Delhi High Court
Shree Hazur Baba Sadhu Singh Ji ... vs Union Of India & Ors. on 11 November, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 8th November, 2011
Judgment Delivered On: 11th November, 2011
+ LPA 267/2011
SHREE HAZUR BABA SADHU SINGH JI
MAHARAJ TRUST ..... Appellant
Through: Mr.Jairaj Mudgal, Advocate for
Mr.Ramesh Kainthola, Advocate
versus
UNION OF INDIA & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 268/2011
FREEDOM FIGHTERS SOCIAL WELFARE
ASSOCIATION ..... Appellant
Through: Mr.Jairaj Mudgal, Advocate for
Mr.Ramesh Kainthola, Advocate
versus
UNION OF INDIA & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 271/2011
FREEDOM FIGHTERS SOCIAL WELFARE
ASSOCIATION ..... Appellant
Through: Mr.Jairaj Mudgal, Advocate for
Mr.Ramesh Kainthola, Advocate
versus
UNION OF INDIA & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 267/2011 & connected matters Page 1 of 9
LPA 269/2011
LALITESWAR KUMAR CHOWDHARY
& ORS. ..... Appellants
Through: Mr.Inderbir Singh, Advocate
versus
GOVT OF NCT OF DELHI & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 270/2011
RAJ KUMAR & ORS. ..... Appellants
Through: Mr.Inderbir Singh, Advocate
versus
GOVT OF NCT OF DELHI & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 308/2011
TATINDER KUMAR KATHURIA & ORS. ..... Appellants
Through: Mr.Inderbir Singh, Advocate
versus
GOVT OF NCT OF DELHI & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 309/2011
KISHNI & ORS. ..... Appellants
Through: Mr.Inderbir Singh, Advocate
versus
GOVT OF NCT OF DELHI & ORS. ....Respondents
Through: Mr.Mukesh Anand, Advocate for UOI
Ms.Zubeida Begum and Ms.Sana Ansari,
Advocates for GNCT of Delhi
LPA 267/2011 & connected matters Page 2 of 9
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE S.P. GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Two distinct issues arise for consideration in the
above-captioned appeals. The first pertains to lands
comprised in Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41, and
142 Village Neb Sarai and the other issue pertains to lands
comprised in Khasra Nos.223 and 224 Village Chattarpur.
2. The factual commonality in all the appeals is
unauthorized colonization on said lands.
3. The appellants lost the battle before the learned
Single Judge and live on to fight a second round before the
Appellate Court.
4. The basis of the right claimed by the appellants
is the policy decision dated 24th March 2008 notified by the
Government of NCT Delhi pertaining to „Regularization of
Unauthorized Colonies in Delhi‟.
5. The notification dated 24th March 2008 specifies
the criteria for regularization of unauthorized colonies and
vide clause 3.3(a) specifically excludes such unauthorized
colonies or part of colonies or habitations comprised in
notified or reserved forest area.
6. Lands comprised in Khasra Nos.16, 18, 24, 26,
27, 39, 40, 41, and 142 Village Neb Sarai have admittedly
been notified on 2nd April 1996 as gaon sabha waste land
and placed at the disposal of the Forest Department to be
maintained as forest area. The challenge is to the lands
being notified as a „Reserved Forest‟.
7. The notification in question was promulgated
pursuant to the order dated 3.1.1996 passed by the
Supreme Court in W.P.(C) No.4677/1985 M.C.Mehta Vs.
Union of India.
8. Section 154 of the Delhi Land Reforms Act reads
as under:-
"154. Vesting of certain lands etc. in Gaon Sabha -
(1) 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 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, under this
section and may make such incidental and
consequential order as may be necessary."
9. It is not in dispute that land comprised in Khasra
Nos.16, 18, 24, 26, 27, 39, 40, 41 and 142 Village Neb Sarai
were uncultivated barren lands when the Delhi Land
Reforms Act 1954 was promulgated and were situated in a
gaon sabha area and were thus vested in the gaon sabha by
operation of law. It remained an unfortunate situation that
the inefficient bureaucrat did not declare as aforesaid till the
Supreme Court had to needle the inefficient bureaucrat to
comply with the law.
10. While passing the direction to notify the reserved
forest land in Delhi, the Supreme Court used the expression
„uncultivated gaon sabha land‟ while requiring the
Government to ensure compliance with Section 154 of the
Delhi Land Reforms Act 1954 and further to identify such
lands which were liable to be declared as a reserved forest.
11. Picking on the said expression used by the
Supreme Court, case of the appellants is that the Supreme
Court had required uncultivated gaon sabha land to be
notified in terms of Section 154 of the Delhi Land Reforms
Act and thereafter as reserved forest and since; it is urged,
that on the lands in question colonization has been effected,
the necessary corollary would be that the lands could not be
declared as a reserved forest.
12. The argument has been negated by the learned
Single Judge who has held that there are no equities in
favour of the appellants since admittedly they are
trespassers on gaon sabha land and secondly that the lands
are declared a reserved forest with the approval of the
Supreme Court. The learned Single Judge has thus held that
he could not issue any direction as prayed for. The learned
Single Judge has further held that the issue stands
concluded by the decision dated 16.7.2010 in W.P.(C)
No.4687/2010 Bhagat Singh & Ors. Vs. UOI & Anr.; decided
by a Division Bench of this Court.
13. The argument in appeal before us was that since
the Supreme Court had directed uncultivable gaon sabha
land to be declared as a reserved forest, the subject lands
which were used for colonization could not be declared as
reserved forest.
14. A little historical peep is needed into the Delhi
Land Reforms Act 1954.
15. The Act was promulgated to provide for
modification of zamidari system so as to create a uniform
body of peasant proprietors without intermediaries and with
respect to waste lands, grazing lands, forests and lands of
common utility in different villages in Delhi, Section 7 of the
Act provided that all interests in such lands would cease and
be void and all such lands would be vested in the gaon
sabha. Waste lands were specifically included in Section 7
and as per the explanation to sub-Section 1 of Section 7
waste land included cultivable and uncultivable waste area
of the village.
16. The Delhi Land Reforms Act 1954 does not define
the word „cultivate‟ and thus the same has to be given its
ordinary grammatical meaning, which would mean to
prepare and use land for agricultural purposes.
17. Thus, when the Supreme Court used the
expression „uncultivated gaon sabha land‟ it has to mean
that such gaon sabha land on which no cultivation is being
effected and cannot mean, as urged by the appellants,
vacant land.
18. That the appellants are admittedly not cultivating
the lands and that admittedly the lands were never
cultivated in the past is a fact not in issue as the appellants
admit that never ever in the past or in the present any
agricultural operations are being performed on the lands.
19. The revenue records show the said lands to be
uncultivated waste lands vested in the gaon sabha is not in
issue.
20. Thus, in addition to the reasons given by the
learned Single Judge, in law, for the reasons aforenoted, the
appellants would have no case pertaining to the lands
comprised in Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41 and
142 Village Neb Sarai which have rightly been declared as
waste lands, vested in the gaon sabha and being common
pasture/forest lands in the past have been declared as
reserved forest pursuant to directions issued by the
Supreme Court.
21. As regards lands comprised in Khasra Nos.223
and 224 village Chattarpur, learned counsel for the
respondents conceded that no notification has been issued
qua said lands declaring the same to be gaon sabha lands
or as a reserved forest land. But, learned counsel urged, an
argument which was urged before the learned Single Judge
and accepted by the learned Single Judge, that the topology
and morphological features of said lands has been opined to
be similar to the ridge land, declared as a reserved forest,
pursuant to the notification dated 2nd April 1996.
22. Now, where law vests a power and regulates the
manner in which the power has to be exercised, the power
has to be exercised in the manner specified and in no other
manner.
23. The notification dated 24th March 2008 laying
down the criteria for regularization of unauthorized colonies
does not exclude regularization of unauthorized colonization
on government land. It only excludes unauthorized
colonization on lands notified as reserved forest areas,
meaning thereby, that unless notified as a reserved forest
area, it cannot be at the will of a government servant to self
opine whether the land is a reserved forest area.
24. Leaving it open to the government to issue the
necessary notification, if it is established that land
comprised in Khasra Nos.223 and 224 village Chattarpur
was a waste land or a forest land, the appeals stand
dismissed in so far they pertain to lands comprised in
Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41 and 142 Village
Neb Sarai and qua the land comprised in Khasra Nos.223
and 224 village Chattarpur, the impugned order dated
15.3.2011 passed by the learned Single Judge disposing of 7
writ petitions is modified by issuing a direction that till the
government notifies land comprised in Khasra Nos.223 and
224 village Chattarpur as a reserved forest, the same would
be treated at par with other gaon sabha lands for the
purposes of the notification dated 24th March 2008. We
clarify. It would be for the Government of NCT Delhi to
either amend the notification dated 2nd April 1996 or to
promulgate a further notification qua said lands on the issue
of the same being waste land or for any other reason,
vested in the Gaon Sabha and placed at the disposal of the
Forest Department.
25. No costs.
26. Dasti.
(PRADEEP NANDRAJOG)
JUDGE
(S.P. GARG)
JUDGE
NOVEMBER 11, 2011
mm
