Delhi High Court
Master Mayank Vashishth vs Financial Commissioner on 6 August, 2004
Equivalent citations: 114(2004)DLT162, 2004(77)DRJ65
Author: T.S. Thakur
Bench: T.S. Thakur
JUDGMENT T.S. Thakur, J.
1. In this petition for a writ of certio rari, the petitioners assail the legality of an order passed by the Collector, North-West District, Delhi and that passed by the Financial Commissioner in appeal, whereby an order attesting a mutation in favor of the petitioners on the basis of a sale deed executed in their favor has been set aside and directions for taking possession of the land covered by the sale issued on the ground that the sale was in contravention of the provisions of Section 33 of the Delhi Land Reforms Act. The facts giving rise to the controversy are few and may be stated at the outset:-
2. Late Shri Ram Mehar and his brother Kanwar Lal purchased a certain extent of land situate in different khasra nos. of Village Khera Khurd somewhere in the year 1941-42. In terms of a sale deed dated 7th August, 1996 Ram Mehar transferred in favor of the petitioners, land situate in khasras Nos. 50/17 and 50/18 which had according to the case set up by the petitioners, fallen to the share of Ram Mehar in a family partition between him and his brother Kanwar Lal. The sale deed inter alia recited that Ram Mehar was the sole owner and in peaceful possession of property being sold under the same in favor of the petitioners. Shortly after the said sale, the Naib Tehsildar passed an order on 18th September, 1996 attesting a mutation in favor of the petitioners. Aggrieved by the sale in question, respondents 4 to 8 filed original suit No. 827/96 for a declaration and cancellation of the sale deed, which is pending trial before the competent civil court and in which certain interim orders of injunction also appear to have been passed. In so far as the mutation order passed by the Naib Tehsildar was concerned, respondents 4 to 9 preferred an appeal against the same under Section 64 of Delhi Land Revenue Act before the Collector, North West, Delhi. The said appeal succeeded and was in terms of an order dated 9th November, 1998 allowed by the Collector holding that the mutation order was bad on account of procedural irregularities committed while passing the same and that the land in question having been transferred contrary to Section 33 of the Delhi Land Reforms Act, the same had vested in the Gaon Sabha. Consequential directions were issued to the BDO to take necessary steps for taking over the possession of the land vested in the Sabha.
3. Aggrieved by the view taken by the Collector, the petitioners preferred a second appeal before the Financial Commissioner under Section 66 of the Delhi Land Revenue Act which failed and was dismissed by an order dated 23rd August, 1999. The Financial Commissioner affirmed the view taken by the Collector that the sale effected by Ram Mehar was indeed violative of Section 33 of the Land Reforms Act readwith Rule 146 of the Rules framed there under. The present writ petition assails the correctness of the said two orders as already mentioned earlier.
4. Appearing for the petitioners, Mr. Anand Yadav made a two-fold submission. It was in the first place argued that since the Collector was exercising his powers under Section 64 of the Delhi Land Revenue Act he was not competent to go into the question of validity of the sale vis-a-vis Section 33 of the Delhi Land Reforms Act. The jurisdiction to declare any such sale invalid in law was vested according to the learned counsel exclusively in the authorities under the latter Act and could be exercised by them in accordance with the procedure established for that purpose. The Collector could not in an appeal preferred under a different statute assume to himself the jurisdiction to determine issues that would legitimately fall for the determination of the authorities under the Land Reforms Act. In as much as the Collector had usurped the jurisdiction of the authorities under the Land Reforms Act, he had committed a mistake which vitiated the order made by him. The Financial Commissioner also having fallen in the same error, the impugned orders were unsustainable in law.
5. It was alternatively submitted that even if the argument advanced before the Collector or the Financial Commissioner suggested violation of the provisions of Section 33 of the Land Revenue Act, all that the said officers could possibly do was to refer the issue regarding the validity of the sale to the Revenue Assistant under Section 23 of the Land Revenue Act for determination. The Collector or the Financial Commissioner it was contended could not have themselves assumed jurisdiction under the provisions of the Land Reforms Act merely because the authority competent under the said Act was in the departmental hierarchy subordinate to them.
6. On behalf of the respondents, it was, on the other hand, contended that the mutation order passed by the Naib Tehsildar was ex-facie incompetent in as much as the provisions of Section 23 of the Land Revenue Act made it incumbent upon him to make a reference to the Revenue Assistant in all cases where there was a dispute regarding the attestation of the same. Since there was in the instant case such a dispute, the Naib Tehsildar ought to have acted in accordance with the provisions of Section 23 and made a reference to the Revenue Assistant. His failure to do so rendered the order made by him unsustainable apart from other procedural deficiencies like the absence of a notice to the respondents who claimed to be the joint bhoomidars vis-a-vis the land in question. Reliance was in this regard placed upon Rule 146 of the Delhi Land Revenue Rules. It was also submitted that the Collector and the Financial Commissioner could even in appeals arising out of the Land Revenue Act take note of the violation of the provisions of Section 33 and issue directions for action being taken under Section 42 of the Act. The exclusion of jurisdiction under Section 185 of the Land Reforms Act did not, according to him, extend to excluding the jurisdiction of the higher revenue officers to issue directions where such directions were considered appropriate.
7. I have given my anxious consideration to the submissions made at the bar and perused the record. There are two distinct aspects that arise for consideration. One of these relates to the validity of the mutation order and the other to the validity of the direction issued by the Collector that the land covered by the sale deed stood vested in the Gaon Sabha as the sale was in violation of Section 33 of the Act. In so far as the first part of the controversy is concerned, there does not appear to be any difficulty in holding that the order of mutation passed by the Naib Tehsildar was on account of failure of the procedural requirements like notice to the respondents unsustainable in law. That a notice under Rule 146 of the Delhi Land Revenue Rules was required to be issued to all the joint bhoomidars was not disputed before me. It is also evident that no such notice was ever issued to the respondents. That apart the mutation order was in the light of the rival claims and contentions urged by the parties, a disputed mutation which could be attested only by the Revenue Assistant having regard to the provisions of Section 23 of the Land Revenue Act which reads as under :-
" Section 23 - The Tehsildar, on receiving such report or upon the facts otherwise coming to his knowledge, shall make such inquiry as appears necessary and in undisputed cases, if the succession or transfer appears to have taken place, shall direct the Patwari of the halka to record the succession or transfer is disputed or the Tehsildar finds that it is in contravention of the provisions of the Delhi Land Reforms Act, 1954, he shall refer the case of the Revenue Assistant, who shall decide it after such inquiry as may be prescribed and where necessary, direct the Annual Register to be amended accordingly."
8. Absence of a notice to the respondents and the consequent failure of a rival contention before the Naib Tehsildar, could not possibly confer jurisdiction upon the Naib Tehsildar for it goes without saying that if a notice had been issued, the rival claim would have raised a dispute regarding the proposed mutation which would have in turn taken the matter out of the jurisdiction of the Naib Tehsildar. On either count, therefore, the order of mutation passed by the Naib Tehsildar was unsustainable and could, justifiably be set aside by the appellate authorities. In fairness to learned counsel for the parties, I must say that to that extent, there was no serious contest before me.
9. What was argued at considerable length with remarkable vehemence on both sides was the issue touching the validity of the orders of the Collector and the Financial Commissioner declaring the sale in favor of the petitioner to be invalid on the ground that it violated Section 33 of the Land Reforms Act. A careful reading of Section 23 of the Land Revenue Act extracted above would make it clear that Naib Tehsildar was required to make a reference to the Revenue Assistant not only in cases where there was a disputed mutation but also in cases where the sale in question was seen to be in violation of the provisions of Section 33 of the Land Reforms Act. There is considerable good sense in the provision containing such a mechanism. The Land Reforms Act is an independent piece of legislation which creates new rights and provides the machinery for adjudication of disputes relating to the same. It also identifies the authorities who will adjudicate upon such disputes. In cases where the question regarding validity of a sale arises for consideration, the authority competent to determine any such issue under the Land Reforms Act is none other than the Revenue Assistant.
10. That being so, the provisions of Section 23 of the Land Revenue Act fall in line with the over all scheme of the two pieces of legislation. It is a clear indication of the legislative intent that whenever a question relating to the violation of Section 33 of the Land Reforms Act arises for consideration, the same must be referred to the Revenue Assistant who is the designated authority to adjudicate upon the same. It follows as a corollary that revenue officers exercising powers under the Land Revenue Act cannot assume to himself the jurisdiction to adjudicate upon the dispute which must be referred for determination of the authority competent to do so.
11. The only other issue that remains to be examined is whether the Deputy Commissioner who is an officer higher in rank to the Revenue Assistant could examine the question of validity of the sale in the context of Section 33 of the Land Reforms Act. The answer to that question must also logically be in the negative. If the scheme of one enactment does not admit of determination of questions arising under the same except in accordance with the provisions of the said enactment, any officer exercising jurisdiction under any other enactment regardless of his rank and position will have no jurisdiction to entertain or adjudicate upon any such dispute. That apart, the Deputy Commissioner and the Financial Commissioner both exercise appellate powers under the Land Revenue Act over orders made by the subordinate officers. The scope of their powers, therefore, remain subject to the same restrictions and limitations as are the powers exercised by the authority against whose orders they sit in appeal. If the Naib Tehsildar or the Tehsildar were not competent to entertain or determine any question relating to the validity of the sale in favor of the petitioner, any authority hearing an appeal against his order could also not do so, unless there was an enabling provision to the contrary, which I do not find in the present case.
12. The net result of the above discussion, therefore, is that while the Appellate authorities were justified in setting aside the mutation attested by the Naib Tehsildar, they fell in error in going further and directing that the land in dispute shall stand vested in the Gaon Sabha as the sale in question was contrary to Section 33 of the Land Reforms Act. The proper course for the Appellate authority was to set aside the mutation order, and refer the question regarding violation of Section 33 of the Land Reforms Act to the Revenue Assistant for determination. Depending upon the result of any such determination, the Revenue Assistant could after complying with other procedural requirements either attest a mutation or direct vesting of the land in the Gaon Sabha.
13. This writ petition accordingly succeeds and is hereby allowed with the following directions :-
i) The impugned orders passed by the Deputy Commissioner and the Financial Commissioner, shall to the extent the same direct vesting of the land in the Gaon Sabha stand quashed.
ii) The question whether there was any violation of Section 33 of the Land Reforms Act shall stand referred to the Revenue Assistant who shall determine the said question after affording to the parties an opportunity of being heard.
iii) Depending upon the result of the determination, the Revenue Assistant shall either attest a mutation or direct the land to vest in the Gaon Sabha.
iv) The parties shall appear before the Revenue Assistant on 8th September, 2004 which the Revenue Assistant shall be free to proceed with the case without any further notice. The proceedings shall be completed within a period of six months.
v) No costs.