed the appeal of the first respondent i.e. the gaon sabha concerned, therefore, the petitioner remained silent and had not challenged the order (Annexure P-7) refusing to implead the petitioner as a necessary party in these proceedings. It appears that petitioner was unaware of the proceedings before the Financial Commissioner, Delhi which culminated in the passing of the impugned order of 3rd September, 2010 (Annexure P-1) which has been challenged by way of this writ petition filed on 31st May, 2011 i.e. considerable gap of eight months or so.

10. Finding myself in complete agreement with the ratio of the decisions cited, I am of the considered opinion that these decisions are of no avail to the petitioner, who has not bonafidely preferred this writ purely in capacity of a member of the gaon sabha in question with a view to protect the rights of the villagers in the subject land, as is evident from the order (Annexure P-7) of the Appellate Court that petitioner had staked his claim in the subject land by pleading adverse cultivating possession therein but had failed to establish it and so, W.P.(C) No.3936/2011 Page 6 petitioner's application for impleadment was rightly rejected by the Appellate Court, to which there was no challenge by the petitioner.

11. In this view of the matter, this Court is of the considered opinion that the petitioner does not have locus standi to challenge the impugned order (Annexure P-1) vide which bhumidari rights have been conferred upon respondent No.3 in respect of the subject land. Consequently, this petition is dismissed as the petitioner does not have locus standi to challenge the impugned order of 3rd September, 2010 (Annexure P-1), as he was not a party before the Revenue Courts. Pending application is dismissed as infructuous.

12. No costs.

                                                         (SUNIL GAUR)
                                                            JUDGE
      February 24, 2012
      rs




W.P.(C) No.3936/2011                                                    Page 7