Delhi High Court
Umed Singh vs Government Of National Capital ... on 1 November, 1997
Equivalent citations: 69(1997)DLT957
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT Devinder Gupta, J.
(1) The petitioner an estate right holder, in Village Bamnolli, New Delhi, has sought the quashing of notification issued by respondent No. 2 under the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, as applicable to Delhi (hereinafter referred to as "the Consolidation Act") and the consolidation of holding proceedings, which are in progress in Village Bamnolli; to restrain respondents I and 2 from continuing the proceedings and affecting the re-partition under Section 21 of the Act and to quash Rule 6 of the Delhi Holdings (Consolidation and Prevention of Fragmentation) Rules, 1959, as amended by the (Amendment) Rules, 1996 (hereinafter referred to as "the Rules").
(2) On 8.9.1993 with the purpose of better cultivation and with the object to consolidate the holdings in various revenue estates of Delhi including those of Village Bamnolli, a notification was issued under Section 14(1) of the Consolidation Act by respondent No. 1. In order to carry out the purpose envisaged under the Act and to make a scheme for consolidation of holdings in Village Bamnolli, respondent No. I appointed respondent No. 2, as the Consolidation Officer, whose appoint- ment under Section 14(2) of the Consolidation Act was notified on 25.6.1996. With a view to form the Advisory Committee for consolidation and to represent the interests of Bhumidars and residents of the village, the Consolidation Officer on 26.6.1996 issued a public notice. The Consolidation Advisory Committee was duly 'formed on 29.7.1996. Simultaneously, on 25.6.1996 public notice was issued by the Consolidation Officer inviting applications from the residents of the Village and the estate right holders for allotment of lands within Phirni (extended Abadi) or for factory plots. On 7.4.1997, draft scheme was duly prepared and published by the Consolidation Officer under Section 19 of the Act, which was duly confirmed by the Sub-Divisional Officer, Nazafgarh under Section 20 of the Act. Pursuant to the scheme, as duly confirmed, the Consolidation Officer took steps to carry out repartition. At that stage, this writ petition was preferred on 26.5.1997 for the aforementioned reliefs.
(3) It is alleged that at the time of issuance of notification under Section 14 of the Act, a decision was taken by respondent No.l that the villages in which consolidation of holding operations will be undertaken, the same shall not be urbanised till 2001. The Scheme of Consolidation under the Act was initiated in respect of those villages within the National Capital Territory of Delhi, which fall within the category of Rural Areas. On 24.10.1994 notification (Annexure-P.9) was issued by the Municipal Corporation of Delhi with the previous approval of the Government under Clause A of Section 507 of the Delhi Municipal Corporation Act, 1957. On issuance of this notification Village Bamnolli ceased to be a Rural Area and became urbanised. The effect of this notification is that the holdings of the Bhumidars of the entire Village have ceased to be agricultural holding and the same are out of the purview of Delhi Land Reforms Act, 1954. Thus after declaration of the area of Village Bamnolli as urbanised, the sole purpose and object of consolidation has been rendered infructuous and stands frustraied.
(4) It is also alleged that a notice was published in Jansatta on 2.5.1997, according to which. Village Bamnolli falls in development area Nos. 171 and 172, declared as such under Section 12 of the Delhi Development Act for Dwarka project. The effect of such a notification would be that no person including Government department or agency would be in a position to carry out any development of land or raise any construction, except in accordance with the provisions of Delhi Development Authority, 1957. Thus the Consolidation proceedings now being carried out are in contravention of the notification issued by Delhi Development Act under Section 12 of the Act. The same are illegal and without jurisdiction.
(5) It is also alleged that the amended Rule 6(j)(i)&(ii) of the Rules are contradictory to each other on the ground that in consolidation proceedings, it is not the area but the value of the land, which is important. In the initial stage of the proceedings, the value of the lands of the entire village and also of each of the landowner is fixed. As per the amended Rule 6(j)(i) if the land of a Bhumidar is included in the extension of village Abadi, he would be given agricultural land worth two times the value of the land and as per Rule 6(j)(ii), if a Bhumidar would apply for allotment in the extension of village Abadi, he will have to surrender in exchange two time the size of his agricultural land. The said Rules being contradictory to each other, namely, in Rule 6(j)(i) the value of the land is the criteria whereas in Rule 6(j)(ii), it is the size of the land, which is the determining factor. The said provisions being contrary to the scheme of the Consolidation Act are liable to be quashed.
(6) On 27.5.1997 while issuing notice to show cause interim order was passed that in the meanwhile, it was directed that final order will not be passed under Section 21 of the Act. The parties were duly served. Original record of the consolidation proceedings was made available to us.
(7) It is stated in the reply that the Scheme for consolidation of Village Bamnolli has been prepared in consonance with the provisions of the Act. There is no contradiction in Clauses (i) and (ii) of Sub-rule (j) of the amended Rule 6, inasmuch as a Bhumidar, whose land has been included in the extension of the village Abadi may be given agricultural land worth two times the value of land surrendered by him. The Bhumidar who seeks allotment of plot in the extension of the village Abadi has to surrender in exchange during consolidation two times the size of agriculture land. Since the Scheme is prepared in consonance with the rules, the mere fact that the word "size" has been used in clause (ii) will make no difference. The scheme is neither in contradiction to the provisions or the object of the Act nor to the intention of the Rule making authority that it is the value, which is to be the determining factor and not the size of the holding. It is also stated in the reply that issuance of notifications under Section 507 of the Delhi Municipal Corporation Act or Section 12 of the Delhi Development Act has no effect on the consolidation of holding proceedings, which are in progress. Irrespective of issuance of such notifications, the land continues to remain agricultural land, for which the provisions of Consolidation Act would apply and the Consolidation Authorities will continue to exercise jurisdiction over the area in question. The petitioner's right to maintain the petition, who did apply for consolidation of his holding is also under challenge on merits. We heard learned counsel for the parties at length.
(8) There cannot be any dispute that the consolidation of the holding operations in any estate are carried out with the object and for the purpose of better cultivation of lands therein. A scheme for consolidation is to be prepared by the Consolidation Officer in consonance with the provisions of the Act after obtaining, in the prescribed manner, the advice of land owners of the estate concerned. It is not in dispute that Consolidation Advisory Committee was duly constituted under the provisions of the Act and Rules framed thereunder. There is no challenge made by the petitioner, as regards constitution of the Consolidation Advisory Committee. There is also no dispute that a draft Scheme of Consolidation was prepared in accordance with the provisions of the Act and the same was duly notified by the Competent Authority. No person raised any objection against the draft Scheme for consolidation prepared under the Act, though the same could have been preferred under Section 19 of the Consolidation Act. It is also not in dispute that the petitioner, pursuant to the public notice, which had been issued on 25.6.1996 by the Consolidation Officer, inviting applications for allotment of the plot within Phirni area or for allotment of factory plot, submitted his application on 27.11.1996. The Scheme accordingly was duly confirmed on 7.4.1997 under Section 20 of the Act and was duly published. The petitioner's sole grievance, as pointed out and as alleged aforementioned, has been only qua the contradiction in Clauses (i) and (ii) of the amended Clause (j) to Rule 6 of the Rules and with the validity of Consolidation proceedings after the issuance of the notification under Section 507 of the Delhi Municipal Corporation Act and the so called notification under Section 12 of the Delhi Development Act.
(9) Rule 6 of the Delhi Holdings (Consolidation and Prevention of Fragmentation) Rules, 1956 stood amended by Rule 4 of the Delhi Holdings (Consolidation and Prevention of Fragmentation) (Amendment) Rules, 1996 by virtue of which clause (J)of the Principal Rules stood substituted by new Clause (j). Sub-clauses (i) and (ii) of which reads: (j) (i) Bhumidhar whose land has bee included in the extension of the village Abadi may be giver, agricultural land worth two times the value of land surrendered. (ii) Bhumidhar who has applied for allotment of plot in the extension of village Abadi shall surrender in exchange during consolidation two times the size of agriculture land subject to the size of the plot and eligibility."
(10) Word "value" is used in Sub-clause (i) while in Sub-clause (ii) word size has been used. Apparently, when the words used are "value" and "size", there is some contradiction. It is settled position that during consolidation of holding proceedings the value of land is worked out, as per the standards prescribed under the Scheme. Copy of the Scheme, which has been duly confirmed has been placed on record. It provides that the value of the land of village has been fixed, according to its use and location with consultation of the members of the Advisory Committee, Bhumidhars and non-Bhumidhars. Four categories of land within the village have been given valuation of 32 annas, 16 annas, 12 annas and 8 annas. Land, which is included in the extension of village Abadi has been given the highest valuation of 32 annas, as compared the land outside extended Abadi, which is given valuation of 16 annas, 12 annas and 8 annas for different categories of lands according to its use.
(11) As per the Scheme, a Bhumidhar whose land is included in the extension of Abadi is to be given agricultural land worth two times the value of the land surrendered and Bhumidhar, who has applied for allotment in extension of Abadi has to surrender in exchange, during consolidation two times the value of agricultural land, subject to size of plot and eligibility. This Scheme, which has been confirmed and approved, admittedly is in consonance with the provisions of Act and the general principles of consolidation. Learned Counsel for the petitioner has not been in a position to point out any defect in the scheme, which has been confirmed and approved. His submission has been that as per the amended Rule 6 and on operation of Sub-clause (ii) of Clause (j) thereof a Bhumidhar will have to surrender double the size of his holding in lieu of land in the extended Abadi rather than double the value of the holding.
(12) Irrespective of the amended Rule and the argument, in actual operation and as per the approved scheme, it is the 'value' of the land, which has been made the determining factor and not the 'size' of the land. The mere fact that in Sub-clause (ii) the word "size" has been used, the same has not been taken note of in the Scheme. The scheme apparently has been framed and approved by reading the word 'size' in Sub-clause (ii) in Clause (1) as value and rightly so, for which the petitioner can and has no objection. The intention of the Rule making authority could not be to go contrary to the general scheme of consolidation. In order to give effect to the intention of the Rule making authority, which is reflected in Sub-clause (i) of Clause (j) in Rule 6 by the use of the word value, the word 'size' ill Sub-clause (ii) of Clause (j) can be read as 'value'. In case it is so done, there can be and is absolutely no grievance on behalf of the petitioner. Thus reading of the word "size" in Sub-clause (ii) of Clause (j) in Rule 6, namely, two times the size of the agricultural land as two times the value of the agricultural land, which appears to have been read as such by the consolidation authorities and all concerned, to which there is no objection by the petitioner, is perfectly in consonance with spirit of the Act. The challenge by the petitioner to such provision is theoretical and need not be further gone into by us in this case.
(13) The Corporation with the previous approval of the Government is empowered to issue notification under Section 507 of the Delhi Municipal Corporation Act declaring that any portion of rural areas shall cease to be included therein and upon issuance of the notification the same shall stand included in and form part of the urban areas. Such a notification was issued on 3.11.1994. One of the consequence of issuance of such a notification would be that the Gaon Sabha constituted for the area shall stand dissolved and on dissolution all properties, movable and immovable of Gaon Sabha shall vest in the Central Government, as provided in Sub-section (3) of Section 150 of Delhi Land Reforms Act, 1954, which says: "If the whole of a Gaon Sabha area ceases to be included in rural areas as defined in the Delhi Municipal Corporation Act, 1957, by virtue of a notification under Section 507 of that Act, the Gaon Sabha constituted for that area shall thereupon stand dissolved and on such dissolution - (a) all properties, movable and immovable, and all interests of whatsoever nature and kind therein including moneys held in Gaon Sabha Area Fund, vested in the Gaon Sabha immediately before such dissolution, shall with all rights of whatsoever description, used, enjoyed or possessed by such Gaon Sabha, vest in the Central Government; (b) all duties, obligations and liabilities incurred, all contracts entered into and all matters and things-engaged to be done by, with or for the Gaon Sabha before such dissolution shall be deemed to have been incurred, entered into or engaged to be done with or for the Central Government; (e) all rates, taxes, cesses, rents and other charges due to the Gaon Sabha immediately before such dissolution shall be deemed to be due to the Central Government; (d) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Gaon Sabha may be continued or instituted by or against the Union of India; (e) the provisions of this Act shall apply in relation to lands in such Gaon Sabha area, not being lands vested in the Central Government under Clause (a) subject to the modification that references therein to Gaon Sabha and gaon Panchayat shall be construed as references to the Central Government; (f) notwithstanding anything contained in Clause (b) of Sub-section (2) of section I, the provisions of Sections 84, 85, 86, 86A and 87 and any other provision of this Act relating to ejectment of persons shall apply in relation to lands vested in the Central Government under Clause (a) subject to the modification that references therein to Gaon Sabha and Gaon Panchayat shall be constructed as references to the Central Government."
No other provision of the Delhi Land Reforms Act or any other provision of any other enactment was brought to our notice due to which the revenue estate on being declared to be urbanised might affect the status of the land located therein. Accordingly, the lands situated in Village Bamnolli, irrespective of issuance of the notification under Section 507 of the Delhi Municipal Corporation Act, 1957 would continue to remain agricultural land and will not affect its status. Consequently, it cannot have any effect on the on going process of consolidation, which is being carried out under a valid piece of legislation, namely. Consolidation Act, the object of which is to provide for better cultivation of land within the estate concerned.
(15) Issuance of any notification under the provisions of Section 12 of the Delhi Development Act also cannot affect the legality and validity of the consolidation proceedings. The effect of such a notification at the most would be that no development of land can be undertaken or carried out in any area of the village by any person including the Government Departments except with the consent of the authority constituted under the Delhi Development Act. Carrying out of repartition under the provisions of the Consolidation Act is not an act of development of land. Repartition is carried out for the purposes of consolidating of holdings, which by no stretch of imagination would amount to development within the ambit of the provisions of Delhi Development Act in which the word "development" has been defined in Section 2(d) as under : ""development" with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment. "
(16) The petitioner having himself applied for allotment of land within the extended Abadi and having raised no objection against the draft Scheme cannot be heard to say that the consolidation proceedings be not proceeded further. There is a statutory remedy provided under the Act to raise objection to the draft Scheme under Section 19 of the Consolidation Act. Objections, if raised, are to be dealt with and decided by the Settlement Officer (Consolidation). On the disposal of such objections, the Scheme is to be confirmed. Since no such objections were raised within the prescribed period, the Consolidation Scheme was duly confirmed and published. Re-partition is to be carried out under the provisions of Section 21 of the Act and any person aggrieved by re-partition can avail remedy under the provisions of the Act by preferring an appeal or revision, as provided in Sub-sections (3) & (4) of Section 21 of the Act. The Act also has conferred power on respondent No.l to call for the record of the proceedings for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under the Act and to pass such orders as may be deemed fit. The petitioner has also not availed of such as remedy as provided under Section 42 of the Act. Section 36 also empowers respondent No. 1 to vary or revoke a scheme for consolidation of holdings confirmed under the Act. There is ample machinery provided under the Act for giving relief to an aggrieved person, in case repartition is not carried out in accordance with the Scheme or in case Scheme is contrary to the provisions of the Act.
(17) We find no ground in this petition to interfere with the consolidation operations being conducted in accordance with the provisions of the Act. Dismissed.