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. NOVEMBER 11, 2011 mm (PRADEEPNANDI^JOG) JUDGE (SfP. GARG) JUDGE 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 DELHrAT, NEW DELHI - ludament Reserved On: •0'^ November. 2011 .ludament Delivered On: November, 2011 + ; LPA 267/2011 SHREE HAZUR BABA SADHU SINGH Ji . I^AHARAjTRUST ~ ARpellant . Through:' Mr.Jairaj Mudgail, Advocate for Mr.Ramesh Kaintihpla, A(;lvocate versus • .MNIIDN OF INDIA & ORS.- ....Respondents Through: Mr.Mukesh Anandi, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansari, Advocates for GN.CT of Delhi LPA 268/2011 . FREEDOM FIGHTERS SOCIAL WELFARE ASSOCIATION Appellant , Through: Mr.Jairaj. Mudgal, . Advocate for Mr.Ramesh Kainthoia, Advocate • ' .. versus • • UNION OF INDIA& ORS. Respondents Through: Mr.Mukesh'Anand,"Advocate,for UOI Ms.Zubeida Begum and Ms.Sana.Ansari, Advocates for GNCT of Delhi ' LPA271/2011 • FREEDOM FIGHTERS SOCIAL WELFARE :, ASSOCIATION Appellant Through: Mr.Jairaj Mudgal, • • Advocate for Mr.Ramesh Kainthoia, Advocate versus UNION OF INDIA & ORS. . ....Respondents Through: Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansari, Advocates for GNCT of Delhi 267/2011&connectedmatters . j^age1 of9 IV , LPA 26^/2011 • LAL1TE§WAR:KUMARCHOWDHARY , SlORS. .....Appellants Through: Mr.lnderblr Singh, Advocate versus i' GOVT OF NCT OF DELHI & ORS. ....Respondents Through: MnMukesh Anand,. Advocate for UOI Ms.Zubelda Begum and Ms.Sana Ansari> Advocates for GNCT of Delhi LPA 270/2011 RAJ KUMAR &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 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 S: ORS. Respondents Through:. Mr.Mukesh Anand, Advocate for UOI Ms.Zubeida Begum arid Ms.Sana Ansari> Advocates for GNCT of Delhi • LPiA267/2011 & connected . 10' 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? v

¶3Whether judgment should, be reported in thq Digest? PRADEEP NANDRAIQG. I.

¶1Two 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 cqmprised in Khasra Nos.223 and 224 Village Chattarpur.

¶2' The 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'. '5. The notification dated 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

¶6^ands comprised in Khasra .Nos.l6, 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'.

¶7The ^notification in question was promulgated pursuant to the order, dated

3.1.1996 passed .by Supreme Court in W.P.(C) No.4677/1985 M.C.Mehta Vs. Union of India.

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

(1) On the commencement of this Act- •

(i) All lands whether cultivable or otherwise, except land for the time being comprised in any .' holding or grove,

(ii) Ail 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, (ivj 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 apply,

(vi) . Tanks, ponds, water channels, pathways and abadi sites, LPA 267/2011 & connected

(vii) Forest, if any. Situate'in a Gaon Sablia 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 Chief Conimissioner, more than ordinary requirements of the Gaon Sabha, under this section may make such. incidental and consequential order as may be necessary."'

¶0It is not in dispute that land comprised in Khasra Nos.lfi, 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 lahd 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 matters ' that on the lands in question colonization has been effected, the necessary coroiiary would be that the lands could not be declared as a reserved forest.

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

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

¶13The argument in appeal before us was that since the Supreme Court had directed uncullivable gaon sabha land to be declared as a reserved forest, the subject tends which were used for coiofiization could not be declared as reserved forest. ,

¶14. A little histori(;;al 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 and lands pf 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 do^s not define i the word 'cultivate' and thus the same has to be given its ordinary grammatical meaning, which would mean to prepareand use land for agricultliralpurposes.

¶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 cannot mean, as urged by the appellants, vacant land. 18'. That 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 lands 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 aforeno'ted, the appellants would have no case pertaining to, the 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. . LPA 267/2011 ,& connected

¶21• . As regards lands comprised in Khasra Nos.223 village Chattarpur, learned counsel . for the respondents conceded that no notificationhas been issued qua said lands declaring the same to be gaon sabha lands or as a reserved forest land.. But, learned counsel urged, an argument which was urged before the learned SingleJudge and accepted by the'learned SingleJudge, that the topology and morphologicalfeatures of said lands has been opined to be similar to the ridge land, declared as a reserved forest^ pursuant to the notificationdated' 2'"''.April 1996. ,

¶22Now, where law vests a power and regulates manner in which the power has to be exercised, the power has to be exercised in the manner specified and,in,' no other manner. ?3. . The notification,dated 24"^^ March 2008 laying down the criteria for regularization of unauthorized colonies 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 servant 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 and 224 village Chattarpur was a waste land or a forest land, appeals stand dismissed in so far they pertain' to lands cO,mprised 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,&connectedmatters . Page'8of9 aI' arid village Chattarpur, impugned order dated

15.3.2011 passed by the learned SingleJudge 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.

25., No costs.

¶26Dasti. rv/ ..cSu-C1 • (PRADEEP NANDRAJOG) JUDGE (S^P. GARG) JUDGE NOVEMBER 11, 2011 f-pipq //•=- /J LPA267/2011 & connected

* IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: November. 2011 ludament Delivered On: 11^^ November. 2011 + LPA 271/2011 FREEDOM FIGHTERS SOCIAL WELFARE ASSOCIATION Appellant Through: Mr.Jairaj Mudgal, Advocate for Mr.Ramesh Kai.nthola, Advocate versus UNION OF INDIA & 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