Delhi High Court
North East Tribal Welfare Society ... vs Govt Of Nct Of Delhi & Ors on 26 May, 2023
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26th May, 2023
+ W.P.(C) 2257/2018 & CM APPL. 48641/2018
NORTH EAST TRIBAL WELFARE SOCIETY
(REGD) ..... Petitioner
Through: Mr. V.P. Singh, Senior
Advocate with Mr. Om Prakash
and Mr. Gaurav Kumar,
Advocates.
(M): 9810794902
Email: [email protected]
versus
GOVT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Sameer Vashisht, ASC
(Civil) with Mr. Vanshay Kaul
and Mr. Arjun Gupta,
Advocates for respondent no. 1.
Mr. Harish Kumar Garg with
Ms. Khushboo Sharma,
Advocates for respondent no.
5/UOI.
(M): 9810150029
Email: [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 with prayer for setting
aside/quashing the impugned order dated 05.12.2017 passed by the
District Magistrate, District South-West, Delhi in Appeal No.
132/2014 under Section 185 of the Delhi Land Reforms Act, 1954
(DLR Act). Further, the petitioner also seeks setting aside of the order
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dated 08.04.2013 in Case no. 207/2010, titled as Gram Sabha Goela
Khurd Vs Rajiv Chaudhary & Ors., passed by the Sub-Divisional
Magistrate (SDM)/Revenue Assistant (RA), Kapashera, Delhi. The
petitioner is also challenging the order dated 24.06.2010 passed by the
Sub-Divisional Magistrate (SDM)/Revenue Assistant (RA) in case
bearing no. SDM/RA/NG/2010/D2496/147 passed under Section 81
of the DLR Act.
2. Learned senior counsel appearing for the petitioner submits that
the present case is covered by the judgment of this Court in the case of
Ruksana Bano and Others Vs Government of NCT of Delhi and
Others, 2023 SCC OnLine Del 1434.
3. It is submitted that the order dated 24.06.2010 as issued by the
SDM/RA, Government of NCT of Delhi in the aforesaid case, is also
the subject matter of challenge in the present petition. It is submitted
that the name of the petitioner herein is clearly mentioned in the
impugned order dated 24.06.2010 passed by the SDM/RA, which has
already been set aside by this Court in the case of Ruksana Bano &
Others (supra). Thus, it is submitted that the present petition be
allowed in terms of the aforesaid judgment.
4. On the other hand, learned Additional Standing counsel
appearing for the Delhi Government submits that in the present case,
the proceedings under Section 81 of the DLR Act were initiated on
14.01.2010, whereas the notification of 04.06.2010 by which the zonal
plan for District South West Delhi, Village Goela Khurd was notified
by Delhi Development Authority (DDA), came to be issued only
subsequently. Therefore, the proceedings against the petitioner were
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rightly continued. He further submits that the petitioner has an
alternative remedy to file an appeal before the Financial
Commissioner against the impugned order passed by the District
Magistrate/Collector, District South West, Kapashera, Delhi. Thus, he
submits that the present petition would not be maintainable in the facts
and circumstances of the case.
5. I have heard learned counsels for the parties and have perused
the documents.
6. Documents on record clearly manifest that the order dated
24.06.2010 as issued by the SDM/RA, Najafgarh, Government of
NCT of Delhi that has been challenged in the present petition, has
already been set aside by this Court in the case of Ruksana Bano &
Others (supra). Therefore, the present case would squarely be covered
by the said judgment.
7. As regards the contention made on behalf of the respondent that
the proceedings in the present case can continue since the same were
initiated on 14.01.2010, prior to the issuance of the notification dated
04.06.2010, by which the land in question was urbanised by issuance
of zonal plan, the same is totally flawed. The fact remains that though
the proceedings under Section 81 of the DLR Act were initiated prior
to the notification of 04.06.2010, however, no finality was attached to
the said proceedings. Therefore, after urbanisation of the land in
question, the proceedings under the DLR Act could not have been
continued.
8. Supreme Court in the case of Mohinder Singh (dead) through
LRs and Another Vs Narain Singh and Others, 2023 SCC OnLine
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SC 261 has held as under:
"36. After harmonizing the provisions of the Act, 1954
and Act 1957, we are of the considered view that once a
notification has been published in exercise of power
under Section 507(a) of the Act, 1957, the provisions of
the Act, 1954 cease to apply. In sequel thereto, the
proceedings pending under the Act, 1954 become non est
and loses its legal significance."
9. This Court in the case of Ruksana Bano & Others (supra) has
categorically held as under:-
"24. It is undisputed fact that the DDA had issued a
notification dated 04.06.2010 under the provisions of
Master Plan of Delhi 2021 notifying zonal plan for District
South West Delhi, including village Goela Khurd. Thus,
when the land in question was covered under the zonal
plan issued by the DDA, then the said land cannot be said
to be governed by the provisions of DLR Act any longer.
The contention on behalf of the respondents that the said
area cannot be considered to be urbanised on the said date
as no notification under Section 507 of the Delhi
Municipal Corporation Act, 1957 (DMC Act) had been
issued, has to be rejected.
25. The matter in question on the aspect of village Goela
Khurd having been urbanised upon issuance of notification
by the DDA on 04.06.2010, is no longer res integra. This
question was considered by this Court in the case of M/s
Shri Neelpadmaya Consumer Products Pvt. Ltd. Vs. Sh.
Satyabir @ Satbir and Ors.1. In the said case, this Court
has categorically held as follows:
"23. I agree with the argument which is urged on
behalf of the plaintiff that a notification for
urbanization need not only be through a
notification under Section 507 of the Delhi
Municipal Corporation Act as the later part of
Section 3(13) of the Act does not in any way
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require that there is only one manner of
notification viz only under Section 507 of the
Delhi Municipal Corporation Act. This later part
of Section 3(13) of the Act does not talk of a
notification only under Section 507 of the Delhi
Municipal Corporation Act. The requirement of
this later part of Section 3(13) of the Act is only
that a notification is issued in the Official Gazette
to make the land as part of the Delhi town and
New Delhi town. Once a notification is issued
applying a zonal plan issued pursuant to the
master plan showing that subject lands are
covered under the zonal plan issued by the DDA,
in such a situation, it has to be held that the lands
cease to be the lands covered under the Act
because of issuance of a notification in the
Official Gazette results in the lands becoming part
of the Delhi town. Additional reasoning on this
aspect can be understood from the object and the
language found in Section 1 and Sections 3(5) and
3(15) of the Act and which Sections show that
once an area falls within a town area and an area
ceases to be an agricultural land because it has to
be developed as part of the development of the
Delhi town or New Delhi town, then such an area
no longer remains an agricultural area for being
covered under the expression land as defined in
Section 3(13) of the Act. With humility, I am in
complete agreement with the observations made
by the learned Single Judge of this Court in the
case of Guru Pratap Singh (supra) and which
arrives at the same conclusion that once the land
ceases to be agricultural, the land ceases to be the
subject matter of the Act.
24. I may note that the plaintiff has proved the
zonal plan Ex.PW 5/1 and the notification Letter
dated 4.6.2010 as Ex.PW 5/2 and these documents
clearly show that the entire village Goela Khurd
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and wherein the suit land is located is the subject
matter of the zonal plan issued under the Delhi
Development Authority. As per the aforesaid
discussion, as also the ratio of the learned Single
Judge in Gur Pratap Singh (supra), once the land
is the subject matter of a zonal plan issued under
Section 11 of the Delhi Development Act, the land
is beyond the purview of the Act........
26. Hence, the position is clear that a land becomes
urbanised not only by way of notification issued under
Section 507 of DMC Act, 1957 but also by way of
notification by the DDA issuing zonal plan under the
Master Plan for areas in question. Once zonal plan has
been issued by the DDA under the Master Plan for an area
in question, the said lands cease to be lands covered under
the DLR Act. Even a notification issued by the Central
Government under Section 11 of The Delhi Development
Act, 1957 bringing an area within the ambit of a zonal
plan of the DDA, has the effect of encompassing such area
within the limits of urbanised land. Thus, when village
Goela Khurd, wherein the land in question is located, is
subject matter of the zonal plan issued by the DDA, the
said village stood urbanised and provisions of DLR Act
ceased to have any applicability over the said area.
27. This Court in the case of Gur Partap Singh Vs. Union
of India & Ors.2 took note of the fact that by its gazette
notification, the DDA amended the Master Plan wherein
construction for commercial use was allowed in certain
rural zones. Thus, it was held that once such option for
construction for commercial use was available, then such
land would cease to be agricultural and in that eventuality
there was no question of application of DLR Act. Para-19
of the said judgment reads as follows:
"19. This matter can be looked into from another
aspect. The notification amending the Master
Plan clearly provides that the land in question
can be used for the purpose of a motel. Once this
option is available and is exercised by owner of
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the land, the land is no more being used for
agricultural purposes. Thus, once the land is
elected to be used by the owner for a motel,
permission for which has been granted under the
amendment to the Master Plan, it no more
remains agricultural land under the meaning of
Section 3(13) of the Land Reforms Act. For this
reason also, there would be no occasion for
obtaining any permission. The Land Reforms Act
is an enactment for protecting the agricultural use
of the land. Once this land itself ceased to be
agricultural, there is, really speaking, no question
of application of the Land Reforms Act. Needless
to say, this is on account of the fact that there is
permissible non-agricultural use of a motel in
pursuance to the notification of 1995."
28. In view of the aforesaid, when the land in question
ceased to be governed by the DLR Act, the order dated
24.06.2010 passed by the Court of SDM/RA (Najafgarh)
under Section 81 of the DLR Act, is clearly without any
jurisdiction. As noted hereinabove, the area in question
stood converted to urban land with effect from 04.06.2010.
Therefore, the SDM/RA had no authority to pass any order
under Section 81 of the DLR Act on 24.06.2010.
29. Once a particular area is subject matter of notification
under The Delhi Development Act, 1957 by notifying the
Master Plan or Zonal Plan, then such land becomes
urbanised and is out of the scope of the application of the
DLR Act. Resultantly, the jurisdiction of the revenue
authority ceases and is ousted.
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33. On account of the non-est and ex parte order dated
24.06.2010 passed by the SDM/RA, valuable rights of the
petitioners to their property, have been adversely affected
and they have been divested of their property. Supreme
Court has held that Right to Property is not only a
Constitutional or a Statutory Right, but also a Human
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Right. Thus, in the case of Tukaram Kana Joshi and
Others Vs. Maharashtra Industrial Development
Corporation and Others5 , (2013) 1 SCC 353, it has been
held as follows:
"9. The right to property is now considered to be
not only a constitutional or a statutory right but
also a human right. Though, it is not a basic
feature of the Constitution or a fundamental right.
Human rights are considered to be in realm of
individual rights, such as the right to health, the
right to livelihood, the right to shelter and
employment, etc. Now however, human rights are
gaining an even greater multifaceted dimension.
The right to property is considered very much to
be a part of such new dimension. (Vide Lachhman
Dass v. Jagat Ram [(2007) 10 SCC 448] , Amarjit
Singh v. State of Punjab [(2010) 10 SCC 43 :
(2010) 4 SCC (Civ) 29] , State of M.P. v.
Narmada Bachao Andolan [(2011) 7 SCC 639 :
(2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989] ,
State of Haryana v. Mukesh Kumar [(2011) 10
SCC 404 : (2012) 3 SCC (Civ) 769 : AIR 2012 SC
559] and Delhi Airtech Services (P) Ltd. v. State
of U.P. [(2011) 9 SCC 354 : (2011) 4 SCC (Civ)
673 : AIR 2012 SC 573] )"
(citations provided)
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39. In view of the aforesaid detailed discussion, the
impugned order dated 24.06.2010 passed by the SDM/RA
(Najafgarh), GNCTD is hereby set aside, as being non-est
and nullity, and having been passed without any
jurisdiction. Consequently, the respondents are directed to
hand over possession of the land under the ownership of
the petitioners forthwith, viz. land comprised in Khasra
Nos. 24/6/1/2 (0- 18), 15/2 (1-12), 25/10/1 (0-15), 25/11
(4-16), 12 (1-14), 25/20/1 (0-8) and 20/2 (3-18), situated
in the revenue estate of village Goela Khurd, New Delhi.
The petitioners are directed to approach the concerned
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Revenue Authorities with requisite documents of
ownership in their favour for taking over possession of
their respective lands."
10. In view of the aforesaid, it is undisputed that the area in
question stood urbanized after issuance of notification dated
04.06.2010. By way of notification dated 04.06.2010, the DDA
notified zonal plan for District South West Delhi, including Village
Goela Khurd. Once zonal plan was issued under the Master Plan for
the area in question, it ceased to be covered under the DLR Act. Thus,
any proceedings under the DLR Act that were continued against the
petitioner after the aforesaid notification, were clearly without any
jurisdiction.
11. The other submission made on behalf of the respondent that the
impugned order passed by the Deputy Commissioner ought to have
been challenged before the Financial Commissioner and that the
present writ petition would not be maintainable before this Court, also
cannot be considered to be justified. Once the land already stands
urbanised and as per the law declared by the Supreme Court, no
proceedings under DLR Act can continue after urbanisation of an area,
it would not be appropriate to direct the petitioner herein to approach
the learned Financial Commissioner at this stage. As per law of the
land, the learned Financial Commissioner, anyway would have no
jurisdiction at this stage under the DLR Act. Therefore, no order can
be passed at this stage relegating the petitioner to file appeal before
the learned Financial Commissioner, when the said authority has been
rendered without any jurisdiction qua any proceedings under the DLR
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Act, after the urbanisation of the area in question.
12. It is pertinent to note that in the present case, the land in
question has been handed over to the Education Department of
Government of NCT of Delhi by the Gram Sabha. Since no
proceedings under the DLR Act could have continued after the
urbanisation of the land in question, the order of vesting against the
land of the petitioner, is clearly illegal. Thus, the handing over of
possession of the land of the petitioner by Gram Sabha to the
Department of Education of Delhi Government, cannot be upheld by
this Court.
13. This Court notes that vide order dated 15.03.2018, this Court
had directed that status quo be maintained in respect of the land in
question till the next date of hearing, which status quo order had been
continued from time to time. Thus, the interest of the petitioner was
secured by this Court.
14. In view of the fact that the land has already been handed over to
the Education Department of the Delhi Government, it is directed that
the said land be handed over back to the petitioners.
15. Accordingly, the petitioners are directed to approach the
respondent with their documents pertaining to ownership of their land
in respect of 1/5th share of their share in the land in question,i.e., 2
bighas 16 biswas in the undivided land admeasuring 14 bighas 4
biswas situated in khasra no. 24/6/1/2(0-18), 24/15/2(1-12), 13/29(0-
3), 25/10/2(0-15), 25/11(4-16), 25/12(1-14), 25/20/1(0-8) and
25/20/2(3-18), in the Revenue Estate of Village Goela Khurd, South-
West District, New Delhi.
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16. Upon the petitioners showing their documents of ownership, the
respondents are directed to consider the case of the petitioners and
hand over possession to the petitioner of their respective lands
expeditiously, preferably within a period of four months from today.
17. With the aforesaid directions, the present writ petition is
disposed of.
MINI PUSHKARNA, J
MAY 26, 2023
c
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