Delhi High Court
Mangtu vs Financial Commissioner And Ors. on 17 July, 2007
Author: S. Muralidhar
Bench: S. Muralidhar
JUDGMENT S. Muralidhar, J.
1. This petition challenges an order dated 18.4.2001 passed by the Revenue Assistant under Section 11 and 85 of the Delhi Land Reforms Act, 1954 (DLRA) rejecting the application filed by the petitioner for declaration of bhumidari rights regarding certain agricultural land situated in village Shakarpur. The petition also challenges the order dated 29.10.2001 passed by the Deputy Commissioner (South-west District), New Delhi dismissing the petitioner's appeal and the order dated 14.2.2006 passed by the Financial Commissioner dismissing the second appeal filed by the petitioner against the aforementioned order.
2. The facts leading to the filing of the present petition are that at the time of the commencement of the DLRA, one Smt. Chameli Devi, the widow of late Shri Munshi was declared bhumidar of half the share of the aforementioned land on the basis of the entries in the Revenue records. The petitioner and Shri Devi Singh were also declared bhumidars in respect of 1/4th share of the aforementioned land. The land in question originally belonged to one Shri Deena who had two sons namely Shri Molad and Shri Munshi. While the petitioner Shri Mangtu and Shri Devi Singh are grandsons of Shri Molad, Smt. Chameli Devi is the widow of Shri Munshi.
3. According to the petitioner, the property in question was a Hindu Undivided Family property (HUF) and since she was not a coparcener Smt. Chameli Devi's name could not have been entered in the Revenue records as a co-owner. The petitioner also claimed bhumidari rights under Section 85 of the DLRA on the basis of exclusive physical cultivatory possession since 1974. The said application was resisted by Smt. Chameli Devi on the ground that the petitioner here was never in possession of the land in question. He had never challenged the entry made in the Revenue record acknowledging Smt. Chameli Devi as bhumidar/co-owner since 1954 and the present petition was filed only in 1997 i.e. after a gap of 43 years. It is submitted that for correction of an erroneous entry, the remedy lay under Rule 8(4) of the Delhi Land Reforms Rules, 1954 (DLR Rules).
4. By his order dated 18.4.2001, the Revenue Assistant dismissed the suit as not maintainable. The Revenue Assistant rejected the plea of the petitioner that there was no limitation for filing a suit to challenge entries of bhumidari in the Revenue record and observed that if such a plea of unlimited time for filing of a petition under Section 11 were permitted "it would create chaos". On the plea of Section 85 DLRA, it was held that the petitioner failed to prove exclusive possession. Finally, it was observed that after coming into force of DLRA, the concept of coparcenary under the Hindu Law was no longer applicable to the land in question. It was observed that the concept of proprietorship or coparcenary under the Hindu Law no longer survived after the enactment of DLRA.
5. While dismissing the petitioner's appeal, the Deputy Commissioner (South-west District), observed that the petitioner here was one of the parties who was declared bhumidar at the time the DLRA came into force. If it was held that if the entries in the declaration were not correct, the petitioner could have moved to the Revenue Assistant in terms of Rule 8(4) of the Rules within two months thereafter. On the other hand, the petitioner did nothing for over 40 years. Accordingly, he held that the doctrines of estoppel and waiver would get attracted and no relief could be granted to the petitioner. The third impugned order dated 14.2.2006 of the Finance Commissioner dismissed the second appeal of the petitioner and affirmed the decision of the Revenue Assistant.
6. Appearing for the petitioner, Mr. Vats, learned Counsel, submits that Entry 4 in the Schedule to the DLRA indicates that there is no limitation for filing a petition under Section 11 DLRA for declaration of bhumidari rights. Therefore, the Revenue Assistant erred in rejecting the petitioner's suit on the ground of limitation. He further points out that the decision of the Hon'ble Supreme Court in Hatti v. Sunder Singh clarifies that the proceedings under Section 11 can be invoked even after the stage of filing an application under Rule 8(4) of the DLR Rules is crossed. Although he does not dispute the fact that after the enactment of DLRA, the concept of proprietorship has been done away with and that the question of coparcenary rights under the Hindu Law is irrelevant, he submits that the petitioner is entitled to invoke Section 11 of the DLRA to correct an erroneous entry made even way back in 1954. He therefore submits that procedure outlined in Rule 8(4) cannot take away the right of the petitioner to invoke the remedy under Section 11 DLRA.
7. Mr. Maan, learned Counsel for the respondents submits that although Smt. Chameli Devi may not have been a coparcener at the time of enactment of the DLRA, it is not possible for the petitioner to seek a relief under Section 11 DLRA to negatively declare that Smt. Chamli Devi did not have such right at the time of coming into force of the DLRA. He submits that in fact she has been recognized as a bhumidar in terms of entries in the Revenue records. He submits that the present petition is an abuse of the process of law.
8. The provisions in question are Section 11 DLRA and Rule 8(4) of the DLR Rules both which read as under:
11. Declaration of Bhumidari rights in favor of proprietors and superior class of tenants, compensation and land revenue. - (1) Subject to the provisions of Section 10, the Deputy Commissioner shall declare as Bhumidhars persons holding the following lands, namely:
(a) Khud Kasht land or a proprietor's grove in the tracts to which the Punjab tenancy Act, 1887, was applicable or Sir land or Khud Kasht land or a proprietor's grove in the tracts to which the Agra Tenancy Act, 1901, was applicable;
(b) Land held by occupancy tenant 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 transferby sale.
For the purposes of Sub-section (1), the Deputy Commissioner shall take into consideration the entries in the revenue records which shall be presumed to be correct unless the contrary is proved:
Provided that where land held as Khud Kasht by a proprietor belonging to any of the categories of persons referred to in Sub-section (2) of Section 10 has been before the commencement of this Act, let out to another person by or on behalf of such proprietor within six moths of the commencement of this Act and after giving an opportunity to the tenant of being heard, shall declare such land to be the proprietor's Khud Kasht for purposes of this Section.
(3) While making a declaration under Clauses (b) and (c) of Sub-section (1), the deputy Commissioner shall order the occupancy tenant or the Pattadar to deposit in Government Treasury an amount equal to four times the land revenue as ascertained in Sub-section (4) for the area of which he is declared as Bhumidhar as compensation thereof. If he fails to deposit the amount within six months of the date of declaration, the same shall be realized as arrears of land revenue. The amount deposited or so realized shall be disbursed to the proprietor under the order of the Revenue Assistant.
(4) Every person, who is declared as Bhumidhar under this section, shall, with effect from the commencement of this Act, be liable to pay to the Government for land, held by him as such, on account of land revenue, an amount which shall proportionately correspond to the land revenue payable immediately before the commencement of this Act for the area in respect of which he is declared Bhumidhar, with due regard to the class of soil comprised therein, together with the cesses and local rates.
Rule 8(4) Anyone who challenges the correctness of entries in the form of declaration shall, except where it refers to a clerical omission or error, be directed by the Revenue Assistant to file a regular suit within two months of the date of issue.
9. The decision in Hatti v. Sunder Singh which has been extensively relied upon by the counsel for the petitioner in fact is not of much assistance to him. The Hon'ble Supreme Court in the said decision has explained the scheme of the DLRA provisions vis-a-vis the position under the DLR Rules. It was held in that case that the Rules are subservient to the Act and that once a declaration is made under Section 11, it will supersede any contrary declaration made under the Rules. Further, it was held that if a bhumidar seeks a declaration of his rights, he must approach the Revenue Assistant by an application under Item 4 of the First schedule to the DLRA. However, there could be no suit by any person claiming to be proprietor because the DLRA does not envisage a proprietor such as continuing to have rights after the commencement of the DLRA.
10. The position was explained by the Hon'ble Supreme Court in Hatti v. Sunder Singh in paras 4 and 5 as under:
These Rules envisaged preparation of declaration forms by the revenue authorities without any application from any party. The declaration forms are based on the entries in the revenue records and, having been prepared on their basis, the declaration forms are issued to the persons who, under the forms, are held to be entitled to be declared as Bhumidars. These Rules, thus, do not envisage any application under Section 11 or Section 13 at this early stage. Rule 8(4) lays down that anyone, who challenges the correctness of entries in the forms of declaration, shall, except where it refers to a clerical omission or error, be directed by the Revenue Assistant to file a regular suit within two months of the date of issue. Obviously, this sub-rule has to be interpreted in conformity with Section 185 and item 4 of the First Schedule to the Act, so that the scope of this sub-rule must be confined to institution of suits in respect of matters not covered by item 4 of the First Schedule. This sub-rule would not stand in the way of an application being made by any person claiming to be Bhumidar under item 4 of the First Schedule. 5. The Rules were examined by Khanna J., in Lal Singh v. Sardara I.L.R. (1964) 2 Punj 428 and, in our opinion, he rightly held that a perusal of the Rules goes to show that there is no provision for giving notice to different interested parties before a declaration of Bhumidari rights is made and the whole thing is done in more or less a mechanical way. That being the position, it becomes obvious that an application for declaration of a Bhumidari right under item 4 of Schedule I of the Act is intended to be made even in cases where a declaration may have been previously granted under Section 11 or Section 13 in accordance with the Rules. The scheme of the Act appears to be that, initially, a declaration of Bhumidari right can be granted under Section 11 or Section 13 without calling for objections and without hearing contesting parties in favor of the person who appears to the revenue authorities to be entitled to the declaration on the basis of the records maintained by them. Thereafter, any person aggrieved and claiming Bhumidari rights is expected to move application before the Revenue Assistant who is to adjudicate upon the rights after following the usual judicial procedure. The order made by the Revenue Assistant in such a proceeding will then have to be given effect to and would over-ride the declarations earlier issued in accordance with the Rules. This shows that any person, who is aggrieved by a declaration of Bhumidari right issued in favor of another person, can appropriately seek his remedy by moving an application before the Revenue Assistant under item 4 of the First Schedule, whereupon, if he succeeds, he will obtain a declaration that he is the Bhumidar. Such a declaration will automatically supersede the declaration issued by the authorities in accordance with the Rules without any adjudication of rights and without notice to interested parties.
11. Can it be said that even after the bhumidari rights are declared, a person can once again invoke Section 11 only because there is no limitation for filing such an application? On the other hand Rule 8(4) sets an outer limit of two months for filing an application to correct a wrong entry. Harmonising these two provisions, it must be held that where a person has in the first instance applied for declaration of bhumidari rights and that application has been allowed then he cannot make that same request again and again. The object of the provisions appears to be that where a person has never sought a declaration as bhumidar such a right should not be defeated only with reference to Rule 8(4) of the Rules.
12. In the facts of the present case, it is clear that the petitioner was also declared as bhumidar way back in 1954 and even at that time, he knew of the entries of the name of Smt. Chameli Devi as a co-owner in the Revenue records. He did not object to those entries but chose to wait for 43 years before approaching the Court. The point that requires to be considered is whether the Revenue Assistant was right in holding that the application for declaration as bhumidar was barred by laches.
13. No valid explanation is forthcoming from the petition for waiting for this long a period to invoke provisions of the DLRA. The petitioner also does not appear to have correctly understood the decision of the Hon'ble Supreme Court in Hatti v. Sunder Singh. The scheme appears to be that where the status as a bhumidar has been recognized initially, then there cannot be a constant redetermination of that status for claiming bhumidari rights by filing a fresh petition under Section 11. On the other hand, if a person had never been earlier declared a bhumidar then the mere fact that Rule 8(4) exists, will not prevent such person from seeking a relief under Section 11. In any event in the facts of the present case, Section 11 could not have been invoked for a negative declaration that the entry in favor of Smt. Chameli Devi had been wrongly made.
14. In that view of the matter, this Court holds that the Revenue Assistant was right in holding that the suit filed by the petitioner was not maintainable in terms of Section 11 DLRA. Consequently, there is no need to examine whether the Revenue Assistant wrongly rejected the plea made under Section 85 DLRA. For all of the above reasons, this Court finds no infirmity in the impugned orders. The writ petition is dismissed with no orders as to costs. Interim orders dated 18.8.2006 stands vacated. CM also stands dismissed.