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Jai Bhagwan and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCWP 1148/2000
Judge
Reported in2002VIIAD(Delhi)644; 99(2002)DLT696; 2002(63)DRJ580
ActsDelhi Holdings (Consolidation and Prevention of Fragmentation) Rules, 1959 - Rules 4 and 6; East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 - Sections 4, 8, 12, 13, 14 to 21, 21(3) and 21(4); Delhi Land Reforms Act; Constitution of India - Article 226; General Clauses Act - Sections 14; Delhi Municipal Corporation Act, 1957 - Sections 507; Delhi Development Act - Sections 12
AppellantJai Bhagwan and ors.
RespondentUnion of India (Uoi) and ors.
Appellant Advocate V.P. Singh, Sr. Adv. and; Pradeep Nandrajog, Adv
Respondent Advocate Sunil Bagai, Adv.
DispositionPetition dismissed
Cases ReferredUmed Singh v. Government of
Excerpt:
delhi holdings (consolidation and prevention of fragmentation) rules, 1959 - rules 4, 6 (a) (f) to (iii)--validity--nothing in the act to show that the power of consolidation once exercised, the same is exhausted--notification, was brought to the notice of villagers--village advisory committee--valuation carried on with the aid and advice--no objection received the scheme was confirmed--constitution of india, 1950, article 226.;the respondents have categorically stated that the intention to undertake consolidation of holdings in the village in question in terms of the notification dated 12th june 1996 which was issued under section 14(1) of the act, was brought to the notice of the villagers which was published in the prescribed manner. a village advisory committee from amongst the.....s.b. sinha, c.j.1. validity of rules 4 and 6(a)(j)(i) to (iii) of the delhi holdings (consolidation and prevention of fragmentation) rules, 1959, is in question in this writ petition. 2. the petitioners who are three in number, are residents of village khera kalan, delhi and hold bhoomidari rights in respect of agricultural land. they are said to be members of the gaon sabha of the said village. 3. east punjab holdings (consolidation and prevention of fragmentation) act, 1948 was enacted to provide for the compulsory consolidation of agricultural holdings and for presenting fragmentation of agricultural holdings in the state of punjab and for assignment or reservation of land for common purposes of the village. 4. the said act was extended to the union territory of delhi by an appropriate.....
Judgment:

S.B. Sinha, C.J.

1. Validity of Rules 4 and 6(a)(j)(i) to (iii) of the Delhi Holdings (Consolidation and Prevention of Fragmentation) Rules, 1959, is in question in this writ petition.

2. The petitioners who are three in number, are residents of Village Khera Kalan, Delhi and hold bhoomidari rights in respect of agricultural land. They are said to be members of the Gaon Sabha of the said village.

3. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 was enacted to provide for the compulsory consolidation of agricultural holdings and for presenting fragmentation of agricultural holdings in the State of Punjab and for assignment or reservation of land for common purposes of the village.

4. The said Act was extended to the Union Territory of Delhi by an appropriate notification on or about 18 December 1951. The Delhi Holdings (Consolidation and Prevention Fragmentation) Rules, 1959 were made in terms of provisions of the said Act.

5. In the years 1952-53, consolidation of land holding in village Khera Kalan took place and settlement was effected.

6. A notification was issued by the Revenue Department of the Delhi Administration on or about 22nd March 1996 stating:

'No. Rev.Est/1175-80/No.F.22(1), Consolidation/85 - With the object of consolidation holding in the under-mentioned cases for the purpose of better cultivation of Lands herein and in exercise f the powers conferred by Sub-section (1) of Section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act No. 50 of 1948) as extended to the Union Territory of Delhi, the Ltd. Governor of the National Capital Territory of Delhi is pleased to declare his intention to make a Scheme for the Consolidation of the holdings in such estates: Sl. Name of the Village/Estate Madbust Area in Tehsil DistrictNo. No. Acres23. Khera Kalan 57 1892 Delhi Delhi'

7. The petitioners would contend that no request had been made by the villagers of the said village nor was there any necessity thereof. It was contended that even no draft scheme was circulated nor objections had been invited as a result whereof their right to file objections were taken away. The amended Rules were issued on 12th June 1996.

8. The respondent No. 4 allegedly finalised the Consolidation Scheme on 18th June 1999 which, according to the petitioners, had neither been notified nor circulated to the villagers.

9. Mr. Nandrajog, learned counsel appearing on behalf of the petitioners, inter alia, would submit that the impugned Rules cannot be sustained as the said Rules had been made in contravention of the objects of the Act. According to the learned counsel, consolidation in the village in question having been completed in the year 1952-53, there was no necessity of further undertaking the said exercise as by reason of the provisions of the 1948 Act, fragmentation must have been prevented as the same was prohibited there under.

10. The learned counsel has drawn our attention to Section 14 to 21 of the said Act. It was further submitted that total land in the village was 9082 bigha and 6 bids was out of which land measuring 1385 bighas and 10 bids was was left out of consolidation scheme being the abadi area. Out of the remaining land, 1178 bigha and 11 biswa of land had been notified for acquisition by a notification dated 27th October, 1999. It was submitted that the Delhi Metro Rail Corporation had further put an attempt for 500 bigha of landing the village and 1500 bigha of land proposed to be further acquired for planned development of Delhi. The learned counsel would contend that there cannot be any legal requirement to carry on the consolidation proceedings only in respect of 4518 bighas of land. It is submitted that the scheme of the Act provides for prevention of fragmentation once consolidation of holdings has been done. Consolidation proceedings under the Act are envisaged as a one-time exercise as the provisions of the Act themselves provide for prevention of fragmentation. Once consolidation is done, the Act envisages no fragmentation thereafter. It does not lie for any authority or any one else to claim the need for fresh consolidation, after consolidation has been done once, since as per the scheme of the Act no fragmentation is permissible. This being so, there is no occasion whatsoever for commencing fresh consolidation proceedings if consolidation has already been done pursuant to the Consolidation Act. Further, there must be objective material leading to the conclusion that fragmentation has taken place in a village resulting in uneconomical holdings before consolidation proceedings can be initiated.

11. Mr. Sunil Bagai, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that a Division Bench of this court in Umed Singh v. Government of NCT of Delhi and Ors., : 69(1997)DLT957 has upheld the validity of the said Rules. He would submit that there is no bar in taking recourse to the said Rules. He would submit that there is no bar in taking recourse to the consolidation proceedings more than once. The learned counsel would contend that otherwise also the villagers participated in the consolidation proceedings and in the event somebody is aggrieved by any order that may be passed, he may prefer an appeal there against in terms of the Act.

12. The only question which arises for consideration in this application is as to whether the amended Rules are ultra virus the Consolidation Act.

13. As per Section 4 of the Consolidation Act, the minimum area that can be cultivated profitably as a separate plot has to be settled and notified by the Chief Commissioner. In Delhi the powers of the Chief Commissioner are exercised by respondent No. 3.

14. Section 8 of the Consolidation Act prohibits transfer or partition of land in any notified area so as to create a fragment.

15. Section 12 prohibits partition or separation, (even pursuant to a decree by a court of law), of an undivided estate in any notified area for which standard areas have been fixed if such partition or separation tends to create a fragment. Section 12 specifically provides that no such partition or separation shall be made so as to create a fragment. Section 12 prohibits any acquisition of land by the Chief Commissioner or any Local Authority or the sale of land under the orders of any court so as to leave a fragment.

16. The provisions relating to consolidation are to be found in Chapter III of the Consolidation Act. Section 14 provides that with the object of Consolidation, the Chief Commissioner may initiate consolidation proceedings. Sections 15 to 20 of the Act govern the law relating to the preparation and finalization of the consolidation scheme. Said sections stipulate that the consolidation scheme shall be prepared with the advice of the land owners, thus excluding by implication any outside agency in the preparation of the scheme. Section 21 of the Consolidation Act provides that repartition in accordance with the consolidation scheme shall be carried out after obtaining the advice of the land-owners. Section 21 of the Consolidation Act does not envisage the role of outsiders or any body of persons other than the land-owners of the concerned village. A perusal of the above mentioned provisions of the Consolidation Act clearly demonstrate that the primary objective of the Consolidation Act is to provide for better cultivation of land by ensuring consolidation of holdings and to prevent fragmentation of holdings.

17. The scheme of consolidation and prevention of fragmentation also finds place in the Delhi Land Reforms Act.

18. There is nothing in the Act to show that the power of consolidation once exercised, the same is exhausted. In the instant case, consolidation of the village in question was held as far back as 1952-53. As noticed hereinbefore, the Rules were framed in the year 1959 and only in the year 1996, they have been amended.

19. The situation must have undergone a sea change in the intermittent period 1952-53 and till the scheme was announced, with the passage of time, fragmentation might have occurred. The question as to whether a fresh consolidation is required or not, is a matter of policy decision. The court exercising its jurisdiction under Article 226 of the Constitution of India, cannot have any said in this regard.

20. The respondents have categorically stated that the intention to undertake consolidation of holdings in the village in question in terms of the Notification dated 12th June 1996 which was issued under Section 14(1) of the Act, was brought to the notice of the villagers which was published in the prescribed manner. A Village Advisory Committee from amongst the villagers as nominated by them was constituted on 5th March 1997. Thereafter, the valuation of the land had been carried on with the aid and advice of Village Advisory Committee and the villagers, where after the persons concerned were notified about their individual entitlement in relation whereto pass books had been issued to them. The draft shame had also been prepared with the assistance of the Village Advisory Committee on 18th June 1999 whereafter, in terms of the provisions contained in Section 19 of the Act, objections and suggestions had been invited. No objection having been received, the said scheme was confirmed.

21. This writ petition was filed questioning the virus of the said Rules only after the draft scheme was acted upon and a final scheme was notified. The petitioners have utterly failed to show as to how they are aggrieved. The contention of Mr. Nandrajog is that having regard to the fact that if an area is brought within abadi, the double of the land will have to be provided outside the said area, which would mean depletion of the common area belonging to the Gaon Sabha cannot be accepted as in our opinion, it is not a matter which the court can go into. The Gaon Sabha does not make any complaint. It will bear repetition to say that the petitioners also do not show as to how by reason of the consolidation scheme, they or for that matter the villagers are affected. The only ground whereupon the validity of the Rules has been challenged is that the same violates the object of the Act. We do not think so.

22. Section 14 of the General Clauses Act reads thus:

'14. Powers conferred to be exercisable from time to time. - (1) Where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion requires.

(2) This section applies also to all Central Acts and Regulations made on or after fourteenth day of January, 1887.'

23. Thus, it cannot be said that only because consolidation proceedings had been held as far back as 1952-53 and by reason of the provisions of the said Act, fragmentation was prevented, no further consolidation in relation to the village was necessary or the same would be contrary to the objects of the Act.

24. Once it is held that the said Act does not prohibit holding of consolidation again after a period of about 46 years, the contention of the petitioners must fail.

26. A Division Bench of this court in Umed Singh v. Government of NCT of Delhi and Ors., : 69(1997)DLT957 has categorically held:

'No other provision of the Delhi Land Reforms Act or any other provision of any other enactment was brought to our notice due to which the revenue estate on being declared to be urbanized might affect the status of the land located therein. Accordingly, the lands situated in Village Bamnolli, irrespective of issuance of the notification under Section 507 of the Delhi Municipal Corporation Act, 1957 would continue to remain agricultural land and will not affect its status. Consequently, it cannot have any effect on the on-going process of consolidation, which is being carried out under a valid piece of legislation, namely, Consolidation Act, the object of which is to provide for better cultivation of land within the estate concerned.

15. Issuance of any notification under the provisions of Section 12 of the Delhi Development Act also cannot affect the legality and validity of the consolidation proceedings. The effect of such a notification at the most would be that no development of land can be undertaken or carried out in any area of the village by any person including the Government Departments except with the consent of the authority constituted under the Delhi Development Act. Carrying out of repartition under the provisions of the Consolidation Act is not an act of development of land. Repartition is carried out for the purposes of consolidating of holdings, which by no stretch of imagination would amount to development within the ambit of the provisions of Delhi Development Act in which the word 'development' has been defined in 2(d) Section as under: 'Development' with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and included redevelopment.'

26. Furthermore, as indicated hereinbefore, the question as to what would be the effect of re-partition, cannot be gone into by this court inasmuch as each case has to be considered on its own facts. In the event a person is aggrieved by any such order, he can prefer an appeal in terms of Sections 21(3) and (4) of the Act before Settlement Officer (Consolidation) and Chief Commissioner respectively.

27. We are, thereforee, of the opinion that no case has been made out to quash the said Rules. The impugned Rules cannot be said to be ultra virus the Act.

28. The petition is dismissed accordingly without any orders as to costs.


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