IN
THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT
: Delhi Land Reforms Act, 1954
Date
of decision: 11th February, 2011
W.P.(C)
4088/2010
M/S
HIRA LAL MOHAN DEVI RITA GUPTA
MEMORIAL
TRUST & ANR. ..... Petitioners
Through:
Mr. Ravi Gupta, Sr. Advocate with
Mr.
Ankit Jain, Advocate
Versus
NARENDER
KUMAR & ORS. ..... Respondents
Through:
Mr. V.P. Singh, Sr. Advocate with
Mr.
Sandeep Khatri, Advocate for respondent Nos.1 to 6.
Mr.
V.K. Tandon, Advocate for respondent No.7.
CORAM
:-
HON’BLE
MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV
SAHAI ENDLAW, J.
1.
The petition impugns the order dated 7th May, 2010 of the Financial
Commissioner, Delhi allowing the revision petition of the
respondents 1 to 6
herein under Section 187 of the Delhi Land
Reforms Act, 1954 (Reforms
Act) against the order dated 21st April,
2008 of the Deputy Commissioner,
District North-West, Delhi allowing
the application of the petitioners for
taking over the land
underneath a pathway/rasta on two sides of which the
property of
petitioners was situated, in exchange for other land belonging to
the petitioners.
2.
Notice of the writ petition was issued and vide order dated 6th July,
2010,
the operation of the order of the Financial Commissioner
stayed. The
pleadings have been completed. The counsels have been
heard.
3.
The petitioners in their application dated 22nd February, 2008 for
exchange, as aforesaid, to the Deputy Commissioner, District
North-West of
the Government of NCT of Delhi stated that the
petitioner no.1 is a
charitable Trust engaged inter alia in
educational activities; that it was
running an Engineering College
in the name and style of H.M.R. Institute of
Technology &
Management at Hamidpur village, Delhi falling in the
Revenue Estate
of Narela; that the aforesaid College was built on land
otherwise
contiguous but separated by a 25 feet wide rasta / pathway;
claiming
that the said rasta / pathway was disturbing the privacy of the
students of the Institute and invoking Section 40 of the Reforms
Act,
permission was sought for allotment of the land of the rasta /
pathway on
both sides of which the petitioners’ Institute was
situated and in exchange
equivalent land in another Khasra number
was offered.
4.
The Deputy Commissioner on 17th March, 2008 sought status report from
the SDM/BDO. A status report dated 22nd March, 2008 was submitted
by
the Consolidation Officer, Narela reporting that the building of
the College/Institute of the petitioners existed on both sides of the
rasta/pathway and
stating that the proposal of the petitioners would
be beneficial to the
villagers as the land offered in exchange by
the petitioners would extend the
other rasta / pathway existing till
the offered land and enable joining of the
other rasta/pathway with
another rasta / pathway.
5.
The Deputy Commissioner on the basis of the aforesaid report, vide
order
dated 21st April, 2008, expressing an opinion that the
proposed exchange is
in public interest and will facilitate safety
and security of students especially
the girl students studying in
the Institute and will also serve the interest of
residents of the
village, allowed the exchange.
6.
The respondents 1 to 6 being the bhumidhars of land in Khasra numbers
adjacent to the rasta / pathway which the Deputy Commissioner vide
order
aforesaid had directed to be exchanged as aforesaid, preferred
the revision
petition aforesaid to the Financial Commissioner. They
also stated that they
were running an educational institution on
their land and the closure of the
rasta/pathway owing to the
exchange aforesaid would affect them as well
as over 500 students
studying in their School.
7.
The Financial Commissioner vide order impugned in this petition has
allowed the revision, set aside the order of the Deputy Commissioner
but granted liberty to the petitioners to, in accordance with law and
the
procedure approach the Deputy Commissioner afresh in the matter.
8.
Section 40 of the Reforms Act under which the petitioners had applied
and whereunder the Deputy Commissioner exercised the power, is as
under:
“40.
Exchange – (1) Subject to the provision of Section 33, a Bhumidhar
may exchange lands held by him as such –
(a)
For lands held by any other Bhumidhar as such, or
(b)
For lands for the time being vested in the Gaon Sabha or local
authority
or in Government.
Provided
that no such exchange shall be made except with the permission of
the Deputy Commissioner, who will refuse permission if the
difference
between the area of land given in exchange and the land
received in
exchange in terms of standard acres is more than ten per
cent of the area in
standard acres of the land which is smaller in
area.
(2)
Where the Deputy Commissioner permits exchange, he shall also
order
the relevant annual register to be corrected accordingly.
(3)
On exchange made in accordance with sub-section (1), the parties to
such exchange shall have the same rights in the land received in
exchange as
they had in the land given in exchange.”
9.
Rules 25 and 26 of the Delhi Land Reforms Rules, 1954 (Reforms Rules)
providing the procedure for exchange under Section 40 of the Act
(supra)
are as under:-
“25.
Exchange (Section 40) – A bhumidhar may exchange land held by
him
as such for land held by any other bhumidhar or for lands for the
time
being vested in the Gaon Sabha or local authority or in the
Government by
application to the Deputy Commissioner.”
26.
Procedure – (1) Where any exchange has been agreed upon, a party to
the agreement shall apply to the Deputy Commissioner to record the
same in
the record of rights.
(2)
The application shall contain the following particulars and be
accompanied by the following documents –
(i) The Khasra
number of the plot –
(a)
which the applicant wishes to receive and of the plots which he
offers
in exchange of;
(b)
which the parties have agreed to exchange under an agreement;
(ii)
certified copies of the khatauni relating to the khatas in which all
such
plots
are included.
(iii)
a statement to the effect that neither of the parties will hold land
in the
State exceeding thirty standard acres as a result of the
exchange; and
(iv)
a statement showing the details of any valid deeds, mortgage or other
encumbrances with which the land to be exchanged may be burdened,
together with names and addresses of lessees, mortgagees or holders
of other
encumbrances.
(3)
On receipt of the application, if the Deputy Commissioner is
satisfied
that the exchange is not invalid according to the
restrictions laid down in
Section 33, call upon the parties, the
lessees, mortgagees or holders of other
encumbrances, if any, to
show cause why the exchange should not be made.
Every such notice
shall be accompanied by a copy of the applicant, which
shall be
supplied by the applicant.
(4)
The Deputy Commissioner shall thereupon decide the objections, if
any, and pass suitable orders. If he decides that the exchange
should be
allowed, he shall also make an order for the delivery of
possession, if
necessary, and for the correction of papers.”
10.
The senior counsel for the petitioners has argued that the aforesaid
provisions have been complied with by the Deputy Commissioner and
thus the Financial Commissioner erred in setting aside the order. It
is contended
that under Rule 26(3) (supra), the residents of the
village as the respondents
1 to 6 claim to be, have no right of
being heard and the right of hearing is
only of lessees, mortgagees
or holders of other encumbrances of the land. It
is thus contended
that the respondents 1 to 6 had no locus to object and the
Financial
Commissioner erred in entertaining their revision petition.
11.
The Financial Commissioner in the impugned order has also noted the
provisions of the Delhi Panchayat Raj Act, 1954 (Panchayat Raj Act).
Section 34 thereof empowers the Gaon Sabha to acquire land and
Section 35 vests all public property within the jurisdiction of Gaon
Sabha in the Gaon
Sabha.
12.
Chapter VIII of the Delhi Panchayat Raj Rules, 1959 (Panchayat Raj
Rules) deals inter alia with transfer of property and rules
regulating the
power of Gaon Panchayat to acquire, hold and transfer
property and to enter
into contracts. Rule 176 thereunder concerns
transfer of immovable
property vested in the Gaon Panchayat. Rule
185 permits transfer only on
resolution of the Gaon Panchayat and
with the sanction of the Chief
Commissioner.
13.
It was the contention of the respondents 1 to 6 before the Financial
Commissioner that the order of the Deputy Commissioner of closure of
rasta/pathway and allowing allotment/vesting thereof in the
petitioners in
exchange for land of the petitioners elsewhere was
bad inter alia for the
reason of no notice having been issued to the
general public. The
respondents 1 to 6 before the Financial
Commissioner had relied on policy
guidelines
issued by the ADM-cum-Director (Panchayat) for exchange of
Gaon
Sabha land with private land. Reliance was also placed on
notification
dated 30th November, 2000 prohibiting allotment of Gaon
Sabha land to any
individual or institution.
14.
The petitioners had opposed the aforesaid argument by contending that
the instructions and the notification were contrary to Section 40 of
the
Reforms Act the power whereunder could not be curtailed.
15.
The Financial Commissioner noted the apparent conflict between Rules
25 & 26 of the Reforms Rules and Rule 185 of the Panchayat Raj
Rules;
while Reforms Rules did not require public notice or hearing
to the public,
Rule 185 of the Panchayat Raj Rules so provides. I
may notice that in fact it
was owing to the said observation in the
order of the Financial
Commissioner that the notice of the writ
petition was issued.
16.
The senior counsel for the petitioners has contended that while the
Financial Commissioner had at one place in the impugned order
observed
that the administrative instructions could not override the
Reforms Rules, he
has at another place held that the said
instructions had to be abided and the
exchange could have been
effected only after public notice and after the
consent of the Gaon
Sabha/Panchayat.
17.
The senior counsel for the petitioners has also argued that though
the
exchange aforesaid has resulted in closure of one rasta /
pathway i.e. the one
between the Institute of the petitioner on both
sides thereof, it has created
another rasta/pathway elsewhere on the
land surrendered by the petitioners.
It is contended that the
rasta/pathway created on the land surrendered by
the petitioner has
been found by the Deputy Commissioner to be more
beneficial
to the villagers.
18.
The senior counsel for the respondents 1 to 6 has contended that a
rasta/pathway could never have been the subject matter of exchange.
It is contended that the same is not part of Bhumidhari land which
alone can be
the subject matter of exchange. Reliance is placed on
The Municipal
Corporation of Delhi Vs. Hira Lal Tota Ram AIR 1972
Delhi 29 laying
down that MCD is competent to remove encroachment on
public street in
rural / village areas also, though Gaon Panchayat
may also act under the
Panchayat Raj Act and the Reforms Act.
19.
It is also argued that the rastas / pathways / streets do not vest in
the
Gaon Sabha.
20.
Reliance is also placed on the recent judgment dated 28th January,
2011
of the Supreme Court in SLP(C) No.3109/2011 titled Jagpal Singh
Vs. State
of Punjab commenting on the dissipation of Gaon Sabha land
and issuing
directions for preservation thereof.
21.
The senior counsel for the petitioners in rejoinder has objected that
no
plea with respect to the applicability of the Delhi Municipal
Corporation
Act, 1957 was raised before the Financial Commissioner
or even in the
counter affidavit filed in this Court and cannot be
taken suddenly during the
hearing. He contends that if the same was
to be considered, opportunity
ought to be given to meet the same.
He in response to the argument that the
views of the Gaon Sabha are
a must has drawn attention to the reply filed by
the Gaon Sabha to
the Revision Petition before the Financial Commissioner,
where the
Gaon Sabha had sought dismissal of the revision petition of the
respondents 1 to 6.
22.
The counsel for the respondent No.7 Gaon Sabha has invited attention
to
the report dated 7th January, 2010 submitted by the Deputy
Commissioner
before the Financial Commissioner where it was reported
that due to
exchange earlier allowed, the rest of the land of the
rasta / pathway has
become useless inasmuch as the same could not be
used by the villagers to
approach the pucca road (phirni) on the
periphery of the village and that the
allotment of land of rasta to
petitioners blocks the Right of Way, preventing
access by the
villagers. It was further reported that the land surrendered by
the
petitioners was at a distance of 400 mtrs. from the rasta / pathway
land
given to the petitioners and could not be used as rasta / Right
of Way by the
villagers.
23.
The aforesaid would show that while the person earlier officiating as
the
Deputy Commissioner had opined that the exchange proposed by the
petitioners was in the interest of the villagers, the present
incumbent does
not share the same view. The same demonstrates the
fickleness in the
decision making process and the manner in which
the officials are
discharging their duties.
24.
The senior counsel for the respondents 1 to 6 at the fag end of the
hearing has raised another interesting argument which he fairly
admits occurred to him only during the hearing before the Court. He
contends that
even if Section 40 of the Reforms Act and Rules 25 &
26 of the Reforms
Rules were held to be applicable, the same only
provide for an exchange
which is a matter of contract between the
petitioners and the Gaon Sabha,
with the permission of the Deputy
Commissioner. It is argued that the
Deputy Commissioner in the
present case has proceeded on the premise that
he could allow the
exchange even without the Gaon Sabha agreeing to the
same. It is
contended that the Gaon Sabha is an elected body and without
the
resolution of the Gaon Sabha or the consent of the Development
Commissioner now exercising powers of the Gaon Sabha, no exchange
could in any case have been possible and the permission earlier
granted by
the Deputy Commissioner and set aside by the Financial
Commissioner is in
any case of no avail.
25.
In my opinion the last contention aforesaid of the respondents 1 to 6
is sufficient for dismissal of this petition. Section 40 of the
Reforms Act
permits exchange of land between Bhumidhars inter se or
between a
Bhumidhar and the Gaon Sabha. However, the same has not
been left only
to the discretion of the exchanging parties and
Section 40 of the Reforms
Act
requires the permission to be obtained for such exchange.
26.
In the present case, the application / proposal of the petitioner for
exchange was unilateral. The Gaon Sabha in whom the land underneath
the
rasta / pathway sought to be exchanged was claimed to be
vesting, did not
join in the proposal of the petitioner. In fact,
there is nothing to show that
the Gaon Sabha at any time consented
to such an exchange. It is not the case
of the petitioners also.
All that is available is, that the Gaon Sabha by
seeking dismissal
of the revision petition before the Financial Commissioner
consented
to the exchange. However, the said consent even if any, is again
without any basis inasmuch as it is not shown that there was any
resolution
of the Gaon Sabha to the said effect or that the reply to
the Revision Petition
was filed under the authority of any officer
empowered to consent to the
exchange on behalf of the Gaon Sabha.
27.
Rule 26(1) of the Reforms Rules also uses the expression “where any
exchange has been agreed upon” and requires “a party to the
agreement” to
apply to the Deputy Commissioner to record the same
in the record-ofrights. There is nothing to show that when the
petitioners applied to the
Deputy Commissioner, there was any
agreement. There is also nothing to
show that the Deputy
Commissioner was exercising the powers of the Gaon
Sabha. The
Deputy Commissioner under Rule 26(1) of the Reforms Rules is
to be
approached only for recording the exchange in the record of rights
and
Rule 26 of the Reforms Rules lays down the procedure for so
permitting the
exchange.
28.
Though as aforesaid, the petition is liable to be dismissed on this
ground
alone but since detailed arguments on other aspects have been
heard, it is
deemed appropriate to deal with the other contentions
raised also.
29.
The first question which arises is whether the land of the rasta /
pathway
vests in the Gaon Sabha. Repeated enquiries were made
during the hearing
in this regard but the senior counsels could only
draw attention to Section 7
of the Reforms Act extinguishing rights
of proprietor(s) pertaining inter alia
to pathways and vesting the
same in the Gaon Sabha. Attention of the
counsels was invited to
Section 3(13) of the Reforms Act defining “land”
and which does
not include within its ambit the land underneath rastas/pathways. It
was enquired that if that were so, how the land underneath
rastas/pathways could be land which the Gaon Sabha could exchange
under Section 40 of the Reforms Act.
30.
I further find that Section 154 (1)(vi) of the Reforms Act vests
pathways
situated in a Gaon Sabha Area in the Gaon Sabha. The said
provision also
treats pathways differently from “all lands whether
cultivable or otherwise”
dealt with in Section 154 (1)(i). Thus,
pathways/rastas, though vesting in
Gaon Sabha, cannot be said to be
“land for the time being vested in Gaon
Sabha” within the
meaning of Section 40 of the Reforms Act. The land
vesting in Gaon
Sabha is differently dealt from pathways vesting in Gaon
Sabh
mattefr o ejectment of unauthorized occupants therefrom also. While
provision for former is made under Section 86A, for the latter
provision is made in Section 87 of the Reforms Act. The same also
demonstrates that the pathways/rastas though vesting in the Gaon
Sabha cannot be said to be the land of the Gaon Sabha which the Gaon
Sabha can
agree to exchange.
31.
Mention may also be made of Section 73 of the Reforms Act which
describes the land to which the Gaon Sabha is entitled to admit any
person.
The same read with Section 3(13) of the Reforms Act also
does not show
that the Gaon Sabha is entitled to admit any person as
Bhumidhar to any
land of rasta. There being no provision in the
Reforms Act for the Gaon
Sabha to admit any person to the land of
the rasta, the question of the Gaon
Sabha being entitled to exchange
the land of the rasta does not arise.
32.
Parity may be drawn of the rights even of municipalities with respect
to
streets, inspite of statutory provisions vesting the streets in
the
municipalities. A Division Bench of the Madras High Court as far
back as
in S. Sundaram Ayyar v. The Municipal Council of Madura
[1902] I.L.R. 25
Mad. 635 held that when a street is vested in
Municipal Council, such
vesting does not transfer to the Municipal
authority the rights of the owner in
the site or soil over which the
street exists - it does not own the soil – it only
has the
exclusive right to manage and control the street. The said view was
approved by the Apex Court in Municipal Board, Manglaur Vs. Sri
Mahadeoji Maharaj AIR 1965 SC 1147. It was held that the
Municipalities
do not have a right to allow any person to put up
structure on a public
pathway and which structures were not
necessary for the maintenance or
user of it as a pathway.
33.
In my opinion, the vesting of the pathways / rastas in rural areas in
the
Gaon Sabha cannot be at a higher pedestal than the vesting of
the streets in
the municipality and the Gaon Sabha, only has the
right to management and
maintenance of the rastas / pathways and has
no right of ownership therein
so as to admit any other person into
possession of the rasta or to exchange
the land of the rasta for any
consideration.
34.
The Supreme Court in Ahmedabad Municipal Corporation v. Nawab
Khan
Gulab Khan AIR 1997 SC 152 again held that footpaths, streets and
pavements are public property which are intended to serve the
convenience
of general public, they are not laid for private use and
indeed their use for a
private purpose frustrates the very object
for which they are carved out; the
facility which has matured into a
right cannot be set at naught by allowing
encroachments
thereon. It was further held that public property needs to be
preserved and the Constitutional Court has a Constitutional duty as
sentinel on the qui vive to enforce the right of a citizen when he
approaches the
Court for perceived legal injury.
35.
I am therefore of the opinion that the Gaon Sabha has not been vested
with any power to admit any person on to land of the rasta / pathway
or to
exchange the land of the rasta with any other land.
36.
Though arguments were also heard with respect to the provisions of
the
Delhi Municipal Corporation Act, 1957 but since the senior
counsel for the
petitioners had contended that the petitioners have
been taken by surprise
with respect thereto, I am not dealing with
the said aspect of the matter.
37.
The petition therefore fails. The order of the Deputy Commissioner
(set
aside by the Financial Commissioner) is found to be without
jurisdiction and
in contravention of law. The interim order granted
in this petition is vacated.
If the petitioners have in pursuance
of the order of the Deputy Commissioner
closed the rasta/pathway
aforesaid and/or included the same in their
property, the
petitioners are directed to within four weeks of today, restore
the
rasta / pathway to the original position. The petitioners if have
parted
with possession of land offered in exchange, shall similarly
be entitled to
repossess the same.
No
order as to costs.
RAJIV
SAHAI ENDLAW
(JUDGE)
