Freedom Fighters Social Welfare Association v. Union of India & Ors

judgment should be reported in Digest? PRADEEP NANDRAIOG. I. For orders, see LPA No.267/2011. ~i—r [OG) waI: (PRADEEP NAN JUDGE {S<P. 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 % ludament Reserved On: November, 2011 ludament Delivered On: Novembek.2011 + LPA 267/2011 SHREE HAZUR BABA SADHU SINGH J1 MAHARAJ TRUST Appellant Through: Mr.Jairaj . Mudgal, Advocate for Mr.Ramesh Kainthola, Advocate versus UNION OF INDIA & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOl Ms.Zubelda Begum and Ms.Sapa Ansari; 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 UOl Ms.Zubeida Begum and Ms.Sana Ansarii Advocates for GNCT of Delhi LPA 271/2011 FREEDOM FIGHTERS.SOCIAL WELFARE ASSOCIATION Appellant Througlh: Mr.Jairaj Mudgal, Advocate for Mr;Ramesh Kainthola, Advocate versus UNION OF INDIA & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOl Ms.Zubelda Begum and Ms.Sana Ans.ari, Advocates for GNCT of Delhi \ "3^ 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 fo,,r UOI Ms.Zubeida Begum and Ms.Sana Ansari, Advocates for GNCT of Delhi LPA270/2011 RAJ KUMAR & ORS. Appellants Through: Mr.lnderbir Singh, Advocate • • versus •' GOVT OF NCT OF DELHI & ORS. ....Respondents Through: Mr.MukeshAnand, Advocate for'UOl , Ms.Zubeida Begum and Ms.Sana Ansari, 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.Saha Ansari,. Advocates for GNCT of Delhi 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. I.

¶1Two distinct issues arise for consideration in the above-captioned appeals. The first pertains to , lands comprised in Khasra Nos>.16, l8, 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 Chatt'arpur. ,

¶2The factual cornmonality in all the appeals is - \ ' • • unauthorized colonization;on said lands. • , "

¶3The appellants lost the battle before th.^ Jearned 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'notificationdated ^^4^'^ March 2008 specifics the criteria for regularization of unauthorized colonies vide clause 3.3(a) specifically excludes such unauthohzed V . colonies or part of cplo.nies or habitations comprised In notified or reserved forest area. LPA 267/2011 &• connected matters '6. Lands comprised in Khasra Nos,16, 18, 24, 26> 27, 39, 40, 41, and 142 Village Neb Sarai have, admittedly 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 lands being notified as a 'Reserved Forest'.

¶7' 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 Gaon Sabha -

(1) On the commencement of this Act- •

(i). Ail lands whether cultivable or otherwise, except land for the time being comprised-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,

(iii) Public wells,

(iv) Fisheries,

(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 gpply,

(vi) Tanks, ponds, water channels, pathways and abadi sites,

(vii) Forest, if any. . . Situate in a Gaon Sabha Area, slnali vest in the Gaon Sabha: . ' Provided that if the uncultivated area situate in 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 nnay be necessary.',', v ,9. It is not in dispute that land comprised ih Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41 and 142 Village Neb Sara! were uncultivated barren when .the 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 i:nefficient 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.

¶11; Picking 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 terms of Section 154 of the Delhi Land Reforms Act and thereafter.as reserved forest and since;,it is urged; • LPA 267/2011 &• connected ..\^ 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 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 dated

16.7.2010 in . VV.P.(C) No.468.7/^010 Bhaaat Singh & Ors. 1/5. UP! & Ann: decided by a Division Bench of this Court.

13.' The argument in appeal before us was that since t the Supreme Co^rt had directed uncultivable gaon 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.

¶15The 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 andvlands of common utijity 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 ' . / and as per, the explanation to sub-Section 1 of Section waste land included cultivable and uncultivable waste area of the village. , . \ .

¶16The Delhi Land Reforms Act 1954 does not define i • . . • I . • the word 'cultivate' and thus the sanae 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 ahd 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 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 in the past have been declared as reserved forest pursuant to' directions issued by Supreme Court. ; " Page7 of9 •21. ' . } As regards lands €<Dnipri§ed in Khasra, artd village. Chattarpur, learned counsel for respondents conceded that no notification has been issued qua said lands declaring the same to be gaon sabha lands or as a reserved forest land. But, learned counsel urged, ah argument which was urged .before the learned Single Jiidge 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, declat'ed.as a reserved forest/ pursuant to the notificationdated 2"''April1996.- •22. ^ Now, where law vests a powerand regulates the manner in which the power has to be .exercised, the power • has to be exercised in the manner specified arid in^no other manner. i 23j The notification dated March ,2008 laying down the criteria for regularization of unauthorized coldhies does not exclude regularization of unauthorized colonization on government land. It only excludes unauthorized colonization on notified as reserved forest areas, meaning thereby, that unless notified as a reserved forest area, it cannot be at the will of a government servaint 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 artd 224 village Chattarpur was a waste land or a forest land, appeals stand dismissed in so far they pertain to comprised ' In Khasra Nbs.l6,..18, 24, 26, 27, 39, 40, 41 and, 142 Village Neb Sarai and qua the land comprised in Khasra Nos.223: n and 224 village Chattarpur, the impugned 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 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.

¶25No costs. ,

¶26Dasti. w (PRADEEPNANDRAjdG) JUDGE (STP. GARG) JUDGE NOVEMBER 11, 2011 mm 7° y/" V r, • LPA267/2011 & connected Page 9 of'9

* IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 8^^ November. 2011 ludament Delivered On: 11^" November, 2011 + LPA 268/2011 FREEDOM FIGHTERS SOCIAL WELFARE ASSOCIATION Appellant Through: Mr.Jairaj Mudgal, Advocate for Mr.Ramesh Kalnthola, Advocate versus UNION OF INDIA & ORS. ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begunn 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