Raj Kumar & Ors v. Govt of NCT of Delhi & Ors

judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. For orders, see LPA No.267/2011. —r-r \mRi (PRADEEP NANDRAJOG) JUDGE (SfP. GARG) JUDGE NOVEMBER 11, 2011 mm 0\ Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI % iudament Reserved On: 6^^ November, 2011 ludament Delivered On: IT^ November, 2011 + LPA 267/2011 SHREE HAZUR BABA SADHU SINGH J! MAHARAJ TRUST \ ^ Appellant Through: Mr.Jairaj Mudgal, Advocate for Mr.Ramesh Kainthola, Advocate . versus UNION OF INDIA & ORS.. ....Respondents Thrpugh: , Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansarl-, Advocates for GNCT of Delhi LPA 268/2011 FREEDOM FIGHTERS SOCIAL WELFARE ASSOCIATION . ..... Appellant Through: Mr.Jairaj Mudgal, Advocate for Mr.Ramesh Kainthola, Advocate versus UNION OF INDIA & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms;Sana Ansari^ Advocates for GNCT of Delhi LPA 271/2011 FREEDOM FIGHTERS SOCIAL WELFARE ASSOCIATION Appellant Through: Mr.Jairaj Mudgal, Advocate for Mr.Ramesh Kainthola, Advocate versus UNION OF INDIA & ORS; ....Respondents, Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ahsari, Advocates for GNCT of Delhi LPA 267/^011 & connected matters LPA 269/2011 LALITESWAR KUMAR CHOWDHARY & ORS. , ,Appellants Through: Mr.lnderbir Singh,.Advocate, versus ' GOVT OF NCTOF DELHI & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansarl, Advocates for GNCT of Delhj LPA 270/2011 RAJ KUMAR &ORS. , , Appi^lants Through: Mr.lnderbir Singh, Advocate. ',; , versus GOVT OF.NCT OF DELHI &ORS, ^ ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms^Sana-Ahsarii Advocates for GNCT of Delhi LPA 308/2011 TATINDER KUMAR KATHURIA & ORS Appellants ' Through: Mnlnderbir Singh, Advocate i versus GOVT OF NCT OF DELHI & ORS. . ' ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansari, Advocates for GIMCT of Delhi LPA 309/2011 , KISHNI&ORS. Appellants Through: Mr.lnderbir Singh, Advocate ' versus GOVT OF NCT OF DELHI & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansarl,^ Advocates for GNCT of Delhi ,LPA 267/2011 &connected! matters • . Page 2 of 9, ••A-CQRAM: HON'BLE MRJUSTICE PRADEEPNANDRAJ^ - HbN'BLE MRvjiJSTICES.P. GARG ;

¶1Whetherthe .Reporters of local'papers may be allowefl to see the judgment? • / ;2. "To be referred to Reporter or hot?. . , * .

¶3Whether the judgrhent should' be.reported;'in th^' Digest? , . • ,• . • • • ' PRADEEP NANDRAiQG. I.

¶1' Two distinct issues arise for consideration, In the above-captioned appeals, The' first pertains to. lands coniphsed in Khasra N6s.l6, 18, 24, 26, 27, 39,'40, 41, and 142 Village Neb Sarai and, (the other issue pertains t^, lands comprised in Khasra l\los.223 and 224 Village Chattarp.ur.

¶2The factual comrnonality in all , the appeals is . una'uthorized colonization on said lands, • .

¶3.The appfellpntslost the battle before the learne(| , SingleJydge and live on to fight a second roMnd beforethe Appellatp Court. , . > :

¶4The basis of the right claimed by the' appellahts is the policy decision dated 24'^'^ March 20.08' notified by the Government of NCT Delhi pertaining to 'Regularization of Unauthorized Gplonies in Delhi'.

¶5The notification dated 24^^ March 2008'specifies the criteria for regularization of unauthorized colonies and vide clause

3..3(a) specifically excludes such uriauthorized cblonies, or part of colonies or habitations comprised in notified,or reserved forest area. : . •LPA267/2011&connectedmatters ' • .Page,3of9- \3' 6v Lands comprised in Khasra Nos.l6, 18, 24, 26, , 27,. 39, 40,' 41, and l42 A/iijage Neb Sarai have .admittedly been notified on 2"'' April 1996 as gaon sabha iWaste land, and placed at the disposal; of the-Forest Department to be : maintained as forest area. The challenge is to the land? being notified as a 'Reserved Forest'. 1: The notification in question was promulgated pursuant to order dated

3.1.1996 passed by Supreme Court, in w;P.(C) No.4677/1985 M.C.Mehta 1/5. Union of India. •

¶8Section 154 of the Delhi Land Reforms Act reads ... as under:-, ^ ''154.Vesting of certain lands etc. in Gadn Sab,hp-

(I) On the commencement oRhis Act-

(i) All lands whether cultivable or otherwise, except land for the time being cornprised in any holding or grove, .

(II) All trees (other than trees in a holding or on the. boundary thereof or in a grove or .abadi) or . planted by a. person other than ,a proprietor on' • ., . ' land other than land comprised in his holding, "

(Hi) Publit, wells,

(iy) . Fisheries, , . ^ ' •. , \ '

(v) Hats, bazaar meals, .except Thats, , bazaar meals: held on land to Which provisions of clauses

(a) to (c) of sub-section

(1) of Section 11 apply,,

(vi) Tanks, ponds, water channels, pathways and abadi sites, ' . , , LPA 267/2011.& connected matters :

(vii) Forest, if any. , ' Situate in a Gaon Sabha Area,, sliaII vest in the Gaon Sabha:, . . Provided that if the uncultivated area siti^iate ih any Gaon Sabha area is, in the opinion of the Chief Commissioner, more than ordinary requirements of the Gaon Sabha, under this section may make such incidental consequential order as may be necessary,". >'

¶9It is not irH dispute that land comprised in .Khasra Nbs.l6, 18, 24, 26, 27, 39, 40, 41 and 142 Village Neb Sarai-were uncultivated barren lands, when Delhi Land Reforms Act 1954 was promulgated and were situated in a gaon sabha area and werfe thus Vested in the gaon sabha by operation of law. , It remaiqed an unfortunate situation that the inefficient bureaucrat did not declare as aforesaid,till Supreme Court had to needle the. inefficient bureaucrat to comply with the law. • '

10.V While passing the direction to notify the reserved, , forest land in Delhi, the Supreme Court: used the^expression .'uncultivated gaon sabha land' while recjuiring the. Governnnent to ensure compliande with Section 154 of the : Delhi Land Reforms Act 1954 and further to identify such lands which were liable to be declared as a reserved forest,

¶11. Picking pn the said, expression used by the Supreme Court, case of the appellants is that the Supreme, Court had required uncultivated gaon sabha land to be notified in terms of Section 154 of the Delhi Land Reforms . Act and thereafter as reserved forest and since; it Js urged. LPA 267/2011 & connected matters Page 5 of9 n that on the lartids in question colonization has been effected, ' the necessary corollary would be that the lands ;t.puld not be. declared as a reserved forest. . .

¶12The argument has been, negated by the learned Single Judge who has held that there are no equities in. favour of appellants since admittedly they are trespassers on gaon sabha land and secondly that, the lands are declared a reserved forest with approval of the Supreme Court. The learned Single Judge has thus held that he could not issue any direction as prayed for. The learned ^ Single Judge has further held that issue, stands concluded by the decision dated

16.7.2010 in.; W.P.(C) . No.4687/2010 Bhaaat Sinah & Ors. l/s! UP! & Ann: decided by a Division Bench of this Court. • 13. The argument in appeal before us was that since,/ the Supreme Court had directed u.ncultivable gaon sabha land to be declared as a reserved forest, the subject lands which were used for colonization could not be declared as reserved forest.

¶14A little historical peep is needed into the Delhi • Land Reforms Act 1954.

¶15, The Act was promulgated to provide for modification of zamidari system so as to create a uniform body of peasant proprietors without intermediaries and with respect to waste lands, grazing lands, .forests and Ipnds of common utility in different villages, in Delhi, Section 7 of the . Act provided that all interests in such lands would cease ahd be void all such lands-would be vested In the gaon sabha. Waste lands werfe specifically included in Section LPA 267/2011,&connected, matters .Page 6 of 9, and as per the explanation to sub-Section 1 of Section 'waste land included, cultivable and; uncultivable waste area of the village. ,16. The Delhi, Land Reforms Act 1954 does;hot define the word 'cultivate' and thus the same has' to be given its ordinary grammatical meaning, which would' mean to prepare and use land for agricultural purposes.

¶17Thus, when Supreme Court ,Used : expression 'uncultivated gaon sabha land' it has to* mean that such gaon sabha land on which no cultivation is being effected cannot mean, as urged by ; the, appellants, vacant land.

¶18That the appellants are admitte^dly not cultivating lands that admittedly lands were never, cultivated in the past is a fact not in issue as the appellants admit that never ever in the past or in the present any agricultural operations are being performed on the lands.

¶19The revenue records show the said lands to,be uncultivated waste lands vested in the gaon sabha is not in issue.

20., Thus, in addition to the reasons, given by the learned Single Judge, in law, for the reasons aforenoted, appellants would , have no case pertaining to the lands comprised in Khasra Nos.l6, 18, 24,; 26, 27, 39, 40, 41 and 142 Village Neb Sarai which have rightly been declared as waste lands, vested in the gaon sabha and being common pasture/forest lands in the past have been declared as reserved forest pursuant to directions issued by Supreme Court. LPA 267/2011 & connected matters ' i P,age7 ,of9 ,2.1. As regards lands comprised in Khasra W,os.223 224 . village Chattarpur, learned ^ counsel for respondents conceded that no notificationhas been issued qga said, lands declaring the same to be gaon sabha lands or as a reserved forest land. But, learned counsel urged, an argument which was urged before the learned Single Judge and accepted by the learned Single Judge, that the topology and morphological features of said lands has been opined to be similar to the ridge land, declared as a reserved forest, pursuant to the notification dated 2"''April 1996.

¶22Now, where law vests a power and regula^tes manner in which the power has to be exercised,'tjie power has to be exercised in the manner specified and in'no other manner.

¶23The notification dated 24^^ iviarch 2008 laying down the criteria for regularization of unauthorized colonies does not exclude regularization of unauthorized colonization on government land. It only excludes unauthorized colonization on lands notified as reserved forest areas, meaning, thereby, that unless notified as a reserved forest area, it cannot be ,at the will of a govei"nment servant to self opine whether the.land is a reserved forest area. ,

¶24Leaving it open to the government to' issue the necessary notification, if it is • established that land comprised in Khasra Nos.223 224 village Chattarpur was a waste land or a forest land, appeals stand dismissed in so. far they pertain to lands comprised in Khasra Nos.l6, 18, 24, 26, 2], 39, 40, 41 and 142 Village Neb Sarai and qua the land comprised in Khasra Nos.223 LPA 267/2011 &connected matters Page8 of 9 ^^nd 224 village. Chattarpur, impugneJd order dated ,15.3.2011 passed by the learned Single Judge disposing of 7 writ petitions is modified by issuing a direction that till the government notifies land comprised in Khasra Nos'.223 and. 224 village Chattarpur as a reserved forest, the same would ' be treated at par with other gaon sabha lands for. the purposes of the notification dated 24'^'^ March '2008. We . clarify. It would be for the Government of NCT Delhi to-either amend notification dated 2^^ April 1996 or to promulgate a further notification qua said lands on the issue of the same being waste land or for any other, reason,- vested in the Gaon Sabha and placed-at the disposal of the Forest Department.

¶25' No costs.

¶26Dasti. . NOVEMBER 11. 2011 •" 1, mm LPA 267/20il &connected niatters ' -'f >. il'. . n (PRADEEP NANDRAJOG) JUDGE (^P. GARG) JUDGE ft

* IN THE HIGH COURT OF DELHI AT NEW DELHI % ludoment Reserved On: November. 2011 ludament Delivered On: 11^'^ November. 2011 + LPA 270/2011 RAJ KUMAR Si ORS. Appellants Through: Mr.lnderbir Singh, Advocate versus GOVT OF NCT OF DELHI & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum Ms.Sana Ansari, Advocates for GNCT of Delhi CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE S.P. GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether