Shri Partap Singh Vs. Shri Om Prakash and ors. - Court Judgment

Pradeep Nandrajog, J.

1. Unfortunately, pleadings in the writ petition are very inchoate. There is hardly any co-relation between the annexures annexed to the writ petition and the pleadings. However, with the assistance of Counsel appearing for the parties, core area of the dispute could be gathered by me. While drafting writ petitions it is advisable for Counsel to keep in mind that pleadings in writ petitions are pleadings of fact, law and evidence. Documents annexed with the writ petition constitute the primary source of information and while making the pleadings in the writ petition in reference to the annexure filed, relevance of the annexure should be brought out with clarity. In the present day scenario when there is docket explosion in Courts, a little homework by lawyers helps to curtail Court hearing.

2. I am concerned in the present writ petition with 4 bigha and 16 bids was of land comprised in khasra No. 525 in the revenue estate of Village Kadipur. It appears from the pleadings of the parties that consolidation took place in the village in the year 1951-52. Being included in the holding of the petitioner, post consolidation said land was included in the holding of the petitioner, but the status of the land was recorded as 'banjar kadim'. In the year 1954, the Delhi Land Reforms Act 1954 was promulgated. The concept of holdings underwent a sea change under the new law. It was intended to do away with intermediaries and create only two categories of proprietors of agricultural land, namely, asami and bhumidar. Uncultivated waste land was vested in the gaon sabha. Vesting in the gaon sabha was under the provisions of Section 7 of the Act. The same reads as under :-

7. Rights of proprietors in waste lands, pasture lands or lands of common utility, etc., to vest in Gaon Sabha and compensation to be paid for them.-

(1) All rights of an individual proprietor or proprietors pertaining to waste lands, grazing or collection of forest produce from forest or fish from fisheries lands of common utility such as customary common pasture lands, cremation or burial grounds, abadi sites, pathways, public wells, tanks and water channels, or khalihans, whether covered by an existing contract between such proprietor or proprietors and any other person or not, shall with effect from the commencement of this Act be terminated in accordance with the provision of sub-section (2) and the said contracts, if any, shall become void with effect from such commencement:

Provided that where such land was as a result of consolidation of holdings made available for use for any purpose other than those referred to in this sub-section, land kept aside in exchange thereof, as a result of such consolidation, shall for the purposes of this Act be deemed to be land originally meant for purposes referred to in this sub-section.

Explanation.- For the purposes of this sub-section-

(i) 'waste land - shall include cultivable and uncultivable waste area of the village including any land in the bed of a river occupied or held by an Asami referred to in section 6(a)(iii) of the Act except the uncultivated areas-

(a) included in the holdings of such proprietor or proprietors, or

(b) used for purposes other than those mentioned in clause (13) of section 3, at any time before the 28th day of October, 1956, or

(c) acquired by a bona fide purchaser for value at any time before the 28th day of October, 1956, for purpose other than those mentioned in clause(13) of section 3.

(ii) 'lands of common utility' shall include such lands as are recorded as such at the last settlement or have been or would have been customarily recorded as such on 1st July, 1950.

(2) On the commencement of this Act, the Deputy Commissioner shall pass an order in respect of the proprietor or proprietors of each village either singly or collectively divesting the individual proprietor or proprietors of the rights mentioned in sub-section (1) and vesting those rights in the Gaon Sabha or in any person or authority appointed by the Chief Commissioner under section 161 with effect from the commencement of this act and stating that a compensation equal in value to four times the amount of annual land revenue assessed at the last settlement for the cultivable and uncultivable waste area of the village shall be paid by the government to the proprietor or proprietors concerned.

If no such assessment of land revenue was made at the last settlement the rate of land revenue applied at the last settlement for similar areas in any other village in the same assessment circle shall be taken to be the rate of land revenue applicable to such areas or failing this the rate of land revenue applicable to such areas shall be computed at 75 per cent of the land revenue assessed on the lowest class of soil in the village.

3. It is the admitted case of the parties, and as has been pleaded by the petitioner in para 2 of the writ petition, somewhere in the year 1958 the land, treated as waste land, was vested in the gaon sabha of village Kadipur. Petitioner did not challenge the said vesting order. It has attained finality. However, notwithstanding that the land was vested in the gaon sabha being treated as waste land, petitioner claims that he continues to be in possession of the land. Petitioner claims that somewhere down the years he started cultivating the land and has reclaimed the land as cultivable land.

4. Origin of the proceedings which have finally culminated in the present writ petition is the fact that in the year 1976, since the land was vested in the gaon sabha, the first respondent was admitted by the gaon sabha as an asami. Needless to state the said allotment was under Section 74 of the Delhi Land Reforms Act 1954.

5. According to the first respondent since the land was banjar kadim he invested labour and money to reclaim the land. As stipulated in Sub-Section 4 of Section 74 of the Act, first respondent filed an application before the Revenue Assistant in the year 1982. He sought a declaration for being declared a bhumidar.

6. Vide order dated 2.12.1986, the Revenue Assistant held that the first respondent was entitled to be declared a bhumidar of the land. The order reads as under :-

Order :

This order shall dispose of the proceedings/application for being declared Bhumidar of the land bearing khasra No. 525 measuring 4-16 situated in the Revenue Estate of village Kadipur, Delhi. The applicant in the application has stated that the suit land was allotted by the Gaon Panchayat under the Welfare Programme of the Government in order to encourage declaration. The applicant further stated that in order to make the suit land cultivable, a large money had been spent and since the time of allotment he has been continuously cultivating the suit land.

Statements of Pradhan and applicant were recorded, Pradhan has stated that the allottee has been continuously cultivating the suit land and he had no objection if the allottee is declared bhumidar of suit land.

In view of the above facts, I order that the applicant be declared bhumidar of the land mentioned above. I further order that the allottee shall not dispose off the land and will use it for agriculture purpose as defined in the DLR Act. He shall also deposit land revenue in time as applicable. The suit land shall not be transferable. It is brought to the notice of the undersigned that the violation is being done by applicant, the said Bhumidari rights will be treated as extinguished and the land will be treated as if it has been reverted back to Gaon Sabha.

Let a copy of this order be sent to Tehsildar for necessary action. File be consigned to Record Room.

7. From a perusal of the order dated 22.12.1986 it is evident that the first respondent was granted the declaration sought for in an uncontested proceedings. The Pradhan of the Gram Panchayat conceded that the first respondent had reclaimed the land.

8. Indeed, the proceedings under Section 74 of the Delhi Land Reforms Act concerned the allottee of the land and the gaon sabha. Inquiry to be held was whether the allottee had reclaimed the land. The Revenue Assistant was thereforee fully justified in putting the gaon sabha to notice when he received the application under Section 74(4) filed by the first respondent. However, as is evident from the facts noted hereinabove and further facts which would be noted hereinafter, a problem arose. The problems was that the petitioner claimed to be in continuous uninterrupted possession of the land notwithstanding the vesting order in favor of the gaon sabha and notwithstanding the allotment by the gaon sabha to the first respondent as asami.

9. The petitioner and first respondent went into litigation. Unfortunately, none guided the petitioner that the appropriate remedy was to proceed under Section 11 of the Act and challenge the vesting order. He was guided on the alternative route. He was guided that if he continues to be in adverse cultivatory possession he would be entitled to be declared a bhumidar under Section 85 of the Delhi Land Reforms Act 1954. He was additionally guided that till the gaon sabha ejected him by taking recourse to proceedings under Section 86(a), where he could set up the defense of limitation, his possession was safe. Evidenced by the order dated 22.5.1984, Annexure-J (pages 94-96 of the writ record) some proceedings under Section 86(a) of the Delhi Land Reforms Act 1954 were initiated by the gaon sabha against the petitioner for his ejectment. Ejectment orders were passed. Vide order dated 22.5.1984, ejectment orders were set aside and the matter was remanded back to Revenue Assistant for disposal in accordance with law.

10. Unfortunately, at the hearing of the writ petition, neither Counsel could guide me as to what happened at the remanded proceedings. Counsel for the petitioner asserted that they were pending. He could furnish no date. Counsel for the respondent had no idea whatsoever.

11. Further evidenced by Annexure-K (pages 97-100 of the writ record) a civil suit for declaration and injunction was filed by the petitioner against, amongst others, the first respondent and the gaon sabha. The petitioner failed to get a decree of declaration that he was the bhumidar of the land for the reason Civil Courts had no jurisdiction to grant such a declaration and it was within the exclusive domain of the Revenue Courts to grant such a declaration. However, noting that the petitioner was in possession of the land as established by the evidence on record and the fact that relief of injunction could not be granted by the Revenue Authorities, suit filed by the petitioner was decreed, limited to the relief of injunction. I may however note that the injunction granted was limited against defendants 1 and 2 of the suit, namely, Sohlu Ram and the Gaon Sabha. Relief was not granted against the first respondent herein for the reason it was held that his name found entered in the khasra girdawari during the pendency of suit.

12. Be that as it may, relevant for the purposes of the present decision is the fact that as of the year 1983, issue of possession vis-a-vis the petitioner and gaon sabha stood decided in favor of the petitioner and against the gaon sabha. The gaon sabha was injuncted from dispossessing the petitioner save and except after following the due process of law. On evidence, petitioner was found to be in possession.

13. The due process of law recognized is proceeding under Section 86(a) of the Delhi Land Reforms Act 1954 which contemplate ejectment of a person occupying agricultural land without title and without the permission of the recorded bhumidar.

14. Reverting back to the declaration obtained by him under Sub-Section 4 of Section 74 by the first respondent when petitioner learnt about the same he filed an appeal before the Additional Collector challenging the order dated 22.12.1986 passed by the Revenue Assistant. The Appeal was allowed vide order dated 11.12.1995 (Annexure-P, pages 37-43 of the writ record).

15. Noting that the petition claimed to be in cultivatory possession of the land and that the declaration granted in favor of the first respondent was on a concession by the Pradhan of the village and holding that valuable rights of the petitioner were affected by the order dated 22.12.1986, the Additional Collector held that in the proceedings initiated under Sub-Section 4 of Section 74 by the first respondent the petitioner ought to have been heard. In that view of the matter, order dated 22.12.1986 was set aside. Matter was remanded to the Revenue Assistant for fresh adjudication after hearing the petitioner and after recording evidence.

16. Order dated 11.12.1995 passed by the Additional Collector was challenged by the first respondent in Appeal before the Financial Commissioner. Appeal succeeded. Vide order dated 20.8.1996 the learned Financial Commissioner held that in proceedings under Sub-Section 4 of Section 74 of the Act, the person admitted as asami and the gaon sabha alone were necessary parties. Petitioner was held to be nobody. It was held that the appeal filed by the petitioner before the Additional Collector against the order dated 22.12.1986 passed by the Revenue Assistant was not maintainable as the petitioner had no locus standi to file the appeal.

17. In the present petition, petitioner questions the legality of the order dated 20.8.1996 passed by the Financial Commissioner in case No. 39/96-CA, being the appeal filed by the first respondent.

18. The only issue which arises for consideration is whether the petitioner had a right to be heard in the proceedings initiated by the first respondent under Sub-Section 4 of Section 74 of the Act. If not, what directions need to be passed in view of the facts of the present case.

19. Section 74 of the Delhi Land Reforms Act 1954 reads as under :-

74. Admission to land mentioned in sub-clause (iii) of clause (a) of section 6 or to waste land for reclamation.-

(1) The Gaon Sabha shall have the right to admit any person as Asami to any land falling in any of the classes mentioned in sub-clause (iii) of clause (a) of section 6 where-

(a) the land is vacant land,

(b) the land is vested in the Gaon Sabha, or

(c) the land has come into the possession of the Gaon Sabha under section 72 or under any other provisions of this Act.

(2) In order to encourage the reclamation of waste land, the Gaon Sabha shall also have the right to admit any person as Asami on a five years lease to any land which forms part of the cultivable or uncultivable waste area of the village, not included in holdings, which are vested in the Gaon Sabha under section 7, but which do not fall in any of the classes mentioned in sub-clause (iii) of clause (a) of section 6.

(3) The Asami shall have the right to hold the land for the period of five years at a rate of rent, which shall not be more than 50 per cent of the prevailing rate of rent of the village, payable for the land.

(4) At the end of five years, the Gaon Sabha shall report to the Revenue Assistant the extent to which reclamation has been made. The Revenue Assistant shall, after necessary enquiry and after hearing the Asami, either order the termination of the lease and his ejectment if there has been no reclamation or extend his lease for another period of two years. If, however, the land has been duly reclaimed during the period of five years or the extended period, the Revenue Assistant shall direct the Gaon Sabha to admit the Asami as Bhumidar under section 73. The Asami on his admission as Bhumidar shall be liable to pay such land revenue as shall be equal to 50 per cent of the rent calculated at the prevailing village rate of rent together with cesses and local rates, but he shall not be liable to pay any compensation.

20. A perusal of the various sub-sections of Section 74 reveals that the lis, if at all, under sub-section 4 of Section 74 is between the person to whom agricultural land is allotted as asami by the gaon sabha and who claims a right to be declared a bhumidar thereof having reclaimed the land and the gaon sabha. But, this would presume that the gaon sabha had a clear title to the land. For if the title of the gaon sabha itself is in dispute or where another person claims that notwithstanding the vesting order in favor of the gaon sabha he continued to be in cultivatory possession of the land and limitation for his ejectment under Section 86(a) had expired and proceedings under Section 86(a) and pending between the said person and the gaon sabha, a problem would arise if the person claiming to be in possession is not be associated when Revenue Authorities decide under Section 74(4).

21. In para 14 of the writ petition, petitioner has specifically pleaded as under :-

14. That in fact even after the said vesting, the petitioner has been in the actual physical cultivatory possession of the land and has been cultivating the same without the consent of the actual bhumidar, Respondent No.2 in which the said land vested thereof. The petitioner was never ejected from the land above said by the respondent at any point of time within the prescribed period of limitation which is three years as provided under section 84 of the D.L.R. Act and under Section 86-A of the Delhi Land Reforms Act. The petitioner is in adverse cultivatory possession of the land in question till date and his bhumidari rights stands mature by operation of law even otherwise as provided under law. The land is governed by the provisions of the D.L.R. Act.'

22. While responding to the writ petition the first respondent has not traversed the pleadings of the petitioner in para 14 of the writ petition.

23. The adjudication of the competing claims of possession and who reclaimed the land in the two proceedings initiated, i.e., proceedings under sub-section 4 of Section 74 initiated by the first respondent and proceedings under Section 86(a) initiated by the gaon sabha under Section 86A had to be conducted in a harmonious manner, lest conflicting and contradictory findings were arrived at in the two proceedings. Surely, both, i.e., the petitioner and the first respondent could not simultaneously be in cultivatory possession. It has to be noted in the present case that the first respondent obtained the necessary declaration under sub-section 4 of Section 74 on a concession made by the Pradhan of the village. He led no evidence.

24. Since in proceedings under sub-section 4 of Section 74 of the Delhi Land Reforms Act 1954 the only parties have to be the person claiming the necessary declaration and the gaon sabha, petitioner could not intervene in the said proceedings. However, any order passed in the said proceedings has to be without prejudice to the right and claim of the petitioner. Meaning thereby, that the petitioner would be entitled to adjudication of his claim de-hors the declaration under sub-section 4 of Section 74.

25. What would that mean in the facts and circumstances of the present case?

26. To my mind it would mean that the tri-partite dispute, i.e., the dispute between the petitioner and the gaon sabha on the one hand and the claim of the first respondent against the gaon sabha requires to be adjudicated in a manner that no contradictory orders are passed. This would mean that the Revenue Authorities should, if not consolidate, list the proceedings initiated by the first respondent under sub-section 4 of Section 74 and the proceedings initiated by the gaon sabha under Section 86(a) on the same date. Evidence should be recorded in both proceedings and thereafter decision be taken in the two proceedings simultaneously. This is the only method by which contradictory orders can be avoided. I choose the said path.

27. Petition accordingly stands disposed of declaring that the order passed by the Revenue Assistant on 22.12.1986 in Case No. 423/RA/82, being the proceedings initiated under sub-section 4 of Section 74 by the first respondent is void. Needless to state, consequential orders passed by the Additional Collector and the Financial Commissioner also fall. Proceedings initiated by the first respondent under sub-section 4 of Section 74 are revived. Directions are issued to the Revenue Authorities to tag first respondent's petition with the proceedings under Section 86(a) filed by the gaon sabha against the petitioner. Since both proceedings have to be conducted by the Revenue Assistant, he would ensure that the two proceedings are listed on the same date. Evidence would be recorded as to who is in cultivatory possession and who has reclaimed the land. Based on evidence final order would be passed in the two proceedings.

28. I may note that in the present proceedings a Local Commissioner was appointed vide order dated 14.8.2000 to report as to who was in cultivatory possession. Objections have been filed by the petitioner to the report of the Local Commissioner. I need not decide on the objections for the reason issue of possession requires to be determined by the Revenue Authorities. More so in view of the fact that the petitioner has obtained a decree from a Civil Court after leading evidence which establishes petitioner's possession qua the land in question and there is no evidence on record that after the decree of the Civil Court, petitioner was ejected. Additionally, I may note that case of the first respondent is that he was admitted as asami by the gaon sabha on 8.8.1976 and since then has remained in cultivatory possession of the land but in the Civil Suit filed by the petitioner he i.e. petitioner succeeded in establishing that as of the year 1983 it was he who was in cultivatory possession. The gaon sabha was restrained from ejecting the petitioner from the land in question without following the due process of law.

29. Petition stands disposed of in terms of para 27 above. Keeping in view the fact that the dispute between the parties is festering for over 3 decades, Revenue Assistant is directed to complete the proceedings under Section 86(a) initiated by the gaon sabha against the petitioner and the remanded proceedings under sub-section 4 of Section 74 initiated by the first respondent pertaining to land comprised in khasra No. 525 in the revenue estate of Village Kadipur within a period of one year from receipt of the present order.

30. No costs.