IN THE HIGH COURT OF
DELHI AT NEW DELHI
Date of Judgment:
07.02.2011
RSA No.51/2004 & CM
No.2628/2004
SHRI RIZAK RAM
...........Appellant Through: Mr.N.S. Dalal, Advocate.
Versus
RAJEEV SINGH & ANR.
..........Respondents.
Through: None.
CORAM:
HON'BLE MS. JUSTICE
INDERMEET KAUR
1. Whether the Reporters
of local papers may be allowed to see the judgment?
2. To be referred to the
Reporter or not? Yes
3. Whether the judgment
should be reported in the Digest? Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has
impugned the judgment and decree dated 5.11.2003 which had endorsed the finding
of the trial judge dated 30.10.1998 whereby the suit filed by the plaintiff
Rizak Ram seeking injunction against the defendants from interfering in the
suit property i.e. the part of land of Khsara No.64/47 measuring 400 sq. yards
in Village Alipur, Delhi was dismissed.
2. The case of the
plaintiff was that this land was Shyamlat Deh land. Contention of the Gaon
Sabha was that this land was Gaon Sabha land; plaintiff having no right or
title in the suit land; no injunction can be granted in his favour. On the basis
of oral and documentary evidence led, the suit of the plaintiff stood
dismissed.
In appeal the appellate
Court had endorsed this finding.
3. This is a second
appeal. Arguments urged before this Court is that under Punjab Land Reforms
Act, 1887 Shyamlat Deh refers to land which is in common ownership of the
proprietors of the village. It is contended that this land cannot be treated as
Goan Sabha land; if it is to be treated as a common land under the
proprietorship of the village. The impugned judgment had noted this argument.
Para 8 which is relevant reads as follows:
"8. With a enactment
and advent of Delhi Land Reforms Act, 1954 several Acts which were earlier
applicable in Delhi have been repeated by virtue of provision contain in
section 2 of the Delhi Land Reforms Act and that includes Punjab Land Revenue
Act, 1987, Punjab Land Reforms Act, 1997 and Punjab Tenant (Security of Tenure
Act) 1950 etc. In these circumstances, the contention of Ld. Counsel for the
appellant that the definition of Shyamlat Deh can be taken in the Punjab Land
Reforms Act or Punjab Tenant Act seems untenable especially in view of the fact
that the Delhi Panchayat Raj Act, 1954 has taken care of the land falling into
the domain of Shyamlat Deh, Section 2(15) of the said Act provides the
definition Public Land or Common Land as the land which is not on exclusive use
of any individual or family but is common use of villagers and includes the
land entered as "Shymalat Deh‟ in revenue records. Thus, the contention of the
counsel for the appellant stands demolished as far as definition or Shyamlat
Deh is concerned. It is evident that the land which has been shown in records
is Shyamlat Deh is nothing but the land of common utility and ownership of that
cannot vest in any individual or set of individuals."
4. The Court below had
rightly noted that Section 2 of the Delhi Land Reforms Act 1954 had repealed
the Punjab Land Reforms Act, 1887. The definition of Shyamlat Deh cannot be
derived from this repealed provision. Under the Delhi Panchayat Raj Act, 1954
Section 2(15) defines "public land" or "common land".
Section 2(15) reads as follows:
(15) "public land or
common land" means that the land which is not in exclusive use of any
individual or family but is in common use of villagers and includes a land
entered as Shamilat deh in revenue records;"
5. This definition as
contained in Delhi Panchayat Raj Act, 1954 defines
shamilat deh as land to be common land which is public land not to be in
exclusive use of any individual or family but which is in the common use of the
villagers.
6. Explanation (ii) of
Section 7 of the Delhi Land Reforms Act, 1954 defines "lands of common
utility". This includes such lands as are recorded as such at the last
settlement or have been or would have been customarily recorded as such on 1st
July, 1950. Section 7(2) states that on the commencement of the Delhi Land
Reforms act, 1954, all such lands will vest with the Gaon Sabha.
7. The impugned judgment
in a subsequent part of the judgment had in this context inter alia held as
follows:
”Section 7 of the Act is
very categorical and clear about the fact that the right of individual
proprietor or proprietor pertaining to waste land grazing or collection of
forest due etc. and such other land of common utility shall be terminated on
the commencement of Delhi Land Reforms Act, 1954. The explanation attached to
Section 7 in Clause c(ii) defines the land of common utility and as per that
the land recorded in the last settlement as such would be part of the land of
common utility. The documents placed on record specially khasra girdavari and
other revenue records show the land in question as Shyamlat Deh which, as per
the definition in Delhi Panchayat Raj Act is land of common utility. Therefore
the opinion/finding given by the Ld. Trial Court is nothing but an elaboration
and clarification of the legal position qua the land in question. Therefore, in
these circumstances the finding given by the Ld. Trial Court cannot be
upset."
8. Substantial questions
of law have been formulated on page 15 of the appeal. They reads as follows:
(i)What is the meaning of
the word “Shamlet Deh‟ and interpretation thereof?
(ii)If the word “Shamlet
Deh‟ is not being defined under the provisions of Delhi Land Reforms Act, can
an assistance be not drawn from other Statute, more particularly from where it
has been so derived or where it has been so inserted.?
(iii) What is the true
meaning and effect of Section 7 of Delhi Land Reforms Act?
(iv) Whether Section 7 of
Delhi Land Reforms Act can be made applicable in the absence of the things
which are mandated to be done has not been done?
(v)Whether, in the
absence of any such order being passed as has been so mentioned in Section 7,
can still Section 7 be made applicable in the absence of the same?
(vi) If the provisions of
Section 7 have not been followed nor any such order has been passed, can any
effect be given thereby holding that Section 7 is still applicable?
(vii) If a person is in
possession of the land and the land is of the proprietors, can he be denied the
right of injunction, which he is so seeking for?
(viii) Whether the rights
of the proprietors can be taken away or divested without the authority of law?
(ix) Is not Section 7
otherwise unconstitutional and violative of the fundamental rights of the
appellant as it violates the rights so recognized by the Constitution as well
as recognized by other statutes and by the common law?
(x) Whether the learned Appellate
court was not duty bound to discuss and dispose of the appeal thereby
considering all the ground so taken by the appellant in the appeal and what is
the effect of not deciding the grounds so taken by the appellant in the appeal?
(xi) Can any section be
made applicable in the absence of the conditions of its applicability are
fulfilled and also more particularly when its conditions are not being pleaded?
(xii) Can any finding be
recorded by the Courts in the absence of the pleadings, more particularly when
there is factual foundation which is necessary for the applicability of
particular Section?
(xiii) Whether the
findings qua Sections 2 and 7 of Delhi Land Reforms Act as well as Section 99
of Delhi Panchayat Raj Act could have been recorded in the absence of factual
foundation being pleaded and proved?
(xiv) What is the effect
of maintenance of the records by the Authorities? If the Authorities are
maintaining the records as per law, can the same be discarded by the Courts as
has been so done.
(xv) Can interpretative
process be used to discard the records of the rights so maintained by the
Authorities, more particularly when it is being so done by them in the
discharge of the official duties? Should not the presumption be attached to its
correctness?
(xvi) As per the record,
when the land has been recorded as Shamlet Deh, meaning thereby belonging to
the proprietors as per their pro-rata share, then how the finding can be
recorded qua the applicability of Delhi Land Reforms Act of the land being vested
in the Gaon Sabha?
(xvii) If the records of
the rights are being so maintained by the Authorities showing the proprietors
as owners showing the land being belonging to the proprietors, can the same be
ignored altogether and that too without any basis or meaning thereby does not
it amount to creating a different sort of rights, which are not being so recognized by the law?"
9. No such substantial
questions of law having arisen, the appeal as also the pending application is
dismissed.
INDERMEET KAUR, J.
FEBRAURY 07, 2011
nandan
