* IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Judgment Reserved On: 8th November, 2011 + Judgment Delivered On: 11th November, 2011 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 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 the judgment should be reported in the Digest? PRADEEP NANDRAJOG, ). For orders, see LPA No.267/2011. NOVEMBER 11, 2011 mm --~ (PRADEEP::1JOG) JUDGE (S.P: GARG) JUDGE q - : ~ : ~ Digitally Signed By:AMULYA 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. Signature Not Verified * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: ath November, 2011 Judgment pe!ivered On: 11th November, 2011 + LPA 267/2011 SHREE HAZUR BABA SADHU SINGH Jl· MAHARAJ TRUST ..... Appellant Through: Mr.jairaj Mudgal, Advocate fo,r Mr.Ramesh Kainthola, Advocate versus UNION OF INDIA & ORS. . .... Respondents Through: Mr.IVlukesh Anand, Advocate for UOI Ms.Zubeida Begum and Ms.Sana Ansari, Advocates for GNCT of Delhi LPA 268/2011 FREEDOM FIGHTERS SOCIAL WELFARE ASSOCIATION Through: ..... Appellant Mr.Jairaj Mudgal, Advocate for Mr.Ramesh Kainthola, 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 LPA 271/2011 FREEDOM FIGHTERS SOCIAL WELFARE ..... Appellant ASSOCIATION Through: Mr,jairaj Mudgal, Advocate for Mr.l~amesh Kainthola, 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 LPA 267/2011 & connected matters Page 1 of9 LPA 269/2011 LAL!TESWAR Kl{JMAR CHOWDHARY & ORS. .. ... Appellants Through: · Mr.lnderbir Singh, Advocate. versus GOVT OF NCT OF DELHI & ORS. .. .. Respondents · Through: Mr.Mukesh Anand, Advocate for 1 UOI . Ms.Zubeida Begum and Ms.San(9 Ansari, Advocates for GNCT of Delhi LPA 270/2011 RAJ KUMAR & .ORS. . .... Appellants Through: Mr.lriderbir 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 KA,THURIA & 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 Page 2 of9 :,, CORAM: HON'BLE MR. JUSTICE PRADEEP NANqRAJOG HON'BLE MR. JUSTICE S.P. GARG 1. Whether the Reporters of local papers may be alloweq to see the judg~ent? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG, I. 1. ' Two distinct issues arise for consideration in the above-captioned appeals. The first pertains to lands comprised in Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41, and 142 Village Neb Sarai and the other issue pertains to lands comprised in Khasra Nos.:Z23 and 224 Village Chattarpur. 2. The factual commonality in all the appeals_ is unauthorized colonization on said lands. 3. The appellants lost the battle before the learned Single Judge and live on to fight a second round .before the Appellate Court. 4. The basis of the right claimed by the appellants is the policy decision dated 24th March 2008 notified by the ·.Government of NCT Delhi pertaining to 'Regularization of Unauthorized Colonies in Delhi'. 5. The notification dated 24th March 2008 specifies the criteria for regularization of unauthorized colonies and vi~de clause 3.3(a) specifically excludes such unauthorized colonies or part of colonie'S or habitations comprised in notified or reserved forest area. LPA 267/2011 & connected matters Page 3 of 9 \V 6. Lands comprised in Khasra Nos.16, 18, 24, 26, 27, 39, 40, 41, and 142 Village Neb Sarai have admittedly , been notified on 2nd 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 the order dated 3.1.1996 ·passed by the Supreme Court in W.P.(C) No.4677/1985 M.CMehta Vs. Union of India. 8. Section 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) All 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 dther than a proprietor on land other than land comprised in his holding, (iii) Public wells, (iv) Fisheries, (v) Hats, bazaar and meals, except ··hats, bazaar and meals held on land to which provisions of clauses (a) to {c) of sub-section (1) df Section 11 apply, . (vi) Tanks, ponds, water channels, pathways and abadi sites, LPA 267/2011 & connected matters Page 4 of9 :,, (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 Chief Commissioner, more than the ordinary requirements of the Gaon Sabha, under this section ·and may make such incidental and consequential order as may be necessary." · 9. It 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 lands 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 inefficient bureaucrat did not declare as aforesaid till the Supreme Court had to needle the inefficient bureaucrat to comply with the law. 10. While passing the direction to notify the reserved forest land in Delhi, the Supreme Court used the expression ''uncultivated gaon sabha land' while requiring the 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 the said expression used by the Supreme Court, case of the appellants is that the Supreme Court had required uncultivate-d 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 matters Page 5 of9 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 the 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 h~ld that he could not issue any direction as prayed for. The learned Single judge has further held that the issue stands concluded by the decision dated 16.7.2010 in W.P'.(C) No.4687 /2010 Bhaqat Singh & Drs. Vs. UOI & Anr.; decided by a Division Bench of this Court. 13. The argument in appeal before us was that since the Supreme Court had directed uncultivable gaon sabha land to be declared as a reserved forest, the subject lands · which were used for colonization could not be declared as reserved forest. 14. A 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 uniform 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 and all such lands would be vested in the gaon sabha. Waste lands. were .specifically included in Section 7 LPA 267/2011 & connected matters Page 6 of9 \~ ·,< and as per the explanation to sub-Section 1 of Section 7 waste land included cultivable· and uncultivable waste area of the village. 16. The 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. 17. Thus, when the 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 and cannot mean, as urged by the appellants, vacant land. 18. That the appellants are admittedly not· cultivating the lands and that admittedly the lands 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. 19. The revenue records show the said lands to be uncultivated waste lands vested in the gaon sabha is not in issue. 20. Thus, in addition to the reasons given by the learned Single Judge, in law, for the reasons aforenoted, the appellants would have no case pertaining to the lands comprised in Khasra Nos.16, 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 lands ih the past have been declared as reserved forest pursuant to directions issued · by the Supreme Court. LPA 267/2011 & connected matters Page 7 of 9 ·. ·------=----=== --·.-:::.o-~::.:::.:===--~-:::c,==-==---- ' 21. As regards lands comprised in Khasra, Nos.223 and 224 village Chattarpur, learned counsel for the 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, an 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 forest, pursuant to the notification dated 2nd April 1996. 22. Now, where law vests a power and regulates the manner in which the power has to be exercised, the power has to be exercised in the manner specified and in no other manner. 23. The notification dated 24th March 2008 lay'ing down the criteria for regularization of unauthorized colonies does not exclude regularization of unauthorized colonization on government lan~. . It only excludes unauthorized · colonization on lands 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 reserve.d 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 Chattarpur was a waste land or a forest land, the appeals stand dismissed in so far they .Pertain to lands comprised in Khasra Nos.16, 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 Page 8 of9 \;1 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 lands for the purposes of the notification dated 24th March 2008. We clarify. It would be for the Government of NCT ·Delhi to either amend the notification dated 2nd 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.· 26. Dasti. NOVEMBER 11, 2011 mm LPA 267/2011 & connected matters -·41 (PRADEEP NANDRAJOG) JUDGE ·dc·~· v-~· ( .P. GARG) JUDGE . Page 9 of9 \~