Deepak Yadav vs Government Of Nct Of Delhi & Ors
2015 Latest Caselaw 1633 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 25th February, 2015.

+                                 W.P.(C) No.8967/2014

       DEEPAK YADAV                                          ..... Petitioner
                   Through:              Mr. Sachin Datta, Sr. Adv. with Mr.
                                         Dinesh Sharma, Ms. Ritika Jhurani,
                                         Advs.

                                     Versus

    GOVERNMENT OF NCT OF DELHI & ORS ..... Respondents
                  Through: Mr. Akshay Makhija, CGSC with Ms.
                           Mahima Bahl & Mr. Rohitendra Deb,
                           Advs. for UOI.
                           Mr. Arush Bhandari for Mr. Yeeshu
                           Jain, Adv. for L&B Deptt.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India impugns

Section 33 of the Delhi Land Reforms Act, 1954, as constitutionally invalid.

2. Section 33 prohibits a bhumidhar (of agricultural land) from

transferring by sale or gift or otherwise any land to any person where as a

result of the transfer, the transferor shall be left with less than eight standard

acres of land. However Sub-Section (2) of Section 33 clarifies that the said

prohibition shall not preclude the transfer of land by a bhumidhar who holds

less than eight standard acres of land, if such transfer is of the entire land

held by him.

3. It is the case of the petitioner that his father was in possession of 4.5

bighas of land situated at Daulatpur Village, Najafgarh; on the demise of his

father, the said land was divided equally between the petitioner and his

brother; that the petitioner is thus in possession of 2.25 bighas of the said

land; that the petitioner wishes to sell 1 bigha out of 2.25 bighas of land in

his possession but is enable to do so by virtue of the aforesaid provision.

4. Alleging, (i) that there is no direct and proximate nexus or a

reasonable connection between the restrictions so imposed and the object

sought to be achieved; and, (ii) that the said provision is arbitrary in as much

as the same does not prohibit transfer of 1 bigha of land by a person who

may be holding, say, nine standard acres of land and who after transfer of

the said 1 bigha would still be left with eight standard acres of land and is

thus arbitrary and creates two classes, one comprising of those in possession

of more than eight standard acres of land and the other comprising of those

holding less than eight standard acres of land, this petition is filed. It is also

contended that due to the changing societal needs, there is no need for such

restrictions.

5. We have heard the senior counsel for the petitioner.

6. The purpose of enacting Section 33 was to prevent fragmentation of

agricultural holdings to uneconomical sizes. It is thus not as if the

restriction placed by Section 33 is without any basis. A Division Bench of

this Court as far back as in Ram Mehar Vs. Dakhan 9 (1973) DLT 44,

while dealing with the question whether the Delhi Land Reforms Act

provides for prevention of fragmentation of holdings held that the same

undoubtedly provides for prevention of a holding of a bhumidhar being

less than eight standard acres. Reference in this regard, besides to Section

33, was made to various other provisions thereof. Reference was also

made to the Statement of Objects and Reasons of the Act which also

mentioned, avoidance of multiplication of uneconomical holdings and

prohibition against creation of uneconomical holdings. We may mention

that Ram Mehar was otherwise concerned with devolution of rights in

agricultural holdings and held that the purpose of the succession to an

agricultural holding being restricted to certain persons was prevention of

fragmentation of holdings to uneconomical sizes. Upon amendment of the

Hindu Succession Act, 1956 w.e.f. 9th September, 2005 inter alia by

deletion of Section 4(2) of the said Act, a Division Bench of this Court in

Nirmala Vs. Government of NCT of Delhi MANU/DE/2717/2010 has

held that the line of succession provided under the Delhi Land Reforms

Act would not prevail over the Hindu Succession Act. However the same

is of no relevance to the present context.

7. Another Division Bench of this Court in Subhash Chand Aggarwal

Vs. Union of India MANU/DE/2744/2011, while dealing with a challenge

to the vires of Rule 6 (j) (v) of Delhi Holding (Consolidation and Prevention

of Fragmentation) Rules, 1959 prohibiting an allottee of industrial plot from

transferring or selling the same in any manner or from amalgamating it with

other land, on the ground of the same being violative of Articles 14 & 19 of

the Constitution of India and on the ground that it suffers from the vice of

excessive delegation, being beyond the scope and sphere of East Punjab

Holding (Consolidation and Prevention of Fragmentation) Act, 1948 noticed

that the object of the consolidation proceedings is to ensure better cultivation

by consolidating the fragmentations and in this context observed that the

object and purpose of Section 33 is not to prevent transfer of interest by a

bhumidhar but to ensure that the bhumidhar must retain eight standard acres

of land as the said area is regarded as an economic holding. It was further

held that Section 33 does not prevent a bhumidhar from selling his entire

holding whereby he reduces his holding to nil and that there is no provision

under the Reforms Act and / or Rules which completely bars or prohibits

transfer of land. Finding Rule 6 (j) (v) supra to be containing an absolute

prohibition, the same was struck down but with the clarification that the

restrictions and conditions imposed by the Reforms Act on transfer do not

get affected and shall continue to apply.

8. The same Division Bench in Rajender Mohan Rana Vs. Prem

Prakash Chaudhary 184 (2011 ) DLT 454 (SLP(C) CC No.2794/2012

whereagainst was dismissed on 17th February, 2012) also held that the

Reforms Act is a complete code and Section 33 stipulates that where as a

result of transfer, the transferor is left with less than eight standard acres of

land, certain consequences will flow. It was further held that the said

provision is to prevent fragmentation of holdings into uneconomical sizes.

9. It is thus not as if there is no nexus between the restriction imposed by

Section 33 and the object sought to be achieved. In fact, the said question,

in view of judgments supra and without regard to which this petition is filed,

is not even res integra. There is thus no merit in the said ground urged for

having the said provision declared unconstitutional.

10. As far as the contention of the petitioner of the said provision, while

placing a restriction on a bhumidhar having less than eight standard acres

and not placing such restriction on a bhumidhar having more than eight

standard acres is concerned, the same also, as aforesaid has a nexus to the

rationale behind the said provision. The purport of the Section is to prohibit

a bhumidhar from, by transfer, reduce his holding to below the minimum

size prescribed for economically viable holding. Thus the restriction is on

transfer when the bhumidhar would be left with an agricultural holding of

size below the minimum prescribed. The legislature was concerned with a

bhumidhar and has not deemed it necessary to restrict a bhumidhar, who

after transfer will still have more than eight standard acres left, from

transferring even if the transferred holding is less than eight standard acres.

Similarly, where the holding is already less than eight standard acres, then

also legislature has also not deemed it necessary to restrict transfer subject

of course to the condition that the bhumidhar is not left with a yet smaller

holding. The emphasis, clearly, is on prohibiting bhumidhars from reducing

the size of their holding to below minimum economically viable size or

when their holding is already below the minimum economically viable size,

from reducing the size still further. This Court in Rajender Mohan Rana

supra held that there is nothing in the Act preventing continuance of

holdings less than minimum prescribed or transfer where holding is in any

case less than that prescribed. Seen in this light, we do not find the

classification so created to be arbitrary or without any nexus to the purpose

sought to be achieved by the legislation. The purport is that a bhumidhar

whose holding is already below the minimum size prescribed, should not

further sub-divide the holding.

11. We may also notice that the object of the Delhi Land Reforms Act

was to modify the zamindari system, unify the Punjab and Agra systems of

tenancy laws and to make a provision for other matters connected therewith.

The Reforms Act created a new single category of tenure rights in the

agricultural land i.e. bhumidhari rights and only one class of sub tenure

rights that is to say Asamis (refer Ram Mehar supra). With the enactment of

the said law, proprietors of agricultural land ceased to exist and if any land

was part of a holding of a proprietor, he became a bhumidhar of it; if it was

a part of a holding of some other person such as a tenant or a sub tenant he

became either a bhumidhar or an Asami, where upon the rights of the

propertor in that land ceased. Lands, which were not holdings of either the

proprietor or any person, vested in the Gaon Sabha. A bhumidhar, though

has a right to exclusive possession of the land in his holding but has a right

to use it for agricultural and related purpose only. A bhumidhar is prohibited

from using the land in his possession for purposes other than agriculture and

has only a limited right to effect a mortgage and is debarred from effecting

any lease of his land and if makes any such transfer with possession, the

same is deemed to be a sale. The interest of a bhumidhar is quite different

from that of a proprietor or a tenant. A bhumidhar has not an unrestricted

interest of his land. He is given the right to use the land in a particular

manner. To the same effect is the judgment of another Division Bench in

Nathu Vs. Hukam Singh AIR 1983 Delhi 216.

12. Thus, the rights in agricultural land asserting which this petition has

been filed are quite distinct from rights in other immovable property. The

petition has been filed on the premise of bhumidhari rights being identical to

ownership / proprietorship right and which is not the correct position in law.

No challenge to converting the proprietary rights in land to bhumidhari

rights has been made. We may notice that the Reforms Act was placed

under the Ninth Schedule to the Constitution of India and the Division

Bench of this Court in Nathu supra held that the vires thereof are thus not

open to challenge. Once the matter is seen in the light of nature of rights of

the petitioner in the said 2.25 bighas of land being bhumidhari rights only

and not ownership or proprietary rights, the grounds on which the vires of

Section 33 is challenged in any case disappear.

13. In fact, the challenge to the constitutionality of Section 33 itself is not

maintainable for the reason of the Delhi Land Reforms Act having been

placed in the Ninth Schedule to the Constitution of India and Article 31B

thereof, and in ignorance of all of which the petition is being pursued. We

may notice that the challenge to the mode of succession prescribed in the

Act, as aforesaid was struck down in Nirmala supra not because of the same

being violative of Article 14 or Article 21 (see Har Naraini Devi Vs. Union

of India MANU/DE/4931/2009) but because of the amendment of the year

2005 in Hindu Succession Act and for which reason Article 31B was not

considered to be an impediment.

14. Though the senior counsel for the petitioner has not pointed out but

we may take notice of a practice rampantly prevalent. A person as the

petitioner, even if desires to transfer 1 bigha out of his 2.25 bighas, would

transfer 1 bigha and would simultaneously execute / transfer Sale Deed of

the remaining 1.25 bigha in the name of a confidante or nominee or family

member and which 1.25 bigha remains under the control of that person.

Though the legislature in Section 33 has mandated sale of entire holding

when less than eight standard acres but has not mandated such sale to one

person only. However this deficiency in law (and which practise was also

noticed in Rajender Mohan Rana supra) also does not permit us to hold the

provision to be ultra vires on the grounds alleged.

15. There is another aspect of the matter. The petitioner obviously cannot

cultivate the holding of 1.25 bigha which would be left with him after

effecting the sale of 1 bigha. The petitioner obviously intends to use the

same for non-agricultural activities and which also is not permitted. Thus,

the purport of the petition is to indulge in illegality and on which ground

also the petition cannot be entertained. Writ cannot be issued at the instance

of such a person. It was held in A.P. State Financial Corporation Vs. Gar

Re-rolling Mills (1994) 2 SCC 647 that equity is always known to defend

law.

There is thus no merit in the petition which is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE FEBRUARY 25, 2015 'pp'