TEK CHAND Vs. DEVELOPMENT COMMISSIONER DELHI

JUDGEMENT

(1.) In Revla Khanpur, Delhi, 1290 Bighas5 Biswas of pasture land was lying vacant. The Gram Panchayat by its resolution dated 6-3-1973 made some allotment of land to 85 persons. This resolution could not be given effect to because the necessary permission from the Development Commissioner was not obtained. The Panchayat thereupon passed another resolution on 10-7-1973 by which 260 Bighas and 16 Biswas of land was allotted to 55 persons, one acre each, at the rate of Rs. 5.00 per acre for five years. By this writ petition filed on 13-11-1973 these allotments were challenged by four persons) out of whom Chhotto at his request was deleted on 14-7-1982 from the array of the petitioners, leaving Tek Chand, Bale Ram and Bharat Singh as petitioners. The allottees were not made partics to this writ petion. On 15-11-1973, this court had stayed the operation of the said resolution.

(2.) The first contention of Mr. 0.P. Tyagi, the learned counsel for the petitioners, is that under Sub-section (2) of Section 74 of the Delhi Land Reforms Act, 1954 (herein the Act), the Gaon Sabha alone has the power to admit any person as Asami on a five-years' lease to any land which forms part of the cultivable or uncultivable waste area of the village which has vested in the Gaon Sabha under Section 7 of the Act. But instead of the Gaon Sabha, the Gram Panchayat has allotted the land. Under Clause (m) of Section 18 of the Delhi Panchayat Raj Act, 1954 it is one of the duties and functions of the Gram Panchayat to make reasonable provision within its jurisdiction inter-alia for establishment and care of a common grazing ground. The land in question being grazing ground, it was all the more reason that the Gram Panchayat could not and should not have distributed the pasture land contrary to its duties and functions. But it has to be noted that the Gram Panchayat has simultaneously also the duty and function to make reasonable provision for reclamation of waste land and bringing waste land under cultivation, vide clause (c) of the said Section 18. No doubt, Section 74 of the Act confers powers on the Gaon Sabha but Section 32 of the Delhi Panchayat Raj Act, 1954, provides that all the duties, powers and functions of the Gaon Sabha, shall be exercised, performed or discharged by the Gaon Panchayat and not otherwise. In Khazan Singh v. Development Commissioner and Others, C W. 1016 of 1971, decided on 144-1977, it was, however, held by a learned Judge of this Court that the decision to allot the land and in particular selection of the land is to be made by the Gaon Sabha in the manner set out in Rule 47 of the Delhi Land Reforms Rules, 1954, (herein the Rules). But the actual letting out and selection of the persons to whom the land is to be allotted is to be made by the Gram Panchayat. The learned Judge further proceeded to say that when such a decision of the Gaon Sabha is implemented by the Gaon Panchayat, it will be a decision of the Gaon Sabha itself and will be open to cancellation under Section 75(2) of the Act. If the decision is taken in any other manner, it will not be a decision of the Gaon Sabha and will be invalid under Sections 73 and 74. The learned Judge had found in that case that the decision was not taken by the Gaon Sabha, rather, it was taken against the wishes of the Gaon Sabha. Now, in the face of the wide wordings of Section 18 of the complementary provisions contained in the Panchayat Raj Act, the interpretation put upon Section 74 of the Act and Rule 47 of the Rules by the learned Judge appears to be a restricted one, but I do not wish to propound a different view and even accepting that position, I find that in this case except by way of a general allegation that the allottment was against law and Constitution, no averment has been made in the petition that no decision was taken by the Gaon Sabha of its intention to allot any land under the Act. Without a specific allegation, it is not possible to say that the Gaon Sabha had not, in fact, taken the decision to allot the lands out of the pasture land of the village. Rather, the challenge in the petition and the rejoinder has been that the Gaon Sabha being a body successor to the proprietors of the village did not have full powers to admit any person as a Bhumidar or Asami to the common utility lands of the village, which is a proposition which cannot be supported by anything contained in the Act. It also appears to me that about one thousand Bighas of land is still vacant and is available for pasture. I, therefore, reject the first contention of Mr. Tyagi.

(3.) The second contention of Mr. Tyagi is that the land in question was a pasture land and not a waste land and, therefore, could not be allotted under Section 74 of the Act. Under Sub-section (2) of Section 74 of the Act, the Gaon Sabha has a right to allot cultivable or uncultivable waste area of a village not included in a holding and which are vested in the Gaon Sabha under Section 7 thereof. According to Section 154 of the Act, as from the commencement of the Act, all lands whether cultivable or otherwise except those comprised in a holding or grove vest in the Gaon Sabha. There is no doubt therefore) that waste land includes both cultivable and uncultivable area and I have little hesitation in saying that the land in question was a cultivable waste. The learned counsel referred to Sub-section (1) of Section 7 of the Act which says that all rights of an individual proprietor or proprietors pertaining to waste lands, grazing or collection of forest produce, etc., shall be terminated upon the commencement of the Act. The said provision, it was urged, makes a distinction between the rights in waste land and grazing lands. I do not think that Sub-section (1) of Section 7 excludes grazing lands from the waste area. It only purports to terminate the rights of the proprietor and vest them in the Gaon Sabha in so far as they relate to waste land, grazing rights, etc. By making a specific mention of grazing rights, it does not purport to say that grazing lands are not waste lands. The definition of land given in Section 3(13) of the Act includes lands for village pasture. I am, therefore, unable to uphold the contention that pasture lands are not allottable under Section 74 of the Act.