Delhi District Court
Gaon Sabha Village Mandoli vs Smt. Chandra Devi on 28 March, 2014
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No. 136/2012
Date of Institution of Appeal : 15.12.2012
Date on which Reserved for Judgment : 28.03.2014
Date of Judgment : 28.03.2014
Case I.D. Number : 02402C0355762012
IN THE MATTER OF :-
1. GAON SABHA VILLAGE MANDOLI
THROUGH B.D.O. NORTH-EAST,
GOVT. OF NCT DELHI
ROOM NO. 12, C-BLOCK,
D.C. OFFICE COMPLEX,
NAND NAGRI, DELHI-110093.
2. UNION OF INDIA,
THROUGH SECRETARY (REVENUE)
5, SHAM NATH MARG,
DELHI-110054.
.....APPELLANTS
VERSUS
1. SMT. CHANDRA DEVI
W/O SHRI NAUBAT RAM,
FANNEY KHAN MOR, VILLAGE MANDOLI,
DELHI-110093.
2. SHRI SAMAYDIN
S/O SHRI SAEEDUDDIN
R/O VILLAGE MANDOLI,
NEAR BADI MASZID,
DELHI-110093.
Regular Civil Appeal No. 136/2012 Page No. 1/30
3. GURBAX SINGH (DECEASED)
THROUGH LRs
(I) SMT. DALBIR KAUR
W/O LATE GURBAX SINGH
(II) SH. RAVINDER SINGH AHUJA
S/O LATE GURBAX SINGH
BOTH R/O 2, RAJ BLOCK, NAVEEN SHAHDARA,
DELHI-110032.
....RESPONDENTS
JUDGMENT
1. This Appeal has been filed by the the appellants / plaintiffs against impugned order dated 26.11.2011 by which their suit praying for decree for recovery of possession of lands, damages / mesne profits as well as decree for permanent injunction was dismissed by the Ld. Trial Court.
2. The respondent no. 3 had died and his legal heirs were brought on record by order dated 31.10.2013.
3. Brief facts leading to the filing of this appeal are that the plaintiffs filed a suit before the Ld. Trial Court averring that land measuring 3 bighas and 13 biswas in khasra numbers 531 (1-0), 532 (0-11) and 533 (2-2) in village Mandoli, Delhi belonged to the plaintiffs. It is averred that proceedings for consolidation of holdings took place in village Mandoli, Delhi and the said lands were included in the extended Phirni of the village. It is averred that land in Khasra no. 531 (1-0) was earmarked for construction of Panchyat Ghar, land in Khasra No. 532 (0-11) was earmarked for construction of a youth club and land in khasra no. 533 (2-2) had been reserved for construction of a dispensary. Plaintiffs have averred that the said lands were earmarked for public purposes under Section 1 (2) (c) of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the DLR Act).
4. Plaintiffs have averred that the defendants illegally and unauthorizedly encroached a portion of land measuring 12.00 sq. meters in khasra no. 532 (0-11) as shown in red in the site plan (hereinafter referred to as the suit property). It is Regular Civil Appeal No. 136/2012 Page No. 2/30 averred that the defendants erected a structure on the suit property without the consent and permission of the plaintiffs and has been illegally and unauthorizedly using the same for carrying on business of scrap dealing.
5. It is averred that upon coming to know of such encroachment, the plaintiffs initiated proceedings under Section 86-A of the DLR Act seeking ejectment of the defendants from the suit property. It is averred that the Court of the Revenue Assistant, Delhi on 30.04.1982 passed an ejectment order against the defendants from the suit property but the defendants failed to vacate the suit property. It is averred that the plaintiffs initiated execution proceedings in Revenue Courts where the defendants along with other encroachers filed objections against the execution. It is averred that by order dated 13.09.1995, the Court of SDM / Revenue Assistant, Shahdara, Delhi held the defendants to be in unauthorized occupation of the suit property and they were ordered to be evicted from the same. It is averred that the Revenue Assistant held that the DLR Act did not provide for any period of limitation for execution proceedings for eviction of a person from land held or occupied for public purposes and thus the period of limitation of twelve years for initiating execution proceedings did not arise.
6. It is averred that Civil Writ Petition no. 3460/1995 was filed by one Gurbax Singh & Ors. Before the Hon'ble High Court against the order of the Revenue Assistant dated 13.09.1995. It is averred that the Hon'ble High Court by its judgment dated 16.08.2004 held that lands falling under Section I (2) (c) of the DLR Act fell outside the ambit of the provisions of the said Act and the revenue authorities would have no jurisdiction for ejectment of unauthorized occupants of such lands. It is averred that the Hon'ble High Court held that the remedy available for the plaintiffs was to seek eviction of the defendants by filing a civil suit for possession of the suit property. Thus, this suit had been filed by the plaintiffs.
7. It is averred that the defendants being in illegal occupation of the suit property were causing losses to the plaintiffs and unlawful gain to the defendants and as such they are liable to pay damages / mesne profits on account of their illegal occupation. It is averred that market rate of rent of properties similar to the Regular Civil Appeal No. 136/2012 Page No. 3/30 suit properties was not less than Rs.500/- per month and thus the defendants would be liable to pay mesne profits to the plaintiffs at the said rate from the date of filing of the suit till the date of delivery of possession. In these facts and circumstances, the plaintiffs filed the present suit praying for the following reliefs:-
(a) a decree for possession of the suit property;
(b) decree under Order XX Rule 12 CPC for recovery of pendentelite and
future damages / mesne profits at the rate of Rs.500/- per month or at as
such other rate as the Court may deem fit and proper after inquiry; and
(d) a decree for permanent injunction to restrain the defendant from creating third party interest in the suit property.
8. Upon summons of the suit being issued, the defendant no. 1 filed his written statement averring that he was occupying the suit property as a guard / care taker of the defendants 2 and 3 in the suit property. The defendants no. 2 and 3 filed a joint written statement. The defendants no. 2 and 3 raised detailed preliminary objections in which it was contended that the plaintiffs did not have locus standi to file the suit as they were neither the owner nor in the possession of the suit property; that the suit is not maintainable in the present form; that the Civil Court does not have any jurisdiction to entertain the suit as the suit property falling in village Mandoli was governed by the provisions of the DLR Act and this suit was therefore barred under the provisions of Section 185 of the said Act. The defendants no. 2 and 3 contended that the land in question would not be governed under the provisions of Section I (2) (c) of the DLR Act since Rule I (c) of the Delhi Land Reforms Rules 1954 (herein after referred to as the DLR Rules) laid down that before any such land can be earmarked, a notification to this effect has to be issued by the Chief Commissioner in the Official Gazette declaring such lands as areas held and occupied for public purpose or work of public utility. The defendants no. 2 and 3 averred that in the absence of any such declaration having been issued and published in the Official Gazette, the provisions of Section I (2) (c) of the DLR Act would not be attracted. Consequently such land would remain to be governed under the provisions of the DLR Act thus attracting the bar of Section 185 of the same.
9. The defendants no. 2 and 3 further contended that the suit of the plaintiffs Regular Civil Appeal No. 136/2012 Page No. 4/30 was barred by limitation as the defendants no. 2 and 3 were in actual possession of the suit property since the year 1970 and had acquired rights of ownership / bhumidhari due to his long, adverse and hostile possession of the same. The defendants no. 2 and 3 averred that the Gaon Sabha / plaintiffs initiated eviction proceedings against the defendants no. 2 and 3 which was allowed by the Court of Revenue Assistant on 23.04.1982. It is averred that on 07.09.1989 another notice under Section 86-A of the DLR Act was served upon the defendants to which a reply was filed in the Court of Revenue Assistant. It is averred that the notice dated 07.09.1989 was withdrawn by the Revenue Assistant, Shahdara on 20.08.1990 on account of the proceedings being barred by limitation. It is averred that against the order dated 20.08.1990, Gaon Sabha Mandoli filed Appeal no. 134/1991 before the Court of the Additional Collector, Delhi. The said appeal was dismissed on 25.11.1993 by the Court of the Additional Collector upholding the order dated 20.08.1990 of the Revenue Assistant. It is averred that no further appeal was filed by the Gaon Sabha against the said order.
10. The defendants no. 2 and 3 have further averred that Gaon Sabha, Mandoli / plaintiffs initiated proceedings under Section 86-A of the Delhi Land Reforms Act once again but by order dated 29.03.1995 the said proceedings were dismissed by the Court of Revenue Assistant, Shahdara, Delhi. However the Revenue Assistant observed that the Gaon Sabha should have initiated execution proceedings to take possession of the suit property. It is averred that the plaintiffs therefore filed an application dated 24.08.1995 for execution of the ejectment order dated 30.08.1982 in the Court of Revenue Assistant. The defendants no. 2 and 3 filed their reply dated 05.09.1995 to the execution application contending that the execution proceedings were barred by limitation. The defendants no. 2 and 3 averred that on 13.09.1995, the Revenue Assistant rejected the objections of the defendants no. 2 and 3 and ordered them to be evicted from the suit property. The defendants no. 2 and 3 challenged the said order before the Hon'ble High Court of Delhi by way of Civil Writ Petition No. 3460/1995 which came to be allowed by the Hon'ble High Court on 16.08.2004. It is averred that the Hon'ble High Court quashed the eviction Regular Civil Appeal No. 136/2012 Page No. 5/30 proceedings in favour of the defendants no. 2 and 3.
11. The defendants no. 2 and 3 have further averred that even if it was assumed that the plaintiffs were owners of the suit property, the defendants no. 2 and 3 have perfected their title to the same by way of adverse possession under the law of prescription as they were in possession of the same since the year 1970. The defendants no. 2 and 3 further contended that the suit had been filed by unauthorized persons and was not maintainable as verification of the plaint was not as per law. defendants no. 2 and 3 contended that the Court did not have pecuniary jurisdiction to entertain the suit as the plaintiffs had under valued the suit property for the purposes of Court fee and pecuniary jurisdiction. The defendants no. 2 and 3 have further claimed that the plaintiffs did not approach the Court with clean hands and suppressed material facts of the case.
12. On merits, the defendants no. 2 and 3 only contended that they were in the possession of the suit property since the year 1970. They denied that the any part of the suit property had been earmarked for Panchayat Ghar, youth club or dispensary. The defendants no. 2 and 3 denied that they are in illegal possession of the suit property.
13. Replication to the written statement was filed by the plaintiffs in which the plaintiffs reiterated their contentions made in the plaint.
14. On the pleadings of the parties, the Ld. Trial Court by order dated 08.08.2006 framed the following issues:-
"1. Whether the plaintiff is entitled to a decree for possession as prayed for? OPP
2. Whether the plaintiff is entitled to damages and mesne profit as claimed? OPP
3. Whether the plaintiff is entitled to a decree for permanent injunction ? OPP
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Whether the suit of the plaintiff is barred by limitation ? OPD
6. Relief claimed."
15. In order to prove their case, the plaintiffs examined Sh. Mangal Singh then BDO, North-East, Nand Nagari, Shahdara as PW-1, Sh. Naresh Kumar VLW, Office Regular Civil Appeal No. 136/2012 Page No. 6/30 of Joint Director Agriculture as PW-2, Sh. ND Vashisht, VLW, Director of Panchayat as PW-3, Sh. T. Lakra, Kanoongo, SBI Building, Tis Hazari as PW-4 and Sh. Suresh Kumar as PW5. Thereafter plaintiffs closed their evidence. On behalf of defendants, Sh. Samayddin was examined as DW-1. Thereafter defendants closed their evidence.
16. After considering the evidence on record, the Ld. Court decided issue no. 5 against the plaintiffs holding that the suit was barred by limitation; issue no. 4 in favour of the plaintiffs holding that the they had locus to file the suit and issues no. 1, 2 and 3 against the plaintiffs holding that in the absence of any notification being issued by the Chief Commissioner, Delhi under the provisions of Section I (2) (c) of the DLR Act 1954 notifying the suit property as land being held for public purposes and public utility, the provisions of the DLR Act would continue to apply the suit property. It was further held that since the suit property was admittedly for agricultural land, suit for possession was barred under the provisions of Section 185 of the said Act. As regards the plea of the defendants that they had perfected their title to the suit property by way of adverse possession, the Ld. Trial Court held the same against the defendants.
17. Aggrieved by the impugned order, the plaintiffs / appellants filed this appeal. It may be noted that the defendants have not filed any appeal or cross objections against the impugned order. Hence, the findings against the defendants regarding rejection of his plea of adverse possession in respect of the suit property and having gained title to the same under the law of prescription have attained finality.
18. Before this Court, the Ld. Counsel for the appellants has argued that the Ld. Trial Court failed to appreciate that the provisions of the DLR Act and Rules were not attracted to the suit property. He submitted Rule I (c) of the DLR Rules provides that the procedure for notifying areas held and occupied for public purposes or work of public utility was to be adopted only once i.e. on the date of commencement of the DLR Act. He submitted that the list of such lands was to be published once, on the commencement of the DLR Act, in respect of those properties which on the date of commencement of the DLR Act were already held Regular Civil Appeal No. 136/2012 Page No. 7/30 for such purposes. He submitted that after the commencement of the Act, there was no requirement for the Government to adopt the procedure as provided under Rule I of the DLR Rules. He submitted that since the Government at the time of consolidation of land holdings in village Mandoli had earmarked the suit property for public purposes no notification was required to be issued in the officail Gazette as provided under the Rule I of the DLR Rules.
19. Counsel for the appellants further submitted that the Ld. Trial Court failed to appreciate that the Hon'ble High Court of Delhi vide its judgment dated 16.08.2004 passed in WP (C) No. 3460/1995 had held that the provisions of the DLR Act did not apply to the suit property and that the only remedy available with the plaintiffs was to file a suit for possession before the Civil Court. He submitted that in compliance of the order of the Hon'ble High Court, the plaintiffs filed a civil suit but the Ld. Trial Court without appreciating the import of the judgment of the Hon'ble High Court held that the DLR Act did not apply to the suit property.
20. Counsel for appellants further submitted that the Ld. Trial Court failed to appreciate that the cause of action for filing of this suit arose after the judgment of the Hon'ble High Court was passed and therefore the suit of the plaintiffs was within limitation. He submitted that there was no material on record for the Ld. Trial Court to have held that the defendants were in occupation of the suit property since the year 1970. He submitted that the evidence filed on record revealed that the defendants were in occupation of the suit property since the year 1980 and this suit having been filed in the year 2005 was within limitation.
21. Counsel for the appellants lastly submitted that the proceedings relating to the consolidation of land holdings in village Mandoli were held under the provisions of Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. He submitted that the Consolidation Officer under the provisions of the said Act had assigned the suit property to be used for the public purposes and since the said powers had been specifically exercised under the said Act, the provisions of the DLR Act would not apply and as such the suit of the plaintiffs was maintainable.
Regular Civil Appeal No. 136/2012 Page No. 8/3022. Counsel for the respondent on the other hand supported the impugned order and submitted that the same did not call for any interference. He submitted that the plaintiffs themselves had adopted a stand that the provisions of the DLR Act applied to the suit property and initiated proceedings under Section 86-A of the said Act for ejectment of the defendants. He submitted that even though the plaintiffs succeeded in the ejectment proceedings, they did not execute the same within the period of limitation. He submitted that the arguments of the appellants in respect of the judgment of the Hon'ble High Court dated 16.08.2004 were based on a misreading of the said judgment. He submitted that the said petition was filed by the defendants before the Hon'ble High Court challenging execution proceedings being initiated by the Revenue Assistant in respect of the ejectment order dt.30.4.82 after the period of limitation to execute the same had expired. He submitted that the Revenue Assistant held in his order that the land fell within the purview of Section I (2) (c) of the DLR Act and that there was no prescribed period of limitation for executing an order of ejectment in respect of such lands. He submitted that the said order was challenged by the defendants before the Hon'ble High Court and the Hon'ble High Court was pleased to hold that if it was the case of the Government that the provisions of the DLR Act applied to the suit property, then the execution proceedings in respect of the ejectment order were barred by limitation. He submitted that even the Hon'ble High Court further observed that if it was the case of the Government that the Section I (2) (c) of the DLR Act applied to the suit property then by virtue of the said provision, the application of the DLR Act stood excluded and if the provisions of the Act did not apply to the suit property, then the only remedy available with the plaintiffs was to file a civil suit for possession of the suit property. He submitted that the Hon'ble High Court has nowhere held that the provisions of the DLR Act applied to the suit property or that any direction was issued by the Hon'ble High Court to the plaintiffs to file a civil suit.
23. I have heard the Ld. Counsel for the parties and have perused the record. My findings issue wise in the sequence as decided by the Ld. Trial Court are as Regular Civil Appeal No. 136/2012 Page No. 9/30 under:-
ISSUE NO. 5 Whether the suit of the plaintiff is barred by limitation?
24. Onus to prove this issue was on the defendants. The contention of the defendants was that they were in occupation of the suit property since the year 1970 and as this suit was filed on 03.06.2005 i.e. more than 30 years thereafter, the same is barred by limitation. Ld. Trial Court has held this issue in favour of the defendants. There is no dispute that the suit property is owned by the plaintiffs. The defendants themselves claimed that they had perfected his title by way of adverse possession. In the case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543, at page 554 the Hon'ble Supreme Court was pleased to hold that adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Since the defendants claimed title to the suit property by way of adverse possession, they admitted the title of the plaintiffs to the suit property.
25. While deciding issues no. 1, 2 and 3, Ld. Trial Court considered the plea of the defendants i.e. whether they had perfected their title to the suit property by way of adverse possession. The law of prescription is contained in Section 27 of Limitation Act, 1963. Section 27 of the Limitation Act provides that after the termination of period hereby limited to any person for the institution for a suit for possession of any property, his right to such property shall be extinguished. Article 111 of the Schedule to the Limitation Act 1963 provides that the period of limitation in respect of bringing a suit for possession by any authority in respect of public land is 30 years and time begins to run from the date of dispossession.
26. In order for the defendants to succeed in claiming title to the suit property by way of adverse possession, onus was on the defendants to prove that they held the suit property continuously for a period of thirty years in a hostile manner denying the title of the plaintiffs. While deciding issues no. 1-3, the Ld. Trial Court held that the defendants were unable to prove their title to the suit property by way Regular Civil Appeal No. 136/2012 Page No. 10/30 of adverse possession. The defendants have not challenged these findings of the Ld. Trial Court either by filing his own appeal or by preferring cross objections under Order XLI Rule 22 of the CPC. These findings against the defendants have thus attained finality.
27. In the opinion of this Court if the defendants were unable to prove his title to the suit property by way of adverse possession, then as a natural corollary the suit of the plaintiffs for possession would be within the period of limitation.
28. Ex.DW1/9, Ex.DW1/10, Ex.DW1/11 and Ex.DW1/12 are the khasra girdawari pertaining to the suit property in village Mandoli. Ex.DW1/9 is for the year 1981-82. In the same ownership of the lands in questions are shown in the name of Gaon Sabha while possession is reflected with the defendants. There is no other document on record which proves possession of the defendants in respect of the suit property prior to the year 1981-82. Thus, even if the defendants were in occupation of the suit property since the year 1980, suit for possession could have been filed by the plaintiffs up to the year 2010, period of limitation being 30 years. The present suit has been filed in the year 2005. If date of possession of the defendants is taken to be from the year 1980, present suit having been filed in the year 2005 is within the period of limitation.
29. Ld. Trial Court while giving his findings on this issue has observed that the defendants in his examination-in-chief had deposed that they were in possession of the suit property since the year 1970 and that no suggestion to the contrary in this regard was given to him in his cross-examination. I have gone through the cross- examination of DW-1. In the second line of his cross-examination, he has deposed that "I am not having any khasra girdawari pertaining to the year 1970 as the consolidation proceedings were going on." He admitted that his name not shown in the column of bhumidhari in the revenue record before consolidation or after the consolidation proceedings. He deposed that his name had not been shown in the revenue record prior to the year 1980. He further admitted that since the year 1980, the revenue department was taking action against him for his eviction from the suit property.
Regular Civil Appeal No. 136/2012 Page No. 11/3030. Even if no suggestion was given to DW-1 in his cross-examination that he was not in occupation of the suit property in the year 1970, the admissions of the defendants to the extent that their names were never shown in the revenue record prior to 1970 and that they did not have any khasra girdawari in the year 1970 showing their names as the persons in possession of the suit property established that they are not in possession of any documentary evidence to prove that they were in possession of the suit property since the year 1970. Hence there was no material on record for the Ld. Trial Court to have come to a finding that the defendants were in occupation of the suit property since the year 1970.
31. It is also to be noticed that onus to prove that they had perfected their title to the suit property by way of adverse possession was on the defendants. The said aspect has been decided against him by the Ld. Trial Court which has not been challenged till date.
32. As per the evidence led before the Ld. Trial Court, defendants are in occupation of the suit property since the year 1980 and eviction proceedings against them were being taken the Revenue Authorities since the said year. This suit, therefore, having been filed in the year 2005 was well within the period of limitation. I am, therefore, unable to sustain the findings of the Ld. Trial Court on issue no. 5. The same are set aside. It is held that suit has been filed within the period of limitation. Issue no.5 is decided in favour of the plaintiffs.
ISSUE NO. 4 Whether the plaintiff has no locus standi to file the present suit?
33. Onus to prove this issue was on the defendants. This issue has been decided against the defendants and in favour of the plaintiffs. No appeal or cross objections have been preferred by the defendants against the same. Even otherwise defendants have admitted the title of the plaintiffs by resorting to the plea of adverse possession. Plaintiffs, therefore, had locus standi to file this suit. This issue was, therefore, rightly decided in favour of the plaintiffs and against the defendants.
Regular Civil Appeal No. 136/2012 Page No. 12/30 ISSUES NO. 1, 2 AND 3Whether the plaintiff is entitled to a decree for permanent injunction ? Whether the plaintiff has no locus standi to file the present suit?
and Whether the suit of the plaintiff is barred by limitation ?
34. As recorded above, defendants do not dispute the title of the plaintiffs. Suit of the plaintiffs for possession of the suit property has been found to be within the period of limitation. The only issue which arises for consideration is whether this suit was barred under the provisions of Section 185 of the DLR Act. The following are admitted facts leading to the filing of this suit:-
(i) Case no. 192/RA/Shah titled as Gaon Sabha Vs. Gurbax Singh son of Jeevan Lal and Sh. Samayddin son of Sh Saeeduddin was instituted in the Court of Sh. A.B. Shukla, SDM/RA/Shahdara, Delhi under the provisions of Section 86-A of the DLR Act. Ex.DW1/1 is the certified copy of the judgment dated 30.04.1982 passed by the Court of the Revenue Assistant in the said matter. In the said order the Court of the Revenue Assistant observed that a report under Section 86-A of the DLR Act was filed by the Halka Patwari against Sh. Gurbax Singh and Sh. Samayddin (defendants no. 2 and 3 / respondents no. 2 and 3 herein) to the effect that they were in illegal occupation of Gaon Sabha land in Kh.no. 531, 532 and 533 measuring 3 bigha 13 biswa in village Mandoli, Shahdara. Showcause notice was issued to the said persons on the said report who filed reply to the notice but stopped appearing and were proceeded ex-parte on 07.12.1981. Sh. Akhey Singh, Halka Patwari was examined as PW-1 who deposed that the said lands belonged to the Gaon Sabha and that khasra no. 531 (0-1) was left for panchayat Ghar and chaupal, Khasra no. 532 (0-11) was reserved for youth club and khasra no. 533 (2-2) was left for dispensary purposes. It is recorded that PW-1 deposed that these persons had raised boundary walls and illegally encroached on the said lands. Report of the patwari is Ex.PW1/A. The Ld. Revenue Assistant observed that as per the khasra girdawari for the year Regular Civil Appeal No. 136/2012 Page No. 13/30 1980-81 boundary walls had been raised on Gaon Sabha land by these persons. By judgment dated 30.04.1982, the Court of Ld. Revenue Assistant passed a decree against Gurbax Singh and Sh. Samayddin directing their ejectment from the said lands. Directions were passed that vacant possession of the lands be delivered to the Gaon Sabha forthwith. Directions were also passed that the copy of the order be sent to the Tehsildar, Delhi for execution. The relevant portion of the order dated 30.04.1982 is reads as under:-
"5. In view of the above reasons, ex-parte decree is hereby passed against the defendant and direct that the defendant Gurbax Singh and Smayuddin be ejected from the suit land, mentioned above; and the vacant possession of the land be delivered to the Gaon Sabha forthwith. Copy of this order be sent to Tehsildar, Delhi, for execution."
(ii) Admittedly, the Revenue Authorities did not take any steps for execution of the ejectment order dated 30.04.1982. Instead of doing so on 07.09.1989 another case was instituted under Section 86-A of the DLR Act against Sh. Gurbax Singh and Sh. Samayddin bearing case no. 252/RA/Shah/89 which was contested by them. Sh. Gurbax Singh and Samayddin claimed before the Court of Revenue Assistant that were in occupation of the lands prior to 1981 and even after ejectment order was passed against them on 30.04.1982 and fresh proceedings under Section 86-A against them for the same lands was not maintainable and barred by limitation. By order dated 20.08.1990, Ex.DW1/2 the Court of Revenue Assistant, Shahdara held that the proceedings under Section 86-A of the DLR Act were barred by limitation and were not maintainable. The Ld. Revenue Assistant held that the earlier ejectment order dated 30.04.1982 was never executed and withdrew the showcause notice under Section 86-A of the DLR Act. Relevant portion of the order dated 20.08.1990 reads as under:-
"6. I have carefully gone through the oral and documentary evidence on the record, I am of the considered opinion that the present proceedings are barred by time and are not maintainable. The property in question is decidedly within the "extended Lal Dora" and the construction raised by Regular Civil Appeal No. 136/2012 Page No. 14/30 the respondent is in existence thereon. There is neither any Dispensary nor any Panchyat Ghar nor Youth Club over the site. It has not been proved that the order dated 30.4.82 passed by Shri A.B. Shukla the SDM/RA in the earlier proceedings was ever executed and that the respondents were dispossessed from the land in question.
In view of the foregoing reasons, I hereby withdraw the show cause notice under section 86-A Delhi Land Reforms Act and accordingly drop the proceedings against the respondents. Announced in open Court."
(iii) Against the order dated 20.08.1990, the Gaon Sabha Mandoli filed Appeal no. 134/191 in the Court of Sh. Ramesh Tiwari, Additional Collector, Delhi. The said appeal was dismissed by the Appellate Authority by order dated 25.11.1993 Ex.DW1/3. However the Appellate Authority clarified that since the period of execution of the ejectment order dated 30.04.1982 was 12 years, the Gaon Sabha Mandoli was at liberty to initiate proceedings in respect of the said ejectment order. The relevant portion of Ex.DW1/3, the judgment dated 25.11.1993 passed by the Court of Sh. Ramesh Tiwari, SDM, Revenue Assistant, Shahdara, is as under:-
"3.I am of the opinion that since the proceedings under section 86-A of the Act have already been initiated and completed on 30.4.1982, these proceedings are now influctuous. The appeal of the Gaon Sabha is, therefore, dismissed. However, before parting with this appeal, it is clarified that since the period for execution under CPC is 12 years (as admitted by both the parties) Gaon Sabha is at liberty to file for the execution of the order dated 30.4.1982 if it so desires, although, counsel for the respondent maintained that Gaon Sabha after filing the present appeal have waived their rights to do so.
Announced in the open court on this 25th day of November, 1993. File be consigned to the Record Room."
(iv) Once again, Gaon Sabha Mandoli did not take any steps to execute the ejectment order dated 30.04.1982. Instead of initiating of execution proceedings, the plaintiffs instituted another case under Section 86-A of the DLR Act against the defendants vide case no. 17/RA/Shahd/94/1133-1135. The said proceedings again culminated in failure by order dated 29.03.1995 Regular Civil Appeal No. 136/2012 Page No. 15/30 passed by the Court of Revenue Assistant Shahdara, Delhi Ex.DW1/4. The Court of the Ld. Revenue Assistant held that ejectment order had already been passed against Sh. Samayddin and Sh. Gurbax Singh on 30.04.1982 and the Gaon Sabha ought to have gone for execution of the same and obtained possession. On these grounds, the Court of Revenue Assistant dismissed the said matter. Relevant portion of the order dt.29.3.1995 is as under:-
"On 26.3.94 case was registered against the respondent under Section 86-A of Delhi Land Reform Act. The counsel for applicant has argued that the case is time barred and barred by resjudicata and moreover the case has been decided in court of ADM (R).
The counsel for G.S. says that no appeal against execution has been filed, since passing of order as u/S 86-A in court of ADM (R) dated 25.11.93.
Heard arguments in this court the proceedings as u/S 86-A are not maintainable as order under Section 86-A was passed in 20.4.82 in the land bearing same Khasra no. in village Mandoli. The Gaon Sabha Should have gone for order of execution and should have taken possession. Now at this present juncture the GS should go for order of execution of the order dated 20.4.82 and they are at a liberty to do. The present case of Gaon Sabha as u/S 86-A is dismissed. Announced in open court in 29.3.95.
File to record room."
(v) Ultimately Gaon Sabha Mandoli filed execution proceedings in the Court of SDM, Shahdara. In these execution proceedings, the defendants took a stand that the period of limitation to file execution proceedings against ejectment order dated 30.04.1982 had expired and therefore the execution proceedings were not maintainable. The Ld. Revenue Assistant was of the view that Section 1 (2) (c) of the DLR Act made provisions for areas held or occupied for public purposes or public utility and therefore period of limitation of 12 years for execution of ejectment order for such category of lands would not apply. He, therefore rejected the objections of the defendants in these execution proceedings and directed demolition of unauthorized construction of the defendants by order dated 13.09.1995.
Regular Civil Appeal No. 136/2012 Page No. 16/30"It is again emphasised that only one provision section 85 prescribes this person in possession to hold land if held for more than 3 years but that is applicable to agricultural land only. No provision of D.L.R. Act prescribes entitlement of any person/encroacher by merely having unauthorized possession for any number of years. I hold that the limitation period of 12 years is not applicable in this case then the law does not permit ownership merely by possession in regard in such land general public has every right for the use of the public utilities to come up on this land. The respondents are unauthorisedly encroachers on Government land and they should be evicted to let the general public enjoy the benefits of public utility land. The request of Gaon Sabha Through B.D.O. Shahdara for possession of Khasra No. 531, 532 and 533 in village Mandoli is allowed. The cost of demolition of unauthorized construction made by respondents shall also be born by them and which will be recoverable on the claim of Gaon Sabha.
Announced in open Court on 13.9.95."
(vi) Aggrieved by the order dated 13.09.1995, the defendant Sh. Samayddin filed writ petition (c) no. 3460/1995 along with one Sh. Gurbax Singh before the Hon'ble High Court, Delhi. By order dated 16.08.2004, the said writ petition came to be allowed by the Hon'ble High Court and the order dated 13.09.1995 by the Court of Revenue Assistant quashed. As the judgment of the Hon'ble High Court is vital, the same is reproduced in its entirety as under:-
"1.Petitioners challenge order dated 13.9.1995 passed by Shri K.K. Dahiya, SDM, R.A. Shahdara. By the said order passed under Section 86 of the Delhi Land Reforms Act, 1954, it has been held that the petitioners are encroachers on Gram Sabha land; the land was held for public purpose, Section I92) (c) of the Delhi Land Reforms Act, was attracted, therefore, petitioners were liable for ejectment under Section 86A of the Delhi Land Reforms Act, 1954.
2. Consolidation was carried out in Village Mandoli in the year 1972-73, Land comprised in Khasra No.531(1-0), 532(0-1), 532(2-2) was included within the phirni of the village. It was shown as land belonging to Gaon Sabha. Alleging that the petitioners were in unauthorized occupation of the land belonging to Gaon Sabha and that the land in the 3 khasras was required for Barat Ghar, Youth Club and Dispensary respectively, proceedings for ejectment of the petitioners were initiated under Section 86A of the Delhi Land Reforms Act. Section 86A reads as under:-
"86A. Ejectment by revenue assistant of persons
Regular Civil Appeal No. 136/2012 Page No. 17/30
occupying land without title -
Notwithstanding anything contained in Sections 84, 85 an 86, the Revenue Assistant also may, on receiving information or on his own motion, eject any person who is liable to be ejected from any land on a suit of the Gaon Sabha under any of those sections, after following such procedure as may be prescribed."
3. Evidence was lead. On 30.4.1982 a decree for ejectment was passed against the petitioners. Tehsildar of the area was directed to execute the decree.
4. Surprisingly, the Gaon Sabha and even the revenue authorities thereafter slept.
5. A Second proceedings under Section 86A was initiated on 7.9.1989. In these proceedings, defence taken was that these proceedings were barred by limitation in as much as limitation for initiating action under Section 86A as prescribed by the schedule to Section 185 of the Act was 3 years. Reliance was placed by the petitioners on the earlier ejectment proceedings.
6. By order dated 20.8.1990, the second proceedings was dropped, being barred by limitation. It was held that the earlier proceedings which had resulted in an order dated 30.4.1982 showed that the petitioners were in possession of the 3 parcels of land prior to 30.4.1982.
7. Gaon Sabha filed an appeal. The appeal was dismissed by the Additional Collector vide order dated 25.11.1993. It was held that the second proceedings initiated under Section 86A were barred by limitation. However, it was clarified to the Gaon Sabha that it could execute the earlier decree passed on 30.4.1982 as period of limitation for execution of the decree was 12 years.
8. It was expected from the Gaon Sabha to have immediately sought execution of the decree dated 30.4.1982 because its right was clarified to it by the Additional Collector on 25.11.1993. Surprisingly Gaon Sabha once again slept.
9. Execution application was filed on 24.8.1995. As noted above, decree was passed on 30.41982. Petitioners contested the execution on the ground that it was barred by limitation.
10. Before filing the execution application, surprisingly, another petition under section 86A was filed on 26.3.1994. this was dismissed vide order dated 29.3.1995 holding it to be time barred. The Revenue Assistant held that in view of the order dated 25.11.1993, the Gaon Sabha should have sought execution.
11. The objection to the execution application were rejected vide order dated 13.9.1995. The Revenue Assistant held:-
"The essence of the Act can be understood from Section 2(c) of the Act which says that the Act shall not apply to areas held or Regular Civil Appeal No. 136/2012 Page No. 18/30 occupied for public purpose or a work of public utility and declaration as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894 or any other enactment other than this act relating to acquisition of land for a public purpose. Hence the Act protects the areas held or acquired for a public purposes and mere possession for 3 years or more does not entitle the encroachers to be its original owner."
12. The net result was that the Revenue Assistant held that the Delhi Land Reforms Act, 1954 does not prescribe any limitation for instituting proceedings for eviction of a person from land held or occupied for public purpose or a work of public utility, issue of limitation being 12 years or otherwise was not applicable. The Revenue Assistant ordered ejectment of the petitioners. The said order has been impugned in the present petition.
13. Reference in the impugned order to Section 2(c) is in fact a reference to Section 1 (2) (c) of the Delhi Land Reforms Act, 1954. The same reads as under:-
1.(1)This Act may be called the Delhi Land Reforms Act, 1954, (2)It extends to the whole of the Union Territory of Delhi, but shall not apply to:-
(a)..............
(b)..............
(c)Areas held and occupied for a public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894, or any other enactment other than this Act, relating to acquisition of land for a public purpose.
14. Learned Revenue Assistant is quite correct when he held that the Act does not provide for any limitation for ejectment of a person, who occupies land held or required for a public purpose. But what he failed to appreciate was that by virtue of Clause 'C' of sub Section (2) of Section 1 of the Act, the Act did not apply to this category of land. This was the reason that the Act did not provide for any limitation in this respect.
15. The learned Revenue Assistant failed to appreciate that by virtue of the provisions of Clause 'C' of Sub Section (2) of Section 1, Delhi Land Reforms Act, 1954 did not apply to this category of land. If this be so, Section 86A was not applicable to this category of land. Thus Section 86A of the Delhi Land Reforms Act, 1954 was not attracted on the reasoning given by the learned Revenue Assistant. I may note that a Division Bench of this Court in the judgment and decree dated 29.11.1999 passed in RFA (OS) NO. 10/76 Delhi Pheasant Cooperative Multi Purpose Society Vs. State of U.P. & Ors, has held that land covered by sub Clause 'C' of sub Section (2) of Section 1 of the Delhi Land Reforms Act, 1954 fell outside the ambit of the Delhi Land Reforms Act, 1954 and that revenue authorities would have no jurisdiction for Regular Civil Appeal No. 136/2012 Page No. 19/30 ejectment of an unauthorized occupant from such land. The remedy was a civil suit. The said case related to a civil suit filed for possession of land falling with Clause 'C' of sub Section (2) of Section 1. Defence was that the suit was barred by virtue of Section 185 of the Act. Revenue Court was the proper place to seek ejectment. The defence was repelled.
16. Indeed, earlier proceedings initiated were under Section 86A. Present proceeding in which the impugned order was passed was for execution of the order passed under Section 86A. If it is the case of the Gaon Sabha that by virtue of Clause 'C' of sub Section (2) of Section 1 of the Act, the land would be a land held for a public purpose, the corollary would be that proceeding under Section 86A would not lie. Remedy would be a civil suit. If the case of Gaon Sabha is that Section 86A is attracted. Impugned order has to be quashed because admittedly limitation has expired. In any case, the impugned order must go. It accordingly is set aside.
Rule is made absolute. Impugned order dated 13.9.1995 is quashed.
17. No costs."
35. I have carefully gone through the order of the Hon'ble High Court. Writ Petition (C) No. 3640/1995 was filed before the Hon'ble High Court challenging the order dated 13.09.1995 passed by the Revenue Assistant / SDM Shahdara. Before the Hon'ble High Court the petitioners (including the defendants herein) contended that the execution proceedings initiated by the Gaon Sabha in respect of the ejectment order dated 30.04.1982 were barred by limitation and not maintainable. The Gaon Sabha on the other hand placed reliance on the provisions of Section 1 (2) (c) of the DLR Act and contended that there was no period of limitation for executing the ejectment order dated 30.04.1982 on the ground that the lands in question fell in the category of areas held and occupied for public purpose or for a work of public utility as defined under Section 1 (2) (c) of the said Act.
36. The Hon'ble High Court after considering the provisions of Section 1(2)(c) of the DLR Act was pleased to hold that the same ousted the applicability of the DLR Act in respect of areas held and occupied for public purpose or for a work public utility. The Hon'ble High Court observed that if it was the case of the Gaon Sabha that the provisions of Section 1 (2) (c) of the Act applied to the suit property then the remedy under Section 86-A of the Act would not lie as the provisions of the Act Regular Civil Appeal No. 136/2012 Page No. 20/30 would not apply to the suit property. The Hon'ble High Court further held that if the provisions of the Act applied to the suit property then the execution proceedings in respect of the ejectment order dated 30.04.1982 were barred by limitation. Hence, on both grounds the order dated 13.09.1995 of the Revenue Assistant could not be sustained and the same was set aside.
37. Before this Court the Ld. Counsel for the appellants had argued that the present suit had been filed as the Hon'ble High Court had held that the provisions of the DLR Act were not applicable to the suit property and that they were directed by the Hon'ble High Court to file a civil suit. I am afraid the same is not the tenor of the judgment of the Hon'ble High Court. The Hon'ble High Court firstly held that if the provisions of the DLR Act were applicable to the suit property then the execution proceedings were barred by limitation. Since the Gaon Sabha had contended that the provisions of Section 1(2)(c) of the DLR Act applied to the suit property then as a fortiori, the applicability of the provisions of the DLR Act were ousted and proceedings initiated by the Gaon Sabha under Section 86-A of the Act were non-est.
38. The plaintiffs contended in their suit that the lands in question were of such category so as to attract the provisions of Section 1 (2)(c) of the DLR Act and since the same ousted the applicability of the Act to the suit lands, the only remedy available with them was to file a civil suit for recovery of the suit property. Question which arises for determination is whether the provisions of the DLR Act are not applicable to the suit property?
39. The Ld. Trial Court while deciding issues no. 1, 2 and 3 held that the lands in question were not in the nature of areas held and occupied for public purpose or a work of public utility as defined under Section 1 (2) (c) of the Act and as such the provisions of the DLR Act applied to the suit property attracting the bar of Section 185 of the Act barring any remedy before a Civil Court. The Ld. Court held that Rule 1 (c) of the DLR Rules prescribed a procedure for notifying such areas which required publication of a list of such lands in the official Gazette. It was held that in the absence of any such procedure having been adopted in respect of the suit Regular Civil Appeal No. 136/2012 Page No. 21/30 properties and without there being any publication in the official Gazette, the provisions of Section 1(2) (c) were not attracted to the case.
40. Let us now examine the provisions of Section 1 (2) (c) of the DLR Act and Rule 1 (c) of the DLR Rules. The same are reproduced as under:-
Section I (2) (c) of DLR Act:-
"1. Short title, extent and commencement.-(1) This Act may be called the Delhi Land Reforms Act, 1954.
(2) It extends to the whole of the Union Territory of Delhi, but shall not apply to-
(a) the areas which are or may before the first day of November, 1956 be included in a Municipality or a Notified Area under the provisions of the Punjab Municipal Act, 1911, or a Cantonment under the provisions of the Cantonments Act, 1924.
(b) included in any estate owned by the Central Government or any local authority,
(c) areas held and occupied for public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894, or any other enactment other that this Act, relating to acquisition of land for a public purpose.
(3) It shall come into force at once.
(4) The declaration of the Chief Commissioner under clause (c) of sub-
section (2) shall be conclusive evidence that the land is held and occupied for a public purpose or a work of public utility."
Rule I (c) of the DLR Rules:-
"1. (a) (i) These rules may be called the Delhi Land Reforms Rules, 1954.
(ii) They shall come into force at once.
(c) (1) On the commencement of the Act, the Chief Commissioner shall, with reference to clause (c) of sub-section (2) of Section 1 publish for general information in the official Gazette a list of the following areas held in the State as on the said date, viz.,
(i) areas held and occupied for a public purpose,
(ii) areas held and occupied for a work of public utility, and
(iii) areas required under the Land Acquisition Act, 1894, or any enactment other than the Land Reforms Act, 1954 for a public purpose and held as such.
(2) While publishing the above lists, the Chief Commissioner shall invite objections, if any, to the lists within a period of 30 days. (3) If any objections are received, he shall after necessary esquires pass suitable orders and publish final revised lists in the official Gazette as a Regular Civil Appeal No. 136/2012 Page No. 22/30 declaration under clause (c) of sub-section (2) of Section 1. (4) If no objections are received, he shall confirm the original lists as a declaration under the said section, in the official Gazette."
41. Perusal of Section 1 of the DLR Act reveals that as per sub-Section (2), the provisions of the Act extend to the whole of the Union Territory of Delhi but does not apply to the areas described under Section 1 (2) (a), (b) and (c). Section 1(2)(c) provides that the areas held and occupied for public purpose or for a work of public utility are exempt from the applicability of the Act. However for such exemption to come into force Section 1(2)(c) requires a declaration to be issued by the Chief Commissioner to this effect. In other words not only are such areas to be held and occupied for public purpose or a work of public utility but they are required to be declared as such by the Chief Commissioner. That a declaration is required to be issued by the Chief Commissioner is further fortified by the fact that Section 1(4) of the Act provides that such a declaration issued by the Chief Commissioner under Section 1(2)(c) shall be conclusive evidence that the land is held and occupied for a public purpose or a work of public utility. Hence, unless and until any such declaration is issued by the Chief Commissioner under Section 1(2)(c) it cannot be concluded that such lands are held and occupied for such purposes as such declaration itself is to be the conclusive proof of such fact.
42. The Ld. Trial Court has observed that the provisions of Rule 1 (c) of the DLR Rules require publication of a list of such areas in the official Gazette to be a precondition for applicability of Section 1 (2) (c) of the Act. Counsel for the appellants had submitted that the provisions of Rule 1 (c) are attracted only on the date of commencement of the Act and not after the commencement of the DLR Act.
43. The provisions of Rule 1 (c) have been reproduced above. The same provides that the Chief Commissioner shall publish a list of areas to which the provisions of Section 1 (2) (c) of the Act applies as on the said date i.e. on the date of the commencement of the Act. The same also provides that the list of such areas are to be published in the official Gazette after calling for objections from the general public and such list shall operate as a declaration under Section 1 (2) (c) of Regular Civil Appeal No. 136/2012 Page No. 23/30 the Act. In the opinion of this Court, the provisions of Rule 1 (c) of the DLR Rules provides for a one time exercise on the date of notification of the DLR Act to notify such areas already held and occupied upon the commencement of the Act. This is so as the Chief Commissioner is to publish a list of such areas in the official Gazette after calling objections from the public. Once such list is published in the official Gazette, the same as per Rule 1(c)(4) operate "as a declaration" under Section 1 (2) (c) of the Act.
44. Hence, upon the commencement of the Act, such areas which have already been held and occupied prior to the commencement of the provisions of the DLR Act will be declared as such by adopting the procedure as laid down under Rule 1
(c) of the DLR Rules. Such declaration provided for under Section 1 (2) (c) will be in the form of a list of such areas published in the official Gazette in the manner as prescribed under Rule 1 (c) of the Rules. Once such list is published in the official Gazette the same will operate under law as a declaration as required under Section 1 (2) (c) of the Act and no separate declaration in respect of such areas is to be issued by the Chief Commissioner under Section 1 (2) (c) of the Act.
45. The Ld. Counsel for the appellants had relied on Rule 1 (c) of the Rules and had contended that the same was a one-time exercise after the notification of the DLR Act and such process is not to be repeated in respect of such areas which are to be held and occupied after the commencement of the Act. I am afraid that this interpretation placed by the counsel for the appellants is incorrect. The mode and manner of exemption of the provisions of the DLR Act in respect of lands defined under Section 1 (2) (c) of the DLR Act is provided in Section 1 (2) (c). The same mandatorily requires a declaration to be issued by the Chief Commissioner which will be conclusive proof of such status of such lands as provided for under Section 1 (4) of the Act. The provisions of Rule 1(c) of the DLR Rules was in respect of lands already held and occupied for such purpose prior to the commencement of the Act and upon publication of such list in the official Gazette the same would operate as a declaration in respect of such lands as required under Section 1 (2)
(c) of the Act. However upon the commencement of the DLR Act any such lands Regular Civil Appeal No. 136/2012 Page No. 24/30 held and occupied for such purpose would require a declaration on the part of the Chief Commissioner. Unless and until such positive act of declaration on the part of the Chief Commissioner is proved to have been made, the provisions of the Act would continue to apply to such lands.
46. Next comes the question as to whether the plaintiffs were able to prove that any such declaration was ever issued under the provisions of Section 1 (2) (c) of the Act in respect of the suit properties. Undisputedly no such document has been proved on record by the plaintiffs. PW-1 is Sh. Mangal Singh, the former BDO (Shahdara), Delhi. In his cross-examination he deposed that he was not aware about the ownership of the suit property or the consolidation of land holdings in village Mandoli. He deposed that he was not aware whether any notification has been issued by the Commissioner that the lands in khasra no. 531 (1-0), 532 (0-11) and 533 (2-2) in village Mandoli were required or held for public utility. He has deposed that he was not aware whether the DLR Act mandatorily required issuance of a notification for marking a land for purposes of public utility. He deposed that during the consolidation of land holdings in village Mandoli, the said lands in khasra no. 531 (1-0), 532 (0-11) and 533 (2-2) in village Mandoli were left for public utility. He was not aware whether the Consolidation Officer had passed any order in this regard. He admitted that till date no Panchayat Ghar, Youth Club or Dispensary had been constructed in the said lands.
47. None of the other witnesses of the plaintiffs deposed anything about any declaration being issued by the Chief Commissioner under the provisions of Section 1(2) (c) of the DLR Act.
48. Thus, the plaintiffs failed to prove that any declaration as required under the provisions of Section 1(2) (c) of the Act was issued by the Chief Commissioner in respect of the suit properties. Hence in the absence of any declaration of the Chief Commissioner, the provisions of Section 1 (2) (c) of the Act did not come into play and the DLR Act continued to apply to the suit property.
49. Section 185 of the DLR Act provides that no Court other than the Court mentioned in Column-7 of Schedule I of the Act shall take cognizance of any suit Regular Civil Appeal No. 136/2012 Page No. 25/30 or proceedings mentioned in Column-3 thereof. Entry 20A in Schedule-I lays down that the proceedings under Section 86-A for ejectment of persons occupying land without title lie before the Court of the Revenue Assistant.
50. The suit of the plaintiffs prays for possession of the suit property to which the provisions of the DLR Act apply. Hence, by virtue of Section 185 thereof, jurisdiction of the Civil Courts to entertain a suit praying for such relief is barred. Suit of the plaintiffs was thus not maintainable before the Civil Court.
51. Counsel for the appellants had placed reliance on Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. He had submitted that since the suit properties were earmarked for a public utility by the Consolidation Officer at the time of consolidation of holdings in village Mandoli, no separate declaration was required to be issued by the Chief Commissioner as provided for under Section 1(2) (c) of the DLR Act. Section 18 of the said Act is reproduced as under:-
"18. Lands reserved for common purposes-Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct.
(a) that any land specifically assigned for any commons purpose shall cease to be so assigned and to assign any other land in its place;
(b) that if in any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose."
52. Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 provides that the Consolidation Officer is empowered to direct, amongst others, that if in any area under consolidation no land is reserved for any common purpose, he can assign other land for such purpose. The words "common purpose" are defined under Section 2 (bb) of the said Act to mean any purpose in relation to any common need, convenience or benefit of village and to include the purposes of extension of the village abadi and providing income for Panchayat of the village concerned for the benefit of the village community. The definition of "common purpose" is inclusive and would therefore include the purposes of setting up a Panchyat Ghar, Youth Club and Dispensary as the same Regular Civil Appeal No. 136/2012 Page No. 26/30 are for the benefit of the village community.
53. The provisions of Section 18 of this Act contain a non-obstante clause to the effect that notwithstanding anything contained in any law for time being in force, the Consolidation Officer can exercise the power conferred upon him under Section 18 of the said Act. As per Section 1 (3), the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 came into operation at once, i.e. from the date of its enactment in the year 1948. In view of the non- obstante clause contained in Section 18, the powers of the Consolidation Officer under Section 18 of the Act would override any other provision contained in any other law in force at that time.
54. If the provision for Panchayat Ghar, Youth Club and Dispensary was made during the process of consolidation of land holdings in village Mandoli under the provisions of Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, would the requirement of a declaration by the Chief Commissioner in respect of lands held and occupied for the purposes as defined under Section 1 (2) (c) of the DLR Act would still be required to be made? In the case of Employees Provident Fund Commissioner Vs. Official Liquidator reported in (2011) 10 SCC 727, the Hon'ble Supreme Court was pleased to hold that it was a well recognized rule interpretation that every part of the Statute must be interpreted keeping in view the context in which it appears and the purpose of the Legislation. It was further held that if two special enactments contain provisions which give overriding effect to the provisions contained therein, the Court is required to consider the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions.
55. As observed, Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 contains a non-obstante clause in respect of any law for the time being in force. The DLR Act, 1954 was enacted on 20.07.1954. As per Section 1 (3) the provisions of the DLR Act came into force on the date of its enactment i.e. on 20.07.1954. As is evident, the DLR Act, 1954 is a legislation subsequent to the East Punjab Holdings (Consolidation and Prevention Regular Civil Appeal No. 136/2012 Page No. 27/30 of Fragmentation) Act, 1948. The non-obstante clause contained in Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 applied to any law for the time being in force, i.e. all laws in force on the date of the enactment. The DLR Act, 1954 was not in force at that time. Hence, the non- obstante clause contained in Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 will not override the provisions of the DLR Act.
56. Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 empowers the Consolidation Officer to "assign" lands for common purpose. Section 1 (2) (c) of the DLR Act exempts the provisions of the said Act from areas held and occupied for public purpose or a work of public utility provided that the Chief Commissioner makes a declaration to this effect. In the opinion of this Court, the provisions of Section 1 (2) (c) of the DLR Act provide for a specified mechanism or procedure for exemption of the provisions of the DLR Act to such lands. Therefore even if lands in khasra nos. 531 (1-0), 532 (0-11) and 533 (2-2) in village Mandoli may have been reserved or assigned for such purposes by the Consolidation Officer, the provisions of the DLR Act would still continue to apply to the same unless and until a declaration was issued by the Chief Commissioner under Section 1 (2) (c) of the DLR Act.
57. This aspect can be looked at from another point of view. The provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 are a special enactment as is evident from the title of the Act. The purpose of the said Act is to consolidate land holdings in such a manner so as to prevent their fragmentation. Section 18 of the said Act empowers the Consolidation Officer to assign lands for common purpose of the village during the process of consolidation. Such power can be exercised by the Consolidation Officer notwithstanding anything contained in any other law for the time being in force.
58. The DLR Act is also a special Act for modification of Zamindari system to create a uniform body of peasant proprietors without intermediaries and for unification of tenancy laws in force in the State of Delhi. This Act empowers the Regular Civil Appeal No. 136/2012 Page No. 28/30 Chief Commissioner to exempt the provisions of the Act in respect of areas held and occupied for public purpose or a work of public utility. The same can only be done by a declaration of the Chief Commissioner.
59. Both the Acts operate in their respective fields. While the Consolidation Officer in the 1948 Act can set aside lands for common purpose during the course of consolidation, the Chief Commissioner under the provisions of the DLR Act can exempt the provisions of the said Act to such lands. Even if the Consolidation Officer sets aside lands for common purpose under Section 18 of the 1948 Act, he cannot exempt the operation of the DLR Act to such lands. Such exemption can only be granted by the Chief Commissioner by issuing a declaration under Section 1(2) (c) of the DLR Act. Thus, powers of the Consolidation Officer under Section 18 of the 1948 Act do not overlap with the provisions of Section 1(2) (c) of the DLR Act. The only manner in which the provisions of the DLR Act can be exempted to such areas is by issuance of a declaration under Section 1(2) (c) of the said Act. The exercise of power by the Consolidation Officer under Section 18 of the 1948 Act will have no effect to the applicability of the DLR Act to such lands.
60. Therefore the submissions of the Ld. Counsel for the appellants that since the lands in question were assigned under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and thus the provisions of Section 1(2) (c) of the DLR Act are not attracted have no merit and are rejected.
61. The plaintiffs failed to prove any declaration having been issued by the Chief Commissioner under Section 1 (2) (c) of the DLR Act. The provisions of the DLR Act continued to apply to the suit property and this suit for possession was rightly held by the Ld. Trial Court to be barred under Section 185 of the said Act. I am in full agreement with the findings of the Ld. Trial Court that the suit of the plaintiffs was not maintainable and that the plaintiffs were not entitled to any relief. The dismissal of the suit of the plaintiffs by the impugned order does not warrant any interference.
Regular Civil Appeal No. 136/2012 Page No. 29/3062. For the reasons recorded above, the appeal has no merit and is dismissed. File be consigned to the Record Room. Trial Court Record be sent back with a copy of this order.
Dictated to the steno and announced in open Court today i.e. 28.03.2014 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi Regular Civil Appeal No. 136/2012 Page No. 30/30