PETITIONER: UNION OF INDIA & ANR. Vs. RESPONDENT: SHER SINGH & ORS. DATE OF JUDGMENT: 07/02/1997 BENCH: K. RAMASWAMY, S. SAGHIR AHMAD ACT: HEADNOTE: JUDGMENT:
O R D E R
This appeal, by special leave, arises from the judgment
of the division Bench of the High court of Delhi, made on
May 30, 1991 in R.F.A. NO.167/86.
The admitted facts are that notification under Section
4(1) of the land Acquisition Act, 1864 was published
acquiring certain lands for public purpose. Therein rival
claims came to be made by Gaon Sabha, Tekhand and the
respondents claiming title to the compensation. Since the
Land Acquisition officer/collector was unable to decide the
title to receive the compensation on reference under section
30 of the Act, the District court by award and decree dated
February 22, 1986 held that the land in question stood
vested in the Gaon Sabha under Section 7 read with Section
154 of the Delhi Land Reforms Act (for short, the `Act’).
Therefore, it is entitled to the compensation of the land
acquired by the Union of India. Dissatisfied therewith, the
respondents filed the above appeal. The High Court in the
impugned judgment has held that “Gair Mumkin Pahar” is a
cultivable land and, therefore, by operation of explanation
to Section 7, it stands excluded from the vesting in the
Gaon Sabha. Resultantly, the respondents being the owners of
the property are entitled to the compensation. Thus, this
appeal by special leave.
Initially, Shri M.C. Dhingra, learned counsel for some
of the respondents, as brought to our notice that since this
Court had dismissed similar special leave petitions, this
appeal does not merit consideration. We find no force in the
contention. This Court, by then, had already granted leave
in this appeal, but unfortunately, that was not brought to
the notice of the respective Benches including the one
presided over by one of us (K. Ramaswamy, J.), when the
matters had come up. As a consequence, without any speaking
order some special leave petitions came to be dismissed. In
view of the settled legal position by a catena of decisions
of this Court that the dismissal of special leave petition
without speaking order does not constitute res judicata, the
question of law is at large to be gone into. Accordingly, We
reject the objection and we have heard the counsel on both
sides on merits.
Shri Wasim A. Qadri, learned counsel for Union of India
and Gaon Sabha, in a pains taking investigation and neat
presentation, has brought to our notice the relevant
provisions of the Act and the decision of this Court in
Hatti vs. Sunder Singh [(1971) 2 SCR 163] and contended that
the object of the Act and the Delhi Land Reforms, 1954 was
to extinguish the pre-existing right, title and interest
held by bhumidar, sirdar, tenant, proprietor etc. and
conferment of new rights in them. It is also envisaged that
all other lands shall stand vested in the Gaon Sabha by
operation of Section 154 of the Act read with Section 7 of
the Act. The respondents are not bhumidars. The land in
question has been recorded in the revenue records as “gair
mumkin pahar”, in other words, it is an uncultivable waste
land. It is not excluded from the definition of waste land
as explained in explanation to Section 7 of the Act. A
reading of the relevant provision of Sections 5, 7, 11 and
154 of the Act read with the definitions of `land’ defined
in Section 3(13), `holding defined in Section 3(11A),
`khudkhast’ defined in Section 3(12A) and `proprietor’ under
Section 3(17) of the Act, would clearly indicate that the
respondents are not bhumidars in respect of gair mumkin
pahar. As a consequence, the land stands vested in the Gaon
Sabha under Section 7 read with Section 154 of the Act. On
the other hand, Shri Dhingra and Shri L.C. Chechi, learned
counsel for the respondents contended that by operation of
the comprehensive definition of `waste land’ in explanation
to Section 7 of the Act read with the object of conferment
of right under Section 11 read with Section 5 of the Act,
the respondents are bhumidars. As a consequence, the land is
a cultivable land which confers them title to the land under
the Act. It is also further contended that in a
representative suit for a declaration that this gair mumkin
pahar is cultivable land was declared to be so by the civil
Court. The Deputy Commissioner’s finding under the Act that
it is a waste land is not correct. On an appeal against the
decree, the High Court remitted the matter with an option to
the Deputy Commissioner had not decided that it is gair
mumkin pahar. As a consequence, the vesting order passed by
the Deputy Commissioner is non est. The High Court,
therefore, had rightly gone into the question. In support
thereof, the learned counsel placed reliance on a judgment
of the learned single judge in a second appeal. It is also
contended that the view taken by the Division Bench of the
High Court in that behalf is correct in law. It does not
warrant interference.
Having regard to the respective contentions, the
question that arise for consideration is : whether gair
mumkin pahar land is cultivable land coming within the
meaning of explanation to Section 7 so as to exclude it from
the operation of the main part of Section 7 of the Act?
Section 3(13) defines `land; thus:
“(15) “land” except in Sections 22,
23 and 24, means land held or
occupied for purposes connected
with agriculture, horticulture or
animal husbandry including
pisciculture and poultry farming
and includes…”
Admittedly, the lands in question have been recorded in
the revenue recorded as gair mumkin pahar. Therefore, the
lands cannot be held or occupied or used in connection with
agriculture, horticulture, animal husbandry including
pisciculture and poultry farming etc.
`Holding’ has been defined under Section 3(11) of the
Act means:
“(a)…
(b) in respect of proprietors, a
parcel or parcels of land held as
sir or khud-khast.”
`khudkhast’ has been defined under Section 3(12A) means
land (other than Sir) cultivated by a proprietary either by
himself or by servants or by hired labour,…
“(a) at the commencement of this
Act, or (b) at any time during the
period of five years immediately
before the commencement of this
Act, whether or not it was so
cultivated at such commencement,
provided that it has not, at any
time after having been so
cultivated been let out to a
tenant”.
Therefore, it is clear from the above provisions that
the gair mumkin pahar is not a land cultivated by the
proprietor and so it is not a khud-khast land.
Section 5 of the Act defines Bhumidar thus :
“5. Bhumidhar– Every person
belonging to any of the following
classes shall be a Bhumidhar and
shall have all rights and be
subject to all the liabilities
conferred or imposed upon a
Bhumidhar by or under this Act,
namely:
(a) a proprietor holding Sir or
Khudkhast land a proprietor’s
grover holder, an occupancy tenant
under Section 5 of the Punjab
Tenancy Act, 1887, paying rent at
revenue rates or a person holding
land under Patta Dawami or
Istamrari with rights of transfer
by sale, who are declared
Bhumidhars on the commencement of
this Act:
(b) every class of tenants other
than those referred to in clause
(a) and subtenants who are declared
to in clause (a) and subtenants who
are declared Bhumidhars on the
commencement of this Act ; or
(c) every person who, after the
commencement of this Act, is
admitted to land as Bhumidhar or
who acquires Bhumidhar rights under
any provisions of the Act.”
Resultantly, the respondents are not bhumidhars, since
they did not hold the land as proprietor and, therefore,
shall not have proprietary right in gair mumkin pahar.
part B of the Act postulates acquisition of certain
rights of proprietors. Section 7 under this part postulates
the rights of proprietary in waste lands. pasture lands of
common utility etc. to vest in Gaon Sabha and compensation
to be paid for the…
“(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, abide
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.
provided that where such land was a
result of consolidation of holdings
made available for use for any
purposes other than those referred
to in this subsection, land kept
aside in exchange thereof, land
kept aside in exchange thereof, as
a result of such consolidation,
shall for the purposes of this Act
be deemed to be land originally
meant for purposes referred to in
this sub-section.
Explanation — for the purpose of
this sub-section–
(i) “waste land’ shall include
cultivable and uncultivable waste
area or the village including any
land in the bed of a river,
occupied or held by f river,
occupied or held by an Asami
referred to in Section 6(a)(iii) of
the Act except the uncultivated
area—
(a) included in the holding of
such proprietor proprietors, or
(b) used for purposes other than
those mentioned in clause (143) of
Section 3 at any time before
the 26th day of October, 1956 or
(c) acquired by bona fide
purchaser for value at any time
before the 28th day of October,
1958 for purpose other than those
mentioned in clause (13) of Section
3.”
Conjoint reading of Section 7 read with the
explanation, it emerges that unless the waste land stands
excluded from Section 7, the rights of the proprietors in
waste lands, posture lands or community utility lands etc.
shall vest in Gaon Sabha. The waste land included in the
holding of the proprietor stands excepted from the waste
land contemplated by Section 7.
Section 11 of the Act provides declaration of
Bhumidhari Rights in favour of proprietors and superior
class of tenants, compensation and revenue.
Subsection (1) provides that;
“(1) Subject to the provisions of
Section 10, the Deputy Commissioner
shall declare as Bhumidhar persons
holding the following lands,
namely:-
(a) Khudkhast land or a
proprietor’s grover in the tracts
to which the Punjab Tenancy Act,
1887 was applicable or Sir land or
khudkhast land or a proprietor’s
grove in the tracts to which the
Agra Tenancy Act, 1901, was
applicable:
(b) land held by occupancy tenants
under Section 5 of the Punjab
Tenancy Act, 1887, with right of
transfer by sale; and
(c) land held under patta Dawami
or Istamrari by tenants with right
of transfer by sale.”
By operation of Section 11, all the lands including the
holding of the Bhumidhar etc. shall be declared to be a
Bhumidhar right. It is, thus, clear that by operation of
Section 5 read with the definition of khudkhast land and the
explanation to waste land under Section 7 of the Act, the
lands not having been held by Bhumidhars, it cannot be
treated to be a waste land for the purpose of exclusion
under the explanation from the purview of Section 7 of the
Act.
what would be the consequence has been stated in
Section 154 of the Act is to be seen. Section 154 reads
thus:
“154. Vesting of certain lands etc.
in Gaon Sabha — (1) On the
commencement of this Act–
(1) all lands whether cultivable or
otherwise, except land for the time
being comprised in any holding or
grove,
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situate in a Gaon Sabha Area, shall
vest in Gaon Sabha.”
Thus, it could be seen that except the land for the
time being comprised in any holding or a grove, rest of all
lands whether cultivable or otherwise vest in the Gaon from
the date of the commencement of the Act.
This question also no longer res integra. In Hatti’s
case (supra), this Court has gone into the relevant
provisions of the Act and held thus:
“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
or a sub-tenant etc., he became
either a Bhumidar or an Asami,
whereupon the rights of the
proprietor in that land ceased,
Land, which were not holding 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
khudkasht at the commencement of
the Act. If it was not sir or
khudkasht 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”.
As stated earlier, indisputably in the revenue records
the land in question had been recorded as gair mumkin pahar.
Under those circumstances, this gair mumkin pahar land which
was not held by the respondents as khudkhastdars as
proprietors thereof. As a consequence, the land shall stand
vested in the Gaon Sabha. It is true that in the earlier
civil suit filed in a representative capacity for a
declaration, the High Court has gone into the question, but
the entire matter was left at large stating that “it does
not mean that the Deputy Commissioner Cannot redecide the
matter. in fact, he should reconsider the matter and hear
the parties to determine whether the order is in accordance
with law… However, I would also like to clarify that this
does not by any means end the matter”. Thus, there is no
concluded finding recorded by the High Court in the second
appeal with regard to the nature of the land. On the other
hand, the matter was kept at large. At that stage, the
acquisition proceedings were initiated. As a consequence, no
further action has been taken by the Deputy commissioner.
Consequently, the entire issue was at large. Obvious
therefore, that when there was conflict of decisions between
tow learned single Judges, the Division Bench has gone into
the question. But, it had not properly considered the effect
of the provisions of the Act and came to the conclusion that
the explanation of `waste land’ under Section 7 includes
cultivable, waste and gair mumkin pahar is cultivable waste
land and the respondents became owners of the land and
entitled to the compensation. In view of the above
discussion, the view taken by the division. Bench is clearly
in error. Accordingly, we set aside the judgment of the High
Court and confirmed that of the District Court.
The appeal is accordingly allowed, but in the
circumstances, without costs.