Joginder vs Govt. Of Nct Of Delhi And Ors
2019 Latest Caselaw 4247 Del

$~A-6
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Date of decision: 12.09.2019
+      W.P.(C) 3456/2014 & CMs. 7078/2014 & 4537/2015
       JOGINDER                                             ..... Petitioner
                          Through       Mr.N.S.Dalal and Mr.Pradeep Kumar
                                        Gupta, Advs.

                          versus

       GOVT. OF NCT OF DELHI AND ORS            ..... Respondents
                     Through  Mr.Naushad Ahmed Khan, ASC
                              (Civil) with Ms.Manisha Chauhan,
                              Adv. for R-1 & 2/GNCTD.
                              Ms.Anusuya Salwan, Mr.Abhishek
                              Pundir and Ms.Nikita Salwan, Advs.
                              for DSIIDC.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. This writ petition is filed by the petitioner seeking a writ of prohibition or any other appropriate writ, order or direction prohibiting respondent No. 3/DSIIDC from entering into Gaon Sabha land situated in the Revenue Estate of Village Kanjhawala, Delhi. A writ of mandamus is also sought directing respondents No. 1 and 2 to use the land of the Gaon Sabha for the benefit of the villagers and not for any other purposes.

2. The case of the petitioner is that there is about 945 Bighas of land in Village Kanjhawala which is being shown in the name of the Gaon Sabha and the said land has to be used for the benefit of the villagers. It is pleaded that there has been no election of Gram Panchayat which looks after the

interest of the villagers and as such, the petitioner has sought relief as to how without election, the land is sought to be used for other purpose and thereby depriving the villagers of their legitimate rights qua the said land.

3. I may note that in para 2 of the petition, an averment is made that the petitioner had earlier also filed a writ petition being W.P. (C) 5393/2007 before this court seeking various reliefs. It is also stated that the said writ petition was disposed of on 07.05.2010. An opportunity was given to the petitioner to file a representation before the Chief Commissioner/Lt. Governor to take final decision regarding issuance of a notification under proviso to sub-section (1) of Section 154 of the Delhi Land Reforms Act,1954 (hereinafter referred to as the DLR Act).

4. It is stated that pursuant to the said order dated 7.5.2010 the petitioner made a representation on 26.08.2010. Even the Councillor of the area also submitted a representation to the Lt. Governor and the same was dated 30.08.2010. On 25.02.2012, a communication was received from the office of the Deputy Commissioner asking the petitioner to submit any other document. The petitioner submitted another representation dated 06.03.2012 on 07.03.2012 in the office of the Deputy Commissioner. It is claimed that the petitioner has not heard anything from the office of the Deputy Commissioner or from the office of the Lt. Governor. However, the petitioner, it is pleaded, was surprised to note that around the land of the Gaon Sabha, boards of DSIIDC were displayed in the second week of May 2014.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner has essentially sought to argue, firstly, that the Gaon Sabha land cannot be used for any purpose other than

welfare of the residents of the Village. Secondly, he urges that no proper hearing has been given to the petitioner by the Lt. Governor or by any other functionaries, no show cause notice was issued and no order was communicated to the petitioner. Hence, order of this court dated 7.5.2010 has not been complied with. Lastly, he argues that DSIIDC is carrying on construction activities without any sanctioned plan

7. As far as the first plea is concerned, I have to only look at the order of the Division Bench dated 07.05.2010 to note that it has gone into detail about the change of the user of land from Gaon Sabha land to use for other purposes. Relevant part of the order reads as follows:-

"2. The petitioners have a two fold grievance. The first grievance is that the land of the Gaon Sabha which was designated for purposes of development of a Growth Centre cannot be utilized for any other purpose more specifically the scheme of the Government to construct housing for urban poor.

3. The second grievance is that the elections to the village panchayats have not been held for a long period of time and the mandate of the Part IX of the Constitution of India (for short, The Constitution') was being defeated by the Gaon Sabhas being managed by administrators other than elected panchayats

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21. We have held aforesaid that the land in question does fall within the purview of exercise of power under proviso to Section 154 of the DLR Act. The land in question is common land which vested in the Gaon Sabha as per Section 7 of the DLR Act. On completion of a detailed exercise, the land has been found to be in excess of the ordinary requirements of the village and is now sought to be excluded from vesting in the Gaon Sabha and to be utilized as per MPD-2021. Housing for urban poor is a major problem in Delhi. It is in furtherance to this object that the land is

sought to be utilized. The village needs are sought to be taken care of as per the exercise and thus we find nothing arbitrary or illegal in the Govt of NCT of Delhi seeking to utilize the land which has been declared surplus/excess under Proviso to Section 154 of DLR Act in accordance with MPD-2021 and the lay-out plan drawn in pursuance thereto. The proposal for utilization of land for growth centres was cancelled and the land has been transferred to DSIIDC for housing project. There is, thus, merit in the stand of the Govt. of NCT of Delhi that the writ petition is premature as the exercise has not been completed by issuance of a notification though the material has been placed before the L.G.

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24. We, thus, find that the challenge on the part of the petitioners is really to the possibility of a proposed notification under the proviso to sub-section (1) of Section 154 of the DLR Act, which notification is yet to be issued. The Deputy Commissioner has sent the report to the L.G. The L.G. will apply his mind to the exercise carried out by the Deputy Commissioner and in the process of the said exercise, the L.G. can give an opportunity to the petitioners to make a representation in respect of the report of the Deputy Commissioner before taking a final view in the matter. The challenge is, thus, clearly premature."

xxx

44. We are, thus, of the considered view that as elections have been held to the Municipal Corporation including in the wards covering the area of Village Kanjhawla, the petitioners cannot claim a right of having another local self government body in the form of the Panchayat and claim a right of elections to be held in that behalf.

45. We are, thus, of the view that the first challenge is premature while there is no basis for claiming elections to the Panchayats. However, in order for the Chief Commissioner (L.G.) to come to a final conclusion whether a notification under the proviso to

sub-section (1) Section 154 of the DLR Act is to be issued or not, the petitioners should be given a right to file a representation as village residents and the views of the Municipal Councillors of the zone concerned should also be ascertained. It is only after doing the needful that the Chief Commissioner (L.G.) should take a final decision in respect of the issuance of a notification under the proviso to sub-section (1) of Section 154 of the DLR Act."

8. Hence, the Division Bench had concluded that the Government of NCT of Delhi/ Lt. Governor of the Delhi under proviso to sub-section (1) of Section 154 of the DLR Act can exercise powers to change the land use of the Gaon Sabha land. A reference may be had to Section 154 of the DLR Act which reads as follows:-

"154. Vesting of certain lands etc, in Gaon Sabha. - 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, bazars and meals, except hats, bazars 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, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha under this section and may make such incidental and consequential order as may be necessary.

..................

9. Clearly, in terms of proviso to Section 154(1) of the DLR Act, uncultivated area situated in Gaon Sabha area can be excluded from vesting in the Gaon Sabha if the conditions stated there have been fulfilled. The Division Bench has already held that the powers vest in the Lt. Governor to exercise power under section 154(1) of the DLR Act. The plea of the petitioner is without merit.

10. As far as the plea about the manner in which the representations of the petitioner were treated is concerned, I may note that the petitioner has himself on 26.08.2010 filed a representation before the Lt. Governor pursuant to the orders of the Division Bench dated 07.05.2010. A representation was filed by Smt. Manjeet Mathur, Councillor on 30.08.2010.

11. Respondent No. 1 have in their counter-affidavit narrated the steps taken after receipt of the representations including the representation dated 06.03.2012 from the petitioner. It has been explained that the land which is the subject matter of the present writ petition measuring 434 Bighas 10 Biswas has been allotted to The Department of Urban Development, Govt. of NCT of Delhi by the Deputy Commissioner on 14.08.2013 after obtaining approval of the Lt.Governor of Delhi on 04.07.2013 for construction of low cost housing for EWS. The counter-affidavit also notes various objections

raised by the petitioner and Smt. Manjeet Mathur, Councillor. Thereafter, the counter-affidavit concludes as follows:-

"12. It may be added that the allotment of Gaon Sabha land to the Urban Development Department, Government of NCT of Delhi was given on the same pattern/terms and condition as is given to other Government Department/agencies by the Gaon Sabha.

13. It is also not out of place to mention that the aforesaid approval of granting the surplus land to various departments and for construction of houses for (EWS), was approved by the then Hon'ble Chief Minister on 26.11.2012.

14. It is respectfully submitted that Hon'ble LG vide its note dated 04.07.2013 also approved the proposed allotment of 434 Bigha-10 Biswa of land of UD Department for construction of EWS Housing through DSIIDC considering the fact that Revenue Department has accorded reasonable opportunity to the Municipal Councilor concerned as well as the villagers to present their cause as mandated by the Hon'ble High Court and proceeded with the proposed allotment after finding no merit in their claim.

15. It is submitted that the allotment letter dated 14.08.2013 in favour of the Secretary, Department of Urban Development of Urban Development is annexed herewith as Annexure A-1."

12. In view of the above, respondent No.3/DSIIDC has confirmed that on 14.08.2013 the land has been allotted to DSIIDC on the stated terms for EWS Housing Project.

13. I may note that the Division Bench in its order dated 07.05.2010 had given a direction to the petitioner for filing a representation which reads as follows:-

"45. We are, thus, of the view that the first challenge is premature while there is no basis for claiming elections to the

Panchayats. However, in order for the Chief Commissioner (L.G.) to come to a final conclusion whether a notification under the proviso to sub-section (1) Section 154 of the DLR Act is to be issued or not, the petitioners should be given a right to file a representation as village residents and the views of the Municipal Councillors of the zone concerned should also be ascertained. It is only after doing the needful that the Chief Commissioner (L.G.) should take a final decision in respect of the issuance of a notification under the proviso to sub-section (1) of Section 154 of the DLR Act."

14. A perusal of the counter-affidavit of respondent No. 1 would clearly show that the representations of the petitioner have been taken into account before the approval granted by the office by the Lt. Governor in exercise of powers under proviso to sub-section (1) of Section 154 of the DLR Act. I may only note that a reading of the aforesaid provision does not show that any formal notification has to be issued to that effect. As per the counter- affidavit of respondent No.1, the petitioner and other villagers were also present when the minutes were drawn up.

15. Clearly, the petitioner has filed three representations. These representations have been taken into account before passing the necessary order. In my opinion, the directions of the Division Bench in the order dated 07.05.2010 have been duly complied with.

16. As far as the plea of the sanction of the plans is concerned, learned counsel for respondent No. 3 states that these issues have not been raised by the petitioner in the writ petition. She, however, states that it is needless to submit that respondent No. 3 would comply with all necessary laws prior to starting construction.

17. Taking the above statement on record, the present petition is

accordingly disposed of.

18. Pending applications also stand disposed of.

JAYANT NATH, J.

SEPTEMBER 12, 2019 rb