Delhi High Court
Trikha Ram vs Sahib Ram on 1 October, 1997
Equivalent citations: 1998IAD(DELHI)341, 69(1997)DLT749, 1997(43)DRJ669
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) This revision petition raises an interesting and important question as to whether the provisions of the Delhi Land Reforms Acts would continue to apply and govern land in respect of which a notification has been issued under Section 507 of the Delhi Municipal Corporation Act of 1957 for urbanizing the said land and declaring that the said rural area shall cease to be rural area?
(2) This question has arisen for consideration in the facts stated below : (I)The petitioner, Shri Trikha Ram and respondent, Shri Sahib Ram are real brothers, being sons of late Shri Chhedi Lal, Shri Chhedi Lal had purchased a plot of land bearing No. F-11, Subhash Mohalla, Village North Ghonda, Delhi, admeasuring 300 sq. yards, vide a registered sale deed in the year 1970 and raised some construction thereon. The petitioner, Shri Trikha Ram, who is in possession of portion constructed over 100 sq. yards, while respondent No. 1, Shri Sahib Ram is in possession of the portion of about 130 sq. yards. The remaining portion of the property admeasuring about 70 sq. yards is in possession of one Shri Singh Raj Singh, s/o Shri Chhajjan, nephew of Shri Chhedi Lal. Shri Singh Raj Singh is stated to have been inducted as licencee by late Shri Chhedi Lal. ii) The petitioner filed a suit seeking a partition of the property between the petitioner and respondent No. 1 in equal shares and for division of the property by metes and bounds. Injunction was also sought against Shri Singh Raj Singh from raising any construction in the portion in his occupation.
(3) Before the learned Civil Judge, the respondent, defendant therein raised a preliminary objection as to the maintainability of the suit. It was contended that the jurisdiction of the Civil Courts was barred under Section 185 of the Delhi Land Reforms Act. It was urged that proceedings could be initiated for partition only before the Revenue Assistant, since provisions of Land Reforms Act were applicable to the land. The respondent contended that the property was situated in the Revenue State of Village Ghonda in Khasra No. 459, and to which the Delhi Land Reforms Act applied. Revenue records were referred to show land fell within Revenue State of Village Ghonda. It was further stated that the property was purchased by a registered sale deed from its recorded Bhumidar and the said Shri Chhedi Lal had acquired only Bhumidari rights and Civil Courts had no jurisdiction.
(4) The petitioner argued before the Civil Judge that the property in question was a residential house and no agricultural activity was carried there and none was presently going on. No declaration with regard to the Bhumidari rights was being sought so as to go before the Revenue Assistant. Total holding being less than 8 acres, it was urged that the Land Reforms Act will not apply.
(5) Learned Civil Judge held that merely because of construction over the land and the same being used for residential purposes, it would not cease to fall within the definition of `land' within the Delhi Land Reforms Act. The Civil Judge, accordingly, held that the case would fall within Serial No. 11 of Schedule I and Section 55 of the Delhi Land Reforms Act being a suit for partition of holding of a Bhumidar. By virtue of Section 185 of the Delhi Land Reforms Act, the jurisdiction of the Civil courts would be barred. The suit was accordingly dismissed.
(6) The question that falls for consideration is whether the provisions of the Delhi Land Reforms Act would apply to the land that stands urbanised ? It is an admitted position that land in suit was urbanised vide notification dated 28.5.1966 published in the Delhi Gazette, Extra Ordinary Part Iv on 3.6.1966. The notification was issued by the Corporation with the previous approval of the Central Government in exercise of powers conferred by case (a) of Section 507 of Delhi Municipal Corporation Act, 1957. The Corporation under the notification declared the localities mentioned in Schedule to the notification till then being part of the rural areas, shall cease to be rural areas. From a copy of the notification, it is seen that entire remaining area of the Revenue estate of Ghonda stood urbanised, in terms of the aforesaid notification. Besides, the land and property in question are exigible to house tax as levied by the Municipal Corporation of Delhi. Electric connection is sanctioned for domestic use and other civic amenities as provided by the Municipal Corporation are available. Further vide notification No. So 1236 dated 27.3.1979 in exercise of powers under Sub-section 2 of Section 1 of Delhi Rent Control Act, 1958, extended all the provisions of Delhi Rent Control Act to the localities urbanised vide the notification of 3.6.1966 referred to earlier. Accordingly, the provisions of the Delhi Rent Control Act also apply to the subject property.
(7) It is in the light of these facts, we have to consider whether the provisions of the Delhi Land Reforms Act continue to apply so that proceedings for partition, would lie only before the Revenue Assistant under the Delhi Land Reforms Act ? In this context, it would be pertinent to reproduce the definition of land as given in Section 3(13) of the Delhi Land Reforms Act : @SUBPARA = "Land" except in Sections 23 and 24, means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes-- @SUBPARA = (a) building appurtenant thereto, @SUBPARA = (b) village Abadis, @SUBPARA = (c) grovelands, @SUBPARA = (d) land for village pasture or land covered by water and used for growing Singharas and other produce or land in the bed of a river and used for casual or Occasional cultivation, but does not include--land occupied by buildings in belts of areas adjacent to Delhi town and New Delhi town, which the Chief Commissioner may by a notification in the official Gazette declare as an acquisition thereto. @BTINDENT = The definition of land as given above is an inclusive definition. It would be seen from the definition of `land' that apart from the land occupied for various purposes connected with agricultural horticultural, animal husbandry, poultry etc. or buildings appurtenant being treated as land for purposes of Land Reforms Act, the inclusive definition of land describes the various other kinds of land viz. groveland, village Abadi etc. @BTINDENT = For the present case, definition of land as given in Sub-clause (b) of Clause 13, Section 3 i.e. land on which "village Abadi" is there and land as per Sub-clause (d) of Clause 13, Section 3 are relevant.
(8) The contention of the learned Counsel for the respondent is that once provisions of the Delhi Land Reforms Act apply to certain lands, then the same continue unless it is converted for industrial use in terms of Section 23 of the Delhi Land Reforms Act, when the provisions of Chapter Iii of the Act would cease to apply. Drawing support from the definition of land as given in Clause `d' above, it was argued that the exclusion of land from the provisions of the Delhi Land Reforms Act can be of the "land occupied by buildings in belts of areas adjacent to Delhi town, and New Delhi town, which the Chief Commissioner may by a notification in the official Gazette declare as an acquisition thereto". In the instant case, it was argued that the notification has not been issued by the Chief Commissioner or by the Lt. Governor. In the absence of such a notification, the land would not get excluded simply by a notification issued under the Delhi Municipal Corporation Act for urbanisation of the land.
(9) Reliance was also placed by the Counsel for the respondent on a judgment of the Division Bench of Regal Traders Pvt. Ltd. & Ors. v. Lt. Governor of Delhi & Ors. , wherein the Court made certain observations as regards the definition of land under the Delhi Land Reforms Act and whether the land falling in village Abadi could be used for purposes other than those specified in Section 3(13) of the Delhi Land Reforms Act. It would be appropriate to reproduce para 28 of the said judgment, wherein the observations were made. @SUBPARA = "Mr. Sabharwal, learned Counsel for the respondents, next tried to take the help of the definition of land under the Delhi Land Reforms Act which means the land held or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes buildings appurtenant thereto, village Abadis, grovelands, land for village pasture or land covered by water and used for growing Singharas add other produce or land in the bed of a river and used for casual or occasional cultivation but does not include land occupied by buildings in belts of areas adjacent to Delhi town and New Delhi town which the Chief Commissioner may be a notification in the official Gazette declare as an acquisition thereto. From this definition, he tried to substantiate that even though the land falling within the village Abadi (Lal Dora or Firni) cannot be utilised for purposes other than specified under Section 3(13) of the Delhi Land Reforms Act. This argument, to our mind, is also hardly of any relevance or substance. This definition is relevant only for the purpose of the revenue authorities to decide at the commencement of the Delhi Land Reforms Act, whether any land is covered by the Act or not and whether the Delhi Land Reforms Act should be applied to the said land or not? Once at the commencement of the Act, the Act is applied then the said land will continue to be the land governed by the said Act and cannot be taken out of the said Act by any subsequent Act. The very fact that Khasra numbers were allotted to this land by the revenue authorities and that the Consolidation Officer had also included the said land into the consolidation scheme and issued Aksh Shajra of the same, shows that this land falls within the definition of Section 3(13) of the Delhi Land Reforms Act. Furthermore, the land occupied by buildings also falls within the definition of Abadi, land as the land in question is a land of village Abadi and is being used as such, the latter part of this section which says does not include land occupied by buildings in belts of areas adjacent to Delhi town and New Delhi town which the Chief Commissioner may by notification in the official Gazette declare as acquisition thereto clearly shows that there should be a notification by the Chief Commissioner in respect of buildings or in respect of land occupied by buildings adjacent to Delhi town and New Delhi town and only then they could be taken out from the provisions of Delhi Land Reforms Act, this contention of the learned Counsel for the respondent, therefore, fails."
(10) The above observations were made by the Court while considering the argument of the respondent-MCD, that even if land in dispute fell within village Abadi or extended Abadi, it could not be used for purposes other than those mentioned in Section 3(13) of the Delhi Land Reforms Act. The facts of the case may be briefly noted. The petitioners in the writ petitions had challenged the orders of demolition and sealing of the constructions raised by the petitioners. The contention of the petitioner was that the land in question fell within the Lal Dora i.e. Phirni or extended village Abadi. Petitioners had not sub divided the land into plots, it was a single undivided plot with a single complex. Hence, permission for a lay out under Section 313 of the Delhi Municipal Act was not required. Besides in terms of notification issued under Clause b of Section 507 of Delhi Municipal Act, the portions or rural areas within village Abadi were exempted from following provisions relating to Building regulations viz. Sections 332 to 336, 342 to 347 of the Delhi Municipal Act. Accordingly, the petitioners urged no permission or sanction for construction was required and there was unauthorised construction, which could be sealed or demolished. The Court after considering the documents i.e. Khatauni and other revenue records held that the land fell within the extended village Abadi. Further by virtue of the aforesaid notification under Section 507(b) an exemption was provided from the provisions of Building Regulations. The Court also repelled the argument permission for lay out was required under Section 313 since there was no sub division into plots for purposes of construction. Besides the initial show cause notice did not contain the ground of permission being required for a lay out. Faced with this situation, Counsel for the respondent then submitted that land within village Abadi could be used only for purposes specified in Section 3(13) of Delhi Land Reforms Act. It is in this context and background that the Court made the following observations in Para 28.
(11) Reliance is placed on the above judgment to canvass that since provisions of Land Reforms Act were applicable, they shall continue to so apply and cannot be taken out of the said Act by any subsequent Act. Secondly, it was only when a notification was issued by the Chief Commissioner in respect of the buildings or in respect of the land occupied by the said building adjacent to Delhi town and New Delhi town, then only the land could be taken out from the purview of the Delhi Land Reforms Act.
(12) In my view, the aforesaid, judgment would not advance the respondent's case. The judgment as noticed earlier was delivered in the context of whether any sanction for construction of the building under Sections 332 and 333 of the Delhi Municipal Corporation Act was required or not? The Division Bench did not have the occasion to consider the effect of notification issued under the Delhi Municipal Corporation Act under Section 507(a) of urbanizing the land. It would be at this stage pertinent to notice the definition of Rural Area and Urban Area as given in Sub-section 52 of Section 2 and Sub-section 61 of Section 2. The effect of a notification under Section 507(a) is that the area mentioned therein ceased to be rural area and from the date of notification is included in urban areas. Even the definition of "Rural Area" in Section 2(52) of the Delhi Municipal Corporation Act excludes areas, which by virtue of notification under Section 507 cease to be so. In Regal Traders Pvt. Ltd. & Ors. v. Lt. Governor of Delhi & Ors., Court was considering the effect of the notification under Section 507(b) by which certain provisions of Building Regulations were not apply to rural areas. It was not considering, whether provisions of Delhi Land Reforms Act would apply to land that ceases to be rural and becomes urban area. A meaningful reading of Section 3(13) of the Act would show that in the instant case to begin the property in suit fell within "village Abadi". The question that we have to consider is once the provisions of the Delhi Land Reforms Act are applicable on account of the same falling within Section 3(13)(b), Whether the same would continue even if it is ceased to be "village Abadi". In my view this would be a case falling within 3(13)(b) and not under 3(13)(d), where the requirement for notification by the Chief Commissioner arises for exclusion of the provisions of the Delhi Land Reforms Act. It appears to me that once by virtue of notification issued under Section 507(a) of the Delhi Municipal Corporation Act, the land is declared to be urban land it could no longer be classified as "village Abadi land" within the definition of `land' under the Delhi Land Reforms Act. The provisions of Land Reforms Act would not be applicable.
(13) In view of the foregoing discussion, it would be seen that the impugned order holding that the provisions of the Delhi Land Reforms Act continue to apply and thereby the jurisdiction of the Civil Court under Section 185 of the Land Reforms Act was barred is vitiated by material irregularity. Accordingly, the impugned order is set aside and the revision petition is allowed and the suit is remanded back to the Civil Court for trial.