* + IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) 758/2008 & IAs 5042/08, 14395-96/08, 11774/12 Date of Decision:
30. 04.2013 MR.ANAND J.
DATWANI Through: Plaintiff Mr. A.Vashisht, Sr. Advocate with Mr. Rajat Navet, Adv. Versus MS.GEETI BHAGAT DATWANI & ORS. Defendants Through: Mr. V.P.Singh, Sr. Advocate with Mr. Vinay Sharma, Adv. CORAM: HONBLE MR. JUSTICE V.K. SHALI V.K. SHALI, J.
1. This is a suit for partition filed by the plaintiff in respect of Farm Land bearing no. 32, Shivji Marg, Western Greens, Rangpuri, New Delhi (hereinafter referred to as suit property) by metes and bounds in equal shares between the plaintiff and defendant no.1. A decree of declaration declaring the alleged undertaking dated 29.4.2004 given by the plaintiff as null and void ab initio is also prayed for. It is also prayed that a decree of permanent injunction restraining the defendants jointly and severally from alienating, transferring, selling, conferring or creating any third party interest in the suit property may also be passed.
2. Briefly stated the facts of the case are that the plaintiff & the defendant no.1 are husband and wife and defendants no.2 & 3 are father and mother of the defendant no.1 respectively. The plaintiff and defendant no.1 got married on 13th October 1994, in Delhi. The case of the plaintiff is that sometime in the year 1995-1996 defendant no.1 along with defendant nos.2 and 3 expressed her desire to develop the Suit Property, which they were unable to do on account of paucity of funds.
3. Thereafter, a development agreement was entered into in the year 1996, between the parties to the effect that the plaintiff agreed to incur the cost and expenses for construction and development of the Farm Land and the defendant no.1 agreed that the plaintiff in turn would be vested with an equal undivided share in the suit property.
4. It is further alleged by the plaintiff that in pursuance to the development agreement two independent residential units were constructed on the land in question. Thereafter in the year 2001 plaintiff along with defendant no.1 and their two children moved into one of the residential units and second residential unit was rented out. However, subsequently the relations between plaintiff and defendant no.1 deteriorated on account of temperamental differences. The relations went sour to the extent that the defendant no.1 filed a petition under section 12 of the Protection of women from Domestic Violence Act, 2005 on 10.10.2007.
5. It is further alleged by the plaintiff that on 12.10.2007, while the plaintiff was in Bali, defendants along with several other persons forcibly entered the suit property and took illegal possession of important documents including the said development agreement & several other things belonging to the plaintiff.
6. On the other hand the defendants have denied all the allegations of the plaintiff and it is alleged by the defendant no.1 that the suit property was purchased by her from her own funds in the year 1989 that is 5 years before solemnization of her marriage with the plaintiff in the year 1994 and the suit property is duly registered in her own name. It is further alleged by her that the plaintiff had no role in the acquisition and construction of the suit property.
7. With regard to the plaint, this court vide order dated 20.3.2009 raised a question as to whether the present suit for relief of partition and possession thereof, in view of the provisions of the Delhi Land Reforms Act, 1954 is maintainable before this court? The question was addressed by the parties at length.
8. The contention of the learned counsel for the plaintiff is that though the land/suit property in question was an agricultural land but having regard to the fact that no agricultural activity was ever carried on it and the fact that two independent residential units have been built on it out of which one was used by the plaintiff and the defendant no.1 as their residence and the other was rented out, the suit property has ceased to be an agricultural land therefore it no longer comes within the purview of the provisions of the Delhi Land Reforms Act, 1954.
9. However the learned counsel for the defendants has contended that merely because the land has been constructed upon and is being used for residential purposes, it would not cease to fall within the definition of land under the provisions of the Delhi Land Reforms Act. It is further contended by the learned counsel for the defendants that by virtue of section 185 of the Delhi Land Reforms Act, the jurisdiction of Civil courts is barred. It is also contended that once the provisions of the Land Reforms Act are applicable, the land in question would continue to be governed by the said Act and would not be taken out of the purview of the said Act by any subsequent act. The learned counsel for the defendants has also contended that the plaintiff himself has described the land as Farmland and therefore it amounts to an admission by the plaintiff. Another contention of the learned counsel is that an agricultural land ceased to be one when a notification is issued under Section 507 of the Delhi Municipal Corporation Act by the Central Government, while as, in the instant case no such notification has been issued.
10. In order to canvass the point urged by him, the learned counsel for the plaintiff has placed reliance on following judgments: N B Singh (HUF) vs Perfexa Solutions Private Ltd. 159 (2009) DLT 72.Nilima Gupta vs Yogesh Saroha 2009 (156) DLT 12.Ram Lubbaya Kapoor vs Dr. J.R. Chawla 1986 RLR 43.11. The learned counsel for the Defendant has placed reliance on: Hatti vs Sunder Singh AIR 197.SC 232.Ram Karan & Ors vs Jagdeep Rai & Sons & Ors. 79 (1999) DLT 30.12. I have heard the learned counsel for the parties and also gone through the judgments. In the light of the aforesaid submissions, the real issue before the court for consideration is whether the provisions of Delhi Land Reforms Act would apply to a land which was initially an agricultural land but is no longer being used for the agricultural purposes.
13. In order to decide the aforesaid issue it would be pertinent to reproduce the relevant provisions of the Delhi Land Reforms Act.
14. Section 3 (13) of Delhi Land Reforms Act, 1954 defines "land" and reads as under:(13) "land" except in Sections 23 and 24, means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes: (a) buildings appurtenant thereto, (b) village abadis, (c) grovelands, (d) lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include: land occupied by building in belts or areas adjacent to Delhi town, which the Chief Commissioner may be a notification in the Official Gazette declare as an acquisition thereto; 15. From the aforesaid definition of the word land, it is evident that the term land within the Delhi Land Reforms Act necessarily means the land occupied for the purpose of agriculture, horticulture, animal husbandry, pisciculture and poultry farming. Further, several provisions of Delhi Land Reforms Act makes it abundantly clear that the said Act was primarily enacted for the purpose of governing agricultural land.
16. Section 185 of Delhi Land Reforms Act reads as under:
185. Cognizance of suits, etc., under this Act - (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof. (2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid." Entry 11 in schedule 1 to the Delhi Land Reforms Act provides that a suit for partition of holding of a Bhumidar shall lie before the court of the Revenue Assistant.
17. Thus, section 185 clearly bars the jurisdiction of Civil courts to entertain a suit for partition of holding of a Bhumidar in respect of a land governed by the provisions of the Delhi Land Reforms Act.
18. In Ram Lubbaya Kapoors case (supra) this court has held that any land before it can be termed land for the purpose of the Delhi Land Reforms Act,1954 must be held or occupied for purposes connected with agriculture, horticulture or animal husbandry etc. and if it is not used for the said purposes, it ceased to be a land for the purposes of the Act and the provisions thereof will no longer apply and the remedy of the aggrieved party, if any, would be under the general law of the land. Similar view was taken by this Court in Narain Singh & Anr. vs. Financial Commissioner, 152 (2008) DLT 167.
19. In Nilima Guptas case (supra), it was held by the learned single judge of this court that: The Delhi Land Reforms Act was not meant to decide the Civil Disputes of unauthorized colonies, which emerged on agricultural land. The hard realty of today is that though large chunks of land stand in the revenue record as 'khasra numbers' but in fact the land has been converted into unauthorized/authorized colonies, where people have either built houses or have plots and civil disputes are arising day in and day out in respect of these plots. Sometimes, plots are sold twice, sometimes there are disputes regarding possession of plots, sometimes there are disputes regarding encroachment, sometimes there are disputes regarding invalid/valid sale of the plots. The Legislature while framing the Delhi Land Reforms Act had not envisaged these kinds of disputes to be referred to the Revenue Authorities. A perusal of chart given in Schedule I pertaining to Section 185 itself shows that all disputes which are envisaged by the Delhi Land Reforms Act to be decided by the Revenue Assistant or Deputy Commissioner are those, which pertain to agricultural land and they are not those disputes which arise when agricultural land is converted into unauthorized colonies or authorized colonies. The Courts cannot be divorced from the ground realities and live in an imaginary world of jurisdiction. Once the agricultural land loses its basic character of 'agricultural land' and changes hands several times and gets converted into an authorized/unauthorized colony by dividing it into plots, the disputes of plot-holders are not those, which can be decided by the Revenue Authorities and these disputes have to be decided by the Civil Courts.
20. In N.B. Singhs case (Supra), the defendant-company had taken the premises on lease for the residence of its managing director at monthly rent of `1,60,000. The learned single judge held that a property ceases to be an agricultural property if it is not used for agricultural purposes and the defendant is estopped from contending that the suit property is an agricultural land covered by the Delhi Land Reforms Act. It was further contended that the description of the plaintiff as Bhumidar in revenue records is of no consequence.
21. After having heard both the parties and perusing the judgments being relied upon by them, I am of the view that the provisions of the Delhi Land Reforms Act, 1954 shall not apply to a land which at the outset was an agricultural land but is no longer being used for the agricultural purposes.
22. Section 13(3) of the Act specifically lays down that the term land means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. The definition of land is inclusive but is not wide enough to include the land which has ceased to be an agricultural land by reason of its no longer being used for the agricultural purposes. In cases titled Ram Lubbaya, Narain Singh, N.B. Singh and Nilima Gupta (Supra), this court has clearly and consistently held that the provisions of Delhi Land Reforms Act ceases to apply as soon as the land ceases to be an agricultural land.
23. A perusal of Section 22 of the Act shows that a Bhumidar has the right to exclusive possession of the land in his holding and to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and Section 23 prevents a Bhumidar from using the land in his possession for purposes other than agriculture except with the consent of the Chief Commissioner. Under Section 35 of the Act a Bhumidar is debarred from affecting any lease of his land unless he is a disabled person within the meaning of Section 36, of the Act.
24. It is further provided in Section 76 of the Act that a Bhumidar will not be ejected except under Section 33, 42, 81, 86 and 87 of the Act. Sections 33, 42 and 46 deal with transfers of a Bhumidar's interest made contrary to the Act and Sections 81, 86 and 87 deal with the ejectment of a Bhumidar in certain circumstances. Under Section 81, a Bhumidar is liable to be ejected if he uses the land for any purpose other than a purpose connected with agriculture.
25. It is quite clear from the various provisions of the Act detailed above that a Bhumidar do not have an unrestricted interest in his land. He is given the right to use the land in a particular manner. He cannot' lease out the land, he cannot transfer possession of it and he has to use it only for the agricultural purposes. Further as per the preamble of the Act, the purpose of the Act is as under:"to provide for modification of zamindari system so as to create uniform body of peasant proprietors without intermediaries and for the unification of existing tenancy laws.
26. Above discussion makes it amply clear that an agricultural land must be used for the agricultural purposes only if the Land Reforms Laws are to be made applicable and if it is not so used, it will cease to be an agricultural land. In the instant case, admittedly, the land in question has not been used for any purposes contemplated therein under the Land Reforms Act, instead, the land has been built upon. Admittedly, two residential units have been constructed on the land in question out of which one is used by the parties as their residence and the other one was rented out and so far, the land has not been, in fact had never been used for the agricultural purposes. It is not the case of the defendants that they are carrying out any agricultural activity or any other allied permissible activity on the land in question. Therefore, as per the aforesaid reasoning and the view taken consistently by this court in number of judgments, the land in my considered view, has ceased to be an agricultural land and will no longer be governed by the provisions of the Delhi Land Reforms Act. Thus, the jurisdiction of civil court cannot be said to be barred by virtue of the provisions of section 185 of the Act.
27. So far as the judgment in cases titled Hatti vs Sunder Singh and Ram Karan & Ors vs Jagdeep Rai & Sons & Ors ( supra) are concerned, I am of the view that it does not apply to the facts of the present case. As in the present case the issue involved is not whether the jurisdiction of the civil courts in respect of agricultural land is barred under section 185 of the Act or not, as in these two cases but is whether an agricultural land has ceased to be an agricultural land by reason of its not being used for the agricultural purposes and thereby, out of the purview of the provisions of the Delhi Land Reforms Act. Hence, these two judgments do not help either the defendants or the court in deciding the question of maintainability of the present suit.
28. So far as the contention of the learned counsel for the defendants, that the plaintiff himself has admitted in the plaint that the land is Farm land, is concerned, I am of the view that mere mention of the land in question as Farmland by the plaintiff does not amount to an admission on the part of the plaintiff that it is an agricultural land being used for agricultural purposes. The plaint is to be read as a whole and not in piecemeal. Even if it is assumed for the sake of the arguments that it amounts to an admission, such an admission cannot override the law. There can be no estoppel against the law/ statute. (Refer to Faqir Chand vs. Ram Rattan Bhanot; AIR 197.SC
921) 29. Having regard to the aforesaid reasons, I am of the view that the present suit is maintainable and the provisions of the Delhi Land Reforms Act, 1954 do not apply to the suit property as the same has ceased to be an agricultural land. However, expression of any opinion hereinabove is only a tentative view and shall not be treated as an expression on the merits of the case and the court, if it feels proper, shall be free to frame an issue in this regard and decide the same after the parties have adduced their evidence.
30. List before the Roster Bench on 15th May, 2013. V.K. SHALI, J.
APRIL 30 2013