Full Text
Judsmentdelivered on:May 15,2017
MOHD NAFISH KHAN & ORS v- Petitioners ,#Throughf^|Mr/^fP.Ranai^il^.|^aurangBindra,Adys.
GOVT OF NCT OFDELHI&ORS' ', . % jf Through:, Mr.Khalid Arshad,Adv.
COI#VI:^-?v-.. '
HON'BLE MR JUSTICE V.KAMESWAR RAO fe: 'L'"- '-k i JUrDJGiML'NT n I
V.KikESWAR RAO.J.
For orders,see W.P.(C)No.10612/2016.
Respondents ll-Jj ',6^.
V.KAMESWAR RAO,J MAY15,2017/ak j 2017:DHC:8835
HIGH COURT OF DELHI
Judsmentreserved on:December 05,2016 Judsmentdelivered on:May 15,2017
Wp2i5ri0615/2016&CM41657/2016
NUR SINGH &ORS LAL BACHAN SINGH CHAUHAN & ORS
Petitioners Througli: Mi". VP.Rana& Mr.Gaurang Bindra,Advs.
Through: Mr.Hem Kumar,Adv.for GNCTD with Mr. Vinod Kr.Pandey,HalkaPatwari(in W.P.(C)
Nos. 10612/2016 & 10613/2016)
Mr.Khalid Arshad,Adv.(in W.P.(C)Nos.
10615/2016 &T0753/2G16)
JUDGMENT
1. These four writ petitions are being decided by this common order as they involve common issues with identical facts and the challenge is also to a common order passed by \
2. The identical facts are, it is the case of the petitioners that they are the recorded Bhumidhars ofsubjectland KhasraNos.100/17(3-5),100/24(4-12),100/25(4-10),100/17 (3-5), 100/16(Min 2-5). Itis their case thaton a complaint made by one Mr.Haroon Khan, proceedings under Section 81 ofthe Delhi Land Reforms Act, 1954('DLR Act',in short), were initiated againstthem in respect ofthe above lands on March 31,2014. A conditional order was passed by the Revenue Assistant on July 24,2014 without giving a show cause n.)tice and without providing opportunity of hearing and therefore, a revision petition was filed before the learned Financial Commissioner against the order of Revenue Assistant (j^ted July 24, 2014. The learned Financial Commissioner vide order dated October 28, 2014,set aside the order dated July 24,2014 and directed the Revenue Assistant to comply with the provisions ofRule 21-B ofthe DLR Rules, which provides for issuance ofshow cause notice and providing hearing, including procuring evidence. It is their case that the respondents wanted to demolish the;property ofthe petitioners. The petitioners filed Writ Petition bearing No. 2820/2014 before this Court seeking a restraint order against the respondents from taking any action except in accordance with the law. The Writ Petition was disposed ofby this Court on May 08,2014, directing the respondents not to take any action except in accordance with the law. A reference is made by the petitioner to a PIL filed by Mr. Haroon Khan which was disposed of on September 03,2014 by the Division Bench ofthis Court in view ofthe fact that proceedings under Section 81 ofthe DLR Act l\
3. Be that as it may,the case ofthe petitioners is also that, pursuantto the directions of the, learned Financial Commissioner, in his order dated October 28, 2014, show cause j notices were issued to the petitioners and in response to the show cause notices, detailed replies dated July 06,2015 have been filed. The replies were filed during the proceedings before the Revenue Assistant on July 27,2015, which were taken on record and direction was given to Gaon Sabha,the respondent No.2 to file rejoinder. The Revenue Assistant pssed another conditional order dated May 09,2016. It is their case that this order dated May 09,2016 does not mention about the replies filed by the petitioners on July 27,2015, n.9rthe said replies were considered;eventhe opportunity to lead evidence was not given to the petitioners. In other words,it is their case that the Revenue Assistant has not exercised the powers in accordance with the law, which resulted in the petitioners filing Revision Petition(s) under Section 187 ofthe DLR Act before the learned Financial Commissioner, the Revision Petitions being 202/2016, 205/2016, 203/2016 and 204/2016. The learned Financial Commissioner dismissed the revision petitions.
4. It is the submission ofMr. V.P.Rana,learned counsel for the petitioners in all these writ petitions that the Revenue Assistant and the learned Financial Commissioner, while passing the impugned orders dated May-09,2016 and September 16, 2016 have failed to exercise theirjurisdiction in accordance with the law so vested. He would state that it was the duty ofthe Revenue Assistant to consider the replies and to grant opportunity to lead 'b*. nn. • <■ '' /"■...! -Wfe; ^ A --J dated May 09, 2016, did not refer to the replies to show cause notices issued to the petitioners. According to him, the revisional jurisdiction of the learned Financial Commissioner was invoked only on the ground that the Revenue Assistant, be directed to consider the replies and to decide the proceedings under Section 81 of the DLR Act after hearing the petitioners and after granting opportunity to'lead evidence. He has drawn my attention to Section 81 of the DLR Act and also the provisions of Rtile 21-A and 21-B of Cte DLR Rules. He has also stated, the petitioners,,had taken the ple^s.of non-applicability of the DLR Act as the proceedings^ wero btoed by;limitation and; the petftioners are protectedbytheDelhi SpecialLaws,Mhidftare'sftiLihforce. Accordingtohim, thepleas of the petitioners are supported by LawVas iSchedule-I,:Entry 17, prescribes limitation for initiation ofproceedings as three years and"commence from the date of unlawfulup of the land. His submission includes that the NdtionaLC^^ Territory of Delhi Laws (Special Provisions) Second (Amendment) Acti 20;14 says that-Bill No. 88 of 2007 passed by the Parliament withregard^to the protection ofunauthorized construction^ shall remainin force till December 31, 2017, and the;National;Capital Territory of Delhi Laws (Special Provisions) SecondBill, 2007, allfhos'econstructions which:existed till June 01, 2014, will be protected which includes construction of agricultural land also. According to him.Rule 21-A mandates, Halka Patwari, shall in his report, give the date of conversion of land for non-agricultural purposes. Admittedly, report does not say so. So it becomes a disputed fact, whether initial report datedMarch 03, 2014 on the basis of which, proceedings under A- W.P.(C) 10612/2016andconnectedmatters ^ '■M.- ■/ /■/ / Section 81 of the DLR Act were initiated, were barred by limitation or not. This fact has not been decided by the Revenue Assistant nor was considered. He also states, even the learned Financial Commissioner has failed on that count. It is also his submission that this Court cannot decide the disputed facts and the only issue whether the petitioners can be deprived of their rights with regard-to their property in violation of Rule 21-A and,21-B of the DLR Rules, more particularly, when the proceedings initiated areLit by limitation. He iVouldrely upon the following judgments in support ofhis contentions]:. (a) 156 (2009) DLT129-NeelimaGupM-VSi Y6gesh Saroha and Others; (b) 2004 (2)ILR (Delhi) 128,- Gaon Sabha Samhalka v. KK Sahni;. (c) 167 (2010) DLT 368 Harijan Kalydn Samiti Regd. & Ors v. Govt of NCTofDelhi & Ors; (d) 204 (2013) DLT 269 Bijender Kr. Gupta v. Corporation Bank of India; ■. T (e) (2010) 9 see 496 Kranti Associates Private Limited and Another v. MasoodAhmedKhan and others.
5. On the other hand, Mr. Khalid Arshad and Mr., Hem Kumar, learned counsel appearing for the respondents wouldmake identical submissions inasmuch as the petitioners herein, bought the lands in question bearing KhasraNos. 100/16, 100/17 from the erstwhile owner Sh. Rajpal Singh etc vide registered sale deed dated March 07, 2013 in favour of Nafish Khan and others and 100/24 and 100/25 in favour of Lai Bachan Chauhan and W.P.(C) 10612/2016andconnectedmatters Page 5 of17 V Others, vide registered sale deed dated March 07, 2013, duly registered before the Subafter due verification ofthe records that the lands are being used for agricultural purposes only and it is not notified for any acquisition proceedings. It is their case that from the recitals of the sale deeds, executed between the parties (erstwhile Bhumidhar and the petitioners),it is apparentthatthe lands were used for agricultural purposes by the erstwhile owners and the same is duly reflected in the revenue records i.e. Khasra Girdawries which shows the sowing ofcrop on the land in question upto the Kharif Crop for the year 2013. T^at,afterthe purchase oflands,the petitioners raised unauthorized constructions overthe same and it was reported by Halka Patwari vide reports dated December 16, 2013, December 26, 2013 and March 03, 2014 that the petitioners are converting the lands in question from agricultural use to non-agricultural use. It is thereafter, the proceedings under Section 81 ofthe DLR Act have been initiated againstthe petitioners.
6. It is their submission that the respondents have demonstrated that unauthorized constructions have been made later than 2013 and also made as recently in 2014 till 2016. The reliance is placed on thejudgment ofthis Court in the case of210(2014)DLT1(DB) RandhirSingh Vs, Financial Commissioner.
7. It is also their submission that the against the order ofRevenue Assistant, an appeal lies to the Divisional Commissioner as per Schedule 1 Entiy 17 Column 8 ofthe DLR Act. I learned Financial Commissioner was not maintainable since the petitioners have not exhausted the statutory remedy offiling appeals before the Divisional Commissioner. It is their submission thatthejurisdiction could not have been foisted upon the learned Financial Commissioner by bypassing the scheme of the Act, by the mere filing of the revision petitions by the petitioners. He states, failure of the counsels of Gaon Sabha/Revenue Assistant to object to the maintainability of the revisions as well as the oversight of financial Commissioner in this regard, does not make otherwise non-maintainable revision petitions, maintainable. That apart,:it is their case,thatthe plea oflimitation was notraised b^Tore the learned Financial Commissioner nor even before this Court and the same has I been raised for the first time, before this Court, that to verbally. They also state, that a perusal of grounds B & C establish that the grounds revolve around the fulcrum that the Revenue Assistant and the learned Financial Commissioner while passing the impugned order(s)have not recorded thatthe replies have been considered. Apartfrom the allegation of non-consideration of replies, no other grievance has been raised. Hence, learned Financial Commissioner could not have,adjudicated a question which was not pleaded nor urged before it. That apart, it is their submission that the petitioners have boughtthe lands on March 07,2013 vide sale deeds and are claiming that construction on the lands exists beyond three years. As per para 2 ofthe petition. Section 81 proceedings were stated to have been initiated on March 31, 2014, as a sequitor to the petitioner's contention, March existence ofconstruction. As perthe respondents,construction has begun afterthe purchase glandsbythe petitionersin2013 and hascontinued through 2014-15 till2016and assuch, the petitioner's contention oflimitation ofthree years stands negated. They state, this is because the sale deeds ofthe year 2013 reveal thatthe lands are being used for agricultural purposes. Onthe aspectofunauthorized construction,they would rely uponthe following: /. Order dated 26.03.2014 in W.P.(C) 1973/2014 Haroon Khan vs. GNCTDbyDB-1. a. Order dated 08.05.2014in W.P.(C)2820/2014 Md.NafisKhan & Ors.
V. GNCTD. ' Hi. Order dated 03.09.2014 in W.P.(C) 1973/2014 Haroon Khan v. GNCTD by DB-L iv. Pendency ofW.P.9C)3410/2016Haroon Khan v. GNCTD beforeDB- L
V. CM.No.42676/2016 in W.P.(C)3410/2016Haroon Khan vs.
GNCTD befweDB-1 allegingfresh construction being donein 2016 vL Khasra-Girdwarishows that till 2013 crops stood at the subjectlands and that after that there are no crops(since there has been construction by thepetitioner). Vii. Report of Halka-Patwari of 16.12.2013, 26.12.2013 and 03.03.2014 and 06.02.2016 which reports of unauthorized construction activity being undertaken.
8. Alternatively,they have pleaded as Section 112 ofthe Limitation Act,the limitation period is ofthirty years in respect of Government land and therefore,the period ofthree Limitation Act. They would also thatthe DLR Act is a general law and the Limitation Act is a special law and the Limitation Act having been framed in the year 1963 whereas DLR Act was framed in 1954,the Legislature is presumed to,have knowledge ofthe DLR Act, 1954 while passing the Limitation Actin 1963.In any case,it is their case thatthe DLR Act does not expressly exclude the provisions ofthe Limitation Act, 1963. The counsels would rely upon the following judgments, in support of the contentions and would seek the dismissal ofthe writ petition: (i) 149(2008)DLT146(DB)ShammiMadanv. Gaon Sabha,Nangali; (ji) 210(2014)DLT1(DB)RandhirSingh v.FinancialCommissioner; ('Hi) AIR 1961SC1704Navraiianmalv,State ofRajasthan; (iv) 2010(4)SCALE322R.Hanumaiali v. Govt. ofKarnataka.
9. Having heard the learned counsel for the parties,it is noted thatthe grounds on which challenge is made to the order ofthe learned Financial Commissioner is that the petitioners have been deprived oftheir rights qua their property without adhering to the provisions of Rules 21-A and 21-B ofthe DLR Rules and there is a failure ofprinciples ofnaturaljustice as the pleas taken in the replies have not been taken into.consideration.
10. Insofar as the first ground,is concerned. Rules 21-A and 21-B of the DLR Rules stipulates as under "21A Use oflandfor non-agriculturalpurposes(Section 81)- The Patwari, as soon as he learns that the provisions ofSection 23 have been violated and Tehsildar mentioning therein:-
(i) The name,parentage and address, ofthe Bhumidhar or Asami; --i- (a) The number and area oftheplots affected; (Hi) The name ofthe village and circle;
(iv) The use to which the land has beenput;
(v) The date ofconversion oflandfor non agriculturalpurposes;and
(vi) Approximate amount ofexpense involved in making land capable ofuse for agriculturalpurpose before. On receipt of the report from the Patwari or on receipt of information otherwise, the Tehsildar shall cause summary enquiry about the nature ofthe conversion ofland and the approximate ofexpense involved in making the land y capable ofusefor agriculturalpurposes as before, ifit ispossible. He shall then submit thepapers to the Revenue Assistantfor orders. 21-B Disposalofreports by Revenue Assistant(Section 81)- The Revenue Assistant, on receipt ofthe report referred to in Rule 21-A or on receipt of information otherwise regarding user oflandfor non agricultural purposes shall issue notice to the parties in L.R.form 48 and shall call upon them, to show cause why action should not be taken againstthem under Section 81. To every such suitorproceedings Gaon Sabha shall be made aparty. After hearing the parties and after making suchfurther enquiries as he thinks fit, the Revenue Assistantshallpass suitable orders thereon."
11. A perusal of the aforesaid Rules reveal that if a land is used for non agricultural purposes,the Patwari as soon as he learns that any land is put for non agriculture purpose, Bhumidhar/Asami;the number and area ofthe plots effected; the name ofthe village and chcle;theuseto whichland has been put;the date ofconversion oflandfornon agricultural purposes etc. On the basis ofthe report ofPatwari,the Tehsildar shall, after such inquiry place the papers with the Revenue Assistant, who on receipt ofreport under Rule 21-A of Patwari issue a show cause notice and after hearing the parties and after making such inquiries,the Revenue Assistantshall pass suitable orders.
12. Relying on the aforesaid Rules, the submission of Mr.Rana is that the RA was required to make inquiries aboutthe factual pleas raised in the replies,which have not been considered. The pleas raised by the petitioners in the replies and contended by Mr.Rana are that the proceedings under Section 81 ofthe DLR Act were barred by limitation as according to him Schedule 1, Entry no. 17 prescribes a limitation ofthree years and the same commences from the date ofunlawful use ofthe land. He also states,that the Halka- Patwari was required to give the date of conversion of the land for non agricultural purposes,which the report does notstate so,as according to him it becomes a disputed fact whether the initial report dated March 3,2014 on the basis ofwhich the proceedings under Section 81 ofthe DLR Act were initiated were barred by limitation or not. Thatapart,it is the stand ofthe petitioners and also urged by Mr.Ranathatin the replies the plea was also thatin view ofNational Capital Territory ofDelhiLaws(SpecialProvisions)Act,2011 and Amendment Act of 2014 protects all unauthorized construction, which existed till 2014
13. The submission of Mr. Rana that the authorities below have failed to consider the relies filed by the petitioners while deciding the proceedings against the petitioners is appealing on a first blush but on a closer look, a question arises whether that should be a ground forthis Courtto setasidetheimpugned ordersofthe Authorities dated May[9],2016 and September 6,2016 ofthe Revenue Assistant and the learned Financial Commissioner respectively and remand the matters backto the Revenue Assistant. The answeris "NO"as I find that two issues raised in the replies can be decided on the basis of the pleadings/submission/record filed inthese proceedings. l^f. Insofar as the first submission of Mr. Rana as pleaded in the replies before the Revenue Assistant that the proceedings initiated under Section 81 of the DLR Act are barred bylimitation is concerned,theissue needsto beseenfrom theperspective asto when did the petitioners bought the lands in question and what was the status ofthe lands at the time ofpurchase. Thereisno dispute withtheregardtothefact,,even noted bythis Courtin the earlier round oflitigation that the lands were purchased by the petitioners vide Sale Deeds dated March 06/07, 2013. Surprisingly, this aspect has not been averred by the petitioners in the petitions nor the copies ofthe Sale Deeds have been placed on record. It is the stand ofthe respondents that the Sale Deeds were registered after issuance of No Objection Certificate from the office of ADM(Central)Delhi after due verification ofthe records that the land is being used for agricultural purposes only and it is not notified for petitioners have purchased lands, which were being used for agricultural purposes in the y^ar 2013. It is an admitted position ofthe petitioners that the proceedings under Section 81 ofthe DLR Act were initiated on March 31,2014. It is the case ofthe respondents that the Halka-Patwari has submitted his reports on December 16,2013,December26,2013 and March 3,2014thatthe petitioners are converting the lands in question from agricultural use to non agricultural use.
15. The plea ofMr.Rana that the Halka-Patwari in his report dated March 03,2014 on the basis ofthe proceeding initiated under Section STofthe DLR Act,does notspecify the dkte on which the land was converted for non agricultural purposes,as according to him, such date would be relevant to determine the aspect oflimitation. In other words,ifthe conversion ofthe land to non-agricultural purpose was before a period ofthree years from the date of initiation of proceedings (March 31, 2014) then the limitation in terms of Scbedule-I, Entry No.17 would come into play. I am afraid, in view ofthe stand ofthe respondents that the land having been purchased on March 07, 2013 through sale deeds, which have not been placed on record by the petitioners, which would have shown the nature/usage ofthe lands purchased, moreover,the stand ofthe respondents that the Sale Deeds were registered before the Sub-Registrar, Delhi after the issuance ofNo Objection Certificate from the office of ADM (Central) after due verification ofthe record that the land is being used for agricultural purpose only surely suggest that on the date ofthe Sale agricultural use-. So,the plea ofMr.Ranathatthe proceedings were barred by limitation has to be rejected. —-4
16. The reliance placed by Mr.Rana on the judgment ofthis Court in the case of Gaon Sabha Samalkha (supra), wherein this Court has held that the period of limitation prescribed by Entry 17 in the First Schedule ofDLR Act is the actual date ofunlawful use ofland and not the date ofknowledge shall have no applicability in the facts ofthis case and in view ofmy finding above.
17. Insofar as the second submission ofMr.Rana that in view ofthe provisions ofthe hiational Capital Territory of Delhi Laws (Special Provisions) Act, 2011 as amended in 2014,the proceedings under Section 81 ofthe DLR Act cannot be initiated is concerned, having seen the provisions ofthe Act of2011 (and of2014),it is clear the same has been enacted for providing temporary reliefand to minimize avoidable hardship and irreparable lossto the people ofNational Capital Territory ofDelhi againstany action bythe concerned Agency in respect ofpersons covered by the Policies as referred in the said Act. Some of thePolicies referred to inthe said Act,includesthe following:i. The policy finalized by the Central Government regarding regularization of unauthorized colonies, village abadi area and its extention, the guidelines and regulations for thispurpose have been issued; a. In pursuance ofthe guidelines and regulations necessary steps are being takenfor regularization ofunauthorized colonies which, inter alia, involve scrutiny oflayoutplans, nP \ I ofmixedmeofstreets,approvaloflayoutplans,fixationofboundaries,changeinlandme andidentification ofcoloniesnoteligibleforregularization;
III. The draft policy regarding farm houses is under consideration in the Delhi
IV. Thepolicy with respecttostorages, warehousesandgodowns medforagricultural inputsorproduce(includingdairyandpoultry)inruralareasbuiltonagriculturallandare underconsiderationofthe CentfalGovernmentinconsultation withtheDelhiDevelopment Authority.
18. Suffice to state, it is not the case ofthe petitioners that the lands in question are covered undertheabove mentioned Policies. Ifthatbeso,theprovisionsoftheActof2011 as amended in 2014,haveno applicationtothepetitioners.
19. The reliance placed by Mr.Rana on thejudgment in the case ofNeelima Gupta (supra) to inter-alia contend -that once agricultural land is converted into unauthorized colony then theRevenue Authorities shall nothave anyjurisdiction,even though,such a plea is contrao.to the earlier plea ofthe petitioners that the proceedings are barred by limitation(which pleapre-supposesthe applicability ofDLRAct)stillifis.iiotthecaseof the petitioners in the pleadings that the dispute raised by them is with regard to the unauthorizedcolonyoveragriculturalland. Thisjudgmenthasnoapplicationinthefactsof this case.
20. Insofar as thejudgment ofHarijan KalyanSamitiRegd.(supra)is concerned,the facts ofthe said case are thatthe petition wasfiled by the residents ofHarijan Basti of JharodaMazrainBurariforquashingnoticedatedJuly17,2008bytheSecretary.Ministry ofUrban Development, Govt. ofNCT ofDelhi directing removal ofall encroachments on t^elandfailing whichthe encroachments would be demolished. This Courtdisposed offthe writ petition by directing till a decision is taken on the applications made by the petitioners for regularization ofthe unauthorized colonies in question, the respondents are restrained from distuibing the possession ofthe petitioners. It is not such a case in these petitions, inasmuch as the petitioners have not pleaded that there are part ofan unauthorized colony and they have made applications for regularization.
21. Insofar as thejudgment in the case ofBijender Kr, Gupta(supra)is concerned,the ^aidjudgmenthas no applicability in the-facts ofthis case,moreover,the issue in handis relatable to the provisions of the DLR Act and the issue needs to be seen from the perspective ofDLR Act, which includes Section 81,which clearly stipulates ejectment for use ofland in contravention ofprovisions ofthe Act. 22.. Insofar thejudgmentin the case ofKrantiAssociatesPrivate Limited(supra)relied upon by Mr. Rana to contend that the order passed by a judicial authority affecting the rights ofthe parties must speak and where the order is subject to appeal,the necessity to record reasons is even greater,in order to prevent unfairness and arbitrariness in reaching the conclusion. There is no dispute on the proposition oflaw as laid down bythe Supreme• Court in the said judgment. Without going into the question whether the proceedings before the learned Financial Commissioner were maintainable as contended by the learned discussion, the petitioners are not entitled to the reliefs as claimed in these petitions. The s^earedismissed. CM 41654/2016(for stay)in W.PTO 10612/2016 CM 41655/2016(for stay)in W.P.(C)10613/2016 CM 41657/2016 ffor stay)in W.P.rC)10615/2016 CM 42106/2016(for stay)in W.P.(C)10753/2016 Dismissed as infructuous. MAY 15,2017 akb/ak V.KAMESWARRAO,J