Full Text
HIGH COURT OF DELHI
Date of Decision: 06th January, 2023 IN THE MATTER OF:
DARSHAN INVESTMENT PVT LTD & ANR ..... Appellants
Through: Mr. Jai Sahai Endlaw, Advocate
Through: Ms. Rachita Garg and Mr. Tapesh, Advocates
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Appellant seeks to assail the order dated 14.11.2022, passed by the learned Single Judge in W.P. (C) 15564/2022. The learned Single Judge vide the judgment impugned herein has dismissed the Writ Petition filed by the Appellant herein on the ground that the issues sought to be raised in the Writ Petition can be adjudicated in the appeal that has been filed by the Respondents No.1 & 2 before the Deputy Commissioner.
2. Shorn of details, the facts of the case are that the Appellant No. 1/M/s Darshan Investment Pvt. Ltd. (Petitioner No. 1 in the Writ Petition) is a company registered under the Companies Act, 1956, bought agricultural land, being Khasra No. 1836 (4-16), situated in Village Aya Nagar, Mehrauli Sub-Division, New Delhi.
3. It is stated that sometime in 2014, Respondent No.2 submitted a report of the Halqa Patwari which alleged that the subject land, owned by the Appellant herein, was being used for non-agricultural purposes. Consequently, proceedings under Section 81 of the Delhi Land Reforms Act, 1954 were initiated against the Appellant herein, before the SDM-cum-Revenue Assistant. Section 81 of the Act is reproduced below:
(2) Notwithstanding anything contained in sub section (1) the Revenue Assistant also may, on receiving information or on his own motion, eject the Bhumidhar or Asami, as the case may be, and also recover the damages referred to in sub-section (1), after following such procedure as may be prescribed."
4. In terms of the proceedings under Section 81 of the Delhi Land Reforms Act, 1954, office of SDM-cum-Revenue Assistant issued a Restrainment Order and Notice issuing summons against the Appellant herein. On 16.07.2014, a Conditional Order was passed by the Ld. SDM-cum-Revenue Assistant directing the Appellant herein to restore the subject land to its original status, i.e. agricultural land, within a period of three months from the date of receipt of the Order, failing which the Appellant herein would stand ejected from the subject land.
5. The Ld. SDM-cum-Revenue Assistant passed an eviction order dated 29.11.2019/02.12.2019 directing eviction of the Appellant from the land in question. Relevant portions of the Order dated 29.11.2019/02.12.2019 reads as under: “Hearings have been conducted regularly however no appearance of the respondents is seen as per record. No compliance of the conditional order was filed, neither any representation/written statement was submitted by them. Moreover, Aya Nagar Village· is rampant with unauthorized construction and unauthorized colonies. In view of this, a final hearing was conducted on 27.11.2019. Respondent was absent. As adequate opportunities have already been accorded to the respondent to put forth their side, it was decided to dispose the matter. In view, of the above, and on considering all the material placed on record, am of the opinion that the land is being used for non-agricultural purposes, and reasonable opportunity of being heard has been provided to the respondent. Hence, I, RAKESH KUMAR, Revenue Assistant/SDM (Mehrauli) hereby make the Conditional Order dated 16.07.2014 absolute and vest the suit land in Gaon Sabha. The respondents are to be ejected from the suit land. The Halqua Patwari is directed to ensure that the entries with regard to the present order are recorded in revenue records immediately and submit compliance within 3 days of issue of this order. File be consigned to record room…”
6. It is pertinent to mention here that the abovementioned Order was passed ex parte. On 20.11.2019, the Respondent No. 1 herein issued a notification bearing No. F7(128)/DLB/2019/000580156/14600-15 under the provisions of Section 507(a) of the Delhi Municipal Corporation Act, 1957 vide which the Village Aya Nagar, where the subject land is situated, was declared to be a deemed urban area. A Circular dated 03.07.2013 issued by the office of the Divisional Commissioner, Revenue Department, GNCTD clarified that the provisions of Delhi Land Reforms Act, 1954 would not apply to areas declared as urbanized by way of notification(s) under Section 507 of the Delhi Municipal Corporation Act, 1957. Further, on 25.09.2020, the Ministry of Housing and Urban Affairs, Government of India, in continuation of the circular dated 20.11.2019 and under the provisions of Section 150(3)(a) of the Delhi Land Reforms Act, 1954, transferred the land rights for Village Aya Nagar, which were earlier vested with the Respondent No. 2 herein, to the Central Government. Additionally, under Section 22(1) of the Delhi Development Act, 1957 the village areas where the subject land is situated, were transferred to the Delhi Development Authority for purposes of further urbanization, development and maintenance.
7. It is stated that the Appellants filed an application under Appendix VI Rule 14 of the Delhi Land Reform Rules before the Ld. SDM-cum-Revenue Assistant for setting aside the ex-parte order dated 29.11.2019/02.12.2019 and to hear the Appellant’s case on merits. In the application it was contended by the Appellant that they did not receive proper summons in the proceedings, and since the eviction order dated 29.11.2019/02.12.2019 was passed ex-parte without taking into consideration the stance of the Appellants, it was illegal and, therefore, it should be set aside. It is stated that vide Order dated 01.09.2021, the Ld. SDM-cum-Revenue Assistant allowed the application and granted one last opportunity to the Appellants to defend their case on merits. Relevant extract of the order dated 01.09.2021 reads as: "Upon perusal of the record available it is observed that the respondents were not aware about the proceedings of the above mentioned case as no proper notice were served, moreover, the Apex Court in case titled Improvement Trust Ludhiana Vs. Ujagar Singh &Ors, held that each case has to be weighed from its facts and circumstance while condoning the delay and in another case titled collector, Land Acquisition, Anantnag and Ors, Vs Mst. Katiji&Ors, held that the a liberal approach should be adopted as refusal to condone delay can result in great injustice. In the interest of justice equity and fair play and in view of the above said findings and observations I find it appropriate to allow the application under Appendix VI Rule 14DLR Rules giving last opportunity to the respondent to defend their case on merits."
8. The Ld. SDM-cum-Revenue Assistant vide Order dated 08.09.2021, set aside the final order dated 29.11.2019, thereby dropping the proceedings initiated against the Appellant under Section 81 of the Act on the ground that mere construction of a boundary wall around the subject land (as recorded by the Halqa Patwari in a fresh land status report) would not, by itself, change the nature of subject land. Further, the Order notes that the subject land was not being used for purposes other than agricultural activities. It was held that proceedings under Section 81 would not be maintainable against the Appellants. Relevant extract of the Order dated 08.09.2021 reads as under: “Thereafter, the Respondents filed an application under Appendix VI Rule 14 of DLR Rules 19S4for recalling/setting aside the order dated 29/11/2019 and to hear the case on merits on the plea that he did not receive any notice from the court and an ex-party order was illegally passed as no proper notice ever served to the respondent and the court vide order dated 29/11/2019vested the suit land in Gaon Sabha. Further, it is submitted by the respondent that sometime in June 2017, the respondent received some information about the case and appeared before the Hon'ble Court and apprised the facts and thereafter, no notice was served upon the respondents and the respondents recently when obtained a copy of Khatoni on 02/08/2021, came to know that the suit land has been vested in Gaon Sabha, hence, immediately moved the application under Appendix VI Rule 14 of DLR Rules 1954. Considering the above, the application of Respondents under Appendix VI Rule 14 of DLR Rules1954 has been allowed as per principles of natural justice. The representative of Respondent appeared and averred that there is no illegal construction over the suit land as well as there is no any commercial use on the suit land, whereas, the suit land is being used for agricultural use only. He further averred that there is only boundary wall around the suit land which is not any violation of section 81 of DLR Act. Further, the counsel for Gaon Sabha opposed the version of the Respondents and stated that the impugned order dated 29/11/2019 is correct, whereby the land in question is vested in Gaon Sabha as the same is not being used for the agricultural purposes. Hence, the request of the applicant to re-call/dismiss the impugned order dated 29/11/2019 should not be allowed. Arguments have been heard in detail. However, to know the facts, a current land status report has been called from the Halqa Patwari, which is on record and as per the same suit land has been cultivated inside the boundary wall Further, the undersigned has gone through the entire matter and observed: That the suit land is not being used for any illegal activities or non-agricultural uses, whereas, the same is being used for agricultural use. However, the Halqa Patwari in his current land status report stated that there is a boundary wall around the suit land. And whereas, the Hon'ble Allahabad High Court held in case titled "Smt. Urmila Devi Vs Pooran Chand" RD 1998 (89) that construction of boundary wall over a particular portion of land will not change the nature of land. In view of the submissions given by the Respondents & observations, the undersigned is of the view that the proceedings U/s 81 of DLR Act, are not maintainable in the present case & by setting aside the impugned order dated 29/11/2019, I hereby drop the proceedings under section 81 of DLR Act, on the land bearing Khasra Nos. 1836 {4-16) situated in revenue estate of village Aya Nagar, New Delhi. Announced in the open court. File is to be consigned to the record room.” (emphasis supplied)
9. Thereafter, being aggrieved by the order dated 08.09.2021, passed by the Ld. SDM-cum-Revenue Assistant, Mehrauli, quashing the proceedings for ejectment of the Appellant herein from the subject land, Respondent No. 2 filed Appeal No. 11/2022 under Section 185 of the Delhi Land Reforms Act, 1954 before the Ld. Deputy Commissioner.
10. It is stated that pending adjudication of the aforesaid appeal, the Appellants herein filed W.P. (C) 15564/2022, seeking quashing of proceedings arising out of Appeal No. 11/2022 pending before the Ld. Deputy Commissioner. In the Writ Petition, it was the contention of the Appellants herein that the Appeal filed by Respondents No.1 and 2 challenging the Order of the Ld. SDM-cum-Revenue Assistant, Mehrauli, quashing the proceedings for ejectment of the Appellant herein from the subject land, is not maintainable in view of Section 185 of the Delhi Land Reforms Act, 1954. Vide Order impugned herein, the Ld. Single Judge observed that in light of the appeal pending before the Appellate Authority/Ld. Deputy Commissioner, the Appellant has not yet fully exhausted their remedy to advance their arguments and challenge the maintainability of the said appeal before the appellate authority. Further, it is noted that the question as to urbanization of subject land remains a disputed question of fact, which is a question left to be considered by the appellate authority as the Court does not want to delve into the question of facts with respect to whether or not the subject land falls under notified urbanized areas. Based on the reasoning that the Appellant ought not to raise arguments in a writ petition when they haven’t fully utilized the efficacious remedy available to them under appeal proceedings against the Order dated 08.09.2021, the Ld. Single Judge dismissed the Petition, without allowing for any reliefs, in the following terms:-
disputed facts that this Court does not have powers to adjudge but which may be pressed and argued before the Appellate Court pertaining to the question whether the entire disputed land has been urbanised or not.
10. Therefore, this Court does not find that at this stage there arises any occasion to raise the contentions that have been raised in the instant petition when the appeal against order of the Revenue Assistant/ Sub- Divisional Magistrate remains pending and the question to its maintainability has not been raised on behalf of the petitioner therein. There is no merit to allow the instant petition as the petitioner has failed to make out any case for issuance of any direction and order as prayed.
11. Accordingly, the instant petition is dismissed alongwith pending applications, if any."
11. Being aggrieved by the order of the Ld. Single Judge in W.P. (C) 15564/2022 dated 14.11.2022, the Appellant has filed the present appeal with the following prayers: “In light of the aforesaid facts and circumstances, the Appellants respectfully pray that this Hon'ble Court may allow the present appeal and:
(i) Set Aside the Order dated 14.11.2022 passed by this
Hon’ble Court in W.P. (C) No. 15564 OF 2022 titled Darshan Investment Pvt Ltd & Anr. Vs Government of NCT of Delhi & Anr.
(ii) Issue a Writ in the nature of certiorari or any other
Writ quashing the proceedings arising out of Appeal No. 11of 2022 filed under Section 185 of the Delhi LandReforms Act, 1954 titled Gaon Sabha Aya Nagar vs M/s Darshan Investment.”
12. The short question which arises for consideration is whether the learned Single Judge was correct in refusing to entertain the Writ Petition filed by the Appellants herein on the ground that the Appellant Authority can decide the issue of maintainability in the appeal filed by the Respondents No.1 & 2 herein.
13. Section 185 of the Delhi Land Reforms Act, 1954, on which reliance has been placed by the Appellants to contend that the Appeal preferred by the Respondents No.1 & 2 is not maintainable, reads as under:
14. Relevant portion of Schedule I of Section 185 of the Delhi Land Reforms Act, 1954, which is important for this case, reads as under: S.No. Section of the Act Description of Suit application and other proceedings period of Limitation Time from which period beings Proper Court fees Court of original jurisdiction Court of 1st Appeal 2nd Appeal 17 81 (i) Suit for ejection of Bhumidhar or Asami and for damages under Sub Section (1).
(ii) Proceedings under sub- Section (2) Three years Three years or one year from the date of passing of the Delhi Land Reforms (Amendment) Act, 1965, whichever period expires later. From the date of unlawful use of the land Do As in the Court fee Act, Nil Revenue Assistant Do Deputy Commissione r Do......
15. Learned Counsel for the Appellants submits that vide notification dated 20.11.2019, issued by the Respondent No. 1 under Section 507(a) of the Delhi Municipal Corporation Act, 1957, Aya Nagar village was declared as urban land, meaning thereby that the subject land was now put beyond the applicability of provisions of the Delhi Land Reforms Act, 1954. Therefore, Appeal No. 11 of 2022 filed under Section 185 of the Delhi Land Reforms Act, 1954 and pending adjudication was wholly without jurisdiction, and therefore liable to be quashed by the learned Single Judge. It is also submitted by the Ld. Counsel for the Appellants that in the immediate case, the question of seeking available alternate remedy should not arise, when in this case the pending appeal before the appellate authority is totally without jurisdiction. He, therefore, contends that the appeal is patently illegal for lack of jurisdiction, and ought to have been quashed on this ground, which was not considered by the Ld. Single Judge in the impugned order.
16. Per Contra, learned Counsel for the Respondent seeks to justify the Order passed by the learned Single Judge by contending that the fact as to whether the appeal itself is maintainable in the present case or not is a mixed question of fact and law which can be considered by the Appellate Authority and, therefore, the learned Single Judge was justified in not entertaining the Writ Petition filed by the Appellants herein.
17. Heard the counsels for both the parties, and perused the material on record.
18. Section 185 of the Delhi Land Reforms Act, 1954, bars the jurisdiction of a Civil Court to entertain any suit, application or proceeding mentioned in column 3 of Schedule I to Section 185 of the Act. Section 81 of the Act deals with ejectment of a Bhumidar or Asami. The issue as to whether the subject land has been urbanized or not and as to whether the appeal filed by the Respondents herein is maintainable or not is a mixed question of fact and law. The learned Single Judge has noted that there is no document to show that the Appellant herein contended the maintainability of the Appeal filed by the Respondents herein before the Appellate Authority since the area in question has been urbanized.
19. In view of the above, the Appellate Authority can take a decision as to whether the Delhi Land Reforms Act, 1954 would apply to the present proceedings or not. The decision of the Appellate Authority that the subject land no longer comes within the purview of the Delhi Land Reforms Act, 1954, can be challenged by filing a Writ Petition. The decision of the learned Single Judge that the Appellant herein has an opportunity to raise the question of maintainability before the concerned Appellate Authority itself and, therefore, the Writ Petition need not be entertained, does not warrant any interference in the instant appeal.
20. Accordingly, the instant appeal is dismissed, along with the pending application(s), if any.
21. Needless to state that if and when a question of maintainability of the appeal is raised before the Appellate Authority, the Appellate Authority shall decide the same without being influenced by the fact that the Writ Petition filed by the Appellants herein and the instant Appeal have both been dismissed by this Court, for the reason that neither the learned Single Judge nor this Court has made any observations on the issue of maintainability of the appeal.
SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J JANUARY 06, 2023