Delhi High Court
Sharat Chand Gupta Foundation vs Fateh Singh on 28 July, 2015
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 06.07.2015
Judgment Pronounced on : 28.07.2015
+ LPA 180/2013
SHARAT CHAND GUPTA FOUNDATION..... Appellant
Through: Mr.Dinesh Mohan Sinha, Adv.
versus
FATEH SINGH ..... Respondent
Through: Ms.Richa Singh, Adv. for LRs
of respondent
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. This appeal is filed seeking to impugn the order dated
14.09.2012 passed by the learned Single Judge in
W.P.(C)No.4526/2012 whereby the writ petition filed by the appellant
was dismissed in limine.
2. The brief facts which led to this appeal are that the appellant is
a Society registered under the Societies Registration Act and is said to
be running a charitable hospital on the land in issue. The respondent
late Shri Fateh Singh who is now represented by his Legal
Representative, was stated to be the owner of the said land measuring
4 bighas 16 biswas bearing K.No.26/7, min and 26/14 min situated in
the revenue estate of village Bakhtawarpur, Delhi. The said
respondent vide registered gift deed dated 11.10.1994 is said to have
donated the land in question to the appellant Society. Physical
possession of the land is with the appellant society, who is as stated
above is said to be running a hospital from the said land. The
appellant states that they applied for carrying out mutation of the land
before the Naib Tahsildar (Narela). The said functionary vide his order
dated 2.5.1996 passed an order mutating the property in favour of the
appellant. It is further averred that the said order was passed based on
the report of the Halka Patwari dated 1.5.1996 whereby it was
reported that even after the Gift Deed the remaining land is more than
8 standard acres and hence there is no violation of the Delhi Land
Reforms Act, 1954 (hereinafter referred to „DLR Act‟).
3. Against the said order of the Naib Tahsildar dated 2.5.1996 the
respondent filed an appeal under section 64(1)(b) of the Delhi Land
Revenue Act before the Additional Collector Revenue, Delhi. The
respondent took various pleas before the Additional Collector i.e. (a)
that no notice was given to the respondent before passing the order
(b) The Halqa Patwari gave his report on 21.5.1996 whereas the Naib
Tahsildar has passed his order on 2.5.1996 which shows that date has
been put afterwards. (c) the respondent has filed objections on
14.5.1996 which have been ignored. (d) the land in question is already
subject matter of proceedings under section 81 of DLR Act. (e) The
alleged gift deed is a void document as it is in violation of Chapter III
of the DLR Act. (f) It was alleged that the gift deed was procured by
fraud.
4. The Additional Collector accepted most of the submissions of
the respondent. He concluded that no mutation could be sanctioned as
the land was being used in violation of Section 81 of DLR Act i.e.
land use has been changed. He further held that the Gift Deed which
has been executed for using the land for hospital purposes being not in
conformity with the DLR Act is void. Accordingly, the order of Naib
Tahsildar dated 2.5.1996 directing mutation in favour of the appellant,
was set aside.
5. An appeal was filed by the appellant under section 64(c) read
with section 66 of the Delhi Land Revenue Act before the Court of the
Financial Commissioner. Vide order dated 4.11.2011 the Financial
Commissioner held that a registered gift deed should ordinarily
suffice for purpose of mutation and that if there is a challenge to a
registered document, it is a civil court which will have to adjudicate
upon the same. However, the Financial Commissioner further held
that in the present case the gift deed was made for transfer of land for
a hospital, which is prohibited under the DLR Act. Hence he
concluded that the Gift Deed was a void instrument being in
contravention of Chapter III of DLR Act. The Financial
Commissioner upheld the order of Additional Collector and dismissed
the appeal of the appellant.
6. Somewhat the same fate was met by the appellant in the Writ
Petition filed before this Court. The learned Single Judge held that
section 81 of the DLR Act provides for ejectment in case of use of
land in contravention of the provisions of the Act i.e. agriculture and
allied use. Reliance was also placed on section 45. As the admitted
position was that the appellant is running a hospital from the land, the
learned Single Judge held that no mutation can be sanctioned on the
basis of this Gift Deed inasmuch as the Gift Deed is a void document
as far as DLR Act is concerned. The learned Single Judge was of the
view that on a combined reading of Section 81 and Section 45 of DLR
Act, the Gift Deed is void. The learned Single Judge dismissed the
petition in limine.
7. We have heard learned counsel for the parties and gone through
the record. Learned counsel for the appellant has strenuously urged
that the impugned order has completely ignored section 33 of the DLR
Act which permits transfer by way of gift by a bhumidar to a
charitable institution. He submits that the appellant is a charitable
institution and hence the gift deed is valid.
8. It would first be appropriate to have a look at the background of
the DLR Act. The Supreme Court dealt with this aspect in the
judgment of Hatti vs. Sunder Singh, AIR 1971 SC 2320
(MANU/SC/0410/1970)in paragraph 4. Relevant paragraph of the
judgment reads as follows:-
4. Sections 6, 11, 13 and 154 of the Act read together,
thus, show that, after the Act came into force, proprietors
of agricultural land as such ceased to exist. If any land
was part of a holding of a proprietor, he became a
Bhumidar of it. If it was part of a holding of some other
person, such as a tenant or a sub-tenant etc., he became
either a Bhumidar or an Asami, whereupon the rights of
the proprietor in that land ceased. Lands, which were not
holdings of either the proprietor or any other person,
vested in the Gaon Sabha. In the case of proprietors, their
rights in the land continued to exist only in respect of
holdings which, under the definition, must have been
either their sir or khud kasht at the commencement of the
Act. If it was not sir or khud kasht of a proprietor, it
would not be his holding and, consequently, such land
would vest in the Gaon Sabha under Section 154, the
result of which would be that the rights of the proprietor
would be extinguished. It appears that it was in view of
this scheme of the Act that, under Section 84, the right to
institute a suit for possession was granted only to a
Bhumidar, or an Asami, or the Gaon Sabha. The Act
envisaged only these three classes of persons who would
possess rights in agricultural land after the
commencement of the Act. Proprietors as such having
ceased to exist could not, therefore, institute a suit for
possession.
9. We may now look at the relevant provisions of the DLR Act
relied upon in the impugned order. The learned Single Judge has
relied on sections 45 and 81 of the DLR Act. They read as follows:-
"45. Transfer made in contravention of this Chapter to
be void.- (1) Any transfer made by or on behalf of a
Bhumidhar or Asami in contravention of the provision of
this Chapter shall be void.
(2) Nothing in sub- section (1) shall apply to any transfer
which has been exempted by the Chief Commissioner
under the proviso to sub- section (I) of section 33."
...
"81. Ejectment for use of land in contravention of the
provisions of this Act.- (1) 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, and also pay
damages equivalent to the cost of works which may be
required to render the land capable of use for the said
purposes.
(2) Notwithstanding anything contained in sub section (1)
the Revenue Assistant also may, on receiving information
or on his own motion, eject the Bhumidhar or Asami, as
the case may be, and also recover the damages referred to
in sub-section (1), after following such procedure as may
be prescribed."
10. It would also be important to look at some of the other relevant
provisions of the said Act. Reference may be had to Sections 22,
23(1), 31, 33 & 82 (2) of the DLR Act which read as follows:
"22. Right of Bhumidhar or Asami to the exclusive
possession of land in his holding. -A Bhumidhar or
Asami shall , subject to the provisions of this Act, have
the right to the exclusive possession of all land comprised
in his respective holding and to use land for any purpose
connected with agriculture, horticulture or animal
husbandry which includes pisciculture and poultry
farming and make any improvement."
"23. Use of holding for industrial purposes. -
(1) A Bhumidhar or Asami shall not be entitled to use
his holding or part thereof for industrial purposes, other
than those immediately connected with any of the
purposes referred to in section 22, unless the land lies
within the belt declared for the purpose by the Chief
Commissioner by a notification in the official Gazette:
Provided that the Chief Commissioner may , on
application presented to the Deputy Commissioner in the
prescribed manner, sanction the use of any holding or
part thereof by a Bhumidhar for industrial purposes even
though it does not lie within such a belt.
......."
31. Interest of a Bhumidhar to be transferable. -
The interest of a Bhumidhar shall be transferable subject
to the conditions hereinafter contained.
"33. Restrictions on the transfers by a Bhumidhar. -
(1) No Bhumidhar shall have the right to transfer by sale
or gift or otherwise any land to any person, other than a
religious or charitable institution or any person in charge
of any such Bhoodan movement, as the Chief
Commissioner may, by notification in the Official
Gazette, specify , where as a result of the transfer, the
transferor shall be left with less than eight standard acres
in the Union Territory of Delhi :
Provided that the Chief Commissioner may exempt from
the operation of this section, the transfer of any land
made before the 1st day of December, 1958, if the land
covered by such transfer does not exceed on e acre in
area and is used or intended to be used for purposes other
than those mentioned in clause (13) of section 3.
(2) Nothing contained in sub section (1) shall 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;
Provided that such Bhumidhar may transfer a part of such
land to any religious or charitable institution or other
person referred to in sub section (1)
Explanation - For the purposes of this section, a religious
or charitable institution shall mean an institution
established for a religious purpose or a charitable
purpose, as the case may be."
42. Transfer in contravention section 33. -
(1) Where a transfer of any holding or part thereof has
been made in contravention of the provisions of this
chapter by a Bhumidhar or Asami, the transferee and
every person who may have obtained possession of such
holding or part shall, notwithstanding anything in any
law, be liable to ejectment from such holding or part on
the suit of the Gaon Sabha, or the landholder as the may
be, which shall thereupon become vacant land; but
nothing in this section shall prejudice the right of the
transferor to realize the whole or portion of the price
remaining unpaid, or the right of any other person other
than the transferee to proceed against such holding or
land in enforcement of any claim thereto .
82. Decree for ejectment under Section 81. -
........
(2) The decree shall further direct that, if the Bhumidhar
or Asami repairs the damage within three months next
after the decree, the same shall not be executed except in
respect of costs."
11. A reading of the above sections shows that as per Section 31,
interest of a bhumidar is transferable, subject to conditions stated.
Restrictions on transfer of land by a bhumidar are dealt with by
Section 33 of the Act. Section 33 prohibits a bhumidar, in the
circumstances as stipulated, to gift a land to any person, other than a
religious or charitable institution. Charitable Institution/purpose is
defined in the Act. Reference may also be had to the explanation of
section 33 and definition of charitable purpose in section 3(3) of the
Act.
"Section 33. .....
Explanation - For the purposes of this section, a religious
or charitable institution shall mean an institution
established for a religious purpose or a charitable
purpose, as the case may be."
3 (3) "Charitable purpose" include relief of the poor,
education, medical relief or the advancement of any other
object of general public utility, but does not include a
purpose which relates exclusively to religious teaching or
worship;"
12. Section 42 of the Act provides that in case of a transfer in
violation of part III of the Act, the bhumidar, transferee and every
person in possession shall be liable for ejectment.
13. Section 45 of the Act provides that a transfer made by a
bhumidar in contravention of provisions of this Chapter shall be void.
(Chapter III i.e. Sections 10 to 105). Hence, if a transfer is made
contrary to Section 33 of the Act, it would be void under Section 45,
apart from the consequences of Section 42 of the Act
14. The impugned order relies on section 81 of the Act to conclude
that agricultural land has to be used for agriculture purpose only. The
order further holds that in view of Section 45 of the Act, the
transaction in question is void as the land is being used for a hospital.
15. In our opinion, a reading of the above statutory provisions
show that the impugned order has ignored section 33 of the Act which
was the relevant section. It is the said section which deals with
restrictions on transfer by a bhumidar/Asami. The said section permits
transfer of land for charitable purpose. If a gift deed is in violation of
Section 33 of the Act it would be a void document under Section 45.
In this context reference may be had to the judgment of a Division
Bench of this High Court in Nathu vs. Hukam Singh and Ors., AIR
1983 Delhi 216 . Relevant portion of paragraph 10 reads as follows:-
"(10) ....... The provisions relating to transfer by Bhumidars
and Asamis are contained in Sections 31 to 37. Under Section
31 the interest of Bhumidar is transferable subject to the
conditions therein contained. The interest of an Asami is not
transferable except as expressly permitted by the Act. Section
33 lays down the restrictions on the transfers by a
Bhumidar."
16. Section 81 deals only with ejectment for use of land other than
agriculture etc. It provides that a bhumidar is liable for ejectment in
case he is using the land for the purpose other than connected with
agriculture etc. It does not state that the transfer/title documents will
become void if used for a purpose other than agricultural purpose.
17. It is true that section 22 and 81 ensure that agricultural land
continues to be used for agriculture purpose. However, it cannot be
ignored that certain exceptions are provided in the Act which permit
land use, other than agriculture. In this regard reference may be had to
Section 23 of the Act which provides that the bhumidar/asami can use
a holding for industrial purposes provided the conditions stipulated in
the said section are fulfilled. Similarly, section 33 of the Act permits
transfer of interest in land to a religious or charitable institution.
Section 3(3) of the Act defines a charitable purpose to include relief to
the poor, education, medical relief or the advancement of any other
object of general public utility. Religious purpose is defined in Section
3(19) of the Act. These provisions will have to be read along with
Section 22 and 81 of the Act. It is well settled rule of interpretation
that no part of a statute shall be construed as unnecessary or
superfluous (Ref. Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. vs.
Ram Gupal Sharma; AIR 2002 SC 643.)
18. In the context of the legal issues above, it may be useful to refer
to a judgment of Single Judge of this Court in the case of Ram
Lubbaya Kapoor vs. J.R. Chawala & Ors., 1986(10) DRJ 359. That
was a case in which one Raghbir Singh who was a bhumidar carved
out a number of plots on the land. He got lay out plan sanctioned from
the municipal corporation and sold plots to various persons including
the petitioner. The plots and building were thereafter also sanctioned
by the municipal corporation. This Court held as follows:-
"13. Evidently user of the land for any purpose other than
that connected with agriculture, horticulture or animal
husbandry etc. by a bhumidar is prohibited by this
Section (Section 22). However, Section 23 allows a
bhumidar or an asami to use his holding or part thereof
for industrial purposes other than those immediately
connected with any of the purposes referred to in
Section 22 if the same is situated within the belt declared
for the purpose by the Chief Commissioner by
notification in the official gazette. He may also do so
after obtaining sanction of the Chief Commissioner in the
prescribed manner even though the land does not lie
within such a belt. It is thus essential for a bhumidar to
retain possession of its holding at all material times and
to use the same for the purposes specified in
Section 22 only if he is to continue to be a bhumidar.
Section 33(1) debars a bhumidar from transferring by
sale or gift or otherwise any land to any person other than
a religious or charitable institution if as a result of the
transfer, the transferor shall be left with less than eight
standard acres of land in the Union Territory of Delhi. Of
course, he can transfer the whole of his land as envisaged
in Sub-section (2) of Section 33 if his entire holding is
less than eight standard acres.
........
18 In view of the foregoing statement of law as regards
nature, extent and scope of the rights of a bhumidar over
his holding, there can be no room for doubt that his
action in carving out a number of plots out of his holding
for sale as such was clearly in total violation of the
various provisions of the Act adverted to above.
However, it was open to the concerned
persons/authorities like Gaon Sabha to take action under
various provisions of the Act by way of ejectment etc.
not only for respondent No.2 but also of the transferees
and other persons who had come to occupy the land in
contravention of the provisions of the Act. However, that
is not the subject matter of this case as we are concerned
with the only question whether the provisions of the Act
would still be applicable so as to oust the jurisdiction of
civil courts.
.....
21. The upshot of the whole discussion, therefore, is that
the plot in question has since long ceased to be land as
defined in Section 2(13) of the Act and as such
provisions of the Act can no longer apply to the same.
...."
19. It would follow that there are no restrictions on transfer by way
of gift in the facts and circumstances of the present case of the interest
in land. The admitted position is that the appellant is using the land in
question for running a hospital. It is on record that the appellant is a
charitable organisation. The appellant is a society registered under the
Societies Registration Act. Copy of the certificate of registration is
placed on record with the writ petition as Annexure P3. An
appropriate order in favour of the appellant has been passed under
Section 80G of the Income Tax Act for the Assessment Years 1999-
2000 to 2001-02. It fulfils necessary requisite criteria for being a
charitable organisation in terms of Section 33 of the DLR Act read
with Section 3(3). It is providing medical relief as provided under
Section 3(3) of the Act. Hence in our opinion the Gift Deed registered
in favour of the appellant has been validly executed by the respondent
in view of Section 33 of the DLR Act.
20. Further, mere pendency of proceedings under section 81 of the
DLR Act will not render a gift deed as void. In case an adverse order
is passed under section 81, a decree for ejectment would be passed
against the appellants. It is for the appellant to take steps to defend
itself in the proceedings under section 81 of the Act as per law.
21. We accordingly allow the appeal and set aside the orders of
Additional Collector dated 21.06.2007, order of the Financial
Commissioner dated 04.11.2011 and of the learned Single Judge dated
14.09.2012. However, in case the respondents are aggrieved that the
gift deed was procured by fraud, they are at liberty to take appropriate
steps to challenge the same on this ground, as per law. None of the
forums have gone into this particular issue.
22. The appeal is disposed of accordingly. No order as to costs.
(JAYANT NATH)
JUDGE
(CHIEF JUSTICE)
JULY 28, 2015
n/'raj'
