Bhopal Singh And Ors. vs Delhi Development Authority And ...
2014 Latest Caselaw 4817 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) No.773 /2013 and C.M. No.11807/2013

%                                                     25th September, 2014

BHOPAL SINGH AND ORS.                                          ......Petitioners
                  Through:               Mr. Parvinder Chauhan, Advocate.

                           VERSUS

DELHI DEVELOPMENT AUTHORITY AND ANR.         ...... Respondents

Through: Mr. Pawan Mathur, Advocate with Mr. Himanshu Gupta, Advocate for respondent No.1.

Mr. Arun K. Sharma, Advocate for respondent No.2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this petition under Article 227 of the Constitution of India,

petitioners pray that the objections filed by them on 20.4.2011 to the

demarcation report dated 24.1.2011 be decided by the competent revenue

court/authority.

2. The facts of the case are that an order dated 1.11.2010 was passed

by a learned Single Judge of this Court in W.P.(C) No.4151/2010 filed by the

petitioners that demarcation be carried out. This order reads as under:-

"It is stated by learned counsel for the parties that in order to decide the controversy raised in this writ petition, it is necessary that the demarcation of the land at village Nangli Razapur is carried out in terms of the orders of this Court dated July 28, 2005 passed in Bhopal Singh and Others Versus Union of India and Others, being Writ Petition No. 4236-39/2005. The said order is available on page nos. 26-29 of the paper-book. The Deputy Commissioner (South) who is respondent no. 2 before me is directed to complete the demarcation within eight weeks from now by adopting the Total Station Method. Respondent no.1 is directed to cooperate to enable respondent no. 2 to complete the demarcation.

List on February 22, 2011.

A copy of this order be given dasti to learned counsel for the parties, under the signatures of the Court Master."

3. Pursuant to the aforesaid order, demarcation has been carried out

and a demarcation report dated 24.1.2011 has been prepared. The issue which

arises is that is it provided under the Delhi Land Revenue Act, 1954

(hereinafter referred to as 'the Act') and the Delhi Land Revenue Rules, 1962

(hereinafter referred to as 'the Rules') that objections can be filed to a

demarcation report and that disputes as to the demarcation have to be judicially

decided by a competent authority under the Act.

4. I have gone through the provisions of Sections 28,39, 43, 47 and

64 to 67 of the Act and which read as under:-

"28. Settlement of boundary disputes-

(1) All disputes regarding boundaries shall be decided by the Deputy Commissioner, as far as possible, on the basis of existing survey maps,

but if this is not possible, the boundaries shall be fixed on the basis of actual possession.

(2) If in the course of any inquiry into a dispute under this section, the Deputy Commissioner is unable to satisfy himself as to which party is in possession, or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Deputy Commissioner, -

(a) In the first case, shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession; and

(b) In the second case, shall put the person so dispossessed in possession and shall then fix the boundary accordingly.

39. Attestation of entries and decision of disputes - All undisputed entries in the record-of-rights shall be attested by the parties interested and all disputes regarding such entries, whether taken up by the Record Officer of his own motion or upon application by any party interested, shall be disposed of by him in accordance with the provisions of Section 27, 28 and 29.

43. Power to enter upon an survey land -

The Deputy Commissioner, Settlement Officer, Record Officer, and their Assistants, subordinates, servants, agents and workmen may enter upon and survey land, demarcate boundaries and do all acts necessary for any purpose connected with their duties under this Act or any other law for the time being in force.

47. Power to summons persons to give evidence and produce documents -

Any revenue Court may summons any person whose attendance it considers necessary for the purpose of any investigation, suit or other business before it. All persons so summoned shall be bound to attend, either in person or by an authorized agent, as such Court may direct, and to state the truth upon any subject respecting which they are examined or make statements, and to produce such documents and other things as may be required:

Provided that persons exempt from personal attendance in Civil Court under Sections 132 and 133 of the Code of Civil Procedure, 1908, shall subject to the provisions of those Sections, be exempt from personal attendance under this Section.

64. Courts to which appeals lie -

(1) An appeal shall lie under this Act -

(a) To the Settlement Officer or the Record Officer from orders passed by any Assistant Settlement Officer or Assistant Record Officer, respectively;

(b) To the Deputy Commissioner or to the Additional Collector specially empowered in this behalf from orders passed by the Revenue Assistant, an Assistant Collector or Tehsildar;

(c) To the Chief Commissioner from orders passed by the Deputy Commissioner, Additional Collector, Settlement Officer or Record Officer.

(2) No appeal shall be allowed from a non-judicial order not connected with settlement passed by the Deputy Commissioner.

65. First appeal -

Unless an order is expressly made final by this Act, an appeal shall lie to the Court authorised under Section 6f4 to hear the same from every original order passed in any proceedings held under the provisions of this Act.

66. Second appeal -

A second appeal shall lie to the Chief Commissioner from an order deciding an appeal under Clause (a) or Clause (b) of Sub-section (1) of Section 64 on any of the following grounds and no other, namely:-

(i) The decision being contrary to law or to some usage having the force of law,

(ii) The decision having failed to determine some material issue of law or usage having the force of law;

(iii) A substantial error or defect in the procedure as laid down in this Act or prescribed there under, which may possibly have produced error or defect in the decision of the case upon the merits.

67. Limitation for appeal -

(1) No appeal to the Settlement Officer, the Record Officers or the Deputy Commissioner or to an Additional Collector empowered to hear appeals shall be brought after the expiration of 30 days from the date of the order complained of, unless otherwise specially provided by or under this Act or the Delhi Land Reforms Act, 1954. (2) No appeal or second appeal to the Chief Commissioner shall be brought after the expiration of 60 days from the date of the order complained of."

There are also further Sections pertaining to powers of the

appellate court.

5. A reading of the Section 28 of the Act shows that it is the Deputy

Commissioner who will decide the disputes with respect to boundaries. This

provision also provides for a summary enquiry to decide who is the person best

entitled to the property and who is to be put in possession. Implicit in this

Section 28 of the Act thereof is a decision to be taken by the Deputy

Commissioner, and which proceedings as per Rule 415 are judicial

proceedings. Rule 415 of the Rules reads as under:-

"415. Judicial and non-judicial matters-(1) Proceedings, orders, appeals revisions and references in the following cases shall be deemed judicial for the purposes of the Act:-

(a) Mutation in cases of succession or transfer under Sections 23 and 27;

(b) Settlement of boundary disputes under Sections 28 and 36;

(c) Other disputed cases relating to entries in the record of rights and annual registers under Sections 26, 27, 29 and 39. (2) All cases, proceedings and other matters under the Act not covered by the preceding sub-rule shall be deemed non-judicial. (3) In cases of doubt, whether the matter is of a judicial or non- judicial nature a report shall be submitted to the Chief Commissioner for orders whose decisions shall be final."

6. Therefore, the position which emerges is that when there arises disputes

with respect to demarcation of the lands which are subject matter of the Act and

the Rules, the Deputy Commissioner is to decide the same on the basis of an

enquiry and which proceedings are judicial proceedings. Against the order

passed by the Deputy Commissioner further appeals are provided. Accordingly

on demarcation being carried out, pursuant to the order passed by this Court on

1.11.2010 in W.P.(C) No.4151/2010, and objections having been filed by the

petitioners to the demarcation report, disputes of the nature as specified in

Section 28 of the Act have arisen and which disputes have to be decided by the

Deputy Commissioner by passing an order under Section 28 of the Act and

thereby deciding who is the person in possession and also by putting a person

in possession i.e in effect whatever is required by Section 28 of the Act has to

be done and which proceedings are judicial proceedings. Since the petitioners

have filed their objections on 20.4.2011, and consequently there are disputes

which fall within the four corners of Section 28 of the Act, such disputes will

have to be decided in the proceedings before the Deputy Commissioner which

are judicial proceedings.

7. The grievance of the petitioners is that the Deputy Commissioner

is not deciding the disputes and the limited relief which is prayed for in this

petition is that the disputes raised by the petitioners in the form of objections

dated 20.4.2011 be decided by the Deputy Commissioner/competent authority.

There can be no serious contest to the request of the petitioners that the

competent authority should perform their statutory duties and act in accordance

with the judicial powers and decide the dispute as to demarcation. I may state

that disputes in the present case pertain to land admeasuring 794 bighas situated

in revenue estate of village Nangli Razapur, Delhi.

8. Accordingly, the competent authority under the Act acting under

Section 28 of the Act and all other related provisions, is now directed to decide

the objections of the petitioners dated 20.4.2011, and it is made clear that this

Court is not expressing any opinion with respect to the merits of the disputes

and which will be decided in accordance with law by the competent authority.

Respondents are also fully entitled to raise all objections in accordance with

law and they will be decided by the competent authority/Deputy

Commissioner. The competent authority/Deputy Commissioner is requested to

expedite the disposal of the objections under Section 28 of the Act and the

related provisions and to the extent possible decide the disputes within six

months of receipt of copy of the present judgment.

9. Petition is disposed of in terms of the aforesaid observations,

leaving the parties to bear their own costs.

SEPTEMBER 25, 2014                                   VALMIKI J. MEHTA, J
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