Laliteshwar Kumar Chowdhary & Ors v. Govt of NCT of Delhi & Ors

judgment should be reported in Digest? PRADEEP NANDRAIOG. I. For orders, see LPA No.267/2011. (PRADEEP NANDRAJOG) JUDGE (S^ GARG) JUDGE NOVEMBER 11, 2011 mm 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 T; %.; ludament Reserved Ok: Novennbet, 2011, ' ludament Delivered On: 11^'' November, 2011: + LPA 267/2011 > SHREE HAZUR.BABASADHU SINGH Jl ' MAHARAJ TRUST : Appellarit Through: Mr.Jairaj Mudgal, Advocate fpr Mr.Ramesh Kainthola, Advocate \ versus • ' . , UNION OF INDIA &ORS. .Respondents, Through: Mr.MukeshAnan|iiAdvocatefor UOI Ms.ZubeidaBegdm and Ms.SanaAns^dj Advocates for GNCT of Delhi • LPA 268/2011 FREEDOM FIGHTERS SOCIAL WELFARE , . ASSOCIATION . ......Ap^pellaht , Through: Mr.Jairaj Mudgal, Advocate Tor Mr.Ramesh Kainthola, Advocate, . . • versus ' ' . ~ UNION OF INDIA &ORS., . . ...:Rbpondents Through: Mr.Mukesh Anand, Advocatdior UOI Ms.Zubeida Begum a'nd Ms.Sa.ha Ansari,, - ' , Advocates for GNCT of Delhi..' LPA 271/2011 / FREEDOM FIGHTERSSOCIALWELFARE ^: ! - . , ' ASSOCIATION : : ..^.Mppellant Through: •.Mr.jairaj. Mu.dgal,'' • Advocate for; Mr.Ramesh Kainthola, Advocate . versus ; UNION OF INDIA.Si ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate,for UOI Ms.Zubeida Begum and Ms.SanaAhsari,' • Advocates for GNCT of Delhi LPA 267/2011 & Gonnected matters :Pagel6f9 LPA 269/2011 'i . • • ' LALlTESlA/AR KUMAR CHOWDHARY : &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 Ansari/ Advocates forGNCT of Delhi LPA 270/2011 RAJ KUMAr & ORS-. ; Appellants, Through: Mr.lhderbirSingh, Advocate " versus GOVT OF NCT OF DELHI-& ORS.,., ....Respondents Through: Mr.Mukesh Anand,'Advocate for UOI Ms/Zubeida-Begum and Ms.Saha Ansarh Advocates for GNCT of Delhi LPA 308/2011 TATINDER KUMAR KATHURIA & 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 Ansari, Advocates for GNCT 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 Ansari, Advocates for GNCT of Delhi LPA.267/2011&connected matters ' V CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG: HON'BLE MR. JUSTICE S.P. GARG

¶1Whether the Reporters of local papers may be. allowed to see the judgment? , •: ,

¶2To be referred to Reporter or not? _

¶3Whether judgment should be reported in the Digest? ' PRADEEP NANDRAIQG.

¶11; Two distinct issues arise for consideration in the above-captioned appeals. The first pertains to comprised in Khasra Nos.l6, 18, .24, 26, 27, 39, 40, 41, and 142 Village Neb Sarai and the other issue pertains to lands comprised in Khasra Nos.223 and 224 Village Chattarpur.

¶2The factual commonality in all the appeals is unauthorized colonization on said lands.

¶3The appellants lost the battle before the learned Single Judge and live on to fight a second round before the Appellate Court.

¶4The basis of the right claimed by the appellants is the policy decision dated 24'^'^ March 2008 notified by the Government of NCT Delhi pertaining to 'Regularization .of Unauthorized Colonies in Delhi'.

¶5The notification 24*^^^ March 2008 specifies the criteria for regularization of unauthorized colonies vide clause 3.3(a) specifically excludes such unauthorized colonies or part of colonies or habitations comprised in notified or reserved forest area. LPA 267/2011.& connected matters ' ' '

¶6' Lands .comprised jn KHasra Nos.16, 18; 24, 26, 27, 39, 40, 41, and 142 Village Neb Sarai have/adrhittediy been notified on 2"^^ April 1996 as gaon sabha waste land and,,placed at the disposal of the Forest Department to be^ maintained as forest area. The'challenge is to the landi; being notified as a 'Reserved Forest'.

¶7The notification in question was promulgated pursuant to order

3.1.1996 passed by the Supreme Court in W.P.{C) No.4677/1985 M.C/Mehta MS... ! Union of India. . • •

¶8Section 154 of the Delhi Land Reforms Act reads as under:-"154. Vesting of certain lands etc, in Gadn Sabha -

(1) On the commencement of this Act-

(i) All lands whether cultivable or otherwise, , except land, for the time being cohiprised 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, . (ill) Public wells, . ,, , ' ' • . • . .

(iv) Fisheries., : ' , . V >

(v) Hats, bazaar meals,-except ;• hats, 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, shall vest in the Gaon Sabha: Provided that if the uncultivated area situate in any Gaon Sabha area is, in the opinion of the Ghief Commissioner,, more than ordinary requirements of the Gaon Sabha,' under this section may mal<e such incidental 'and consequential order as may be necessary." .

¶9It is not in dispute that land comprised in .Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41 and 142 Village Neb Sarai were • uncultivated barren when Delhi Land Reforms Act 1954 was promulgated and were situated in a gaon sabha area and. were thus vested in the gaon sabha by operation of law'. It remained,an unfortunate situation that the inefficient bureaucrat did not declare as aforesaid till the Supreme Court had to needle the inefficient bureaucrat to comply with the, law.

¶10While passing the direction to notify the reserved ; forest land in Delhi, the Supreme Court used the expression 'uncultivated gaon sabha land' while requiring Government to ensure compliance 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.

¶11Picking on said expression used by Supreme Court, case of the appellants is that the Supreme Court had required uncultivated gaon sabha land, to be notified in terrns of Section 154 of the Delhi Land Reforms Act and thereafter as reserved forest and since; it is urged* LPA 267/2011 & connected matters PageSiofS It that on the lands in question colonization has been effected, the necessary corollary would be that the; lands could not be. declared as a reserved forest.

¶12. The argument has been negated by the learned Single Judge who has held that there are no equities in , 1' > favour of appellants since • admittedly .they are trespassers on gaon sabha land and secondly that the lands are declared a reserved forest with the 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

16.7.2010 in W.P.(C) No.4687/2010 Bhaaat Sinah & Ors. Vs. UP! & Ann: decided by a Division Bench df this Court.' .

¶13The argunient.in appeal before us was that since the Supreme Court had directed uncultivable gapn.sabha land to be declared as a reserved forest, the subject 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 uniforrn body of peasant proprietors without intermediaries and with respect to waste lands, grazing lands, forests and lands of common utility in different villages in Delhi, Section 7 of the Act provided that all interests in such lands would cease and be void all such would be vested in, the gaon sabha. Waste lands were specifically included in Section . LPA 267/2011 & connected matters and as per the explanation to sub-Section 1 of Section 7 waste land included cultivable and uncultivable'waste area of the village. ,,

¶16The Delhi Land. Reforms Act 1954 does not 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 the. 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 admittedly not cultivating that admittedly 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 to be uncultivated waste lands vested in the gaon sabha is not in issue.

¶20Thus, 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 arid • 142 Village Neb Sarai which have rightly been declared as waste lands, vested in the gaon sabha and being common pasture/forest in the past have been d;eclared as reserved forest pursuant to directions issued, by Supreme Court. LPA 267/2011 & connected matters \t

¶21As regards lands cotriprised in Khasra ,Nos,223 village Chattarpur, learned. counsel for respondents conceded that no notification has been issued - qua said lands declaringthe sanne to be gaon sabha lands oras a reserved forest land. But, learned counsel urged, ah - 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 forests pursuant to the.notification dated 2April 1996. ; ;

¶22Now, where law vests a power and regulates naanner in which the power has to be exet-cised, the power hps to be exercised in the manner specified and in ho other manner. ^

23., The notification 24^'' March 2008; laying down the criteria for regularization of unauthorized colonies does not exclude regularization of unauthorized coldnizatioh on government land. ' , It only excludes unauthorized colonization on notified as reserved foirest 'areas; meaning thereby, that unless notified as a reserved forest area, it cannot be at the will of a governn:ient servant to self opine whether the land is a reserved forest area. ?

24.. Leaving it open to the government to issue the necessary notification, if it is established that land comprised in Khasra Nos.223 and 224 village Ghattarpuf 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, 27, 39, 40, 41 and 142 Village, Neb Sarai and qua the land comprised in Khasra. Nos.223 . LPA-267/2011&connected matters . ' •O i village Chattarpur, impugned order

15.3.2011 passed by the learned Single Judge disposing of 7 vyrit petitions is modified by issuing, a direction thpt till the government notifies land comprised in Khasra Nps.223 and 224 village Chattarpur as a reserved forest, the same would be treated at par vyith other gaon sabha for,the purposes of the notification dated 24'^'^ March 2008. We clarify. It would be for the Government of NGT Delhi to either amend notification 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.

¶25No costs.

¶26Dasti. NOVEMBER 11. 2011 mm LPA 267/2011 & connected matters cSv-Ql . . () • (PRADEEP NANDRAJOG) JUDGE . (STP. GARG) JUDGE

* IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 8^^ November. 2011 ludament Delivered On: November 2011 + LPA 269/2011 LALITESWAR KUMAR CHOWDHARY & 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