_____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 17.12.2009 % Date of decision : 07.05.2010 + WP (C) No. 5393 / 2007 JOGENDER SINGH & ANR. …PETITIONERS Through: Mr. Anand Yadav and Ms.Anita Tomar, Advocates. Versus GOVT. OF NCT OF DELHI & ORS. ...RESPONDENTS Through: Mr. Najmi Waziri, Adv. for Respondent Nos. 1 to 4. Ms. Anusuya Salwan, Adv. for Respondent No. 5. None for Respondent No. 6. CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‘BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? SANJAY KISHAN KAUL, J. 1. The petitioners are residents of Village Kanjhawla and claim to be members of Gaon Sabha of Village Kanjhawla, Delhi. 2. The petitioners have a two-fold grievance. The first grievance is that the land of the Gaon Sabha which was designated for purposes of development of a Growth Centre cannot be _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 2 of 32 utilized for any other purpose more specifically the scheme of the Government to construct housing for urban poor. 3. The second grievance is that the elections to the village panchayats have not been held for a long period of time and the mandate of the Part IX of the Constitution of India (for short, ‗the Constitution‘) was being defeated by the Gaon Sabhas being managed by administrators other than elected panchayats. Utilization of Gaon Sabha Land to Construct Housing for Urban Poor 4. The petitioners have explained the historically significant aspects of land holding in Delhi. The land of the village is stated to have been held by a class of villagers/land holders known as Biswadar, i.e., holder of share/shares in coparcenary villages. The said class was stated to be also known as Malikan Deh or Village Proprietary Body. It is this class of villagers / land holders who were the owners of the land of the whole village. The biswadars held two types of lands, i.e., (i) land included in their holdings; and (ii) the land which is known as common land or Shamlat Deh Land. The second category of land being the Shamlat Deh, this proprietary class had their shares as per ownership in the village, but lands were owned jointly. The character of these lands was abadi land, gora deh, waste land and land of the other common use as recorded in the revenue records. The commentary ―Customary Law‖ by Rattigan defines such village common land in the colloquial term as Shamlat Deh and Abadi Deh and included uncultivated _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 3 of 32 (Banjar and Pasture Land), the abadi and inhabited village site and gora deh or vacant space reserved for extension of village dwellings and adjoining the village sites. The commentary by Minoti Chakravarti Kaul in the book titled ―Common Land and Customary Law‖ also defines the common land by giving the historical significance pointing out that in all those areas of Punjab which had settled villages prior to British entry, and which combined arable farming with pastoral activities, there were extensive common lands or banjar kadim held collectively by the malikan deh or village proprietary body. Apart from this there were other categories of uncultivated lands held in common such as the abadi-deh or the residential area, the catchment areas or johads, the area around the village site or the gora deh and the wood lot. The Malikan Deh had a bundle of rights in these categories of land of which the principal ones were the right to hold and to partition, the right to manage and the right to use. Such common lands were central to the system of village management where the private and arable land was generally held in scattered strips while the residential and pastoral land was arranged in compact holdings. 5. It is in the aforesaid circumstances that the petitioners pleaded that the Malikan Deh, a proprietary body, had the right to manage and right to use the common lands as also the right to transfer the lands or to give the said lands to a particular class or persons. In pursuance to such rights, the said proprietary class in Delhi and other villages of Punjab _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 4 of 32 gave lands to other residents of village for residence and also to other uses i.e. lands to the persons who were supporting and supplementing the economy of the village. 6. The lands of the villagers in Delhi Tehsil are stated to have been governed by the Punjab Land Revenue Act, 1887 and Punjab Tenants (Security of Tenure) Act, 1950 till Delhi Land Reforms Act, 1954 (‗DLR Act‖ for short) came into force. It is under the DLR Act that the persons or bodies holding land either as proprietor or tenants or sub-tenants were declared as Bhumidars as per Sections 11 and 13 of the DLR Act. The Delhi Land Reforms Rules, 1954 were also framed. The material Section 7 of the DLR Act vested the rights of proprietors in waste land/pasture land of common utilities in Gaon Sabha. The significance of the DLR Act coming into force was that all lands of common utilities which were owned by the proprietors of the villages and which were commonly used by the villagers were vested in Goan Sabha and proprietors were divested of their ownership. Insofar as the agricultural land in Delhi was concerned, the persons holding such land became Bhumidars of the land and there was also a class of tenure holders. The provisions of DLR Act provided for the mode, manner and transfer of land and consequences of its contravention resulting in vesting of the land in the Gaon Sabha. Similar were the consequences if the bhumidar or asami left the land uncultivated for two consecutive agricultural years. Another material provision is Section 154 of _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 5 of 32 DLR Act which provided for certain lands to vest in the Gaon Sabha on the commencement of the DLR Act. 7. In order to appreciate the controversy, it is necessary to reproduce the provisions of Section 7 and Section 154 of the DLR Act which read 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: … … … … … … … … (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 Goan 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.‖ ―154. Vesting of certain lands etc, in Gaon Sabha. – 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 _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 6 of 32 a person other 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) of section 11 apply, (vi) Tanks, ponds, water channels, pathways and abadi sites, (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, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha under this section and may make such incidental and consequential order as may be necessary. (2) Where any land which is vested in the Central Government under sub-section (3) or sub-section (4) of section 150, is held immediately before such vesting by an Asami of a Gaon Sabha, then, notwithstanding anything contained in clause (b) of sub-section (2) of section 1, and so long as it is held by such Asami, the provisions of this Act shall continue to apply to such land subject to the modification that all references therein to Gaon Sabha and Gaon Panchayat shall in relation to such land be construed as references to the Central Government." 8. A reading of the provisions of Section 7 of DLR Act shows that the rights of the proprietors in the categories of land mentioned in the said Section vested in the Gaon Sabha for which compensation was paid to the proprietors in the manner provided in the said Section. It is nobody‘s case that such compensation has not been paid. Section 154 of DLR Act provides for vesting of certain categories of land in the Gaon _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 7 of 32 Sabha. The proviso to Section 154(1) refers to uncultivated area located in any Gaon Sabha which is more than the requirements of the Gaon Sabha. Such land, if in the opinion of the Chief Commissioner, is more than the ordinary requirements of Gaon Sabha, can be excluded from vesting in the Gaon Sabha and incidental and consequential orders in this behalf can be passed. 9. We may at this stage itself deal with one of the pleas of the petitioners, al beit a feeble attempt, arising from the interpretation of the aforesaid Sections. 10. Learned counsel for the petitioners pleaded that the land which was proprietary in terms of Section 7 of the DLR Act was divested of that proprietary characteristics as it became the common land on compensation being paid and vested in the Gaon Sabha. 11. The said land was, however, pleaded as land which could not be dealt with under proviso to Section 154 of DLR Act as the same would have to be dealt with as per Section 7 of the DLR Act. This plea was in furtherance of the claim that the land which vested in the Gaon Sabha under Section 7 of the DLR Act could never be taken away from the Gaon Sabha. 12. The aforesaid plea is only stated to be rejected. It is a plea based on complete misreading of the two Sections. Section 7 of the DLR Act only refers to the rights of individual proprietors pertaining to certain kinds of lands which on payment of compensation as provided in the said Section would vest with the Goan Sabha while Section 154 of the DLR _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 8 of 32 Act talks of vesting of certain lands in Gaon Sabha which include lands whether cultivable or otherwise, except land for the time being comprised in any holding or grove. There are, of course, other lands mentioned under Section 154 of the DLR Act. The land referred to under Section 7 of the DLR Act was the land in which all members of the village had an interest though the proprietors had special rights. It is these special rights which were acquired and extinguished on payment of compensation and the common interest of the villagers in the land continued. It is thus abundantly clear that Section 7 of the DLR Act refers to acquiring and vesting of the rights in the Gaon Sabha which were originally the rights of the proprietors in the common utility land and thus such land on being vested in the Gaon Sabha can certainly be dealt with as per proviso to Section 154 of the said Act. The expression in Section 154(1)(i) is that ―all lands whether cultivable or otherwise‖. The proviso to Section 154 refers to the uncultivated area situated in the Gaon Sabha, which in the opinion of the Chief Commissioner, is in excess of the ordinary requirements of the Gaon Sabha and it can thus be excluded from vesting in the Gaon Sabha. 13. We are fortified in our view by the Judgment of the Supreme Court in Hatti v. Sunder Singh, Supreme Court Reports (1971) 2 SCR 163 where it was observed as under : ―Sections 6, 11, 13 and 154 of the Act read together, thus, show that, after the Act came into force, proprietors of agricultural land as such ceased to exist. If any land was part of a holding of a proprietor, he became a Bhumidar of it. If it was part of a holding of some other person, such as a tenant _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 9 of 32 or a sub-tenant etc., he became either a Bhumidar or an Asami, whereupon the rights of the proprietor in that land ceased. Lands, which were not holdings of either the proprietor or any other person, vested in the Gaon Sabha. In the case of proprietors, their rights in the land continued to exist only in respect of holdings which, under the definition, must have been either their sir or khud kasht at the commencement of the Act. If it was not sir or khud kasht of a proprietor, it would not be his holding and, consequently, such land would vest in the Gaon Sabha under Section 154, the result of which would be that the rights of the proprietor would be extinguished. It appears that it was in view of this scheme of the Act that, under Section 84, the right to institute a suit for possession was granted only to a Bhumidar, or an Asami, or the Gaon Sabha. The Act envisaged only these three classes of persons who would possess rights in agricultural land after the commencement of the Act. Proprietors as such having ceased to exist could not, therefore, institute a suit for possession. This aspect of the case has been lost sight of by the High Court and the lower courts, because it appears that their attention was not drawn to the provisions of Section 154 of the Act, under which all lands of proprietors, other than those comprised in their holdings, vested in the Gaon Sabha, thus extinguishing their proprietary rights.‖ 14. We may also note at this stage that in terms of the notification dated 25.01.1990 of the Administration of Union Territory of Delhi, the pradhans, up-pradhans and Panchas or members of the Gaon Panchayats whose terms had expired on 24.12.1989 were required to hand over the entire records to the Deputy Commissioner, Delhi and it is the Deputy Commissioner, Delhi who has thereafter been discharging, exercising and performing the functions of pradhans, up- pradhans and Panchas or members of the Gaon Panchayats. Insofar as the lands forming subject matter of dispute is concerned, it is about 12 years ago that a Scheme for development of Growth Centres in the land adjoining in some villages in Delhi was floated with the object of ensuring that _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 10 of 32 the villages of Delhi form an intrinsic part of the overall development of the City/State. The proposed Growth Centres were stated to be self-centered regarding manner of operation and other daily needs. It is in furtherance thereto, the land which was considered as excess land in Village Kanjhawla was leased out by the Gaon Sabha to Delhi Administration. A sum of Rs.12,19,62,700/- was transferred to the Kanjhawla Gaon Sabha in the year 1996. However, the Scheme never worked out. The respondents have pointed out that in terms of the Master Plan for Delhi 2021 and the Zonal Plan thereunder in respect of the area in question, 19 villages of Delhi came under urbanizable area (areas in transition) and 10 villages in the peripheral green belt. The surplus area in Kanjhawla Village is shown as residential (urbanisable area) and thus more residential quarters are planned in the said surplus / unutilized excess lands to accommodate the ever growing demand for housing in Delhi. The growing development needs of Delhi made it imperative that the excess lands of the Gaon Sabha should be put to optimum and planned use. It is in this context that an exercise was undertaken under Proviso to Section 154 of the DLR Act to determine the lands that were in excess of the ordinary requirement of the Gaon Sabha. 15. A Survey was conducted of the Gaon Sabha areas and the data collected was examined. It was found that the certain tracts of uncultivated and unused lands in the Gaon Sabha Area were surplus or more than the ordinary requirements of the Gaon Sabha. It is in pursuance to such _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 11 of 32 exercise, the LG of Govt. of NCT of Delhi (Chief Commissioner) in terms of the Order dated 04.01.2008 was pleased to declare these lands as being excluded from vesting in the Gaon Sabha and such lands could be utilized to meet the development exigencies. It has been emphasized by respondents in their additional affidavit affirmed on 29.04.2008 that certain well- thought out parameters/norms were set for assessment of land in excess of the ordinary requirements of the Gaon Sabha and such parameters are in accordance with MPD-2021. 16. The land requirements of Village Kanjhawla were also examined according to 13 norms. The extent of scrutiny done and the parameters followed have been set out in the additional affidavit, which we feel should be re-produced hereunder to get a holistic picture of the factual matrix of any land sought to be declared as excess land for Village Kanjhawla. The norms read as under: ―i. Present population of Village Kanjhawla (2007) : 9570 (based on 2001 census) ii. Projected population in villages of Delhi in 2021, including migratory population (percentage increase registered in 2001 census over the 1991 census may be taken as the basis to project the 2021 population)  Projected population of village Kanjhawla in 2021 : 11005 The requirement of all basic facilities has been assessed with reference to the present population as well as population projected in 2021. iii. Area required for extended village abadi The Lal Dora Abadi Area, prior to the land consolidation exercise in 1995-96 was merely 240 bighas. However, post consolidation exercise, the extended Abadi Area has increased ten-fold to 2438 bighas. _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 12 of 32 iv. Area required for cottage industries In the case of M.C. Mehta v. UOI, the Hon‘ble Supreme Court of India had directed all polluting industrial units to be shifted out of non-conforming areas to conforming areas. In the North West District the following industrial areas are located: a) Narela b) Wazirpur c) Mongolpuri d) Lawrence Road e) Bawana (merely 6 kms from Kanjhawla Village and is the largest industrial area in Delhi) f) Badli 300 square yards for cottage industries for those who do not have lands. All applications for allotment of industrial plots are done through Delhi Small Industries Development Corporation (DSIDC) v. Area required for hospitals, dispensaries: Master Plan 2021 norms (Table 3.1) a) 1 Dispensary for a population of 10,000 (area 8000 to 1200 sq. meters) b) Hospital with 100 beds (D Category) for a population of upto Rs 1 lakh (0.5 to 1 acre) Dispensary/Health Centre  A dispensary/health centre already exists at Village Kanjhawla (in Khasra No.153)  Maharishi Valmiki Hospital (100 bedded) is located about 7 kms away in Village Pooth Khurd  Baba Saheb Ambedkar Hospital at Rohini  Sanjay Gandhi Hospital at Mongolpuri (10 kms away)  Raja Harishchand Hospital at Narela  Land has been allotted for a 50 bed hospital 3 kms away in Village Jaunti Private Hospitals  Max Hospital at Pitampura (12-13 kms)  Maharaja Agrasen Hospital at Punjabi Bagh (350 bedded) Veterinary Hospital  A Veterinary Hospital also exists in Village Kanjhawla. vi. Area required for educational purposes such as primary secondary and vocational centes i.e. ITIs etc. _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 13 of 32 Master Plan 2021 norms (Table 13.3) Primary School 1 Unit for a population of 10,000 Plot area 0.2 -0.4 ha Sr.Secondary School 1 Unit for a population of 10,000 Plot Area 0.6 to 0.8 ha N.B. Present population of Village Kanjhawala is under 10,000 however, Schools  1 Boys‘ Senior Secondary School,  1 Girls‘ Senior Secondary School (Khasra No.142/113) and  Haryana Shakti Secondary School, already exist in Village Kanjhawla (Khasra Nos.151 and 152)  At about 3.5 kms away, in Village Karala, two more Sr.Secondary Schools (one for boys and one for girls) exist.  At Village Ladpur, about 0.5 kms another Secondary School exists. Colleges  At Village Ghevra, about 3 kms away, there is a technical institute called Sir Chhotu Ram Institute of Technology.  At Bawana, about 6 kms away, there is a degree college for women named Aditi College. vii) Provision of commercial area for grocery stores, other merchandise shops, shops for seeds and fertilizers, milk booths, barber shops, tailors hops, LPG, FPS,etc.  Mobile PCO‘s have been given to handicapped persons and they are available in the village.  Grocery and seed and fertilizer shops exist in the village along with tailor and barber shops. However, there are no norms for opening the latter types of shops, as these are dependent upon private enterprise and locally available skills. viii) Area required for bus terminals, taxi stands, cycle/rickshaw stand, Patwar Ghar  A Bus Depot is located in the village. A private taxi stand also exists which normally has 4-5 taxis parked.  Offices of the Deputy Commissioner, Sub Divisional Magistrate and the ADM alongwith the Patwar Ghar are located in the Village area. _____________________________________________________________________________________________ WP (C) NO. 5393 of 2007 Page 14 of 32 ix) Institutional/office space for Post Office, Banks, PCOs, Police Stations, etc.  Branches of the State Bank of India and the Central Bank of India, Panchyat Ghar, Post Office and 5 village Chaupals are located within the Village. The Chaupals are used by various communities for marriage purposes and other social gatherings.  A Fire Station in Bawana is merely 6 kms away.  The Village population qualifies for only a police post. However, a full-fledged police station, with staff quarters, exists in the village. It is good enough to cater to the policing needs of a population of over 2.5 lacs, including nearby villages like Ladpur, Karala, Madanpur, Dabas, Rani Khera, Ghevra, Savda. x) Sports Complex, playground, Community Park, Barat Ghar, Cinema Halls. Master Plan 2021 norms Banquet Hall for a population for 10,000 (area required 1 acre)