D.K. Jain, J.
1. This appeal under Clause 10 of the Letters Patent applicable to this Court, is directed against order, dated April, 2004, passed by the learned Single Judge, where order passed by the Revenue Assistant (Hauz Khas) on 31 July, 2003, directing ejectment of the petitioner from the subject land and its vesting in the Gaon Sabha has been quashed. By the said order, which was affirmed by the Collector and the Financial Commissioner, the Revenue Assistant had held that the approval obtained by the petitioner from the Delhi Development Authority (DDA for short) and the Municipal Corporation of Delhi (MCD for short) for construction of a motel could not supersede the provisions contained in Section 23 of the Delhi Land Reforms Act, 1954 (for short 'the Land Reforms Act') and, thereforee, in the absence of permission to change land user under the said provision, construction of motel cannot be permitted, even if the plans for construction of the motel had been sanctioned by the MCD oh writ petitioner's (respondent No. 1 herein) depositing approx. Rs. 45 lakhs.
2. Although the Lt. Governor of Delhi has been cited as the first appellant along with the Director of Panchayat, Gaon Sabha, Sultanpur, SDM/Revenue Assistant, we are not sure as to whether the appeal has been filed with the approval of the Lt. Governor. We say so because the supporting affidavit has been filed by a Block Development Officer. Since the stand of the appellants is that the gazette notification, circulars and clarifications issued by the Ministry of Urban Affairs and Employment, Government of India are not binding on the authorities exercising their jurisdiction under the Land Reforms Act, we shall proceed on the basis that the appeal has been preferred with the approval of the Lt. Governor.
3. Lands situated in Village Sultanpur were being used for agricultural purposes. In the master plan the lands were shown in the green belt. Under the provisions of Sections 22 and 23 of the Land Reforms Act, there are certain restrictions on such land user, due to which the lands could be used for agriculture, horticulture, animal husbandry and allied uses. However, by a notification dated 16 June, 1995, the Central Government, in exercise of its power under Section 44 of the Delhi Development Act, 1957, modified the master plan for Delhi. The relevant portion of the said notification reads as follows:
'Motel is permitted as per Regulations made on that behalf in the Rural Zone / Green Belt and in Commercial Zones on national highways and inter-State roads (defined to mean a road which directly connects the National Capital Territory with a neighbouring State) of a minimum width (right of way) of 20 metres or service roads running parallel to them.'
2. On page 171 (left hand column) of the Gazette of India, Extraordinary Part-11 Section 3 Sub-section (ii) dated 1.8.1990 under the heading '033 (Motels)' the definition is repealed as under:
'A premises designed and operated specially to cater to the boarding, lodging rest and recreation and related activities of travellers by road.'
4. Thus, as per the said notification, amending the Master Plan, agricultural lands falling in a particular area could be used for the purpose of a motel. Taking advantage of the said amendment in the Master Plan, on 30 July, 2002, the first respondent obtained from the MCD sanction for construction of a motel. It is not in dispute that the said sanction was in terms of the guidelines framed pursuant to the issue of said notification. Notwithstanding the sanction, the Revenue Assistant, exercising power under Section 81 of the Land Reforms Act, took the aforenoted view.
5. In support of the appeal Ms. Ahlawat, learned Counsel for the appellants, has urged two points namely, (i) Section 53 of the Delhi Development Act does not apply unless approval for land user is obtained under Section 23 of the Land Reforms Act and (ii) the DDA has not passed any order permitting the respondents to construct a motel, as the plans have been sanctioned by the MCD.
6. We are of the view that both the contentions urged by learned Counsel for the appellants are untenable. True that in view of the embargo imposed by Section 23(1) of the Land Reforms Act, a Bhumidar or Asami is not permitted to use his agricultural land for industrial purpose without seeking permission of the Chief Commissioner. Nevertheless, the exercise of power has to be within the framework of the said section, namely, the user of green land for a purpose, which is otherwise not permitted. thereforee, the question for consideration before the learned Single Judge was whether in view of the amendment of the Master Plan by virtue of gazette notification dated 16 June, 1995, Section 23 was at all attracted.
7. Having considered the matter in the light of the material placed on record, we have no reason to disagree with the learned Single Judge that once the Master Plan, which admittedly covers the subject land, gives an option for use of the land, falling in Rural Zone or green belt, as a motel, on the exercise of the said option, the subject land goes out of the ambit of Section 23 of the Land Reforms Act to that extent because it would not constitute a change of land use, necessitating permission under the said provision.
8. It seems that on Central Government's direction to the office of the Lt. Governor to implement notification dated 15 June, 1995, certain clarifications were sought by Vice-Chairman, DDA from the Ministry of Urban Affairs in that behalf. In response thereto, clarifications were issued by the Ministry vide their letter dated 13 January, 1999. For the sake of ready reference, the relevant portion of the letter is extracted below:
'(1) The Master Plan amendment dated 15.6.1995 issued by this Ministry incorporating motels as a permissible facility within NCT of Delhi is defined a motel as premises designed and operated especially to cater to the boarding, lodging, rest and recreation and related activities of a traveller by road, regarding use attributed to motels, the type of motels contemplated in NCT of Delhi within the framework of notification dated 15.6.1995, should essentially be considered for recreation and leisure. As such, these motels will fall within the permissible use i.e. Category 8 under green belt/green wedge vide para 13.6(v)(b) of the Regional Plan 2001 of the National Capital Region. This is especially true in the case of those motels since they can have a maximum used coverage of 15% with low height structures not exceeding 9 metres and with about 85% of the area being developed as green space for recreation and leisure of the users. Accordingly the setting up of these motels within the areas designated as green belt/green wedge in the NCT of Delhi would not constitute a change of land use.
xxx xxx xxxXXX XXX XXX(iii) It was agreed that there has been A lot of confusion amongst the applicants for motels whose applications are pending with MCD. Hence DDA may issue a letter to MCD clarifying that based on the notification amending the Master Plan dated 15.6.1995 issued by this Ministry and notification dated 16.6.1995 issued by the DDA laying down norms for a motel, no further approval of DDA is necessary. MCD may, thereforee, be advised by DDA to examine the application and take suitable action on the basis of the above mentioned notifications and the present clarifications.'
9. It appears that consistent with their obstructive attitude, despite the afore-noted clarifications, the officials of the Land Revenue Department were still not permitting construction of motels on green lands. On receipt of complaints/ representations from the entrepreneurs holding valid building plans from MCD for construction of a motel in such areas, the Ministry of Urban Development and Poverty Alleviation, Government of India, yet again, clarified to the Divisional Commissioner, Delhi that in the light of the Master Plan of Delhi, land use conversion was not involved in these type of cases and these could be located in rural zones/green belts as permissible use of recreational and leisure. Hence applicability of Sections 22 and 23 of the Act was not required. In the same communication, the Divisional Commissioner was requested to issue instructions to respective Deputy Commissioners to implement these guidelines. In deference to the said instructions, vide letter dated 24 December, 2003, SDM (HQ-II), the office of the [Divisional Commissioner, Delhi issued instructions to all the Deputy Commissioners to comply with the said directions by the Ministry.
10. In the light of the afore-referred notification and clarifications by the land owning agency, namely, the Union of India, the view taken by the learned Single Judge cannot be faulted. Non-obstante Clause(3) of Section 53 of the Delhi Development Act clearly provides that once permission for development under DDA Act has been obtained, such development is not to be deemed to be unlawful by reason of the fact that such permission, approval or sanction as required under any other law for which permission for such development has not been obtained. This is what has been held by the learned Judge.
11. We are, thereforee, in complete agreement with the learned Single Judge that the order passed by the Revenue Assistant under Section 23 of the Land Reforms Act, objecting to the construction of a motel on the subject land was without jurisdiction and the Appellate and Revisionary Authorities had erred in sustaining the said order. We also endorse the observation of the learned Judge that the object of the present appellants was to retain the power of the pen to show their authority, It is high time we have a radical change of perspective. We say no more at this juncture.
12. The appeal being utterly misconceived, is liable to be dismissed and we order accordingly.
13. It is pointed out by learned Counsel for contesting respondent No. 1 that the costs imposed by the learned Single Judge have still not been paid. Learned Counsel for the appellants has assured us that the same shall be paid within a week.