Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O. Ref. No.1/2015
% 20th September, 2018
GAON SABHA NANAKHERI
..... Appellant
Through: Mr. S.S. Dalal, Advocate (M.
No.9212034938)
versus
SUCHETA MEMORIAL TRUST
..... Respondent
Through: Mr. Dinesh Dahiya, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This Original Reference under Section 113 of the Code of
Civil Procedure, 1908 (CPC) is sent by the Deputy
Commissioner/Collector (South West) whereby opinion of this Court
has been sought as to whether construction of a boundary wall around
agricultural land which is governed by the Delhi Land Reforms
Act,1954 (hereinafter referred to as „DLR Act‟) and Delhi Land
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Reforms Rules,1954 (hereinafter referred to as „DLR Rules‟) is or is
not a prohibited activity under the provision of Section 81 of the Delhi
Land Reforms Act or in other words whether the agricultural and
relative activities which are specified in Section 81 do not include the
work of construction of a boundary wall around agricultural land.
2. In order to appreciate and decide the issue, this Court will
have to examine the relevant provisions of the Delhi Land Reforms
Act, Delhi Land Reforms Rules, Delhi Land Revenue Act, 1954 and
Delhi Land Revenue Rules, 1962. Let us therefore reproduce the
relevant applicable provisions of the aforesaid Acts and Rules:-
“ Delhi Land Reforms Act, 1954
Section 3(12) “improvement” means with reference to a holding-
(i) a dwelling house erected on the holding by the tenure-holder for his
own occupation or any other constructions erected or set up by him on the
holding for purpose connected with agriculture, horticulture or animal
husbandry which includes pisciculture and poultry farming;
(ii) any work which adds materially to the value of the holding and is
consistent with the purposes aforesaid, which if not executed on the
holding, is either executed directly for its benefit or is, after execution,
made directly beneficial to it; and subject to the foregoing provisions of
this clause, includes-
(a) the construction of wells, water channels and other works for the
supply or distribution of water for the purposes aforesaid;
(b) the construction of works for the drainage of land or for the protection
of land from floods or from erosion or other damage by water;
(c) the reclaiming, clearing, enclosing, leveling or terracing of land;
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(d) the erection in the immediate vicinity of the holding otherwise than on
the village site, of buildings required for the convenient or profitable use
or occupation of the holding;
(e) the construction of tanks or other works for the storage of water for
purposes aforesaid;
(f) the planting of trees and groves on the holding;
(g) the renewal or reconstruction of any of the foregoing works or such
alternations therein or additions thereto, as are not of the nature of mere
repairs:
Provided that such water channels, embankments, enclosures, temporary
wells, or other works as are made by a tenure-holder in the ordinary course
of his requirements for purposes aforesaid, shall not be deemed to be
improvement:
[(12A) “ khudkhast ” 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 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];
Section 3(13) “land” except in Sections 23 and 24, means land held or
occupied for purposes connected with agriculture, horticulture or animal
husbandry including pisciculture and poultry farming and includes-
(a) buildings appurtenant thereto,
(b) village abadis,
(c) grovelands,
(d) lands for village pasture or land covered by water and used for
growing singharas and other produce or land in the bed of a river and used
for casual or occasional cultivation,
but does not include-
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land occupied by buildings in belts of areas adjacent to Delhi town, which
the Chief Commissioner may be a notification in the Official Gazette
declare as an acquisition thereto;
….. ….. ……. …..
Section 22. Right of Bhumidhar or Asami to the exclusive possession of
land in his holding- A Bhumidhar or Asami shall, subject to the provisions
of this Act, have the right to the exclusive possession of all land comprised
in his respective holding and to use land for any purpose connected with
agriculture, horticulture or animal husbandry which includes pisciculture
and poultry farming and to make any improvement.
Section 23. Use of holding for industrial purposes- (1) A Bhumidhar or
Asami shall not be entitled to use his holding or part thereof for industrial
purposes, other than those immediately connected with any of the purpose
referred to in Section 22, unless the land lies within the belt declared for
the purpose by the Chief Commissioner by a notification in the official
Gazette:
Provided that the Chief Commissioner may, on application presented to
the Deputy Commissioner in the prescribed manner, sanction the use of
any holding or part thereof by a Bhumidhar for industrial purpose even
thought it does not lie within such a belt.
(2) Where permission for industrial purposes is accorded, the provisions of
this Chapter relating to devolution shall cease to apply to the Bhumidhar
with respect to such land and he shall thereupon be governed in the matter
of devolution of the land by personal law to which he is subject.
… … ……. ……. …….
Section 81. Ejectment for use of land in contravention of the
provisions of this Act -
[(1)] Bhumidhar or an Asami shall be liable to ejectment on the suit of the
Gaon Sabha or the landholder, as the case may be, for using land for any
purpose other than a purpose connected with agriculture, horticulture or
animal husbandry, which includes pisciculture and poultry farming, and
also pay [damages] equivalent to the cost of works which may be required
to render the land capable of use for the said purposes.
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[(2) Notwithstanding anything contained in sub-section (1), the
Revenue Assistant also may, on receiving information or on his own
motion, eject the Bhumidhar or Asami , as the case may be, and also
recover the damages referred to in sub-section (1), after following such
procedure as may be prescribed.
Delhi Land Reform Rules, 1954
Rule 19. Application for use of holding for industrial purposes
(Section 23)- An application to the Deputy Commissioner by a Bhumidhar
for the use of his holding or part thereof for industrial purposes shall,
besides giving the particulars enumerated in Rule 20, also state the area, if
any, that will be left with the applicant, for cultivation. This factor as also
the genuineness of the need for the industrial undertaking shall be duly
considered by the Deputy Commissioner in making his recommendations
to the Chief Commissioner for the grant of permission, which as far as
possible, shall not be accorded at the expense of agricultural interests of
rural areas.
Rule 21A Use of land for non-agricultural purposes (Section 81)- The
Patwari, as soon as he learns that the provisions of Section 23 have been
violated and any land has been used for non-agricultural purposes, submit
report to the Tahsildar mentioning therein:-
(i) The name, parentage and address of the Bhumidhar or Asami;
(ii) The number and area of the plots affected;
(iii) The name of the village and circle;
(iv) The use to which the land has been put;
(v) The date of conversion of land for non-agricultural purposes; and
(vi) Approximate amount of expense involved in making land capable
of use for agricultural purposes before.
On receipt of the report from the Patwari or on receipt of information
otherwise, the Tahsildar shall cause summary enquiry about the nature of
the conversion of land and the approximate amount of expense involved in
making the land capable of use for agricultural purposes as before, if it is
possible. He shall then submit the papers to the Revenue Assistant for
orders.
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Rule 21-B. Disposal of reports by Revenue Assistant (Section 81)- The
Revenue Assistant, on receipt of the report referred to in Rule 21-A or on
receipt of information otherwise regarding user of land for non-
agricultural purposes shall issue notice to the parties in L.R. Form 48 and
shall call upon them to show cause why action should not be taken against
them under Section 81.
To every such suit or proceedings Gaon Sabha shall be made a
party.
After hearing the parties and after making such further enquiries as
he thinks fit, the Revenue Assistant shall pass suitable orders thereon.
Delhi Land Revenue Act, 1954
Section 16. Maintenance of map and field-book - The Deputy
Commissioner, shall, in accordance with rules made under Section 84,
maintain a map and field-book of each village, and shall cause annually, or
at such longer intervals as the Chief Commissioner may prescribe, to be
recorded therein all changes in the boundaries of each village or field and
shall correct any errors which are shown to have been made in such map
or field-book.
Section 17. Obligations of Bhumidhars and Gaon Sabhas as to
boundary marks- (1) It shall be the duty of every Bhumidhar to maintain
and keep in repair at his own cost the permanent boundary marks lawfully
erected on his fields.
(2) It shall be the duty of the Gaon Sabha to maintain and keep in repair at
its own cost the permanent boundary marks lawfully erected on the village
situate with in its jurisdiction.
(3) The Deputy Commissioner may at any time order a Bhumidhar or a
Gaon Sabha, as the case may be:-
(a) to erect proper boundary marks on such fields or villages;
(b) to repair or renew in such form and nature as may be prescribed all
boundary marks lawfully erected thereon.
If such order is not complied with, within 30 days from the
communication thereof, the Deputy Commissioner shall cause boundary
remarks to be erected, repaired or renewed and shall recover the charges
incurred from the Bhumidhar or the Gaon Sabha concerned in such
proportion as he thinks fit.
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Section 18. Penalty for injury to, or removal of marks- The Deputy
Commissioner may order any person found to be guilty before him of
willfully erasing, removing or damaging a boundary or survey mark to pay
such sum, not exceeding fifty rupees, for each mark so erased, removed or
damaged as may be necessary to restore it, and to reward, if necessary, the
person through whom the information was obtained. When such sum
cannot be recovered, or if the offender cannot be discovered, the Deputy
Commissioner shall restore the mark and recover the cost thereof from
such of the Bhumidhars or Gaon Sabhas of co-terminus fields or villages,
as the case may be, as he thinks fit.
… …. ……. …….. ……..
Section 28 . Settlement of boundary disputes -(1) All disputes regarding
boundaries shall be decided by the Deputy Commissioner, as far as
possible, on the basis of existing survey maps, but if this is not possible,
the boundaries shall be fixed on the basis of actual possession.
(2) If in the course of any inquiry into a dispute under this section, the
Deputy Commissioner is unable to satisfy himself as to which party is in
possession, or if it is shown that possession has been obtained by wrongful
dispossession of the lawful occupants of the property within a period of
three months previous to the commencement of the inquiry, the Deputy
Commissioner, –
(a) In the first case, shall ascertain by summary inquiry who is the person
best entitled to the property, and shall put such person in possession; and
(b) In the second case, shall put the person so dispossessed in possession
and shall then fix the boundary accordingly.
Delhi Land Revenue Rules, 1962
Rule 380. Statutory duty of Revenue Assistant- It will be the duty of the
Revenue Assistant to see that boundary and survey marks are properly
maintained.
Rule 381. Boundary marks- The term „Boundary marks‟ shall include
every permanent mark erected on the boundary of a village or field
whether in connection with a survey or to define a disputed boundary.
… … ……. …….. ……….
Rule 383.Classes of boundary marks- Permanent boundary marks shall
be of the following classes:-
(i) Tri-junction marks of masonry or stone.
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(ii) Other boundary marks of masonry or stone.
(iii) Other boundary marks consisting of a mound of earth or loose
stone enclosing a permanent mark (such as baked clay cylinder or a lump
of charcoal).
Rule 384.Tri-junction marks- Tri-junction marks which require
replacement shall be replaced by stone pillars of the standard pattern as
shown in the following sketch. Marks requiring repairs shall be carefully
repaired in such manner as may be required.
Standard Pattern of Tri-Junction
Dressed
Rough Specifications
Top measurement ... 8x8 inch.
Base measurement ... 14x14 inch.
Length of side ... 36 inch.
(One-third dressed, rest un-dressed)
Rule 385. Boundary marks of class(ii)- Other boundary marks of stone or
masonry which require replacement shall be replaced by the stone pillars.
No standard pattern for such marks has been (prescribed; but the stone
used may conveniently be of the pattern prescribed) for tri-junctions, the
cross out on the top being replaced by some other distinctive mark. Repair
shall be effected in such manner as may be required.
Rule 386. Boundary marks of class (iii)- The third class of boundary
marks shall be maintained by keeping the heap of earth or stones to its
original size; the mound shall not be opened to ascertain whether the
enclosed permanent mark is still in existence. When a mark of this class
has altogether disappeared no steps shall be taken to replace it.”
3. The lands which are the subject matter of the DLR Act
are those lands which fall within the definition of „land‟ contained in
Section 3(13), and such lands include all types of lands in a village or
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rural area. Land in a village or rural area will have lands which are
used for agricultural purposes and connected purposes, even abadi
lands, lal dora lands which are used for industrial purposes, village
pasture lands, gair mumkin pahari land etc. Therefore, it is not as if
the land which is comprised in village or rural area only will mean
agricultural land or that the DLR Act only applies to agricultural land.
DLR Act applies to rural areas or village areas which fall within the
jurisdiction of the DLR Act.
4. That the lands in a rural area or village area which is the
subject matter of jurisdiction under the DLR Act also includes lands
which are used for non-agricultural purposes becomes clear not only
from the definition of „land‟ which will include abadi lands, but the
same is also further made clear by the definition of the word
„improvement‟ as found under Section 3(12) of the DLR Act.
Improvement has been defined to include a dwelling house or other
constructions for the purposes connected with agricultural and related
activities, well, water channels, tanks and so on. Therefore, the
irrefutable conclusion is that the lands which are the subject matter of
the DLR Act will include all types of lands in a rural area or village
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i.e. an area which is not urbanized, either because of notification under
Section 507 of the Delhi Municipal Corporation Act, 1957 or that area
which becomes a developed area for non-agricultural purposes
because of being included in a developed area under Section 12 of the
Delhi Development Act, 1957 vide Shri Neelpadmaya Consumer
Products Pvt. Ltd. v. Satyabir and Ors. 227 (2016) DLT 654 .
5. Section 22 of the DLR Act prescribes the entitlement of
the bhumidhar /owner of the land under the DLR Act to use his land as
a bhumidhar . The land which is used by a bhumidhar will include the
use of the land for agricultural purposes or related activities of
horticulture or animal husbandry or pisciculture or poultry farming.
Use of land under Section 22 of the DLR Act also includes the
entitlement to make improvements to such land by the bhumidhar .
The meaning of improvement has already been discussed above, with
reference to Section 3(12) of the DLR Act, for an entitlement to make
a building or permanent construction. Therefore, the bhumidhar of the
land is entitled to use his land not only for agricultural purposes, but
also for making any improvement/construction thereon, and this
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construction has to be of the type as specified in Section 3(12) of the
DLR Act.
6. Section 81 of the DLR Act provides that in case the land
is not used for agricultural purposes or related purposes of horticulture
or animal husbandry or pisciculture or poultry farming, then in such a
case under Section 81, the bhumidhar or asami (a tenant under the
bhumidhar ) is liable to ejectment on a suit filed by Gaon Sabha or a
land holder or a Revenue Assistant. Section 81 in a way does seem to
suggest that land under the DLR Act can only be used for the purposes
of agriculture or horticulture or animal husbandry or pisciculture or
poultry farming, however, it is seen that Section 81, though it does not
say so, deals with only certain types of lands and not all types of lands
under the DLR Act. The subject matter of Section 81 of the DLR Act
are only those lands which as per the provisions of the DLR Act have
to be used for the purposes of agriculture or horticulture or animal
husbandry or pisciculture or poultry farming, i.e. it does not include
certain other lands including lands which are used as abadi or for
industrial purposes as a lal dora land and provision for which is made
under Section 23 of the DLR Act. Therefore, on the one hand,
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Sections 22 and 23 provide for user of the land for non-agricultural
purposes including and making construction thereon, but Section 81
on a literal interpretation may seem to suggest that all lands under the
DLR Act can only be used for agriculture or horticulture or animal
husbandry or pisciculture or poultry farming, though in reality it is not
so because if Section 81 is interpreted literally, the same will quite
clearly be in conflict with the other provisions of the DLR Act,
including Sections 3(12), 22 and 23. It is therefore held that lands
which are the subject matter of Section 81 of the DLR Act are only
lands which as per DLR Act can only be used for agriculture and
related purposes as specified in Section 81. Thus, the issue with
respect to any re-entry/possession of land by a suit by Gaon
Sabha /land holder or Revenue Assistant as prescribed in Section 81 of
the Delhi Land Reforms Act will arise only with respect to lands
which are subject matter of Section 81 of the DLR Act i.e. those lands
which are used for agriculture and other related purposes as specified
in Section 81 of the DLR Act, and no other land.
7. Therefore, now let us examine the issue which is referred
to this Court under Section 113 CPC as to whether a boundary wall
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can be constructed/made on those lands which are subject matter of
Section 81 of the DLR Act vis-à-vis the lands which are used for
agriculture and related purposes as specified in Section 81.
8. The term „boundary‟ or „boundary wall‟ is not defined
either under the DLR Act and the Rules framed thereunder or under
the Delhi Land Revenue Act and the Rules framed thereunder. There
is however a reference to boundaries under the Delhi Land Revenue
Act and Delhi Land Revenue Rules, and the relevant provisions have
also been also reproduced above. The object of a boundary mark is to
demarcate the land of a land owner/ bhumidhar / asami etc. from the
other lands. The boundary marks are, therefore, permanent marks for
demarcating the lands. A reference to the relevant Rules vis-à-vis
Rule 381 onwards of the Delhi Land Revenue Rules, or for that
matter, any other provisions of the DLR Act or its Rules or Delhi Land
Revenue Act, do not show any prohibition against the construction of
a boundary wall. However, what is specified is the construction of
permanent boundary marks. The provision of construction on
boundary marks does not and cannot be said to prohibit construction
of a boundary wall. There is nothing in the DLR Act and Rules or
O. R. No.1/2015 Page 13 of 16
Delhi Land Revenue Act and Rules which expressly or impliedly
prohibit construction of the boundary wall around lands which are
subject matter of Section 81 of the DLR Act. The type of boundary
marks, are those as specified in Rule 383, and this Rule only specifies
the types of the boundary marks, but these relevant Rules alongwith
the related Rules 384 to 386, do not in any manner, prohibit the
construction of boundary walls with or on the boundary marks. Surely
therefore, any land owner or land holder covered under Section 81, is
entitled to construct a boundary wall on his own land, and this
boundary wall will however be made in such a way that the permanent
boundary marks which are made for demarcation will not be effaced
or removed but will continue to be clearly shown, though, maybe
along-with being a part of the boundary wall around a land of a land
holder falling under Section 81.
9. I may note that the reference order of the Deputy
Commissioner makes reference to an order dated 18.04.2012 in the
case titled as Babita Agarwal and Anr. v. Govt.of NCT of Delhi and
Anr. in W.P.(C) No.875/2012 , however, it is seen that the order dated
18.04.2012 is just an order and not a judgment giving reasons and
O. R. No.1/2015 Page 14 of 16
discussion as to whether or not a boundary wall can or cannot be
constructed on agricultural lands or lands for related purposes falling
under Section 81 of the DLR Act. Therefore, the order dated
18.04.2012 in W.P.(C) No.875/2012 in no manner can be held to
determine the issue as to whether a boundary wall can or cannot be
constructed around the lands, which are subject matter of Section 81
of the DLR Act.
10. At this stage, this Court would like to state that though no
height of the boundary wall is prescribed or specified as per the DLR
Act or its Rules, or Delhi Land Revenue Act or its Rules, since
however, inspections have to take place of the agricultural lands and
those lands which are subject matter of Section 81 of the DLR Act,
twice a year for making khasra girdwari , or otherwise also to ensure
that provisions of the DLR Act and Rules or Delhi Land Revenue Act
and Rules are complied with, it is ordered that a wall which is
constructed for bounding the land of a land holder, under the DLR
Act, should not exceed 5 feet in height, and this observation is being
made specifically restricted to those lands which are used for the
purposes as specified in Section 81 of the DLR Act.
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11. In view of the aforesaid discussion, the Reference is
answered by holding that, there is no express or implied bar either
under the DLR Act and Rules or under the Delhi Land Revenue Act
and Rules, for a land holder of those lands which are subject matter of
Section 81 of the DLR Act, to construct a boundary wall around his
land, and such boundary wall can be constructed on the land by the
land holder, with the clarification that the height of the boundary wall
will not exceed 5 feet in height. Reference is accordingly answered
and now parties will appear before the Deputy
th
Commissioner/Collector (South West) Delhi on 30 October, 2018.
The Original Reference file be sent back to the concerned Deputy
Collector after retaining a copy of the file O. Ref. No.1/15 in this
Court alongwith copy of today‟s judgment.
SEPTEMBER 20, 2018 VALMIKI J. MEHTA, J
Ne
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