Ruksana Bano & Ors. v. Government of NCT of Delhi & Ors.

14. It is submitted that the petitioners did not get any decision from SDM/RA in the hearing conducted in their case on 24.07.2019. Thus, petitioners once again met the Divisional Commissioner at Kapashera, where they were advised to approach the office of the Lieutenant Governor.

15. It is submitted that the petitioners have been running from pillar to post to get justice. Thus, the present writ petition has been filed with prayer for quashing and setting aside the order dated 24.06.2010 passed by SDM/RA, Najafgarh, Delhi, vesting the land of the petitioners in the Gram Sabha.

16. On behalf of the petitioners it is contended that the ex parte order dated 24.06.2010 vesting the land in Gram Sabha, is illegal and without jurisdiction. The land on the date of the said vesting order was outside the purview of the DLR Act post notification of Master Plan for Delhi 2021 on 07.02.2007 and subsequent notification of Zonal Plan for District (SW) on 04.06.2010, declaring the land as urban.

17. In support of its submissions, petitioners have relied upon the following judgments:

I. M/s Shri Neelpadmaya Consumer Products Pvt. Ltd.

Vs. Sh. Satyabir @ Satbir and Ors., CS (OS) NO. 78/2007

II. Indu Khorana Vs. Gram Sabha and Ors., W.P.(C)

4143/2003

III. Sanvik Engineers India Pvt. Ltd & Anr. Vs. Govt. Of

IV. Harshad ChimanLal Modivs DLF Universal LTD, 2005(7)

V. Gaon Sabha Vs. Nathi. 2004 (12) SCC 555

VI. Harpal Singh Vs. Ashok Kumar, 2018(11) SCC 113

VII. Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar,

18. On the other hand, on behalf of respondents, it is submitted that as per the report submitted by the Halqa Patwari on 02.01.2010, the land in question situated in the revenue estate of village Goela Khurd, New Delhi was being used for non-agricultural purposes by way of construction of boundary wall and other construction. On the basis of report of Halqa Patwari dated 02.01.2010, respondent No.4 issued a restraint order dated 14.01.2010 with direction to the SHO (Police Station Chhawla) as well as Block Development Officer (BDO)(South West), ACP Najafgarh and Halqa Patwari to ensure that no further illegal activities are carried out in violation of Section 81 of the DLR Act.

19. It is the case of the respondents that vide order dated 24.06.2010, respondent No.4 disposed of case bearing No. 02/2010 under Section 81 of the DLR Act, 1954. It is submitted that as per the said order, land in question was physically inspected by respondent No.4 and it was found that the land was being used for nonagricultural purposes by plotting of land and raising construction thereon in violation of Section 81 of the DLR Act, 1954.

20. It is submitted that the petitioners have not filed any authentic title documents before this Court. There is no entry of record found in the revenue record with respect to the alleged GPAs in favour of the petitioners. It is submitted that on the directions of respondent No.4, the revenue staff took possession of the land in question and handed over the same to BDO (SW). Subsequently, letter dated 13.10.2015 of Director (Panchayat) of GNCTD of Delhi was issued to the Director, Directorate of Education, GNCTD regarding allotment of Gaon Sabha land measuring 15 bigha 18 biswa bearing khasra Nos. 24/6/1/2 (0- 18), 15/2 (1-12), 25/10/1 (0-15), 25/11 (4-16), 12 (1-14), 25/20/1 (0-8) and 20/2 (3-18) of village Goela Khurd to the Education Department of GNCTD for opening of a Government school.

21. It is further submitted on behalf of the respondents that the petitioners ought to have approached firstly, the District Magistrate, then the Financial Commissioner. If they were aggrieved by the order of the Financial Commissioner, only then could the petitioners have approached this Court. It is further submitted that the notification in the present case was only issued by the DDA and not the Municipal Corporation of Delhi (MCD), therefore, the case of the petitioners is not covered by the judgments relied upon by the petitioners, as it cannot be said that the land stood urbanised by issuance of notification by the DDA.

22. It is further submitted on behalf of the respondents that as per the judgment of Supreme Court in the case of Suraj Lamp and Industries Private Limited Vs. State of Haryana and Another, (2012) 1 SCC 656, it has been held that transactions of the nature of GPA sales do not convey any title or create any interest in an immoveable property. Thus, it is submitted that the respondents have no right, title or interest over the land in question. It is prayed on behalf of the respondents that the present writ petition may be dismissed.

23. The Court has heard the ld. Counsels for the parties and has perused the record.

24. It is undisputed fact that the DDA had issued a notification dated 04.06.2010 under the provisions of Master Plan of Delhi 2021 notifying zonal plan for District South West Delhi, including village Goela Khurd. Thus, when the land in question was covered under the zonal plan issued by the DDA, then the said land cannot be said to be governed by the provisions of DLR Act any longer. The contention on behalf of the respondents that the said area cannot be considered to be urbanised on the said date as no notification under Section 507 of the Delhi Municipal Corporation Act, 1957 (DMC Act) had been issued, has to be rejected.

25. The matter in question on the aspect of village Goela Khurd having been urbanised upon issuance of notification by the DDA on 04.06.2010, is no longer res integra. This question was considered by this Court in the case of M/s Shri Neelpadmaya Consumer Products Pvt. Ltd. Vs. Sh. Satyabir @ Satbir and Ors.1. In the said case, this Court has categorically held as follows:

26. Hence, the position is clear that a land becomes urbanised not only by way of notification issued under Section 507 of DMC Act, 1957 but also by way of notification by the DDA issuing zonal plan under the Master Plan for areas in question. Once zonal plan has been issued by the DDA under the Master Plan for an area in question, the said lands cease to be lands covered under the DLR Act. Even a notification issued by the Central Government under Section 11 of The Delhi Development Act, 1957 bringing an area within the ambit of a zonal plan of the DDA, has the effect of encompassing such area within the limits of urbanised land. Thus, when village Goela Khurd, wherein the land in question is located, is subject matter of the zonal plan issued by the DDA, the said village stood urbanised and provisions of DLR Act ceased to have any applicability over the said area.

27. This Court in the case of Gur Partap Singh Vs. Union of India & Ors.[2] took note of the fact that by its gazette notification, the DDA amended the Master Plan wherein construction for commercial use was allowed in certain rural zones. Thus, it was held that once such option for construction for commercial use was available, then such land would cease to be agricultural and in that eventuality there was no question of application of DLR Act. Para-19 of the said judgment reads as follows:

28. In view of the aforesaid, when the land in question ceased to be governed by the DLR Act, the order dated 24.06.2010 passed by the Court of SDM/RA (Najafgarh) under Section 81 of the DLR Act, is clearly without any jurisdiction. As noted hereinabove, the area in question stood converted to urban land with effect from 04.06.2010. Therefore, the SDM/RA had no authority to pass any order under Section 81 of the DLR Act on 24.06.2010.

29. Once a particular area is subject matter of notification under The Delhi Development Act, 1957 by notifying the Master Plan or Zonal Plan, then such land becomes urbanised and is out of the scope of the application of the DLR Act. Resultantly, the jurisdiction of the revenue authority ceases and is ousted.

30. This Court in the case of Sanvik Engineers India Pvt. Ltd. and Another[3] has held in categorical terms that there would remain no 2022 SCC OnLine Del 360 legitimate or useful purpose to continue proceedings under Section 81 of the DLR Act, once the operation of the DLR Act over the land has drawn to a close. It has been held that provisions of the DLR Act essentially seek to protect agricultural land from being used for nonagricultural purposes. However, once land becomes urbanised, it does not remain as agricultural land. Therefore, continuance of proceedings under Section 81 of DLR Act after urbanisation of the land, is illogical and without any purpose. Thus, in the case of Sanvik Engineers (Supra), it has been held as follows:

84. Having traversed this distance and upon consideration of the seminal questions which arose in this batch, the court in summation records its conclusions as follows: “........ (E) While dealing with matters which would fall within the ambit of Case No. 2, it must be held that once notifications come to be issued under the DMC or the DDA Acts, they manifest an unequivocal fact of the land becoming urbanised and no longer falling within the sweep of Section 3(13). The court also bears in mind the indubitable fact that Section 81 is primarily concerned with ensuring that rural land is not diverted to uses other than those specified in Section 3(13). If that be the primary and solitary objective of Section 81, as this Court duly recognises it to be, it would be wholly illogical and incongruous to require the owner or the occupier to restore the land to its agricultural state even though the surrounding area may have become totally urbanised. (F) Where proceedings have merely reached the stage of initiation or a conditional order having been passed, they must be held liable to be dropped or closed. There would remain no legitimate or useful purpose to continue those proceedings once the aforesaid factual position comes to hold the field. Once the operation of the DLR over the land has drawn to a close, there can be no justification to hold that the proceedings under Section 81 which remain at an inchoate stage and a final order of vesting yet to be passed, to be continued and the occupier compelled to restore the land to its agricultural state. (G) The fact that action under Sections 81 and 82 had commenced based on an infraction which occurred prior to the issuance of the notifications under the DMC or the DDA Acts would not constitute a valid ground for continuance of those proceedings bearing in mind the purpose and intent of the twin provisions of the DLR. The provisions essentially seek to protect agricultural land from being diverted to uses other than those sanctioned and contemplated under that enactment. It would thus be wholly illogical to sanction continuance of those proceedings and turn a blind eye to the topographical transformation of the entire area which may have come about in the meanwhile.........”

31. Since the revenue authority did not have any jurisdiction under the DLR Act on 24.06.2010, the ex parte order dated 24.06.2010 passed by the revenue authority is clearly illegal and without jurisdiction and is, thus, a nullity. An order passed by an authority having no jurisdiction, is non-est and invalid. Thus, Supreme Court in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Another[4], has held as follows:

33. In Kiran Singh v. Chaman Paswan [(1955) 1 SCR 117: AIR 1954 SC 340] this Court declared: (SCR p. 121) “It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction … strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.” (emphasis supplied)”

32. The contention of the respondents that the petitioners have no right, title and interest on the basis of GPAs in their favour, again holds no water. The GPAs, which the petitioners are relying upon, were executed in their favour in the years 2009 and 2010. The judgment in the case of Suraj Lamp and Industries Private Limited (Supra) declaring that transactions of the nature of GPA sales do not convey title and cannot be recognised as valid mode of transfer of immovable property, came only in October 2011. The said judgment has prospective operation, therefore, any sale transaction on the basis of GPAs prior to the said judgment, would hold good.

33. On account of the non-est and ex parte order dated 24.06.2010 passed by the SDM/RA, valuable rights of the petitioners to their property, have been adversely affected and they have been divested of their property. Supreme Court has held that Right to Property is not only a Constitutional or a Statutory Right, but also a Human Right. Thus, in the case of Tukaram Kana Joshi and Others Vs. Maharashtra Industrial Development Corporation and Others[5], (2013) 1 SCC 353, it has been held as follows:

34. The present dispute had its genesis in January 2016, when the petitioners found notice board erected on their land by the Education Department, GNCTD, announcing the same as a site for school. The petitioners have been approaching different authorities for redressal of their grievances, before approaching this Court a second time by filing the present writ petition.

35. The respondents have taken the objection that the present writ petition is not maintainable as the petitioners have alternate efficacious remedy available by way of firstly, filing an appeal before the District Magistrate and thereafter before the Financial Commissioner. As regards the said objection of the respondents, the same is liable to be rejected. It has been held time and again that exclusion of writ jurisdiction on the ground of alternative remedy, is a rule of discretion and where writ petition pertains to challenge to orders or proceedings, passed without jurisdiction, such writ petition can be entertained, even though alternative remedy may be available. Thus, Supreme Court in the case of Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others[6], has held as follows:

36. In view of the aforesaid, it is considered appropriate to entertain the present writ petition. It would not be justified to relegate the petitioners at this stage to file appeal before the appropriate authorities as per alternative remedy available, when the matter pertains to an order that has been passed without any jurisdiction and authority. It is noteworthy that the said order has already been held by this Court to be a nullity.

37. It is also pertinent to note that the order dated 24.06.2010 passed by the SDM/RA vesting the land in Gram Sabha, is ex parte. During all these proceedings, there was no notice issued to the existing owners. The petitioners were neither issued any notice or given any hearing at the time of passing of the vesting order nor at the time of taking over the possession. Thus, it is apparent that the said order was passed without any notice to the petitioners and was passed without following the Principles of Natural Justice.

38. This Court notes that vide order dated 21.08.2020, status quo order was passed in favour of the petitioners considering the facts and circumstances of the present case. Therefore, though the land in question was handed over to the Education Department, GNCTD, fact remains that in view of the status quo order passed by this Court, the land in question has not been utilised by the Education Department, GNCTD. There is no submission on behalf of the respondents that the land in question has already been utilised.

39. In view of the aforesaid detailed discussion, the impugned order dated 24.06.2010 passed by the SDM/RA (Najafgarh), GNCTD is hereby set aside, as being non-est and nullity, and having been passed without any jurisdiction. Consequently, the respondents are directed to hand over possession of the land under the ownership of the petitioners forthwith, viz. land comprised in Khasra Nos. 24/6/1/2 (0- 18), 15/2 (1-12), 25/10/1 (0-15), 25/11 (4-16), 12 (1-14), 25/20/1 (0-8) and 20/2 (3-18), situated in the revenue estate of village Goela Khurd, New Delhi. The petitioners are directed to approach the concerned Revenue Authorities with requisite documents of ownership in their favour for taking over possession of their respective lands.

40. The present writ petition is allowed in the aforesaid terms.

JUDGE MARCH 7, 2023