RSA/17/2018 of SUKHMINDER SINGH Vs LEKH RAM (SINCE DECEASED) THR LRS

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ RSA 17/2018

SUKHMINDER SINGH ..... Appellant

Through : Mr.Jay Savla, Sr Advocate with Mr.T.S. Joseph and Mr.Rajpal Singh, Advocates. Mr.T.S. Joseph and Mr.Rajpal Singh, Advocates.

versus

LEKH RAM (SINCE DECEASED) THR LRS ..... Respondents Through : Mr.Rajan Chaudhary, Advocate.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA O R R% 26.09.2019

CM APPL No.42281/2019

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

CM APPL No.42282/2019

With the consent of the learned counsel for parties, this application moved for condonation of delay of 25 days in moving the review petition has been heard with the main petition itself.

For the reasons mentioned, the application is allowed.

REVIEW PET No.396/2019 & CM APPL No.42280/2019

1.This Review Petition has been filed by appellant against the order dated 22.07.2019 passed in RSA No.17/2018 whereby the Regular Second Appeal was dismissed observing there was no substantial question of law involved in the appeal.

2. The learned Trial Court in Civil Suit No.55/2012 decided on

Review Pet. No.396/2019 in RSA 17/2018 Page 1 of 6

21.12.2013 had held since the vacantland was leased to the predecessor-in-interest of the applicant and since the rent was collected under the head ‘lease rent’ after deleting the words ‘house rent’ as shown in the rent receipts Ex.DW1/3(colly), so the rent was being collected only for the land and not of the building constructed thereon and hence the Delhi Rent Control Act, 1958 would not be applicable.

3.Similar view taken was taken by the learned First Appellate Court in RCA No.369/2016 decided on 11.04.2017 qua the applicability of the DRC Act.

4.The learned senior counsel for applicant now urges there is error apparent on the face of record as the learned Civil Court never had the jurisdiction to try and decide the suit as the land being rural land, only the provisions of the Delhi Land Reforms Act, 1954 (hereinafter referred as DLR Act) would apply.

5.The learned senior counsel for applicant relied upon Gaon Sabha Nankheri vs Sucheta memorial Trust MANU/DE/3470/2018 wherein this Court held:-

"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 village or rural area. Land in 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. those lands which fall within the definition of "land‟ contained in Section 3(13), and such lands include all types of lands in village or rural area. Land in 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 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 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 rural area or village 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 developed area for non-agricultural purposes because of being included in 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."

and Gaon Sabha and others vs Nathi and Others (2004) SCC

555 wherein the Supreme Court held:-

“15. The legal position is therefore absolutely clear and there cannot be even slightest doubt that the civil court had no jurisdiction to entertain the suit which was filed seeking declaration that the order of vesting of land in Gaon Sabha is illegal. It is indeed surprising that in spite of the aforesaid Division Bench decision of the Delhi High Court which was rendered in 1973 which had settled the legal position and was binding precedent and the decision of this Court in Hatti v. Sunder Singh (supra) which was also brought to the notice of the learned Single Judge hearing the second appeal (RSA No.73 of 1972), he chose to bye-pass the same by some queer logic and went on to hold that the civil suit was maintainable. Once we come to the legal position that the civil court had no jurisdiction to entertain the suit, the inevitable consequence is that the decree passed in the aforesaid suit including that of the High Court is wholly without jurisdiction. In such circumstances the principle laid down in Kiran Singh v. Chaman Paswan, AIR (1954) SC 340 would come into play that decree passed by court without jurisdiction is nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings and further defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such defect cannot be cured even by consent of parties. Therefore, the finding that the order passed under section 7 (2)of the Act vesting the property in the Gaon Sabha is illegal

recorded in the civil suit (including that by the High Court in second Appeal) has to be completely ignored.”

6. Heard.

7.Firstly, this objection was never raised by the appellant when the RSA was heard. Secondly, it is argued the land on which the subject property was constructed was in rural area, hence the Delhi

Land Reforms Act, 1954 and it read:-

"(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 river and used for casual or occasional cultivation,

but does not include-

land occupied by buildings in belts of areas adjacent to Delhi town, which the Chief Commissioner may be notification in the Official Gazette declare as an acquisition thereto;"

8.The definition reveals the word land relates to land held or occupied for the purpose connected with agriculture, horticulture or animal husbandry and it also include building appurtenant thereto, village abadis, groverlands and also land covered by water used for growing singharas etc. However, the land in question does not fit in the said definition.

9.Even otherwise in Gaon Sabha Nanakheri (supra)the Court held the land in village or rural area will include the land used for agricultural purposes or its connected purposes or the Lal Dora land used for industrial purposes, village pasture lands, gair mumkin

Review Pet. No.396/2019 in RSA 17/2018 Page 4 of 6

pahari land etc. Admittedly, the subject premises was never used as pasture land; neither is gair mumkin pahari land nor was ever used for industrial purposes. Even improvements as defined in Section 3(12) of the Delhi Land Reforms Act, 1954 connects only to the agricultural and related activities.

10.Similarly, in Gaon Sabha and others vs Nathi and Others (supra) the Court was considering the question of declaration qua an order of vesting of land in Gaon Sabha being illegal or not, hence is not relevant for the controversy.

11.Admittedly, the land in question was used for residential purpose by the appellants herein by constructing building thereon, thus the plea raised has no merit.

12.The learned senior counsel for the appellant then referred to clause 4 and 6 of the lease deed dated 02.02.1950, which inter alianote:-

"4) That if the executant want to reside in the said property after expiry of stipulated period then with the consent of land lord one paise increase shall be made and can reside in the said property and if the landlord do not agree then I shall pay Malba cost according to market rate of prevalent at that time and the executant is liable to be ejected from the Property and shall not do any act which is against the govt. or land owner and shall not construct any religious building on the said land and if do so then the land lord shall have rights to dispossess the extentant from the land without any compensation amount.

6. That the executant and the land lord shall have the rights to transfer their rights but the tenant shall have rights to inform the landlord in writing then can sale to any person but cannot sale to any non Hindu person and the first rights to purchase shall retain by the landlord.”

13.It is argued the lease gave right to the appellant to continue to

live in the subject property and also right to sell it to someone else. Admittedly, the right to sell was never exercised during the continuation of the tenancy and secondly per clause No.4 above, the consent was withdrawn by the respondent by issuing notice to quit. Hence, these clauses would be of no help to the appellant to urge there was an error apparent on the face of the record.

14.No other issue is raised before me.

15.In view of above, the review petition is dismissed. The pending application(s), if any, also stand disposed of. No order as to costs.

SEPTEMBER 26, 2019 M

YOGESH KHANNA, J.