Union of India & ANR Vs. Sher Singh
& Ors  INSC 138 (7 February 1997)
RAMASWAMY, S. SAGHIR AHMAD
O R D
This appeal, by special leave, arises from the judgment of the division
Bench of the High court of Delhi, made on
May 30, 1991 in R.F.A. NO.167/86.The
admitted facts are that notification under Section 4(1) of the land Acquisition
Act, 1864 was published acquiring certain lands for public purpose. Therein
rival claims came to be made by Gaon Sabha, Tekhand and the respondents
claiming title to the compensation. Since the Land Acquisition
officer/collector was unable to decide the title to receive the compensation on
reference under section 30 of the Act, the District court by award and decree
dated February 22, 1986 held that the land in question stood vested in the Gaon
Sabha under Section 7 read with Section 154 of the Delhi Land Reforms Act (for
short, the `Act').
it is entitled to the compensation of the land acquired by the Union of India.
Dissatisfied therewith, the respondents filed the above appeal. The High Court
in the impugned judgment has held that "Gair Mumkin Pahar" is a
cultivable land and, therefore, by operation of explanation to Section 7, it
stands excluded from the vesting in the Gaon Sabha. Resultantly, the
respondents being the owners of the property are entitled to the compensation. Thus,
this appeal by special leave.
Shri M.C. Dhingra, learned counsel for some of the respondents, as brought to
our notice that since this Court had dismissed similar special leave petitions,
this appeal does not merit consideration. We find no force in the contention.
This Court, by then, had already granted leave in this appeal, but
unfortunately, that was not brought to the notice of the respective Benches
including the one presided over by one of us (K. Ramaswamy, J.), when the
matters had come up. As a consequence, without any speaking order some special
leave petitions came to be dismissed. In view of the settled legal position by
a catena of decisions of this Court that the dismissal of special leave
petition without speaking order does not constitute res judicata, the question
of law is at large to be gone into. Accordingly, We reject the objection and we
have heard the counsel on both sides on merits.
A. Qadri, learned counsel for Union of India and Gaon Sabha, in a pains taking
investigation and neat presentation, has brought to our notice the relevant
provisions of the Act and the decision of this Court in Hatti vs. Sunder Singh
[(1971) 2 SCR 163] and contended that the object of the Act and the Delhi Land
Reforms, 1954 was to extinguish the pre-existing right, title and interest held
by bhumidar, sirdar, tenant, proprietor etc. and conferment of new rights in
them. It is also envisaged that all other lands shall stand vested in the Gaon Sabha
by operation of Section 154 of the Act read with Section 7 of the Act. The
respondents are not bhumidars. The land in question has been recorded in the
revenue records as "gair mumkin pahar", in other words, it is an
uncultivable waste land. It is not excluded from the definition of waste land
as explained in explanation to Section 7 of the Act. A reading of the relevant
provision of Sections 5, 7, 11 and 154 of the Act read with the definitions of `land'
defined in Section 3(13), `holding defined in Section 3(11A), `khudkhast'
defined in Section 3(12A) and `proprietor' under Section 3(17) of the Act,
would clearly indicate that the respondents are not bhumidars in respect of gair
mumkin pahar. As a consequence, the land stands vested in the Gaon Sabha under
Section 7 read with Section 154 of the Act. On the other hand, Shri Dhingra and
Shri L.C. Chechi, learned counsel for the respondents contended that by
operation of the comprehensive definition of `waste land' in explanation to
Section 7 of the Act read with the object of conferment of right under Section
11 read with Section 5 of the Act, the respondents are bhumidars. As a
consequence, the land is a cultivable land which confers them title to the land
under the Act. It is also further contended that in a representative suit for a
declaration that this gair mumkin pahar is cultivable land was declared to be
so by the civil Court. The Deputy Commissioner's finding under the Act that it
is a waste land is not correct. On an appeal against the decree, the High Court
remitted the matter with an option to the Deputy Commissioner had not decided
that it is gair mumkin pahar. As a consequence, the vesting order passed by the
Deputy Commissioner is non est. The High Court, therefore, had rightly gone
into the question. In support thereof, the learned counsel placed reliance on a
judgment of the learned single judge in a second appeal. It is also contended
that the view taken by the Division Bench of the High Court in that behalf is
correct in law. It does not warrant interference.
regard to the respective contentions, the question that arise for consideration
is : whether gair mumkin pahar land is cultivable land coming within the
meaning of explanation to Section 7 so as to exclude it from the operation of
the main part of Section 7 of the Act? Section 3(13) defines `land; thus:
"land" except in Sections 22, 23 and 24, means land held or occupied
for purposes connected with agriculture, horticulture or animal husbandry
including pisciculture and poultry farming and includes..." Admittedly,
the lands in question have been recorded in the revenue recorded as gair mumkin
pahar. Therefore, the lands cannot be held or occupied or used in connection
with agriculture, horticulture, animal husbandry including pisciculture and
poultry farming etc.
has been defined under Section 3(11) of the Act means:
respect of proprietors, a parcel or parcels of land held as sir or khud-khast."
`khudkhast' has been defined under Section 3(12A) means land (other than Sir)
cultivated by a proprietary either by himself or by servants or by hired labour,...
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".
it is clear from the above provisions that the gair mumkin pahar is not a land
cultivated by the proprietor and so it is not a khud-khast land.
5 of the Act defines Bhumidar thus :
Bhumidhar-- Every person belonging to any of the following classes shall be a Bhumidhar
and shall have all rights and be subject to all the liabilities conferred or
imposed upon a Bhumidhar by or under this Act, namely:
proprietor holding Sir or Khudkhast land a proprietor's grover holder, an
occupancy tenant under Section 5 of the Punjab Tenancy Act, 1887, paying rent
at revenue rates or a person holding land under Patta Dawami or Istamrari with
rights of transfer by sale, who are declared Bhumidhars on the commencement of
every class of tenants other than those referred to in clause (a) and subtenants
who are declared to in clause (a) and subtenants who are declared Bhumidhars on
the commencement of this Act ; or (c) every person who, after the commencement
of this Act, is admitted to land as Bhumidhar or who acquires Bhumidhar rights
under any provisions of the Act." Resultantly, the respondents are not bhumidhars,
since they did not hold the land as proprietor and, therefore, shall not have
proprietary right in gair mumkin pahar.
of the Act postulates acquisition of certain rights of proprietors. Section 7
under this part postulates the rights of proprietary in waste lands. pasture
lands of common utility etc. to vest in Gaon Sabha and compensation to be paid
All rights of an individual proprietor or proprietors pertaining to waste
lands. grazing or collection of forest produce from forest or fish from
fisheries lands of common utility, such as customary common pasture lands,
cremation or burial grounds, abide sites pathways, public wells, tanks and
water channels, or khalihans, whether covered by an existing contract between
such proprietor or proprietors and any other person or not, shall with effect
from the commencement of this Act be terminated in accordance with the
provision of sub-section (2) and the said contracts, if any, shall become void
with effect from such commencement.
that where such land was a result of consolidation of holdings made available
for use for any purposes other than those referred to in this subsection, land
kept aside in exchange thereof, land kept aside in exchange thereof, as a
result of such consolidation, shall for the purposes of this Act be deemed to
be land originally meant for purposes referred to in this sub-section.
-- for the purpose of this sub-section-- (i) "waste land' shall include
cultivable and uncultivable waste area or the village including any land in the
bed of a river, occupied or held by f river, occupied or held by an Asami
referred to in Section 6(a)(iii) of the Act except the uncultivated area--- (a)
included in the holding of such proprietor proprietors, or (b) used for
purposes other than those mentioned in clause (143) of Section 3 at any time
before the 26th day of October, 1956 or (c) acquired by bona fide purchaser for
value at any time before the 28th day of October, 1958 for purpose other than
those mentioned in clause (13) of Section 3." Conjoint reading of Section
7 read with the explanation, it emerges that unless the waste land stands
excluded from Section 7, the rights of the proprietors in waste lands, posture
lands or community utility lands etc.
vest in Gaon Sabha. The waste land included in the holding of the proprietor
stands excepted from the waste land contemplated by Section 7.
11 of the Act provides declaration of Bhumidhari Rights in favour of
proprietors and superior class of tenants, compensation and revenue.
(1) provides that;
Subject to the provisions of Section 10, the Deputy Commissioner shall declare
as Bhumidhar persons holding the following lands, namely:- (a) Khudkhast land
or a proprietor's grover in the tracts to which the Punjab Tenancy Act, 1887
was applicable or Sir land or khudkhast land or a proprietor's grove in the
tracts to which the Agra Tenancy Act, 1901, was applicable:
held by occupancy tenants under Section 5 of the Punjab Tenancy Act, 1887, with
right of transfer by sale; and (c) land held under patta Dawami or Istamrari by
tenants with right of transfer by sale." By operation of Section 11, all
the lands including the holding of the Bhumidhar etc. shall be declared to be a
Bhumidhar right. It is, thus, clear that by operation of Section 5 read with
the definition of khudkhast land and the explanation to waste land under
Section 7 of the Act, the lands not having been held by Bhumidhars, it cannot
be treated to be a waste land for the purpose of exclusion under the
explanation from the purview of Section 7 of the Act.
would be the consequence has been stated in Section 154 of the Act is to be
seen. Section 154 reads thus:
Vesting of certain lands etc.
Sabha -- (1) On the commencement of this Act-- (1) all lands whether cultivable
or otherwise, except land for the time being comprised in any holding or grove,
xxxxxxxxxxxxxxxxxxxxxxxxxxxx situate in a Gaon Sabha Area, shall vest in Gaon Sabha."
Thus, it could be seen that except the land for the time being comprised in any
holding or a grove, rest of all lands whether cultivable or otherwise vest in
the Gaon from the date of the commencement of the Act.
also no longer res integra. In Hatti's case (supra), this Court has gone into
the relevant provisions of the Act and held thus:
6, 11, 13 and 154 of the Act read together, thus, show that, after the Act came
into force, proprietors of agricultural land as such ceased to exist. if any
land was part of a holding of a proprietor, he became a Bhumidar of it. if it
was part of a holding of some other person, such as a tenant or a sub-tenant
etc., he became either a Bhumidar or an Asami, whereupon the rights of the
proprietor in that land ceased, Land, which were not holding of either the
proprietor or any other person, vested in the Gaon Sabha.
case of proprietors, their rights in the land continued to exist only in
respect of holdings which, under the definition, must have been either their
sir or khudkasht at the commencement of the Act. If it was not sir or khudkasht
of a proprietor, it would not be his holding and, consequently, such land would
vest in the Gaon Sabha under Section 154, the result of which would be that the
rights of the proprietor would be extinguished".
stated earlier, indisputably in the revenue records the land in question had
been recorded as gair mumkin pahar.
those circumstances, this gair mumkin pahar land which was not held by the
respondents as khudkhastdars as proprietors thereof. As a consequence, the land
shall stand vested in the Gaon Sabha. It is true that in the earlier civil suit
filed in a representative capacity for a declaration, the High Court has gone
into the question, but the entire matter was left at large stating that
"it does not mean that the Deputy Commissioner Cannot redecide the matter.
in fact, he should reconsider the matter and hear the parties to determine
whether the order is in accordance with law... However, I would also like to
clarify that this does not by any means end the matter". Thus, there is no
concluded finding recorded by the High Court in the second appeal with regard
to the nature of the land. On the other hand, the matter was kept at large. At
that stage, the acquisition proceedings were initiated. As a consequence, no
further action has been taken by the Deputy commissioner.
the entire issue was at large. Obvious therefore, that when there was conflict
of decisions between tow learned single Judges, the Division Bench has gone
into the question. But, it had not properly considered the effect of the
provisions of the Act and came to the conclusion that the explanation of `waste
land' under Section 7 includes cultivable, waste and gair mumkin pahar is
cultivable waste land and the respondents became owners of the land and
entitled to the compensation. In view of the above discussion, the view taken
by the division. Bench is clearly in error. Accordingly, we set aside the
judgment of the High Court and confirmed that of the District Court.
appeal is accordingly allowed, but in the circumstances, without costs.