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Union of India Vs. Gulab Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 183 of 1967
Judge
Reported inILR1969Delhi831
ActsDelhi Land Reforms Act, 1954 - Sections 161E
AppellantUnion of India
RespondentGulab Singh and ors.
Advocates: N.D. Bali,; Lila Dhar,; K.L. Budhiraja and;
Cases ReferredDelhi v. S. Teja Singh(l). As
Excerpt:
.....land reforms act, 1954 as amended by acts 16 of 1956, 44 of 1959 and 38 of 1965, section 161-b - word 'holding' in sub-clause (b) of clause (11a) as introduced by section 3 of act 16 of 1956 and as amplified by clause (12 a) introduced by section 3 of act 4 of 1959--meaning of.; where, in an application made on behalf of the union of india under section 161-b of the delhi reforms act, 1954 as amended by acts 16 of 1956, 44 of 1959 & 38 of 1965 for setting aside a decree dated 10-5-65 on the ground that the land in dispute (which was the subject matter of the decree) was neither recorded as being in the cultivating possession of the plaintiffs or their predecessors in-interest in the revenue records in the fasli year ending 30-6-54, nor was the same included in their holdings: held,..........of the plaintiffs on june 30, 1954, the definition of the word 'holding', as given in the punjab land revenue act, should apply and nto the subsequent definition. section 161b was also further held nto to apply. in the result the application, as stated above, was dismissed.(8) sections 161 and 161-b were inserted in the delhi land reforms act, 1954 (delhi act 8 of 1954) by section 25 of the delhi land reforms (amendment) act, 1965 (act no. 38 of 1965). according to the new section 61a no suit or other proceeding under sub-section (2) of section 36 of the delhi panchayat raj act, shall, after the date of the passing of the delhi land reforms (amendment) act, 1965, be instituted or continued in any civil or revenue court unless the union of india was added as a plaintiff or defendant.....
Judgment:

H.R. Khanna, J.

(1) This civil revision filed by the Union of India is directed against the order of learned Senior Subordinate Judge I Class, Delhi, whereby he dismissed the application of Union of India under Section 161B of the Delhi Land Reforms Act for setting aside the decree dated May 10, 1966 which had been awarded in favor of Gulab Singh and two others against Gaon Sabha Sanoth. The matter was referred to a larger Bench in pursuance of the order of Hardy, J., because he found that the question arising for decision in this case was of some importance and was involved in a large number of other cases.

(2) The brief facts of the case are that Gulab Singh and two others instituted a suit on February 9, 1965 against Gaon Sabha Sanoth on the allegation that the plaintiffs were the proprietors of agricultural land bearing Khasra No. 720 situated in village Sanoth. It was alleged that the plaintiffs were in possession of the aforesaid land in 1953-54 but due to some mistake the land was shown as Ghair Mumkin Johr in the revenue records of the year 1953-54. The plaintiffs claimed that they were entitled to be declared as Bhumidars of the said land. The land was stated to have been vested in the defendant by an order of the Deputy Commissioner. According to the plaintiffs the order of the Deputy Commissioner in this respect was illegal and without jurisdiction. Prayer was made for the grant of a declaratory decree in favor of the plaintiffs that the order of the Deputy Commissioner vesting the land in dispute in the defendant and its implementation was illegal and without jurisdiction.

(3) No one appeared on behalf of the defendant Gaon Sabha in the suit in spite of service. An ex-pane decree was awarded in favor of the plaintiffs on May 10, 1965.

(4) On July 15, 1966 an application was filed on behalf of the Union of India under Section 161-B of the Delhi Land Reforms Act for setting aside the decree dated May 10, 1965. It was mentioned in the application that the land in dispute, which was the subject matter of the decree, was neither recorded as being in cultivating possession of the plaintiffs or their predecessors-in interest in the revenue records in the fash' year ending June 30, 1954 nor was the same included in their holdings. The decree was, thereforee, stated to be liable to be set aside.

(5) The application was resisted by the plaintiff-respondents. According to them, the land in suit was recorded in the cultivating possession of the plaintiffs in the year 1953-54 and was also included in their holdings. The decree, as such, was stated to be nto liable to be set aside.

(6) The Court below framed the following issue:-

WHETHER the decree is liable to be set aside on the application of the petitioner

(7) The above issue was decided against the petitioner. It was held that in order to see as to whether the land in dispute was included in the holding of the plaintiffs on June 30, 1954, the definition of the word 'holding', as given in the Punjab Land Revenue Act, should apply and nto the subsequent definition. Section 161B was also further held nto to apply. In the result the application, as stated above, was dismissed.

(8) Sections 161 and 161-B were inserted in the Delhi Land Reforms Act, 1954 (Delhi Act 8 of 1954) by Section 25 of the Delhi Land Reforms (Amendment) Act, 1965 (Act No. 38 of 1965). According to the new Section 61A no suit or other proceeding under sub-section (2) of Section 36 of the Delhi Panchayat Raj Act, shall, after the date of the passing of the Delhi Land Reforms (Amendment) Act, 1965, be instituted or continued in any civil or revenue court unless the Union of India was added as a plaintiff or defendant according as the case is by or against the Gaon Sabha. It has further been provided that no such suit or other proceeding shall be decided on the admission by the Pradhan or other representative of the Gaon Sabha unless such admission has been authorised in writing by the Director of Panchayats or by such other officer as the Chief Commissioner may specify in this behalf. Section 161B, with which we are concerned, reads as under:-

'161B.(1) Where in any suit or proceeding before any civil or revenue court filed under sub-section (2) of section 36 of the Delhi Panchayat Raj Act, 1954 (Delhi Act 3 of 1955), the ownership of any land has been decided in favor of any person other than the Gaon Sabha before the date of passing of the Delhi Land Reforms (Amendment) Act, 1965, then, notwithstanding anything contained in clause (b) of sub-section (2) of section 1 or in any other law for the time being in force, such decree or order shall, on an application made by the Government of India within twelve months from that date or within such further period as the court may, for sufficient cause, allow, be set aside if in the revenue records of the fasli year ending on the 30th June 1954, such land was nto included in the holding of the person in whose favor the decree or order was passed or his predecessor-ininterest, or was nto recorded as being in the cultivation of such person or his predecessor-in-interest. (2) On the setting aside of any decree or order in any suit or proceeding by or against the Gaon Sabha under sub-section (1), such suit or proceeding shall be tried or heard afresh with the Union of India added as a party.'

(9) The suits under sub-section (2) of Section 36 of the Delhi Panchayat Raj Act, to which there is a reference in the above sections, relate to disputes about ownership of any property between a person and Gaon Sabha. Sections 161-A; and 161-B have obviously been enacted with a view to ensure that no collusive decrees are awarded against Gaon Sabha in disputes relating to ownership of property. It has, accordingly, been provided that no suit of other proceeding in respect of any dispute between the Gaon Sabha and another person relating to title to property be continued unless the Union of India was imp leaded as a party. The impleading of Union of India as a party it was considered, would result in fair contest as the Union of India would nto be subjected to local pressures in the way the Pradhan and other representatives of the Gaon Sabha might be. Provision has also been made that no Pradhan or representative of the Gaon Sabha would make an admission in such proceedings unless authority for the purpose is given in writing by the Director of Panchayats or by some other authorised officer. Section 161B makes provision for the setting aside of decrees and orders in favor of any person against Gaon Sabha in disputes relating to ownership of land in cases where the land in dispute was neither recorded as being in cultivating possession of the person in whose favor the decree or order is made or his predecessor-in-interest in the revenue records in the fasli year ending on June 30, 1954 nor was the same included in their holdings. In such an event the decree or order as the case may be would be set aside in case an application is made by the Union of India within the prescribed time. On the setting aside of the decree or order the suit or other proceeding shall be tried and heard afresh with the Union of India added as a party.

(10) The dispute between the parties relates to the meaning of the word 'holding'. According to the case of the respondents the land in dispute was included in their holding in the revenue records of the fasli year ending on June 30, 1954. It is urged on their behalf that the word 'holding' used in section 161B should have the same meaning as is given to it in the Punjab Land Revenue Act. As against that, the case of the petitioner is that the definition of the word 'holding' has been subsequently changed and it should be the new definition of the word which should govern the case. In this respect we find that the Delhi Land Reforms Act, 1954 (Act No. 8 of 1954) came into force on July 20, 1954. According to clause (24) of Section 3 of the Act the word 'holding' shall have the same meaning as has been assigned to it in the Agra Tenancy Act, 1901 or the Punjab Tenancy Act, 1887, according as the land is situated in Shahdara or the remaining Circles. It is nto disputed that the land in dispute is nto situated in Shahdara. According to clause (9) of Section 4 of the Punjab Tenancy Act the words 'estate' and 'holding' shall have the same meaning as has been assigned to those words in the Punjab Land Revenue Act, 1887.

(11) Clause (3) of Section of the Punjab Land Revenue Act gives the definition of 'holding' as under:-

'holding' means a share or portion of an estate held by one landowner or jointly by two or more landowners:' According to clause (1) of section 3 of the Punjab Land Revenue Act, 'estate' means any area (a) for which a separate record of rights has been made; or (b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had nto been released, compounded for or redeemed; or (c) which the State Government may, by general rule or special order, declare to be an estate. The Delhi Land Reforms Act was amended in 1956 by Act No. 16 of 1956. Section 3 introduced new definition of the word 'holding'- The section reads as under:- 'In Section 3 of the Principal Act- (i) after clause (II), the following new clause shall be inserted, namely:- '(11 a) 'holding' means- (4) in respect of- (i) Bhumidar or Asami; or (ii) tenant or sub-tenant under the Punjab Tenancy Act, 1887, or the Agra Tenancy Act, 1901; or (iii) lessee under the Bhoodan Yogna Act,. 1955, a parcel or parcels of land held under one tenure, lease, engagement or grant; and (b) in respect of proprietors, a parcel or parcels of land held as sir or khudkfsht.' (ii) in clause (24) the word, 'holding' shall be omitted.'

(12) Further amendment was made in the Delhi Land Reforms Act by Act No. 4 of 1959. Section 3 of the Principal Act was amended by Section 3 of the Amending Act. One of the amendments introduced by clause (b) of section 3 of the Amending Act was the insertion of clause (12) in Section 3 of the Principal Act as under:-

'(12A)'Khudkasht means land (other than Sir) cultivated by a proprietor 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 nto 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;'

(13) According to sub-section (2) of Section I of Act No. 4 of 1959, clause (b) of Section 3 shall along with some other clauses, with which we are nto concerned, be deemed to have come into force on the 20th day of July, 1954. The respondents claim to be proprietors of the land in dispute. The controversy between the parties centres on the point as to whether the definition of the word 'holding' given in sub-clause (b) of clause (II A) as introduced by Section 3 of Act No. 16 of 1956 and as amplified by clause (12A) introduced by Section 3 of Act No. 4 of 1959 should govern the case, as contended on behalf of the petitioner, or whether it should be the definition of the word 'holding' as originally given in Section 3(24) of Act No. 8 of 1954 read with Section 4 (9) of the Punjab Tenancy Act and Section 3 (3) of the Punjab Land Revenue Act, as urged on behalf of the respondents.

(14) We have given the matter our consideration and are of the view that the contention advanced on behalf of the petitioner should prevail. The Court in the present case has to construe the meaning of the word 'holding' as given in Section 161B. This Section was inserted in the principal Act by the enactment of Act No. 38 of 1965. Before that the old definition of the word 'holding' as given in Section 3(24) of Act No. 8 of 1954 read with Section 4(9) of the Punjab Tenancy Act and Section 3 (3) of the Punjab Land Revenue Act had been replaced by the new definition of the word 'holding' by Act No. 16 of 1956. Act No. 16 of 1956 expressly provided that the word 'holding' shall be omitted from clause (24) of Section 3 of Act No. 8 of 1954. It also gave a new definition of the word 'holding'. It is, thereforee, obvious that with the coming into force of Act No. 16 of 1956 the earlier definition given in Section 3(24) would cease to apply in cases under the Delhi Land Reforms Act. As there was reference to the word 'Khudkasht in the definition of 'holding' in respect of parcels of land held by proprietors, the legislature defined that word by insertion of clause (12A) by Act No. 4 of 1959. According to sub-section (2) of Section I of Act No. 4. of 1959 the above definition of word 'Khudkasht' shall be deemed to have come into force on the 20th day of July, 1954. The word 'deemed''show that the legislature by a legal fiction made the definition of the word 'Khudkasht' to be in force since the 20th day of July, 1954. The Court in such an event must give full effect to the legal fiction and carry it to its logical conclusion. The court for this purpose will also assume all those facts on which alone the fiction can operate. (See in this connection State of Bombay v. Pandurang Vinayak and others (1) and Commissioner of Income-Tax, Delhi v. S. Teja Singh(l). As the definition of the word 'holding'' as given by Act No. 16 of 1956 and as amplified by Act No. 4 of 1959 was in force at the time Act No. 38 of 1965 was enacted, it is manifest that it is that definition which should govern the case. The definition of the word 'holding' as given in Section 3(24) of Act No. 8 of 1954 being no longer in force after the coming into force of Act No. 16 of 1956, it is nto clear as to how that definition can be invoked for construing the word 'holding' in' Section 161B as introduced by Section 25 of Act No. 38 of 1965. To accept the contention advanced on behalf of the respondents would have the effect of setting at naught the change brought by the Legislature in the definition of the word 'holding.' The change has been brought about with a definite object and the same cannto be defeated by resorting to a definition which has ceased to operate since the enactment of Act No. 16 of 1956.

(15) There is one aspect of the matter of which mention may be made. According to sub-section (1) of Section 161B the Court. has to confirm itself to the revenue records of the fasli year ending on June 30, 1954 in order to see whether the land in question was included in the holding of a person or his predecessor and whether it was in their cultivating possession or not. The definition of the word 'Khudkasht' as introduced by Act No. 4 of 1959,-however, shows that in determining the question of khudkasht the Court has to consider whether the land was cultivated by a proprietor by himself or by his servants or by hired labour at the commencement of the Act, i.e., July 20, 1954, or at any time during the period of five years immediately before the commencement of the Act, subject to certain conditions with which we are nto concerned. It would thus appear that in order to find whether the land in Khudkasht of the proprietor, the Court can consider the entries in the revenue records for five years. Clause (1) of Section 161B however restricts the examination of the entries in the revenue records to one year ending on June 30, 1954. So far as this aspect of the matter is concerned, we are of the view that at the stage of consideration of the application for setting aside the decree or order under clause (1) of Section 161B the Court shall have regard only to the entries in the revenue records of the fasli year ending on June 30, 1954 in order to find out as to whether the land was or was nto included in the holding of such person or his predecessor and whether the land was recorded as being in the cultivating possession of such person or his predecessor and the land was recorded as being in the cultivating possession of such person or his predecessor. After the decree or order is set aside and the Union of India is imp leaded as a party the Court may, if necessary, take into account the entries in the revenue records of five years in order to determine whether the land held by the proprietor was Khudkasht or not.

(16) Reference on behalf of the respondents has been made to the decision of Grover and Kapur, JJ., in Ram Das and another v. Gaon Sabha of Bhalaswa, Jahangirpur, R. S. A. No. 7-D of 1963 decided on April 29, 1965(3). In that case the learned Judges, while dealing with the validity of an order dated November 1, 1954, held that the definition of the word 'holding' as given in Act No. 16 of 1966 could nto operate retrospectively. The respondents, in our opinion, can derive no assistance from that authority because in the present case we are dealing with the meaning of the word 'holding' as given in clause 161B which was introduced by Act No. 38 of 1965. As such, the cited case is clearly distinguishable. It may also be mentioned that there was no reference in that case to the definition of the word 'Khudkasht' as introduced by Act No. 4 of 1959. Consequently the effect of the definition of the word 'Khudkasht' was nto considered.

(17) A faint hearted submission was also made on behalf of the respondent that the decree, which is sought to be set aside at the -instance of the Union of India, was nto in a suit under Section 36 of the Delhi Panchayat Raj Act. There is no force in this submission. Section 36 has reference to suits relating to disputes as regards ownership about public property situated within the jurisdiction of a Gaon Sabha between a person and the Gaon Sabha. The suit brought by the respondents related to property which had been ordered to be vested in the Gaon Sabha by the order of the Deputy Commissioner. The above suit was clearly within the ambit of Section 36 of the Delhi Panchayat Raj Act.

(18) The learned counsel for the parties are agreed that in case the Court comes to the conclusion that the definition of the word 'holding' as given in Act No. 16 of 1956 and as amplified by Act No. 4 of 1959 governs the case, the revision petition should .be accepted and the decree awarded in favor of the respondent be set aside. We, accordingly, accept the revision and set aside the order of the Court below. We further set aside the decree which was awarded in favor of the respondents on May, 10, 1965. The suit shall now be tried and heard afresh with the Union of India as a party. Looking to all the facts, we leave the parties to bear their own costs. The parties are directed to appear in the trial Court on 4-10-1969.


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