SMT. RAJESH BHAGWATI v. GOVT. OF N.C.T. OF DELHI

..... Respondent Through: Mr. Som Dutt Kaushik & Mr. Saket Kumar Srivastava, Advocates respondents Mr. Shailesh K. Kapoor Advocate for applicant in CM No.9660/2008. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest? No No RAJIV SAHAI ENDLAW, J.

1. The petitioner claiming to be the Bhoomidar of agricultural land in Village Bakhtawarpur, Delhi had permitted the applicant in CM No.9660/2008 being Tata Teleservices Ltd., to install a Cellular Tower on the said land. Proceedings under Section 81 of the Delhi Land Reforms Act, 1954 were instituted against the petitioner, for by permitting installation of Cellular Tower having used the agricultural land for purposes other than W.P.(C) No.1865/2007 agricultural. The petitioner filed his reply in the said proceeding averring that installation of the Cellular Tower did not amount to misuse of agricultural land. The petitioner filed this petition averring that though no hearing had been given to him nor had he been notified of any order under Section 81 of the DLR Act, the respondent was purporting to dispossess the petitioner from the land. The petitioner in this writ petition thus sought quashing of the order if any, passed in the Section 81 proceedings and a restraint against his dispossession from the land.

2. This Court vide order dated 9th March, 2007, which continues to be in force restrained the dispossession of the petitioner from the said land. To verify as to what steps had been taken in the proceedings under Section 81 of the DLR Act, record thereof was requisitioned. However it is recorded in the earlier order that the same was not traceable.

3. The counsel for the respondents has today stated that the record has been traced and has handed over the same for perusal of the Court. A perusal of the said record shows that a hearing was held on 1st August, 2006 i.e. after the petitioner had filed his reply and in which hearing Shri Suresh Pal brother of the petitioner was present. The SDM, on admission in the reply as well as of the brother of the petitioner of the tower having been erected, made a conditional order for removal of the tower within three months failing which the land was ordered to vest in the Gaon Sabha. The matter was adjourned thereafter from time to time and ultimately on 1st W.P.(C) No.1865/2007 February, 2007, upon the said Shri Suresh Pal confirming that the tower still existed, the order of vesting of the land in the Gaon Sabha was made.

4. The counsel for the petitioner admits that Shri Suresh Pal is the brother of the petitioner but states that Shri Suresh Pal had never appeared before the SDM, neither on 1st August, 2006 nor on 1st February, 2007. It is thus contended that the matter be remanded to the SDM for consideration afresh.

5. The counsel for the respondent has contended that the order has attained finality and the remedy if any of the petitioner was by way of appeal thereagainst to the Court of Dy. Commissioner. It is further contended that owing to the alternative remedy of appeal the writ petition be not entertained.

6. The counsel for the applicant M/s Tata Tele services Ltd. has contended that the applicant is a necessary and a proper party to the present writ petition and/or to the proceedings if any under Section 81 of the DLR Act and he having not been impleaded as a party the proceedings in any case are bad. Reliance is placed on Section 17 of the Indian Telegraph Act, 1885 providing for removal of the tower and it is contended that the Telegraph Authority i.e. the applicant is to be notified before such removal.

7. As far as the locus of the applicant is concerned, the rights of the applicant flow through the petitioner only. The applicant cannot have a W.P.(C) No.1865/2007 better title than the petitioner. Moreover the proceedings under Section 81 of the DLR Act were not for removal of the Cellular Tower but only for ejectment of the petitioner on account of misuser. The applicant does not become a necessary party to the said proceedings. The applicant is therefore not found entitled to participation in these proceedings or participation in these proceedings under Section 81 of the DLR Act or the appeals, revisions etc. arising therefrom.

8. There is a presumption of the validity of official acts. It thus appears that the brother of the petitioner must have appeared before the SDM. Otherwise it is inexplicable as to how the name of the brother of the petitioner appeared in the record of the said proceedings. However notwithstanding the said fact, the SDM has not dealt with the reply of the petitioner submitted before the SDM and has also not given any reasons for concluding that installation of a Cellular Tower on the land is misuse within the meaning of Section 81 of the DLR Act. The order of the SDM cannot be sustained for this reason.

9. As far as the contention of the counsel for the respondent of the alternative remedy of appeal is concerned, it is felt that since the contentions of the petitioner have not been dealt with, it would not be appropriate to direct the parties to the appellate fora for decision of the matter.

10. The matter is therefore remanded to the SDM for decision afresh by giving an opportunity of hearing to the petitioner. The parties to appear W.P.(C) No.1865/2007 before the SDM on 18th August, 2010. The SDM to decide the matter within six weeks therefrom. Till the decision of the SDM and for a period of four weeks thereafter, no coercive action be taken with respect to cellular tower aforesaid. The petition is disposed of. No order as to costs. 26th July, 2010 RAJIV SAHAI ENDLAW (JUDGE) W.P.(C) No.1865/2007