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Ram Babu and anr. Vs. Lt. Governor of the Union Territory of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 934 of 1973
Judge
Reported in10(1974)DLT376; 1974RLR678
ActsDelhi Land Reforms Rules, 1954 - Rule 55
AppellantRam Babu and anr.
RespondentLt. Governor of the Union Territory of Delhi and ors.
Advocates: Ravinder Sethi and; Lila Dhar, Advs
Cases ReferredTakhatray Shiodatrai Man.lad v. State of Gujrat.
Excerpt:
.....to pontend that rule 55 goes beyond the main provisions of the act and being in conflict with the act is ultra virus and bad. whatever the purpose may be rule 55 cannot be held to be had unless it was first found that section 105 does not permit the framing of rule like rule 55 or that the said rule was in conflict with any provision of the act. it is also well settled that the law or a statutory rule should be so interpreted as to make it valid and not invalid vide takhatray shiodatrai man......possession of any land in execution of a decree excepting between 1st day of may and 15th day of june. rule 55 only seeks to continue the same state of affairs and law existing in this part of the territory for decades. but for rule 55 there would have a been void and complete break, and this would be against public interest. it is obvious that apart from the interest of the decree-holder taking possession of the land there is the interest of the public to see that any standing crop is not damaged or destroyed because the public has a vital status in it. it is because of this reason that a limitation has been provided against giving possession excepting in the period of 15th april to 30th june when normally there is not going to be much of the standing crop. larger interest than that.....
Judgment:

Rajinder Sachar, J.

(1) The virus of Rule 55 of the Delhi Land Reforms Rules, 1954 (hereinafter called the Rules) is tie subject matter of determination in this writ petition under Article 226 of the Constitution. Petitioner No. 1 claims that he holds as a Bhumidhar land consisting of five fields bearingK.hasraNo. 1085 to 1088 and 2655/1114 in the revenue estate of village Mehrauli, Delhi, as Bhumidaar. Petitioner No. 2 is son of petitioner No. 1. In 1957 the land in dispute is alleged to have been given to respondent No. 3 an I and his father for a period oF 10 years. Subsequently the petitioner filed a suit, for possession under section 84 of the Delhi Land Reforms Act (herein after called the Act) against respondent No. 3 and the same decreed against respondent No. 3 on August 3, 1972. An appel filed by respondent No. 3 against the said decree were dismissed on March 1. 1973 by the Additional Collector.

(2) After the decree had been passed against respondent No. 3 by the Assistant Collector on August 3, 1972,respondent No. 3 moved an application on August 5, 1972 praying that his dispossession be stayed till April '5, 1973 in terms of Rule 55. This application was granted and stay of execution '.stayed by Additional Collector's order dated August 10, 1972. The petitioner appealed against the said stay order which was dismissed by the Collector on.March 1,1973 and further revision before the Financial Commissioner was also dismissed by the imougned order dated April 25, 1973, wherein the Financial Commissioner has held that the ejectment from the lands on the basis of ejectment order passed under Section 84(i)(a), as in the instant case could only be effected during the specified period viz. after the 15th day of April and before the 30th day of June in a particular year. The petitioner is aggrived and has come up by way of present writ petition, and the sole challenge is to the virus of Rule 55 of the Rules.

(3) I may mention that there is other litigation also going on between the parties where in respondent No 3 and his brother have taken the plea that the bhumidari rights initially granted in favor of petitioner No. 1 have been extinguished. In the said suit injunction was also obtained by them against their dispossession. It should be noted that in the present writ petition I am not concerned with the respective contentions of the parties in that litigation. Before me the parties did not address me on any other point except the virus of Rule 55. I find from the petition that the challenge to Rule 55 is not on the ground that it is vocative of any provisions of the Constitution of India. The challenge to Rule 55 is based on the only contention that the said rule is in conflict with the provisions of the Act and, thereforee, no such rule could have been framed which is repugnant to the statutory provisions.

(4) The counsel for the petitioner Mr, Sethi concedes that the order of the Financial Commissioner could only bo successfully attacked by him if he is able to show that Rule 55 is ultra vires.

(5) Section 105 of the Act gives power to the Chief Commissioner to make rules for the purpose of carrying into effect the provisions of Chapter Ii which comprises Section 9 to Section 105, In exercise of powers under the Act rules have been framed. Rule 53 to Rule 55 provide for procedure to be observed in cases under Chapter Iii of the Act Rule 53 provides that in hearing and deciding the suits, applications and other proceedings under Chapter Iii of the Act, the revenue Courts shall follow mutates mutants the procedure laid down in Appendix VI. Appendix Vi provides for the procedure of the Revenus Courts and Revenue officers. Rules 22 provides that when an order is made that a parson bs put in possession of any immovable property the officer making the order may deliver possession in the same manner, and with the same powers in regard to all contempts resistance and the like, as may be law fully exercised by the Civil Courts in execution of their own decrees. Part B of appendix Vi lays down the court to which the-appeal and revision shall lie. Rule 55 which is the subject matter of controversy in the present case reads as under :- Delivery of possession in execution of a decrree or order for ejectment shall not 'be made before the fifteenth day of April or after the Thirtieth day of June in any year- Provided that the provisions of this Rule shall not apply to cases of ejectment under Sections 75(3), 84(b) and 86(a) of the Act. (This proviso was added by notification in gazette dated July, 8, 1966). That delivery of possession of land should not naturally be delivered in execution of a decree-excepting in period between April to June is not a feature introduced,only by Rule 55.

(6) Prior to the enforcement of the Act, Punjab Tenancy Act, 1887 was applicable to Delhi. Section 47 of the Punjab Tenancy Act provided that a decree or order for ejectment of the tenancy shall not be executed at may time other than between 1st day of May and 15th day of June (both days inclusive) unless of course the court making the dacree otherwise directs. Section 49 of Punjab Tenancy Act provided for the rights of ejected tenants to get compensation in respect of tenant or ungathered crops and also provided for tenant having to pay rent for longer occupation of the land. Punjab Tenancy Act, however, was repealed by Section 2(i) of the Act, and unless a rule like the Rule 55 was framed it would have been open to take delivery of land in execution of any decree for possession during any part of the year, unlike the portion that was existing for decades. It is also useful to refer to U P. Zamindari Abolition Land Reform Act, 1950, which is a prototype for the Act. Rule 182-B of the U. P. Zamindari Abolition and Land Reforms Rules, 1952, framed under the U. P. Act provides that delivery of possession in execution of a decree or order for ejectment shall not be made before the fifteenth day of April or after the thirtieth day of June in any year : provided that the provisions of this rule shall not apply to cases of ejectment under Section 198(3) and 209 of the Act and rules 115-C to 115-G. Now Section 198 (3) of U.' P. Act corresponds to Section 75(3) of the Act, while Section 209 of U. P. Act corresponds to section 84 of the Act.

(7) It will be seen that Rule 55 permits the delivery of possession in execution of decree or order For ejectment only between 15th of April and 10th of June in a particular year, and makes exception only in cases of ejectment under Sections 75(3), 84(b) and 86(a) of the Act. Thus though under the Punjab Tenancy Act 1887 a decree for ejectment of tenant could not normally be executed other than between 1st May and 15th June in a particularyear, there was no absolute prohibition. The matter was left in the discretion of the court to otherwise direct if it so desired. Rule 55 however has left no discretion to the court and has specifically laid down that delivery of possession shall not be made before the 16th April and after 30th of June except in the categories mentioned in the proviso. The ejectment order in the present case falls under Section 84(i) a of the Act and the proviso to Rule 55 is,therefore, inapplicable. Now the exceptions mentioned in proviso to Rule 55 concern land which is unauthorised occupation of a person and provides for ejectment of the instance of Revenue Assistant. Thus, the exception is only in cases of land vested in Gaoa Sabha. Sections 76 and 77 of the Act provide for eventualities in which Bhumidar and Assami are liable for ejectment. Section 84 is not one of provision mentioned therein. Thus if ejectment was ordered under those provisions it will be governed by main part of Rule 55 and the provisio would be inapplicable, of course if the ejectment is by Revenue Assistant under Section 86A it will only be from land of Oa'n Sabha and would be covered by Section 84(i)(b), to which the proviso to Rule 55 applies. But it will be seen that Section 86A is not applicable to cases governed by Section 84(i)(a), to which main part of Rule 55 alone is applicable. . Section 78 to which reference was made by Mr. Sethi says that wherein execution of anv decree (other than a decree under section 84 or order for delivery of possession the Court is satisfied that any ungathered crops or trees which are the property of the judgment-debtor exist on the land to be delivered, the Court executing the decrce or order shall, notwithstanding anything in the Code of Civil Procedure, 1908, proceed as follows :-

(A)if the amount due from the judgment-debtor is equal to or greater than the value of such crops or trees, the Court shall deliver theposession of the land with the crops and the trees to the Gaon Sabha or the landholder, as the case may bs, and all rights of the judgment-debtor in or upon such crops or trees shall pass to the decreeholder. (b) if the amount due from the judgment-debtor is less than the value of such crops or trees and- (i) the Gaon Sabha or the land-holder pays the difference between such amount and the valuo to the judgment-debtor, the Court shall deliver the possession of the holding to the Gaon Sabha or land-holder concerned and all rights, of the judgment-debtor in such crops or trees shall pass to decree-holder ; (ii) the Gaon Sabha or the land-holder does not pay such difference the judgment-debtor shall have a right of tending, gathering or removing such crops or trees or fruits of such trees until such crops or trees have been gathered and removed or die or are cut down, as the case may be, paying such compeasation for the use and occupation of land as the Court may fix. (2) The court executing the decree or the order of ejectment may on the application of any party determine the value of the crops or trees and the compensation plyable by the judgment-debtor under the provisions of clause (b) or subsection (1).

(8) It will be seen that Rule 5 fixes the limitation that delivery of possession in execution of a decree shall not be made before 15th April or after 30th June in a year Exception however has been made only in cases covered under Section 75(3), 84(1)(b) and 86(a) of the Act. Now these three provisions deal with the occupation by a person over a land which vests or reverts to Gaon Sabha, without the content of Gaon Sabha. .Admittedly the case of the petitioner on his own allegation is covered by Section 84(1)(a) of the Act. parse thereforee, as Section 84(1)(a) is not mentioned in proviso to Rule 5, the ejectment of the respondent in execution can only be sought for during the period of 15th April to 30th June. It ii for this reason that 'Mr. Sethi is forced to pontend that Rule 55 goes beyond the main provisions of the Act and being in conflict with the Act is ultra virus and bad. The only reason advanced by Mr. Sethi to contend that Rule 55 is in conflict with the main statute was by invoking Section 78 which provides for adjustment of uncut and ungathered crops belonging to the judgment-debtor when he is being evicted in execution of any decree or order for delivery. Now Section 71 in terms excludes Section 84 of the Act. Thus where a person occupying land without the consent of Bhumidhar under Section 84(1)(a) or without the consent of Gaon Sabha under Section 84(1)(b) is liable to ejictment he is not entitled to the benefit of adjustment of value of uncut crops as provided in Section 78 of the Act. But Rule 55 deals differently with Section 84(1)(a), 84(1)(b) by providing a restriction for delivery of possession during the period bet.ween 15th April to 30th June on land other than belonging to the Gaon Sabha. From this Mr. Sethi sought to urge that though Section 78 provides that no adjustment was to be given in cases where ejectment was ordered under Section 84, yet by virtue of Rule 55 a person who had been found to be in an unauthorised occupation and against whom a decree of eviction had been passed under Sec. 84 nevertheless would entitle to ceatinue to remain in possession if he was not ejected between 15th April and 30th June, and urged that this goes counter to the intention of Section 78 which did not intend to give any protection at all to a person who was an unauthorised occupant, without the consent of Bhumidhar or Gaon Sabha, as the case may be. I do not agree. Though Rule 55 prohibits ejectment of unauthorised person except from land or Bhumidhar between 15th April to 30th June, the unauthoriscd occupant is liable for damages. As a matter of fact Section 84 itself provides that such a person retailing possession without the consent of a Bhumidar is liable to ejectment and shall also be liable to pay damages. If thereforee unauthorised occupant continues to occupy the land he would be liable to pay damages even though Bhumidhar may not be able to execute the decree and obtain possession during the period 15th April to 30th June. of course, there is nothing to prevent a person against whom a decree has been passed to vacate the land any time outside the period prescribed and, then certainly he would not be liable for damages after he had vacated the land. It is unnecessary for me to speculate as to reason for providing exception in Rule 55 in the case of land vesting in Gaon Sabha because the motive or the reason for framing a certain rule by the Rule making authority is beyond the province of the Court which is not concerned with the wisdom or otherwise of framing of such arule. May be it was assumed that anexception May be made in the case of Gaon Sabhas in which public at large has an interest, and, thereforee, it should be treated differently than in the case of individual bhumidar who can be expected to look after its interests more closely. Whatever the purpose may be rule 55 cannot be held to be had unless it was first found that Section 105 does not permit the framing of Rule like Rule 55 or that the said rule was in conflict with any provision of the Act. As held in Mulchand Gulabchand v. Mukund Shivram Bhide, that the power which Courts have to consider the validity of staiutory rules is a very limited power. If a rule is within the ambit of the statute, then it cannot be succe. ssfully challenged on the ground that it is an unteasonable rule. There is a clear distinction between statutory rules and bylaws........ ......And, thereforee, although a by-law may be challenged on the ground that it is unreasonable, a statutory rule cannot be so challenged. In that case Rule 36 framed under the Bombay Cooperative Societies Act, 1952 prohibiting an advocate from appearing before the Tribunal under the Act was held to be intravires. The rule making power was held to be within the powers given by statute to the Rule making authority to prescribe the procedure to be followed in proceedings before the arbitrator. Section 78 to which a reference has been made by Mr. Sethi does not say that the delivery of possession in execution of decree for ejectment could be taken at any time during the year. As a matter of fact Section 78 does not at all deal with the question of delivery of possession in execution of a decree of ejectment ; it is only concerned with one aspect, namely adjustment of the value of uncut crops belonging lo judgment-debtor. Rule 55 on the other hand does not at all deal with the question of adjustment of uncut crops of judgment-debtor ; it is only concerned with the question of delivery of possession on ejectment. Thus, Section 78 and Rule 55 deal with two distinct subject- maters in two distinct spheres and the question of there being any conflict between Rule 55 and Section 78, cannot. possibiy arise. The argument that. Rule 55 iimits delivery of possession on ejectment to 15th April to 30th June and thereby is in conflict with the statute has no substance because there is no provision in the Act which deals with the same subject matter, the question of repugnancy can only arise if the two provisions are dealing With the same subject matter, and command confficting loyalties ; so that to obey one would be to disob;y the other. A by-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful It is repugnant if it makes unlawful that which the general law says is lawful... .. .. .....Again, a by-law is repugnant it' it adds something inconsistent with the provisions of a statute creating the same offence, bat if it adds something not inconsistent, that is n )t sufficient to make the by-law had as repugnant, vide: G ntel V. Rapps 1902 1 K.. B. 160. There can be no such conflict between a by-law and the general law if the by-law opea tes a particular sphere selected by it even though to the exclusion of another, so long as it confines itself within the broader limits of the general law and does not involve any violation of its fundamental principles or-policy and is capable of being construed as supplementing the general law, vide : Municipal Committee, Khurai v. Firm Kaluram Hiralal'. It will thus be seen that the only argument of Mr. Sethi that because Section 78 dues not require any adjustment of any uncut crops in case of unauthorised occupant, it loks unreasonable to allow the occupa to restrict his eviction only during the period-provided in Rule 35. It is true that under U.P. Act Rule 182 restricting delivery of possession only during 15th April to 30th June except both the eventualities in Section 209 of U P. Act (equivalent to Section 84 of the Act). But that again is a matter of policy and for rule making authority to determine. But rule can only be struck down if it. conflicts with any provision of the Act, and not because it appearys to be unreasonable. It is also well settled that the law or a statutory rule should be so interpreted as to make it valid and not invalid vide Takhatray Shiodatrai Man.lad v. State of Gujrat.

(9) That apart, it seems to me that there is also a public purpose behind the prohibition laid down in Rule 55. Earlier because of Secs. 47 & 48 of the Punjab Tenancy Act there was a prohibition against taking delivery of possession of any land in execution of a decree excepting between 1st day of May and 15th day of June. Rule 55 only seeks to continue the same state of affairs and law existing in this part of the territory for decades. But for Rule 55 there would have a been void and complete break, and this would be against public interest. It is obvious that apart from the interest of the decree-holder taking possession of the land there is the interest of the public to see that any standing crop is not damaged or destroyed because the public has a vital status in it. It is because of this reason that a limitation has been provided against giving possession excepting in the period of 15th April to 30th June when normally there is not going to be much of the standing crop. Larger interest than that 'of the decree-holder is served by Rule 55.

(10) I cannot thus persuade myself to held Rule55asultravires or invalid.

(11) As a resuis of niy finding that Rule 55 is iritra virus and as that was the only point argued before me, that writ petition has no merit and is dismissed, but with no order as to costs.


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