Delhi High Court
Anil Kumar Tyagi & Anr. vs Sushil Kumar Tyagi And Ors on 1 February, 2023
Neutral Citation Number: 2023/DHC/000794
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st February, 2023
+ W.P.(C) 11515/2022 & CM APPL. 34051/2022
ANIL KUMAR TYAGI & ANR. ..... Petitioners
Through: Mr. Daleep Dhyani, Mr. Rahul
Chauhan, Advocates.
(M:8750883003)
([email protected]
versus
SUSHIL KUMAR TYAGI AND ORS ..... Respondents
Through: Mr. K.L. Jangani, Mr. Imran
Alam Sheikh, Mr. Manindra
Dubey & Mr. Shailza Kant
Dubey, Advocates for R-1
(M:9810263115)
([email protected])
Ms. Mehak Nakra, ASC,
Civil/GNCTD for R-2
(M:9871144582)
([email protected])
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
[Physical Hearing/ Hybrid Hearing]
MINI PUSHKARNA, J. (ORAL):
1. The present writ petition has been filed challenging the order
dated 29.07.2022 passed by the Ld. Financial Commissioner in REV.
PET. No.207/2021. By way of the impugned order, Ld. Financial
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By:PREETI
Signing Date:04.02.2023
13:21:04
Neutral Citation Number: 2023/DHC/000794
Commissioner has set aside the consent order dated 30.11.2021 passed
by the Revenue Assistant, Civil Lines, Delhi.
2. It is the contention on behalf of the petitioners that the Court of
Financial Commissioner did not have any jurisdiction to pass the
impugned order, as the said revision petition was not maintainable
before the learned Financial Commissioner. It is submitted that
against the order of the Revenue Assistant, an appeal is to be filed
before the Deputy Commissioner in terms of Entry 11 of Schedule I of
the Delhi Land Reforms Act, 1954 (hereinafter referred to as DLR
Act, 1954). Ld. Counsel for petitioner submits that after the first
appeal, second appeal can be filed before the Chief Commissioner,
who is the Financial Commissioner in Delhi. Thus, he submits that a
revision petition having been filed directly against the order of the
Revenue Assistant dated 30.11.2021 before the Financial
Commissioner, without filing any appeal before the Deputy
Commissioner was improper. Order dated 29.07.2022 passed by the
Financial Commissioner is without any jurisdiction.
3. On the other hand, learned counsel appearing for respondent
No.2 has drawn the attention of this Court to the counter affidavit filed
on their behalf. In the counter affidavit filed on behalf of the
respondent No.2, it is categorically stated that the area in question i.e.
Village Salempur Majra, Burari, Delhi has already been urbanized
vide a notification dated 16.05.2017. Thus, she submits that after the
urbanization of the village in question, the jurisdiction of the Revenue
Courts is ousted.
4. Learned counsel appearing for respondent No.1 has also
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By:PREETI
Signing Date:04.02.2023
13:21:04
Neutral Citation Number: 2023/DHC/000794
opposed the present writ petition. He submits that the order passed by
the Revenue Assistant, itself was without any jurisdiction, as the
urbanization of the area in question had already taken place.
5. This Court has heard the learned counsels for the parties and
has also perused the record.
6. The petitioner No.1 herein had filed a petition on 28.11.2018
before the Revenue Assistant for partition of land by invoking Section
55 and 56 of DLR Act, 1954 against petitioner No.2 and respondent
No.1. All the parties duly participated in the proceedings before the
learned Revenue Assistant and also submitted drawing for proposed
partition of land belonging to the parties. Subsequently, by order dated
30.11.2021, the Revenue Assistant granted decree of partition in
favour of the parties.
7. In terms of the order dated 30.11.2021, the Revenue Authorities
have carried out the directions of the Revenue Assistant by which
mutation proceedings were done. Accordingly, Khatauni was
prepared. The petitioners are in possession of the same in terms of the
partition deed and the revenue records since then.
8. Respondent No.1, being aggrieved by the order dated
30.11.2021, filed a revision petition before the Financial
Commissioner under Section 187 of the DLR Act, being Revision
Petition No.201/2021.
9. By the impugned order dated 29.07.2022, the Ld. Financial
Commissioner allowed the revision petition. Hence, the present writ
petition has been filed.
10. By the impugned order dated 29.07.2022, the learned Financial
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By:PREETI
Signing Date:04.02.2023
13:21:04
Neutral Citation Number: 2023/DHC/000794
Commissioner has categorically held that the order passed by the
Revenue Assistant was without any jurisdiction, since the area in
question had already been urbanized. Thus, the learned Financial
Commissioner clearly held that since the petitioners herein were
claiming partition of the land, it is only the Civil Courts that would
have the jurisdiction in that regard.
11. The objection of the petitioners with respect to the legality of
filing revision petition before Financial Commissioner directly against
the order of the Revenue Assistant, is right. The correct course of
action would have been to file an appeal before the Deputy
Commissioner against the order of the Revenue Assistant and not a
revision petition before the Financial Commissioner. However, even
if this Court was to set aside the order of the Financial Commissioner,
the same would be a fruitless exercise, as the initial order passed by
the Revenue Assistant dated 30.11.2021 itself was non-est. Therefore,
no useful purpose would be served in setting aside the order of the
Financial Commissioner and relegating the respondents herein to file
an appeal before the Deputy Commissioner in terms of the DLR Act,
1954.
12. It is seen from the record that in the present case, the issue
which was the bone of contention between the parties is the partition
of land amongst the three brothers, who are parties before this Court.
Earlier, by order dated 30.11.2021, the Revenue Assistant had passed
a consent decree by which the land was partitioned and divided
amongst three brothers. However, perusal of the order dated
30.11.2021 passed by the Revenue Assistant/ Sub Divisional
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By:PREETI
Signing Date:04.02.2023
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Magistrate (Civil Lines) clearly manifests that the proceedings before
the Revenue Assistant were initiated on 28.11.2018. Whereas, it has
come on record that the area in question i.e. Village Salempur Majra,
Burari, Delhi had already been urbanized vide a Notification dated
16.05.2017. Therefore, it is clear that when the proceedings were
commenced before the Revenue Assistant in the year 2018, the area in
question already stood urbanized. Therefore, clearly the Revenue
Assistant had no jurisdiction to entertain the proceedings in the year
2018 or pass the order dated 30.11.2021, when the area in question
had already been urbanized in the year 2017.
13. Thus, perusal of the documents on record clearly brings to the
fore the fact that the order dated 30.11.2021 passed by the Revenue
Assistant was a nullity. When the said order dated 30.11.2021 passed
by the Revenue Assistant itself was without any jurisdiction,
subsequent proceedings before the Financial Commissioner are also
deemed to be non-est.
14. This Court in the case of "Sanvik Engineers India Pvt. Ltd. &
Anr Vs. Government of National Capital Territory of Delhi & Anr."
2022 SCC Online Delhi 360 has categorically held that once the area
has been urbanized, then the Revenue Authorities will cease to have
jurisdiction and the DLR Act, 1954 will cease to apply to such orders.
Thus, this Court held as follows:-
"2. The issue of the applicability of the DLR once a
notification comes to be issued under the DMC or the DDA
Acts has fallen for consideration in the past before this
Court and the consistent line which has been struck in
those judgments is that once the land comes to be
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By:PREETI
Signing Date:04.02.2023
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urbanised and forms part of a notification issued under the
DMC or the DDA Acts, the provisions of the DLR would
cease to have any application. The principle enunciated in
those decisions essentially rests on the definition of land as
comprised in Section 3(13) of the DLR which defines
"land" to mean that which is held or occupied for purposes
connected with agriculture, horticulture or animal
husbandry including pisciculture, poultry farming and
further expands and brings within its scope buildings
appurtenant thereto, village abadis, grove lands and lands
reserved for village pasture or covered by water. Section
3(13) excludes lands occupied by buildings in belts of
areas adjacent to Delhi town and which may by
notification be
declared as an acquisition thereto. The body of precedent
which has evolved on the aforesaid question originates
from the authoritative pronouncement by the Division
Bench of this Court in Smt. Indu Khorana v. Gram Sabhai.
The line of decisions which have come to be rendered
thereafter have essentially followed the basic principles
enunciated in Indu Khorana. However, the present batch
of writ petitions and the facts which obtain therein, give
rise to questions such as the impact of those notifications
on pending proceedings including in relation to appeals
that may have been preferred and remain pending on the
board of the competent appellate authorities. The
respondents also place reliance on two circulars dated 3
July 2013 and 4 February 2020 to contend that
notwithstanding the issuance of notifications under the
DMC or the DDA Act, proceedings once commenced
would be liable to be taken to their logical conclusion.
With the assistance of learned counsels for respective
parties who have appeared in this batch and to facilitate
enunciation of the legal position which would flow in
various situations that may arise, the Court has classified
them under the following four broad heads:-
CASE 1 Where proceedings have not been initiated and
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By:PREETI
Signing Date:04.02.2023
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Neutral Citation Number: 2023/DHC/000794
notifications under the DMC/DDA Acts intervene.
CASE 2 Where although proceedings have been initiated
or a conditional order made, notifications come to be
issued before a final order directing ejectment and vesting
is passed.
CASE 3 Where the notifications come to be issued after a
final order of ejectment and vesting comes to be made.
CASE 4 Where a notification comes to be issued during
the pendency of an appeal or revision against a final order
at the behest of the landholder or Gaon Sabha.
......
......
53. Insofar as CASE 1 is concerned, this need not detain
the Court since it was fairly conceded by the respondents
that where no proceedings have been drawn or initiated
under Section 81 prior to the issuance of the notifications,
no authority or jurisdiction would be retained to invoke the
same. This position clearly flows from the decisions of the
Court that have been noticed above and which have
consistently taken the view that once the land stands
comprised in notifications issued under the DMC or the
DDA Acts, it would stand excluded from the application of
the DLR. This since it has ceased to answer to the
description of land itself as defined in Section 3(13) of the
Act. The Court thus comes to the firm conclusion that once
the area has come to be urbanized and stands comprised in
notifications issued under the DMC or the DDA Acts, the
respondents would stand denuded of all jurisdiction and
authority to initiate proceedings under Section 81 of the
Act thereafter.
......
.....
84. Having traversed this distance and upon consideration
of the seminal questions which arose in this batch, the
Court in summation records its conclusions as follows:-
A. Section 81 is primarily concerned with ensuring that
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By:PREETI
Signing Date:04.02.2023
13:21:04
Neutral Citation Number: 2023/DHC/000794
land falling within the ambit of the DLR, is not used for·
purposes other than those sanctioned under the enactment.
The objective underlying the aforesaid provision clearly
appears to be to ensure that land as defined under Section
3(13) is not misutilised or diverted to uses other than those
permitted under the Act. Additionally, the scheme of the
two provisions clearly bears out that proceedings for
eviction are statutorily placed in abeyance to enable the
occupier to restore the land to its original character. It is
only consequent to a failure on the part of the occupier to
abide by those directions that eviction and vesting follow.
B. The vesting of the land in the Gaon Sabha consequent to
a failure on the part of the occupant to restore the land to
its original rural state, proceeds simultaneously with
eviction. Vesting as contemplated in Sections 81 and 82
clearly establishes the legislative intent to divest the
occupant of all rights claimed in the land and transfer
absolute title and interest in the Gaon Sabha. It essentially
contemplates the annihilation of the preexisting rights of
the owner or occupier.
C. Vesting here is not contemplated as operating in the
limited extent of taking over possession but also of the
effacement of all rights that may have existed in favour of
the owner or occupier thereof. Consequent to a failure on
the part of the owner or occupier to comply with the
conditional decree, the land must be recognized as coming
to the possession and ownership of the Gaon Sabha
absolutely and free of all encumbrances.
D. Insofar as matters which would fall in the category of
CASE 1, it was fairly conceded that where no proceedings
have been drawn or initiated under Section 81 prior to the
issuance of the notifications, no authority or jurisdiction
would be retained to invoke Section 81. This position
clearly flows from the decisions of the Court that have
been noticed above and which have consistently taken the
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By:PREETI
Signing Date:04.02.2023
13:21:04
Neutral Citation Number: 2023/DHC/000794
view that once the land stands comprised in notifications
issued under the DMC or the DDA Acts, it would stand
excluded from the application of the DLR. This since it has
ceased to answer to the description of land as defined in
Section 3 (13) of the DLR. The Court thus comes to the
firm conclusion that once the area has come to be
urbanized and stands comprised in notifications issued
under the DMC or the DDA Acts, the respondents would
stand denuded of all jurisdiction and authority to initiate
proceedings under Section 81 of the DLR thereafter.
............"
15. In view of the aforesaid, it is clear that the order dated
30.11.2021 passed by the Revenue Assistant itself was a nullity
having been passed without jurisdiction.
16. In view of the aforesaid detailed discussion, the present writ
petition is dismissed. However, liberty is granted to the petitioner to
approach the Civil Court for any remedy that may be available as per
law.
17. Learned counsel for the petitioner at this stage, submits that the
requisite entries in the Revenue Record has already taken place
pursuant to the order dated 30.11.2021 passed by the Revenue
Assistant.
18. In view of the aforesaid submission, it is directed that status quo
be maintained by the parties for a period of four weeks to enable the
petitioner to seek his remedies in Civil Court.
19. It is made clear that in case, the petitioner does not approach
any Civil Court within four weeks or if any order is not passed by any
Civil Court in favour of the petitioner, the status quo order passed
today by this Court shall cease to have any effect.
Signature Not Verified
By:PREETI
Signing Date:04.02.2023
13:21:04
Neutral Citation Number: 2023/DHC/000794
20. It is also made clear that this Court has not made any
observation on the merits of the case. In case, the petitioner files any
case before any Civil Court, the said Civil Court will pass appropriate
orders considering the merits of the case, without being influenced by
this order. The present petition is disposed of in terms of the aforesaid
directions along with pending applications.
MINI PUSHKARNA, J
FEBRUARY 1, 2023/nc
Signature Not Verified
By:PREETI
Signing Date:04.02.2023
13:21:04
