Holding

The Supreme Court held that "gair mumkin pahar" is uncultivable waste land, the respondents are not Bhumidhars, and the land vests in the Gaon Sabha, setting aside the High Court judgment.

Summary

The Union of India, on behalf of a Gaon Sabha, acquired land under the Land Acquisition Act, 1894, and a dispute arose over compensation for land recorded as "gair mumkin pahar". The respondents, Sher Singh and others, claimed they were the Bhumidhars of the land and therefore entitled to compensation, while the Gaon Sabha asserted that the land vested in it under the Delhi Land Reforms Act, 1954. The Supreme Court examined the definitions of "land", "holding", "khudkhast" and the explanation to Section 7 of the Delhi Land Reforms Act and held that "gair mumkin pahar" is uncultivable waste land, not a cultivable land excluded from vesting. Consequently, the respondents were not Bhumidhars and had no proprietary right in the land, which therefore vested in the Gaon Sabha. The Court also clarified that dismissal of a special leave petition without a speaking order does not create res judicata. The appeal was allowed, setting aside the High Court judgment and confirming the District Court's decision.

Issues considered

Whether "gair mumkin pahar" land is cultivable land within the meaning of the explanation to Section 7 of the Delhi Land Reforms Act, 1954 and thus excluded from vesting in the Gaon Sabha.
Whether the respondents are Bhumidhars entitled to proprietary rights in the disputed land.
Whether the dismissal of a special leave petition without a speaking order amounts to res judicata.
Whether the land vests in the Gaon Sabha under Section 7 read with Section 154 of the Delhi Land Reforms Act.

Legislation cited

Delhi Land Reforms Act, 1954s. 11, s. 154, s. 3(11), s. 3(12A), s. 3(13), s. 3(17), s. 5, s. 7
Land Acquisition Act, 1894s. 30, s. 4(1)

Subjects

land acquisitiongair mumkin paharGaon SabhaBhumidharwaste landDelhi Land Reforms Actres judicataspecial leave petitioncompensationvesting

Judgment

A UNION OF INDIA AND ANR. ..
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v.
SHER SINGH AND ORS.

FEBRUARY 7, 1997

B (K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.)

Land Acquisition Act, 1894 : .....
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S.4( 1)-Acquisition of "gair mumkin pahar'L..Compensation-Dispute
regarding title to the land---Gaon Sabha claiming compensation on the
c ground that land stood vested to Gaon Sabha-Respondents claiming them-
selves as bhumidhars thereof-Held, land not being a Khudkhast land,
respondents are not bhumidhars thereof-Land stood vested in Gaon Sabha.

Delhi Land Reforms Act, 1954:
D \..
Ss.3(11), 3(13), 5, 7 and 154-''Land''-''gair mumkin pahqr'"----Held, is
not a land cultivated by the proprietor and so it is not .a Khudkhast
land--Respondents are not bhumidhars thereof since they did not hold the
land as proprietor, and, therefore, shall not have proprietary right in "gair
mumkin pahar"-i.and shall stand vested in Gaon Sabha.
E
Hatti v. Sunder Singh, [1971] 2 SCR 163, relied on.

Res judicata: Held, dismissal of special leave petition filed under
Article 136 of the Constitution, without speaking order does not constitute res
_).
judicata-Constitution of India, 1950-Article 136.
F "
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2183 of
1993.

From the Judgment and Order dated 30.5.91 of the Delhi High Court
in R.F.A. No. 167 of 1986.
G
Wasim Qadri for C.V.S. Rao for the Appellants.

M.C. Dhingra, Y.D. Nagar, L.C. Chechi and K. S. Rana for the .,.,....
Respondents.

H The following Order of the Court was delivered:
1048
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U.0.1. v. SHER SINGH 1049

This appeal, by special leave arises from the judgment of the Division A
-k 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
B
public purpose. Therein rival claims came to be made by Gaon Sabha,
Tekhand and the respondents claiming title to the compensation. Since the

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y
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 c
154 of the Delhi Land Reforms Act (for short; the 'Act'). Therefore, 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 D
.~ stands excluded from the vesting in the Gaon Sabha. Resultantly, the
respondents being the owners of the property are entitled to the compen-
sation. Thus, this appeal by special leave.

Initially, Shri M.C. Dhingra, learned counsel for some of the respon-
E>
dents, has 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.
J Ramaswamy, J.), when the matters had come up. A~ a consequence, F
without any speaking order son'le special leave petitions came to be dis-
missed. 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
' G
on both sides on merits.

Shri Wasim 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 v. Sunder Singh, [1971] 2 SCR 163 and contended that the H
I
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1050 SUPREME COURT REPORTS [1997] 1 S.C.R.

A object of the Act and the Delhi Land Reforms Rules, 1954 was to extin-
guish the pre-existing right, title and interest held by bhumidhar, 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
B respondents are not bhumidhars. 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 provisions of Sections 5, 7, 11 and 154 of the Act read with the
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-\,·

definitions of 'land' defined in Section 3(13), 'holding' defined in Section
C 3(11A), 'khudkhast' defined in Section 3(12)A and 'proprietor' under
Section 3(17) of the Act, would clearly indicate that the respondents are
not bhumidhars 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,
D 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 bhumidhars. 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
·--•·
E 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 to decide afresh the
matter. But the Deputy Commissioner had not decided that it is gair mumkin
F pahar. As a consequence, the vesting order passed by the Deputy Commis-
sioner 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 con-
tended that the view taken by the Division Bench of the High Court in that
behalf is correct in law. It does not warrant interference.
G
Having 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)
H ·defines 'land' thus :
U.O.I. v. SHER SINGH 1051
"{13) "land" except in Sections 22, 23 and 24, means land held or A
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 B
occupied or used in connection with agriculture, horticulture, animal hus-
bandry including pisciculture and poultry farming etc.

'Holding' has been defined under Section 3(11) of the Act means:

"(a) ···················
c
{b) in respect of proprit~tors, a parcel or parcels of land held as
sir or khudkhast."

'Khudkhast' has been defined under Section 3{12A) means land
(other than Sir) cultivated by a proprietary either by himself or by servants D
'i'.
-.. or by hired labour, ......

"(a) at the commencement of this Act, or
~
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' (b) at any time during the period of five years immediately before
the commencement of this act, whether or not it was so cultivated E
; at such commencement, provided that it has not, at any time after
having been so cultivated, been let out to a tenant."
~
i
Therefore, it is clear from the above provisions that the gair mumkin
j.
pahar is not a land cultivated by the proprietor and so it is not a khudkhast
j F
land.

Section 5 of the Act defines Bhumidhar thus :

"5. Bhumidhar - Every person belonging to any of the following
classes shall be a Bhumidhar and shall have all rights and be subject G
to all the liabilities conferred or imposed upon a Bhumidhar by or
under this Act, namely:

(a) a 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 H

.,
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1052 SUPREME COURT REPORTS [1997] 1 S.C.R.

A land under Patta Dawami or lstamrari with rights of transfer by
sale, who are declared Bhumidhars on the commencement of this
Act;

(b) every class of tenants other than those referred to in clause (a)
...
and sub-tenants who are declared Bhumidhars on the commence-
B ment of this Act; or >

(c) every person who, after the commencement of this Act, is
.I

admitted to land as Bhumidhar or who acquires Bhumidhari rights '!'"
under any provisions of the Act."
c 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.

Part B of the Act postulates acquisition of certain rights of
D proprietors. Section 7 under this Par.t postulates the rights of proprietary
in waste lands, pasture lands of common utility etc. to vest in Gaon Sabha
and compensation to be paid for the .........

"(1) All rights of an individual proprietor or proprietors perta)ning
f
·-
·to waste lands, grazing or collection of forest produce from forest
E 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
F 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. ,....

Provided that where such land was a result of consolidation of

G
holdings made available for use for any purposes other than those ..
referred to in this sub-section, 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
1,--
this sub-section.

H Explanation - For the purpose of this sub-section - .
'"'
U.0.1. v. SHER SINGH 1053
(i) "Waste land" shall include cultivable and uncultivable waste A
area of the village including any land in the bed of a river,
occupied or held by an Asarni referred to in Section 6(a)(iii)
of the Act except the uncultivated area -

(a) included in the holding of such proprietor or proprietors, or
B
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(b) used for purposes other than those mentioned in clause (143)
..'+ of Section 3 at any time before the 28th day of October, 1956
or

(c) acquired by bona fide purchaser for value at any time before c
the 28th day of October, 195.8 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 communitr utility lands D
etc. shall vest in Gaon Sabha. The waste land included in the holding
of the proprietor stands excepted from the waste land contemplated by
Section 7.

Section 11 of the Act provides declaration of Bhurnidhari Rights in E
favour of proprietors and superior class of tenants, compensation and land
revenue. Sub-section (1) provides that;

"(1) Subject to the provisions of Section 10, the Deputy Commis-
sioner shall declare as Bhumidhar persons holding the following
lands, namely : F

· (a) Khudkha~t 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; G

(b) land 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 Dawarni or Istamrari by tenants with
right of transfer by sale." H
1054 SUPREME COURT REPORTS [1997) 1 S.C.R.
A 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
I
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
B for the purpose of exclusion under the explanation from the purview of
Section 7 of the Act.

What would be the consequence has been stated in Section 154 of
the Act is to be seen. Section 154 reads thus : v

"154. Vesting of certain lands etc. in Gaon Sabha - (1) On the
c commencement of this Act -

(i) all lands whether cultivable or otherwise, except land for the
time being comprised in any holding or grove,

:xxxxxxxxxxxxxx situate in a Gaon Sabha Area, shall
D
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 Sabha from the date of the Commencement of
E the Act.

This question also no longer res integra. In Hatti's case (supra), this
Court has gone into the relevant provisions of the Act and held thus :

"Sections 6, 11, 13 and 154 of the Act read together, thus show
F 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 Asarni, whereupon the rights of
the proprietor in that land ceased. Land, which were not holding
G of either the proprietor or any other person, vested in the Gaon
Sabha. In the 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
H not be his holding and, consequently, such land would vest in the
U.O.I. v. SHER SINGH 1055
Gaon Sabha under Section 154, the result of which would Qe that A
the rights of the proprietor would be extinguished."

- As stated earlier, indisputably in the revenue records the land in
question had been recorded as gair mumkin pahar. Under those cir-
cumstances, this gair mumkin pahar land which was not held by the
B
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 c
determine whether the order is in accordance with law.......... However, I
woUld also like to clarify tharthis 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 D
Deputy Commissioner. Consequently, the entire issue was at large. Obvious
therefore, that when there was conflict of decisions between two 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 E
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.
F
The appeal is accordingly allowed, but in the circumstances, without
costs.

R.P. Appeal allowed.