Delhi High Court
Chand Sharma And Ors. vs Lt. Governor Of Delhi And Ors. on 18 August, 1987
Equivalent citations: 33(1987)DLT164
JUDGMENT Jagdish Chandra, J.
(1) The petitioners have filed this writ petition under Article 226 of the Constitution of India for quashing the allotments made by the respondents under the 20-Point Programme of the Government of India in village Harevli, Delhi and also for issuance of an appropriate writ, order or direction in the nature of mandamus directing the respondents to perform their duties in accordance with law.of Delhi & others (2) Respondent No. 2 Delhi Administration issued an order dated 18-8-1982 under Rule 178 (2) of the Delhi Panchayat Raj (Amendment) Rules, 1976, whereunder some guidelines were framed for purposes of alloting lands in village Harevli Subsequently, the aforesaid order was amended in a meeting held by the Lt. Governor on 3-9-1986 in the presence of the Executive Councillor and other officials, wherein it was provided that a Committee should be formed of the Block Development Officer, Tehsildar and the Village Pradhan who would receive the applications which would be invited after due publicity and the limit of Rs. 7501- as income of the allottee was sought to be raised to Rs. 1200!- per month.
(3) About 216 allotments of plots have been made in village Harevii, and in this petition challenge is made to these allotments. The grievance of the petitioners against these allotments is two-fold viz. :- THAT the allotment is in respect of land which is meant for permanent cattle grazing being pasture land the use of which cannot be altered and which is Shamlat Deh.
EVEN if assuming that the allotment can be made in respect of this land, the same has been made in total violation of Rule 178(2) of Delhi Panchayat Raj Act, 1954 arid in total violation of the alleged criteria set out in the amended guidelines and that the allotments have been made without compliance with any procedure as prescribbed by law or in accordance with tb3 principles of natural justice, without any valid resolution of the Gram Panchayat and without any scrutiny regarding the eligibility of the allottees.This petition, has been contested by the respondents.
(4) The Petitioner's counsel relied upon the entry in the copy of the Wajib-ul-arz of village Harevli, Delhi for the year 1908-1909 wherein the land in question has been shown as having been left for the use of Chiragh, i.e. for cattle grazing with a further direction therein that no one would be entitled lo make the same cultivable and if any one does so, he would be liable to be ejected. Even in the Khatauni for the year 1977-78 this land has been shown as permanent pasture land though belonging to Gaon Sabha. It was, thus, contended on behalf of the petitioners that the land in question could be used only as a pasture land permanently for the grazing of cattle in the village and could not be converted to any other use much less for allotment of the same as plots for residential purposes as is being done by the Gram Panchayat. This contention does not have any force for the reason that even though this land was a pasture land, meant for the grazing of the cattle of the villagers of village Harevli, the same stood vested in the Gaon Sabha of this village under S. 7 of the Delhi Land Reforms Act, 1954 (in short the Act) and the rights of the proprietors therein stood extinguished. The learned counsel for the respondents has not disputed the pasture nature of this land but has contended, and in our opinion rightly, that after the vesting of this land in the Gaon Sabha, as pointed out above, the Gaon Sabha was not bound to keep it as a pasture land and was entitled to use it for the extension of the village abadi. He has pointed out in this context sub-section (1) of S. 19 of the Delhi Panchayat Raj Act, 1954 whereunder a Gaon Panchayat may make provisions within its jurisdiction for extension of the abadi A. number of discretionary functions have been enumerated under S. 19 and making provisions for extension of the ahead is one out of the same.
(5) It would be seen that the petitioners though resident of this very village Harevli do not claim any interest in the allotment of plots in question under the 20-Point Programme of the Government of India and they claim interest only in Shamlat Deh land out of which the plots have been allotted. S. 7 of the Act is reproduced below :-
ALL rights of an individual proprietor or proprietors pertaining to waste lands, grazing or collection of forest produce from forest or fish from fisheries lands of common utility, such as customary common pasture lands, cremation or burial grounds, abadi sites pathways, public wells, tanks and water channels, or Khalihans, whether covered by an existing contract between such proprietor or proprietors and any other person or not, shall with effect from the commencement of this Act be terminated in accordance with the provision of subsection (2) and the said contracts, if any, shall become void with effect from such commencement :
(2)On the commencement of this Act, the Deputy Commissioner shall pass an order in respect of the proprietor or proprietors of each village cither singly or collectively divesting the individual proprietor or proprietors of the right-; mentioned in sub-section (1) and vesting those rights in the Gaon Sabha or in any person or authority appointed by the Chief Commissioner under section 161 with effect from the commencement of this Act and staling that a compensation equal in. value to four times the amount of annual land revenue assessed at the last settlement for the cultivable and uncultivable waste area of the village shall be paid by the Government to the proprietor or proprietors concerned."
S. 19(1) of Delhi Panchayat Raj Act, 1954 provides as follows :- "A Gaon Panchayat may also make provisions within its jurisdiction for- (1) extension of the abadi;"
(6) Functions and duties of Gaon Panchayats are enumerated in S. 156 of the Act and sub-clause (e) thereof enjoins upon the Gaon Panchayat "the maintenance and development of abadi sites and village communications". So, obviously the extension of the village abadi can be made by Gaon Sabha only from the land vesting in it and pasture land cannot be an exception to this power of the Gaon Panchayat and consequently the Gaon Sabha was fully competent to allot the land in question as residential sites for the extension of village abadi from the land vested in it including the pasture land.
(7) Under S. 160 of the Act "the Chief Commissioner may issue such orders and directions to the Gaon Sabha or the Gaon Panchayat as may appear to be necessary for purposes of the Act, and it shall be the duty of the Gaon Sabha or the Gaon Panchayat and its office bearers to forthwith carry out such orders and comply with such directions". One of the directions of the Chief Commissioner of Delhi is to implement the 20-Point Programme and in pursuance of that the housing sites have been allotted by the Gaon Sabha out of the land vested in it. So, there is left no manner of doubt that the Gaon Sabha was entitled to utilize even this pasture land for the extension of village abadi.
(8) The Gaon Panchayat by a resolution dated 19-6-1985 annexure R-4 decided to extent the village abadi by allotting the land in question for use as housing sites to be distributed to the people of the village who were facing problems of residence. The Gaon Sabha by its resolution dated 16-8-1985 (Annexure Rvv and its translation RVI/T) accepted the resolution of the Gaon Panchayat. This resolution was then sent to the Director of Panchayats who vide his order dated 11-10-1985 (Annexure Rviii and its translation RVIII/T) approved the same.
(9) The word land' has been defined in S. 3(13) of the Act as under :- " land' except in sections 23 and 21 means land held Governor of Delhi & others or occupied for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes- (a) buildings appurtenant thereto, (b) village abadis, (e) grovelands, (10) S. 74 178 of the Delhi Panchayat Raj Rules, 1954 is reproduced below :- "Lease without premium :-
(1)In the case of a lease without premium transferring immovable property vested in the Gaaon Panchayat a reasonable annual rent shall be reserved and made payable during the whole term of the lease and the or any agreement to grant lease shall not be made without the previous sanction of the Gaon Panchayat by a resolution; and also with the previous sanction of the Director of Panchayats when terms of lease does not exceed 10 years and when the term exceeds 10 years but does not exceed 30 years with the previous sanction of the Development Commissioner and when the term exceeds 30 years with the previous sanction of the Lt. Governor;
(2)INthe case of perpetual lease without premium transferring; land vested in the Gaon Panchayat as house-sites not exceeding an area of 120 sq. yds. a reasonable annual rent shall be determined by the Gaon Panchayat with the approval of the Director of Panchayats payable during the whole terms of the lease and the lease shall not be made without the previous sanction of the Gaon Panchayat by a resolution and shall be with the prior approval of Deputy Director of Panchayats."
(11) S. 74(1) of the Act entitles the Gaon Sabha to admit any person as asami to any land falling in any of the clauses mentioned in sub-clause (iii) of Clause (a) of S. 6 of the Act where the land is vested in the Gaon Sabha. It reads as follows :- "74(1)The Gaon Sabha shall have right to admit any person as Asami to any land falling in any of the classes mentioned in sub-clause (iii) of clause (a) of section 6 where- (a) the land is vacant land, (b) the land is vested in the Gaon Sabha, or (c) the land has come into the possession of the Gaon Sabha under section 72 or under any other provision of this Act."
(12) S. 6(a)(iii) includes pasture land. So, reading together S. 3(13)(b) and S. 74(IXb) and S. 6(a)(iii) of the Act and the Amended Rule 178(2)' of the Delhi Panchayat Raj Rules act out above goes to show that the Gaon Sabha had the right to allot housing sites from the land in question to various persons as lessees (Asamis) and the contention of the learned counsel for the petitioners vehemently urging that there are only two tenure-holders-bhumidhar and Asami-created by the Act and those two tenure-holders are meant for rhe cultivation of the land only for agriculture purposes of purpose subsidiary thereto and for no other purpose for which reason the allotment of the land in question as housing sites is barred by the Act. cannot be accepted. S. 75(1) of the Act furnishes the order of preference which the Gaon Sabha shall, subject to the rules framed or any order made by the court in a suit for partition or in any other suit, follow in admitting any person as a Bhumidhar or Asami under Ss. 73 and 74 of the Act.
(13) Under sub-section (2) of S. 75 of the Act the Deputy Commissioner is entitled to enquire if the Gaon Sabha .has acted with substantial irregularity or otherwise than in accordance with the provisions of the Act and oil being so satisfied he can cancel the order of the Gaon Sabha. This provision reads as follows :- "The Deputy Commissioner may, on his own motion, and shall on the application of any person aggrieved by an Order of the Gaon Sabha passed under subsection (1), enquire in the prescribbed manner and if he is satisfied that the Gaon Sabha has acted with substantial irregularity or otherwise than in accordance with the provisions of this Act, he may cancel such order."
(14) Schedule I attached to the Act provides at item No. 15 that the said application for the cancellation of the order of Gaon Sabha relating to admission of a person to land shall be filed within the period of six months from the date of the order of Gaon Sabha and that a court-fees of Rs. 1.25 P. shall be paid on the said application which shall be made to the Deputy Commissioner. It is further provided against the same item under Col. No. 8 that appeal against the order of the Deputy Commissioner can be filed before the Chief Commissioner. It would, thus, be seen that complete forum for redress of grievances, if any, against the allotment of plots has been provided under the Act. Thus, it shall not be difficult to see that the Gaon Sabha was competent to allot plots of the land for residence to various people under S. 74(1) of the Act and any substantial irregularity therein or non-compliance with the provisions of the Act while making the allotments, have been made Justiciable before the Deputy Commissioner and then before the Chief Commissioner by way of an appeal and obviously in order to determine the substantial irregularity or non-compliance with the provisions of the Act the Deputy Commissioner would take evidence whatever necessary in that regard, with the necessary consequence that whatever lack of procedure or irregularities or non compliance with law have been asserted by the petitioners in this petition against the impugned allotoments; could be gone into and adjudicated upon and the necessary orders passed by the Deputy Commissioner and the same could be further agitated before the Chief Commissioner and the various objections raised by the petitioners in the petition alleging the various irregularities in the matter of the pres cribbed procedure and the law as also the eligibility of the various allottees who are very large in numbers raising complicated disputed question of fact could be determined by the Deputy Commissioner under sub-section (2) of S. 75 of the Act, and are not matters for invoking the extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India.
(15) The perusal of the records of this case shows that a representation dated 23-3-87 (P-12) was made to the Deputy Commissioner, Delhi against the allotments in question arid facts in that behalf were also submitted therein and an impartial enquiry in the matter was solicited. The Deputy Commissioner ordered an enquiry in this mater, [vide order dated 4-3-87 (P. 13)]. It appears that the enquiry did not proceed further and was not concluded. The Deputy Commissioner had also passed an interim order whereby the allottees of the plots were stopped from making construction over the plots allotted to them till the enquiry was finalised. However, the Executive Councillor (Dev.) directed that the allotters may be allowed to provide with the construction over the plots allotted to them. This did not and could not put an end to the enquiry pending before the Deputy Commissioner. The petitioners can, under the circumstances, approach the Deputy Commissioner with the request to proceed with the enquiry and bring it to conclusion, where after if need be, go in appeal before the Chief Commissioner for the redressal of their grievances. In view of the above discussion, the writ petition is dismissed with, however, no order as to costs.