Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 10 October, 2019
+ CS(OS) 165/2018
SANRAJ FARMS PRIVATE LIMITED ..... Plaintiff
Through: Mr. Rajesh Yadav with Ms.
Ruchira, Advs.
Versus
CHARAN SINGH & ANOTHER ..... Defendants
Through: Mr. Shadan Farasat & Ms. Hafsa
Khan, Advs. for GNCTD.
Ms. Suman Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit, for (i) declaration that the land
comprised in Khasra Nos.942 (4-16), 943(4-16), 944(4-16), 946 min (4-9),
947 (4-16) and 945 min. (4-9), totally measuring 28 Bighas 2 Biswas,
situated in the Revenue Estate of village Rajokri, Tehsil Vasant Vihar, New
Delhi has already been partitioned in accordance with the settlement
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recorded in the Settlement Agreement dated 19 August, 2008 and in the
alternative for partition of the said land declaring the plaintiff to be the
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owner of 3/4 undivided share therein and the two defendants viz. Charan
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Singh & Bhagwan Singh to be the owner of the remaining 1/4 share in the
said land; and, (ii) permanent injunction restraining the defendants from
dealing with the said land.
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2. The suit came up first before this Court on 17 April, 2018, when
while issuing summons thereof, status quo with respect to title of the
subject land was directed to be maintained.
3. The suit, after completion of pleadings, came up before this Court on
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28 November, 2018 when the following order was passed:
CS(OS) No.165/2018 Page 1 of 15
“12. The suit is ripe for framing of issues.
13. The counsel for the plaintiff and the counsel for the
defendants have handed over proposed issues which are
taken on record.
14. The plaintiff has sued for declaration that the land
subject matter of the suit stands partitioned between the
plaintiff and the defendants and in the alternative for
partition of the subject land. Relief of injunction
restraining the defendants from dealing with the land is
also sought.
15. It is inter alia the defence of the defendants that the
suit is barred by Section 185 of the Delhi Land Reforms
Act, 1954.
16. The counsel for the plaintiff states that with the
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issuance of Notification dated 18 June, 2013 issued by
the Ministry of Urban Development (Delhi Division) in
exercise of powers under Section 11(A)(2) of the Delhi
Development Act, 1957, making modifications to the
Master Plan for Delhi (MPD)-2021, the land ceased to be
governed by the Delhi Reforms Act. Alternatively, it is
contended that even if the land continues to be governed
by the Delhi Reforms Act, the plaintiff is entitled to
maintain a suit for declaration and injunction, though not
for partition.
17. It is the case of the plaintiff in the plaint that
though the plaintiff called upon the defendants to have the
land so partitioned mutated in the records in respective
bhumidari of the plaintiff and the defendants but the
defendants did not join in the same.
18. I have wondered, whether not the remedy of the
plaintiff therefor would be in terms of serial No.4 of
Schedule I of the Delhi Reforms Act read with Section 185
thereof i.e. of applying for declaration of bhumidari rights.
CS(OS) No.165/2018 Page 2 of 15
19. On the pleading of the parties, the following issues
are framed:
(I) Whether with the issuance of Notification dated
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18 June, 2013 issued by the Ministry of Urban
Development (Delhi Division) in exercise of powers under
Section 11(a)(2) of the Delhi Development Act, 1957, the
land subject matter of the suit has seized to be governed
by the Delhi Land Reforms Act, 1954? OPP
(II) If the above issue is decided against the plaintiff,
whether the suit for declaration, as filed, is maintainable
in the Civil Court or jurisdiction of the Civil Court with
respect thereto is barred by Section 185 of the Delhi Land
Reforms Act? OPPr
(III) If the above issues are decided in favour of the
plaintiff, whether the suit land was partitioned by metes
and bounds between the parties and the defendants as
claimed by the plaintiff and if so, to what effect?
OPP
(IV) What is the effect, if any of Section 81 of Delhi
Land Reforms Acct, 1954 proceedings with respect to the
subject land? OPD
(V) Relief.
19. No other issue arises or is pressed.
20. It is clarified that since the shares are not in
dispute, if Issue No. (III) is decided against the plaintiff
and Issue No.(I) is decided in favour of the plaintiff, a
preliminary decree for partition shall follow.
21. The parties to file their list of witnesses within
fifteen days.
22. Issues No.(I), (II) and (IV) do not require any
evidence to be recorded and are ordered to be treated as
preliminary issues.
CS(OS) No.165/2018 Page 3 of 15
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23. List for hearing on the preliminary issues on 23
April, 2019.”
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4. The counsel for the parties were heard on 23 April, 2019 on the
preliminary issues aforesaid but since some doubts remained, it was deemed
appropriate to hear the counsel for the Delhi Government thereon.
Accordingly, the presence of the counsel for the Delhi Government was
requisitioned.
5. The counsel for the Delhi Government appeared before this Court on
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17 July, 2019 and was apprised of the controversy and the hearing
adjourned to today.
6. The counsel for the Delhi Government has today in Court handed
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over a short status report dated 10 October, 2019 with respect to the
property and which is taken on record and be tagged to Part-I file.
7. According to the status report aforesaid, village Rajokri is a rural
village as per revenue records and it can be urbanized through a Gazette
Notification under Section 507 of the Delhi Municipal Act, 1957 and no
such Notification in respect of village Rajokri has been issued. It is further
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stated that the Notification dated 18 June, 2013 pertains to Delhi
Development Authority Act, 1957, regarding the modification in Master
Plan of Delhi 2021 and does not cease the rural nature of the village in
accordance with the provisions of the Delhi Land Reforms Act, 1954.
8. Per contra, the counsel for the plaintiff has contended that the issue
is no longer res integra.
9. Before considering the contentions of the counsel for the plaintiff, it
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is deemed appropriate to reproduce herein below the Notification dated 18
June, 2013 as under:
CS(OS) No.165/2018 Page 4 of 15
“MINISTRY OF URBAN DEVELOPMENT
(DELHI DIVISION)
NOTIFICATION
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New Delhi, the 18 June, 2013
S.O1744(E). – Whereas certain modifications which
the Central Government proposed to make in the Master
Plan for Delhi-2021 as mentioned here under were
published in the Gazette of India, Extraordinary, as Public
Notice (addendum) vide S.O. No.34(E) dated 3.1.13 (in
supersession of Addendum issued vide Public Notice S.O.
No.2871 (E) dated 11.12.12) by the Delhi Development
Authority in accordance with the provisions of Section 44
of the Delhi Development Act, 1957 (61 of 1957) inviting
objections / suggestions as required by sub-section (3) of
Section 11-A of the said Act, within ninety days from the
date of the said notice.
2. Whereas, objections/suggestions received with
regard to the proposed modifications have been considered
by a Board of Enquiry and Hearing, set up by Delhi
Development Authority and also approved at the meeting
of the Delhi Development Authority.
3. Whereas, the Central Government has after
carefully considering all aspects of the matter, decided to
modify the Master Plan of Delhi-2021.
4. Now, therefore, in exercise of the powers conferred
by sub-section (2) of Section 11-A of the said Act, the
Central Government hereby makes the following
modifications in the said Master Plan for Delhi-2021 with
effect from the date of publication of this Notification in the
Gazette of India.
CS(OS) No.165/2018 Page 5 of 15
A new para at 4.2.2.1 (D) is inserted after para
4.2.2.1 (C) as under:
4.2.2.1(D) LOW DENSITY RESIDENTIAL AREA
The majority of Farm Houses in the urban extension
areas are located on lands where ground water has
already been severely depleted or close to such depletion.
Further, intensification of residential density and heavy
additional load on civic infrastructure such as water
supply, Drainage, Sewerage, Parking, etc. is highly
undesirable in such areas from environmental
considerations. Therefore, Villages containing existing
farm houses clusters are notified as “Low Density
Residential Area” (list of village at Annexure-I). Low
Density Residential Plots are also allowed in the village
falling in Green belt (List of villages in Green Belt at
Annexure-II).”
10. In the list of villages declared as „low density residential area‟ in
urban extension, appended to the Notification aforesaid, mention of Rajokri
is found at serial no.14.
11. The counsel for the plaintiff has also referred to Notification dated
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4 July, 2018 issued by the Delhi Development Authority (DDA) in
exercise of powers conferred by Section 57(1) of the Delhi Development
Act, 1957, promulgating the “Regulations for Enabling the Planned
Development of Privately Owned Lands” and Regulation 5.3. whereof
provides as under:
“5.3 The land parcels falling under “Residential” land use,
within Low Density Residential Area (LDRA) shall be governed
as per the provisions given under Para 4.4.3 (G) Low density
Residential Plot of Chapter 4 in MPD-2021.”
CS(OS) No.165/2018 Page 6 of 15
12. The counsel for the plaintiff refers to Shri Neelpadmaya Consumer
Products Pvt. Ltd. Vs. Satyabir @ Satbir & Ors. 227 (2016) DLT 654, Gur
Pratap Singh Vs. Union of India (2004) 111 DLT 25, appeal preferred
whereagainst was dismissed in Lt. Governor of Delhi Vs. Gur Pratap
Singh (2004) 113 DLT 690 (DB), to advance his contention that this issue
is no longer res integra .
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13. In Gur Pratap Singh supra, vide Gazette Notification dated 16
June, 1995 by DDA for amendment of the Master Plan, motels were
permitted under Rural Zones/Green Belts and in Commercial Zones and
National Highways and Inter-State Roads as defined in the Notification.
However, on petitioner therein raising construction of a motel over his land
in terms thereof, the SDM started proceedings under Sections 23 and 81 of
the Delhi Land Reforms Act, 1954. It was held that (i) land is defined in
Section 3(13) of the Delhi Land Reforms Act, 1954 and vide Section 22
thereof land can be used only for the purposes connected with agriculture,
horticulture or animal husbandry; once vide amendment of the Master Plan,
the land is permitted to be used as a motel, the land is no more agricultural
within the meaning of Section 3(13) of the Land Reforms Act; (ii) the Land
Reforms Act is an enactment for protecting agricultural use of the land;
once the land itself ceases to be agricultural, there is really speaking no
question of application of the Land Reforms Act; (iii) the amendment of the
Master Plan was in accordance with the Section 53(2) of the DDA Act,
1957 and which overrides the provisions of any other law; and, (iv) Section
53(3) of the DDA Act makes it clear that once permission for development
in respect of any land has been obtained, the same shall not be deemed to be
unlawful by reason of the fact that such permission is required under any
other law and which permission has not been obtained; the mandate of the
CS(OS) No.165/2018 Page 7 of 15
DDA would have an overriding effect, even if the Land Reforms Act was to
apply.
14. In appeal preferred thereagainst, the Division Bench confirmed the
finding of the Single Judge. It was observed that once the Master Plan,
which admittedly covered the subject land, gave an option for use of the
land falling in Rural Zone or Green Belt as a motel, on the exercise of the
said option, the subject land goes out of ambit of Section 23 of the Land
Reforms Act, because it would not constitute a change of land use
necessitating permission under the said provision.
15. In Shri Neelpadmaya Consumer Products Pvt. Ltd. supra, one of
the issues for adjudication in the suit was whether the suit land was
governed by the provisions of Delhi Land Reforms Act and the agreement
between the parties was in violation of the provisions of the said Act.
Following the judgments aforesaid, it was held (i) that a notification for
urbanization need not only be through a notification under Section 507 of
the Delhi Municipal Corporation Act as the later part of Section 3(13) of the
Land Reforms Act does not in any way require that there is only one
manner of notification viz only under Section 507 of the Delhi Municipal
Corporation Act; (ii) Section 3(13) of the Land Reforms Act only
requires that a notification is issued in an Official Gazette to make the
land as part of the Delhi town and New Delhi town; once a
notification is issued applying a zonal plan issued pursuant to the
Master Plan showing that subject lands are covered under the zonal
plan issued by the DDA, in such a situation it has to be held that the
lands cease to be the lands covered under the Land Reforms Act
because the issuance of a notification in the Official Gazette results in
the lands becoming part of Delhi town; and, (iii) that as per Sections 1,
CS(OS) No.165/2018 Page 8 of 15
3(5) and 3(15) of the Delhi Land Reforms Act, once an area falls
within a town area and an area ceases to be an agricultural land
because it has to be developed as part of the development of the Delhi
town or New Delhi town, then such an area no longer remains an
agricultural area for being covered under the expression „land‟ as
defined in Section 3 (13) of the Land Reforms Act.
16. The counsel for the defendants has contended that the land
continues to be shown as rural/agricultural and is not shown in the list
of urbanized village published by the Delhi Government. She thus
contends that the bar to the maintainability of the suit for partition
before the Civil Court applies and the remedy if any of the plaintiff for
partition is before the Revenue Assistant.
17. The counsel for the Delhi Government has also contended that
the stand of the Delhi Government is that the land is in the Rural Belt
and agricultural and governed by the provisions of Delhi Land
Reforms Act.
18. The counsel for the plaintiff fairly informs that the stand of the
SDM in the proceedings initiated against the plaintiff under Section 81
of the Delhi Land Reforms Act is that the judgments aforesaid are not
binding on the SDM since Delhi Government was not a party to Shri
Neelpadmaya Consumer Products Pvt. Ltd. supra. He however points
out that Gur Pratap Singh supra is by way of a Writ Petition and to
which this Government of Delhi was a party and the appeal was filed
by the Lieutenant Governor, Delhi and thus the Delhi Government is
fully bound by the view taken in the said judgments.
CS(OS) No.165/2018 Page 9 of 15
19. The plaintiff, in the present suit has not impleaded the
Government of NCT of Delhi as a defendant and the presence of the
counsel of the GNCTD before this Court was sought vide order dated
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23 April, 2019, only for the purposes of clarification and the counsel
for the Delhi Government has placed the stand of the Delhi
Government before this Court.
20. I have enquired from the counsel for the plaintiff, the effect of
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following the aforesaid judgments on Issue No. IV framed on 28
November, 2018.
21. The counsel for the plaintiff states that once this Court holds
that the suit for partition is maintainable before this Court, reasoning
that the land is not governed by the provisions of Delhi Land Reforms
Act, the proceedings under Section 81 of the Delhi Land Reforms Act
in any case would not be maintainable.
22. However the fact remains that no finding given in this suit, to
which the Government of NCT of Delhi is not a party, can be binding
on the Government of NCT of Delhi. Thus, though for the purposes
of the jurisdiction of this Court the said question is being adjudicated
but in my view, it cannot ipso facto follow that owing to the said
judgment the proceedings underway before the Revenue Assistant
against the plaintiff with respect to the subject land, under Section 81
of the Delhi Land Reforms Act, would come to an end. It would be
open to parties to make their contentions in this regard before the
Revenue Assistant and in further proceedings if any arising from any
order therein.
CS(OS) No.165/2018 Page 10 of 15
23. In view of the aforesaid judgments which are binding on me, it
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has but to be held that on the issuance of notification dated 18 June,
2013, the land subject matter of the suit, insofar as for the purposes of
maintainability of the proceedings before the Courts under the Delhi
Land Reforms Act, has ceased to be governed by the Delhi Land
Reforms Act and Issue No.I is accordingly decided in favour of the
plaintiff and against the defendants.
24. Axiomatically, qua Issue No. II, it is held that the jurisdiction of
this Court to entertain this suit for partition of the subject land is not
barred by Section 185 of the Delhi Land Reforms Act.
25. In view of the finding above, the need to go into the question,
whether a suit for declaration alone, even if not a suit for partition,
would be maintainable, does not arise and the said legal question is
thus left unanswered.
26. Issue No. IV is decided observing that though inter se the
parties to the suit it is held that in view of the notifications aforesaid,
the proceedings under Section 81 of the Delhi Land Reforms Act do
not affect this suit, however, viz-a-viz the Delhi Government, the
plaintiff will have to raise its contentions before the Revenue Assistant
or before other appropriate fora/Court.
27. The counsel for the defendants, on specific query whether the
defendants are disputing the three-fourth share claimed by the plaintiff
in the land, states that it is not disputed that the plaintiff is the owner
of three-fourth undivided share in the land admeasuring 28 bighas 2
biswas aforesaid and the share of the two defendants jointly is one-
fourth. On further enquiry whether the defendants desire inter se
CS(OS) No.165/2018 Page 11 of 15
partition, the answer is in the affirmative and it is stated that the share
of the two defendants in the said one-fourth land is equal i.e. one-
eighth each.
28. That leaves the plea of the plaintiff, of the land having already
been partitioned.
29. The counsel for the plaintiff in this context has drawn attention
to site plan at page 16 of the Part IIIA file and has contended that the
portion of the land shown in yellow colour represents three-fourth land
and in the partition had fallen to the share of the plaintiff and the
portion of the land shown in red stripes represents one-fourth
undivided share in the land and had jointly fallen to the shares of the
defendants.
30. The counsel for the plaintiff has also drawn attention to the
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Ekrarnama dated 19 August, 2008 executed by the plaintiff and the
two defendants.
31. The counsel for the defendants does not deny signatures of the
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defendants on the Ekrarnama dated 19 August, 2008 as well as on the
site plan at page 16 of the Part-IIIA file but contends that the said
document was executed only for the purposes of better
utilization/cultivation of the land and not by way of partition of the
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land. Ex.C-2 is put on the Ekrarnama dated 19 August, 2008 in
today‟s date.
32. I have enquired from the counsel for the defendants that even if
the defendants are disputing the partition claimed by the plaintiff and
do not find the partition by metes and bounds as depicted in the site
CS(OS) No.165/2018 Page 12 of 15
plan at page 16 of the Part-IIIA file to be equitable, how else do the
defendants want the land to be equitably partitioned.
33. The counsel for the defendants has not suggested any mode of
partition other than by metes and bounds and has fairly stated that the
partition as depicted in the site plan at page 16 divides the three-fourth
share of the plaintiff and one-fourth share of the two defendants by
metes and bounds equitably subject to the objection of the defendants
of the maintainability of the suit before this Court owing to the bar of
Section 185 of the Delhi Land Reforms Act.
34. Once it is so, even if the land has not been partitioned earlier by
metes and bounds, there is no impediment to now a decree for
partition of the subject land by metes and bounds as shown in the site
plan at page 16 of Part IIIA file and on which now Ex.C-1 is put in
today‟s date, being passed.
35. I have enquired from the counsel for the plaintiff, whether site
plan Ex.C-1 shows the dimensions of the separate demarcations of the
land.
36. The counsel for the plaintiff states that boundary walls were
erected in August, 2008 at about the time when the Ekrarnama and the
site plan Ex.C-1 were filed.
37. The counsel for the defendants confirms. She however states
that the boundary walls were not constructed by the plaintiff but were
constructed by the defendants themselves.
CS(OS) No.165/2018 Page 13 of 15
38. Thus, the land has also been physically divided by metes and
bounds.
39. In view of the aforesaid emerging position, the need to relegate
the parties to evidence on Issue No. III is also not felt.
40. Resultantly, a preliminary decree for partition of land comprised
in Khasra Nos.942 (4-16), 943 (4-16), 944 (4-16), 946 min (4-9), 947
(4-16) and 945 min. (4-9), totally measuring 28 bighas 2 biswas,
situated in Revenue Estate of Village Rajokri, Tehsil Vasant Vihar,
New Delhi, is passed declaring the plaintiff Sanraj Farms Pvt. Ltd. to
be having three-fourth undivided share therein and declaring the two
defendants Charan Singh and Bhagwan Singh to be having one-eighth
undivided share each therein.
41. Preliminary decree for partition be drawn up.
42. A final decree for partition of land comprised in Khasra
Nos.942 (4-16), 943 (4-16), 944 (4-16), 946 min (4-9), 947 (4-16) and
945 min. (4-9), totally measuring 28 bighas 2 biswas, situated in
Revenue Estate of Village Rajokri, Tehsil Vasant Vihar, New Delhi by
metes and bounds is also passed, in terms of site plan Ex.C-2 and in
accordance wherewith boundary walls are informed to have been
already erected on the land.
43. Final decree for partition be drawn up.
CS(OS) No.165/2018 Page 14 of 15
44. The stamp duty on the final decree for partition to be borne by
the parties in the ratio of plaintiff‟s three-fourth share and each of the
two defendants one-eighth share.
45. The parties to bear their own costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J
OCTOBER 10, 2019
„gsr/ak‟..
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(Corrected & released on 24 October, 2019)
CS(OS) No.165/2018 Page 15 of 15