M/S Hira Lal Mohan Devi Rita Gupta ... vs Narender Kumar & Ors.
2011 Latest Caselaw 842 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 11th February, 2011

+                                  W.P.(C) 4088/2010

M/S HIRA LAL MOHAN DEVI RITA GUPTA
MEMORIAL TRUST & ANR.                          ..... Petitioners
                   Through: Mr. Ravi Gupta, Sr. Advocate
                            with Mr. Ankit Jain, Advocate
                                     Versus
NARENDER KUMAR & ORS.                                         ..... Respondents
                  Through:                    Mr. V.P. Singh, Sr. Advocate with
                                              Mr. Sandeep Khatri, Advocate for
                                              respondent Nos.1 to 6.
                                              Mr. V.K. Tandon, Advocate for
                                              respondent No.7.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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.

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 7th May, 2010 of the Financial

Commissioner, Delhi allowing the revision petition of the

respondents 1 to 6 herein under Section 187 of the Delhi Land

Reforms Act, 1954 (Reforms Act) against the order dated 21st April,

2008 of the Deputy Commissioner, District North-West, Delhi

allowing the application of the petitioners for taking over the land

underneath a pathway/rasta on two sides of which the property of

petitioners was situated, in exchange for other land belonging to the

petitioners.

2. Notice of the writ petition was issued and vide order dated 6th July,

2010, the operation of the order of the Financial Commissioner

stayed. The pleadings have been completed. The counsels have

been heard.

3. The petitioners in their application dated 22nd February, 2008 for

exchange, as aforesaid, to the Deputy Commissioner, District North-

West of the Government of NCT of Delhi stated that the petitioner

no.1 is a charitable Trust engaged inter alia in educational activities;

that it was running an Engineering College in the name and style of

H.M.R. Institute of Technology & Management at Hamidpur

village, Delhi falling in the Revenue Estate of Narela; that the

aforesaid College was built on land otherwise contiguous but

separated by a 25 feet wide rasta / pathway; claiming that the said

rasta / pathway was disturbing the privacy of the students of the

Institute and invoking Section 40 of the Reforms Act, permission

was sought for allotment of the land of the rasta / pathway on both

sides of which the petitioners‟ Institute was situated and in exchange

equivalent land in another Khasra number was offered.

4. The Deputy Commissioner on 17th March, 2008 sought status report

from the SDM / BDO. A status report dated 22nd March, 2008 was

submitted by the Consolidation Officer, Narela reporting that the

building of the College / Institute of the petitioners existed on both

sides of the rasta / pathway and stating that the proposal of the

petitioners would be beneficial to the villagers as the land offered in

exchange by the petitioners would extend the other rasta / pathway

existing till the offered land and enable joining of the other

rasta/pathway with another rasta / pathway.

5. The Deputy Commissioner on the basis of the aforesaid report, vide

order dated 21st April, 2008, expressing an opinion that the proposed

exchange is in public interest and will facilitate safety and security

of students especially the girl students studying in the Institute and

will also serve the interest of residents of the village, allowed the

exchange.

6. The respondents 1 to 6 being the bhumidhars of land in Khasra

numbers adjacent to the rasta / pathway which the Deputy

Commissioner vide order aforesaid had directed to be exchanged as

aforesaid, preferred the revision petition aforesaid to the Financial

Commissioner. They also stated that they were running an

educational institution on their land and the closure of the rasta /

pathway owing to the exchange aforesaid would affect them as well

as over 500 students studying in their School.

7. The Financial Commissioner vide order impugned in this petition

has allowed the revision, set aside the order of the Deputy

Commissioner but granted liberty to the petitioners to, in accordance

with law and the procedure approach the Deputy Commissioner

afresh in the matter.

8. Section 40 of the Reforms Act under which the petitioners had

applied and whereunder the Deputy Commissioner exercised the

power, is as under:

"40. Exchange - (1) Subject to the provision of Section 33, a Bhumidhar may exchange lands held by him as such -

(a) For lands held by any other Bhumidhar as such, or

(b) For lands for the time being vested in the Gaon Sabha or local authority or in Government.

Provided that no such exchange shall be made except with the permission of the Deputy Commissioner, who will refuse permission if the difference between the area of land given in exchange and the land received in exchange in terms of standard acres is more than ten per cent of the area in standard acres of the land which is smaller in area.

(2) Where the Deputy Commissioner permits exchange, he shall also order the relevant annual register to be corrected accordingly.

(3) On exchange made in accordance with sub-section (1), the parties to such exchange shall have the same rights in the land received in exchange as they had in the land given in exchange."

9. Rules 25 and 26 of the Delhi Land Reforms Rules, 1954 (Reforms

Rules) providing the procedure for exchange under Section 40 of the

Act (supra) are as under:-

"25. Exchange (Section 40) - A bhumidhar may exchange land held by him as such for land held by any other bhumidhar or for lands for the time being vested in the Gaon Sabha or local authority or in the Government by application to the Deputy Commissioner."

26. Procedure - (1) Where any exchange has been agreed upon, a party to the agreement shall apply to the Deputy Commissioner to record the same in the record of rights. (2) The application shall contain the following particulars and be accompanied by the following documents -

(i) The Khasra number of the plot -

(a) which the applicant wishes to receive and of the plots which he offers in exchange of;

(b) which the parties have agreed to exchange under an agreement;

(ii) certified copies of the khatauni relating to the khatas in which all such plots are included.

(iii) a statement to the effect that neither of the parties will hold land in the State exceeding thirty standard acres as a result of the exchange; and

(iv) a statement showing the details of any valid deeds, mortgage or other encumbrances with which the land to be exchanged may be burdened, together with names and addresses of lessees, mortgagees or holders of other encumbrances.

(3) On receipt of the application, if the Deputy Commissioner is satisfied that the exchange is not invalid according to the restrictions laid down in Section 33, call

upon the parties, the lessees, mortgagees or holders of other encumbrances, if any, to show cause why the exchange should not be made. Every such notice shall be accompanied by a copy of the applicant, which shall be supplied by the applicant.

(4) The Deputy Commissioner shall thereupon decide the objections, if any, and pass suitable orders. If he decides that the exchange should be allowed, he shall also make an order for the delivery of possession, if necessary, and for the correction of papers."

10. The senior counsel for the petitioners has argued that the aforesaid

provisions have been complied with by the Deputy Commissioner

and thus the Financial Commissioner erred in setting aside the order.

It is contended that under Rule 26(3) (supra), the residents of the

village as the respondents 1 to 6 claim to be, have no right of being

heard and the right of hearing is only of lessees, mortgagees or

holders of other encumbrances of the land. It is thus contended that

the respondents 1 to 6 had no locus to object and the Financial

Commissioner erred in entertaining their revision petition.

11. The Financial Commissioner in the impugned order has also noted

the provisions of the Delhi Panchayat Raj Act, 1954 (Panchayat Raj

Act). Section 34 thereof empowers the Gaon Sabha to acquire land

and Section 35 vests all public property within the jurisdiction of

Gaon Sabha in the Gaon Sabha.

12. Chapter VIII of the Delhi Panchayat Raj Rules, 1959 (Panchayat Raj

Rules) deals inter alia with transfer of property and rules regulating

the power of Gaon Panchayat to acquire, hold and transfer property

and to enter into contracts. Rule 176 thereunder concerns transfer of

immovable property vested in the Gaon Panchayat. Rule 185

permits transfer only on resolution of the Gaon Panchayat and with

the sanction of the Chief Commissioner.

13. It was the contention of the respondents 1 to 6 before the Financial

Commissioner that the order of the Deputy Commissioner of closure

of rasta / pathway and allowing allotment / vesting thereof in the

petitioners in exchange for land of the petitioners elsewhere was bad

inter alia for the reason of no notice having been issued to the

general public. The respondents 1 to 6 before the Financial

Commissioner had relied on policy guidelines issued by the ADM-

cum-Director (Panchayat) for exchange of Gaon Sabha land with

private land. Reliance was also placed on notification dated 30th

November, 2000 prohibiting allotment of Gaon Sabha land to any

individual or institution.

14. The petitioners had opposed the aforesaid argument by contending

that the instructions and the notification were contrary to Section 40

of the Reforms Act the power whereunder could not be curtailed.

15. The Financial Commissioner noted the apparent conflict between

Rules 25 & 26 of the Reforms Rules and Rule 185 of the Panchayat

Raj Rules; while Reforms Rules did not require public notice or

hearing to the public, Rule 185 of the Panchayat Raj Rules so

provides. I may notice that in fact it was owing to the said

observation in the order of the Financial Commissioner that the

notice of the writ petition was issued.

16. The senior counsel for the petitioners has contended that while the

Financial Commissioner had at one place in the impugned order

observed that the administrative instructions could not override the

Reforms Rules, he has at another place held that the said instructions

had to be abided and the exchange could have been effected only

after public notice and after the consent of the Gaon Sabha /

Panchayat.

17. The senior counsel for the petitioners has also argued that though the

exchange aforesaid has resulted in closure of one rasta / pathway i.e.

the one between the Institute of the petitioner on both sides thereof,

it has created another rasta / pathway elsewhere on the land

surrendered by the petitioners. It is contended that the rasta /

pathway created on the land surrendered by the petitioner has been

found by the Deputy Commissioner to be more beneficial to the

villagers.

18. The senior counsel for the respondents 1 to 6 has contended that a

rasta / pathway could never have been the subject matter of

exchange. It is contended that the same is not part of Bhumidhari

land which alone can be the subject matter of exchange. Reliance is

placed on The Municipal Corporation of Delhi Vs. Hira Lal Tota

Ram AIR 1972 Delhi 29 laying down that MCD is competent to

remove encroachment on public street in rural / village areas also,

though Gaon Panchayat may also act under the Panchayat Raj Act

and the Reforms Act.

19. It is also argued that the rastas / pathways / streets do not vest in the

Gaon Sabha.

20. Reliance is also placed on the recent judgment dated 28th January,

2011 of the Supreme Court in SLP(C) No.3109/2011 titled Jagpal

Singh Vs. State of Punjab commenting on the dissipation of Gaon

Sabha land and issuing directions for preservation thereof.

21. The senior counsel for the petitioners in rejoinder has objected that

no plea with respect to the applicability of the Delhi Municipal

Corporation Act, 1957 was raised before the Financial

Commissioner or even in the counter affidavit filed in this Court and

cannot be taken suddenly during the hearing. He contends that if the

same was to be considered, opportunity ought to be given to meet

the same. He in response to the argument that the views of the Gaon

Sabha are a must has drawn attention to the reply filed by the Gaon

Sabha to the Revision Petition before the Financial Commissioner,

where the Gaon Sabha had sought dismissal of the revision petition

of the respondents 1 to 6.

22. The counsel for the respondent No.7 Gaon Sabha has invited

attention to the report dated 7th January, 2010 submitted by the

Deputy Commissioner before the Financial Commissioner where it

was reported that due to exchange earlier allowed, the rest of the

land of the rasta / pathway has become useless inasmuch as the same

could not be used by the villagers to approach the pucca road

(phirni) on the periphery of the village and that the allotment of land

of rasta to petitioners blocks the Right of Way, preventing access by

the villagers. It was further reported that the land surrendered by the

petitioners was at a distance of 400 mtrs. from the rasta / pathway

land given to the petitioners and could not be used as rasta / Right of

Way by the villagers.

23. The aforesaid would show that while the person earlier officiating as

the Deputy Commissioner had opined that the exchange proposed by

the petitioners was in the interest of the villagers, the present

incumbent does not share the same view. The same demonstrates

the fickleness in the decision making process and the manner in

which the officials are discharging their duties.

24. The senior counsel for the respondents 1 to 6 at the fag end of the

hearing has raised another interesting argument which he fairly

admits occurred to him only during the hearing before the Court. He

contends that even if Section 40 of the Reforms Act and Rules 25 &

26 of the Reforms Rules were held to be applicable, the same only

provide for an exchange which is a matter of contract between the

petitioners and the Gaon Sabha, with the permission of the Deputy

Commissioner. It is argued that the Deputy Commissioner in the

present case has proceeded on the premise that he could allow the

exchange even without the Gaon Sabha agreeing to the same. It is

contended that the Gaon Sabha is an elected body and without the

resolution of the Gaon Sabha or the consent of the Development

Commissioner now exercising powers of the Gaon Sabha, no

exchange could in any case have been possible and the permission

earlier granted by the Deputy Commissioner and set aside by the

Financial Commissioner is in any case of no avail.

25. In my opinion the last contention aforesaid of the respondents 1 to 6

is sufficient for dismissal of this petition. Section 40 of the Reforms

Act permits exchange of land between Bhumidhars inter se or

between a Bhumidhar and the Gaon Sabha. However, the same has

not been left only to the discretion of the exchanging parties and

Section 40 of the Reforms Act requires the permission to be

obtained for such exchange.

26. In the present case, the application / proposal of the petitioner for

exchange was unilateral. The Gaon Sabha in whom the land

underneath the rasta / pathway sought to be exchanged was claimed

to be vesting, did not join in the proposal of the petitioner. In fact,

there is nothing to show that the Gaon Sabha at any time consented

to such an exchange. It is not the case of the petitioners also. All

that is available is, that the Gaon Sabha by seeking dismissal of the

revision petition before the Financial Commissioner consented to the

exchange. However, the said consent even if any, is again without

any basis inasmuch as it is not shown that there was any resolution

of the Gaon Sabha to the said effect or that the reply to the Revision

Petition was filed under the authority of any officer empowered to

consent to the exchange on behalf of the Gaon Sabha.

27. Rule 26(1) of the Reforms Rules also uses the expression "where

any exchange has been agreed upon" and requires "a party to the

agreement" to apply to the Deputy Commissioner to record the same

in the record-of-rights. There is nothing to show that when the

petitioners applied to the Deputy Commissioner, there was any

agreement. There is also nothing to show that the Deputy

Commissioner was exercising the powers of the Gaon Sabha. The

Deputy Commissioner under Rule 26(1) of the Reforms Rules is to

be approached only for recording the exchange in the record of

rights and Rule 26 of the Reforms Rules lays down the procedure for

so permitting the exchange.

28. Though as aforesaid, the petition is liable to be dismissed on this

ground alone but since detailed arguments on other aspects have

been heard, it is deemed appropriate to deal with the other

contentions raised also.

29. The first question which arises is whether the land of the rasta /

pathway vests in the Gaon Sabha. Repeated enquiries were made

during the hearing in this regard but the senior counsels could only

draw attention to Section 7 of the Reforms Act extinguishing rights

of proprietor(s) pertaining inter alia to pathways and vesting the

same in the Gaon Sabha. Attention of the counsels was invited to

Section 3(13) of the Reforms Act defining "land" and which does

not include within its ambit the land underneath rastas / pathways. It

was enquired that if that were so, how the land underneath rastas /

pathways could be land which the Gaon Sabha could exchange

under Section 40 of the Reforms Act.

30. I further find that Section 154 (1)(vi) of the Reforms Act vests

pathways situated in a Gaon Sabha Area in the Gaon Sabha. The

said provision also treats pathways differently from "all lands

whether cultivable or otherwise" dealt with in Section 154 (1)(i).

Thus, pathways/rastas, though vesting in Gaon Sabha, cannot be said

to be "land for the time being vested in Gaon Sabha" within the

meaning of Section 40 of the Reforms Act. The land vesting in

Gaon Sabha is differently dealt from pathways vesting in Gaon

Sabha, in the matter of ejectment of unauthorized occupants

therefrom also. While provision for former is made under Section

86A, for the latter provision is made in Section 87 of the Reforms

Act. The same also demonstrates that the pathways/rastas though

vesting in the Gaon Sabha cannot be said to be the land of the Gaon

Sabha which the Gaon Sabha can agree to exchange.

31. Mention may also be made of Section 73 of the Reforms Act which

describes the land to which the Gaon Sabha is entitled to admit any

person. The same read with Section 3(13) of the Reforms Act also

does not show that the Gaon Sabha is entitled to admit any person as

Bhumidhar to any land of rasta. There being no provision in the

Reforms Act for the Gaon Sabha to admit any person to the land of

the rasta, the question of the Gaon Sabha being entitled to exchange

the land of the rasta does not arise.

32. Parity may be drawn of the rights even of municipalities with

respect to streets, inspite of statutory provisions vesting the streets in

the municipalities. A Division Bench of the Madras High Court as

far back as in S. Sundaram Ayyar v. The Municipal Council of

Madura [1902] I.L.R. 25 Mad. 635 held that when a street is vested

in Municipal Council, such vesting does not transfer to the

Municipal authority the rights of the owner in the site or soil over

which the street exists - it does not own the soil - it only has the

exclusive right to manage and control the street. The said view was

approved by the Apex Court in Municipal Board, Manglaur Vs. Sri

Mahadeoji Maharaj AIR 1965 SC 1147. It was held that the

Municipalities do not have a right to allow any person to put up

structure on a public pathway and which structures were not

necessary for the maintenance or user of it as a pathway.

33. In my opinion, the vesting of the pathways / rastas in rural areas in

the Gaon Sabha cannot be at a higher pedestal than the vesting of the

streets in the municipality and the Gaon Sabha, only has the right to

management and maintenance of the rastas / pathways and has no

right of ownership therein so as to admit any other person into

possession of the rasta or to exchange the land of the rasta for any

consideration.

34. The Supreme Court in Ahmedabad Municipal Corporation v.

Nawab Khan Gulab Khan AIR 1997 SC 152 again held that

footpaths, streets and pavements are public property which are

intended to serve the convenience of general public, they are not laid

for private use and indeed their use for a private purpose frustrates

the very object for which they are carved out; the facility which has

matured into a right cannot be set at naught by allowing

encroachments thereon. It was further held that public property

needs to be preserved and the Constitutional Court has a

Constitutional duty as sentinel on the qui vive to enforce the right of

a citizen when he approaches the Court for perceived legal injury.

35. I am therefore of the opinion that the Gaon Sabha has not been

vested with any power to admit any person on to land of the rasta /

pathway or to exchange the land of the rasta with any other land.

36. Though arguments were also heard with respect to the provisions of

the Delhi Municipal Corporation Act, 1957 but since the senior

counsel for the petitioners had contended that the petitioners have

been taken by surprise with respect thereto, I am not dealing with

the said aspect of the matter.

37. The petition therefore fails. The order of the Deputy Commissioner

(set aside by the Financial Commissioner) is found to be without

jurisdiction and in contravention of law. The interim order granted

in this petition is vacated. If the petitioners have in pursuance of the

order of the Deputy Commissioner closed the rasta / pathway

aforesaid and / or included the same in their property, the petitioners

are directed to within four weeks of today, restore the rasta /

pathway to the original position. The petitioners if have parted with

possession of land offered in exchange, shall similarly be entitled to

repossess the same.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 11, 2011 „gsr‟