Delhi High Court

Randhir Singh vs Gaon Sabha Maidangarhi on 22 April, 2014

Author: V. K. Jain

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                  Judgment reserved on: 21.03.2014
                                                       Date of Decision: 22.04.2014
+       Rev. Pet. 282/2013 & CM No.8388/2012 in LPA 646/2012
RANDHIR SINGH                                                       ..... Appellant
                        Through:         Mr. N.S. Dalal, Adv.
                                          versus

GAON SABHA MAIDANGARHI                                              ..... Respondent
               Through:   Mr. V.K. Tandon, Adv.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

                                        JUDGMENT

V.K.JAIN, J.

The facts, as noted in the order dated 20.02.2013 are as follows: The appellant before us is in possession of agricultural land measuring

two bighas comprised in khasra No. 103 in Revenue Estate of village Maidan

Garhi, Delhi. An inspection was carried out by the Village Patwari on 4th

February, 2000 and it was found that there existed house, plants of fruits and

vegetables and tin shed for fodder cattle on the aforesaid land along with a

tubewell. The proceedings under Sec. 81 of the Delhi Land Reforms Act

having been initiated against the appellant, he appeared before the concerned

Sub-Divisional Magistrate/Revenue Assistant and filed a reply. After going

through the record and perusing the aforesaid report of the Village Patwari,

the proceedings against the appellant were dropped. Another inspection was

carried out by the Village Patwari on 23rd March, 2001, and a boundary wall

with rooms was found constructed on the aforesaid land; it was reported by

the Village Patwari that the agricultural land had been made non-cultivable on

account of the aforesaid construction. On the aforesaid report, fresh

proceedings under Section 81 of the Delhi Land Reforms Act were initiated

against the appellant, which culminated in an additional order under Section

81 of the Delhi Land Reforms Act being passed against the appellant. Appeal

to the Collector (South) filed by the respondent was dismissed after noticing

that in the khasra girdawari of the year 2000-2001, there was no construction

on the aforesaid land on 5th October, 2000 and 24th February, 2001, whereas

the report dated 23rd March, 2001 showed existence of rooms which proved

that the construction had come up only after 24th February, 2001. He further

noted that there was a subsequent report submitted to Tehsildar on 18.04.2002

stating therein that he had visited the land in question along with the Patwari

and found that the land owner had made non-agricultural use of the

agricultural land by constructing rooms and no crops/vegetables were being

cultivated on the said land. It was held that the appellant had misused the

agricultural land for non-agricultural purposes and had thereby contravened

Section 81 of the Delhi Land Reforms Act.

The appellant filed a revision petition against the order passed by the

Collector (South). The revision petition was dismissed by the Financial

Commissioner vide order dated 2nd December, 2004 holding that the

construction shown in the report dated 23.03.2001 had come up after

24.02.2001. The writ petition filed by the appellant was dismissed by the

learned Single Judge, who, while dismissing the writ petition was of the view

that the earlier order passed by the Revenue Assistant was in blatant

ignorance of the report of Patwari dated 04.02.2000.

2. Vide order dated 20.02.2013, the appeal was dismissed noticing that at

the time of inspection carried out on 04.02.2000, construction was found

having been raised only on the portion of the agricultural land since the plants

of fruits and vegetables were found on the unconstructed portion of the land,

whereas no plants of fruits or vegetables were found when the inspection was

carried out on 23.03.2001, meaning thereby that further construction had been

carried out after 04.02.2000, on that portion of the land where plants of fruits

and vegetables were earlier found on 04.02.2000. Noticing that boundary wall

also did not exist at the time inspection was carried out on 04.02.2000, the

Court felt that the said boundary wall was constructed after that date. The

concluding paragraph of the order dated 20.02.2013, to the extent it is

relevant, reads as under:

"7. Since the appellant carried out additional constructions after 4th February, 2000 by raising boundary wall and also making construction on that portion of the land where plants of fruits and vegetables were found on 4th February, 2000, Gaon Sabha had a fresh cause of action to file a suit for ejectment of the appellant on account of such additional construction. Since the use of an agriculture land for residential purposes by constructing a house and a boundary wall cannot be said to be a purpose connected with agriculture, horticulture or animal

husbandry, we find no fault with the order passed by the Revenue Assistant and the orders whereby the revision petition and the writ petition filed by the appellant were dismissed. The appeal is devoid of any merit and the same is therefore dismissed."

3. It is stated in the review petition that the appellant/ applicant is living

in a portion of the land in question and it is being used for residence,

agriculture and connected purposes. It is further stated that the subsequent

inspection report was false and frivolous and it also does not show any

violation under Section 81 of the Delhi Land Reforms Act. It is also claimed

in the review petition that the appellant/ applicant is storing fodder, tethering

cattle and residing on the land in question, thereby using the same for

agricultural purposes alone. The applicant, therefore, is seeking recall of the

order dated 20.02.2013. Along with the review petition, the applicant has also

filed an application seeking appointment of an architect to determine the age

of construction on the land in question.

We have heard Mr. N.S. Dalal, learned counsel for the appellant/

review petitioner and have examined the record.

4. As regards the prayer for appointment of an architect to determine the

age of the construction on the land in question, we find no ground to accede to

the same, as disputed questions of fact cannot be gone into in a writ petition

and the appeal decided vide order dated 20.02.2013 had emanated from an

order passed by learned Single Judge in exercise of the writ jurisdiction of

this Court. Also, this Court cannot go into the truthfulness or otherwise of the

Inspection Report dated 23.03.2001.

5. Section 81 of Delhi Reforms Act, to the extent it is relevant, provides

that a Bhumidhar or an Asami shall be liable to ejectment on the suit of the

Gaon Sabha or the land holder, as the case may be, for using land for any

purpose other than a purpose connected with agriculture, horticulture or

animal husbandry, which includes pisciculture and poultry farming. He is also

liable to pay damages equivalent to the cost of works which may be required

to render the land capable of use for the said purposes.

Therefore, if it is found that the land occupied by a Bhumidar or an

Asami is being used either wholly or partly for a purpose unconnected with

agriculture, horticulture or animal husbandry, he is liable to be ejected from

such land.

6. A perusal of the Inspection Report dated 23.03.2001 does not show

existence of any crop or plants of fruit or vegetables on any portion of the

land in question, meaning thereby that no part of the said land was being used,

on that date, for a purpose connected with agriculture, horticulture or animal

husbandry. As noted earlier, at the time of earlier inspection on 04.02.2000,

plants of fruits and vegetables were found on the unconstructed portion of the

land. This is a clear indicator that after inspection dated 04.02.2000, even that

portion of the land, which was earlier occupied by plants, fruits or vegetables,

was not being used for agriculture, horticulture or animal husbandry purposes.

7. The learned counsel for the appellant/review petitioner drew our

attention to Section 3(12) and (13) of Delhi Reforms Act which read as

under:-

"(12) "Improvement "means with reference to a holding -

(i) a dwelling house erected on the holding by the tenureholder for his own occupation or any other constructions erected or set up by him on the holding for purpose connected with agriculture, horticulture or animal husbandry which includes pisiculture and poultry farming;

(ii) any work which adds materially to the value of the holding and is consistent with the purposes aforesaid, which if not executed on the holding, is either executed directly for its benefit or is, after execution, made directly beneficial to it; and subject to the foregoing provisions of this clauses, includes -

(a) the construction of wells, water channels and other works for the supply or distribution of water for the purposes aforesaid;

(b) The construction of works for the drainage of land or for the protection of land from floods or from erosion or other damage by water;

(c) The reclaiming, clearing ,enclosing, leveling or terracing of land;

(d) The erection in the immediate vicinity of the holding otherwise than on the village site, of buildings required for the convenient or profitable use or occupation of the holding;

(e) The construction of tanks or other works for the storage of water for purposes aforesaid;

(f) The planting of trees and groves on the holding;

(g) The renewal or reconstruction of any of the foregoing works or such alterations therein or additions thereto, as are not of the nature of mere repairs:

Provided that such water channels, embankments, enclosures, temporary wells, or other works as are made by a tenure- holder in the ordinary course of his requirements for purposes aforesaid, shall not be deemed to be improvements;

(13) "land" except in sections 23 and 24, means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes -

(a) buildings appurtenant thereto,

(b) village abadis,

(c) grovelands,

(d) lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include -

land occupied by buildings in belts or areas adjacent to Delhi town and New Delhi town, which the Chief Commissioner may by a notification in the Official Gazette declare as an acquisition thereto;"

8. A careful perusal of the aforesaid provisions would show that though a

dwelling house erected on the land would amount to improvement in terms of

sub-section (12) of Section 3 and improvement is allowed under Section 22 of

the Act, subject, of course, to the provisions of Section 26 thereof, such

construction must necessarily be for the purposes connected with agriculture,

horticulture or animal husbandry, including pisciculture and poultry farming.

In our opinion, the Act does not permit construction of a dwelling house or

any other construction, on the whole of the land held by a Bhumidar or Asami.

The dominant use of the land, even after improvements, must be for

agriculture, horticulture or animal husbandry. The construction of the house

can be only incidental to the prescribed dominant use of the land. If no

activity connected with agriculture, horticulture or animal husbandry is