Delhi High Court
Harbans Lal And Ors. vs Financial Commissioner And Ors. on 31 July, 2003
Equivalent citations: 2003VAD(DELHI)355, 106(2003)DLT292, 2003(70)DRJ261
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
1. This order will dispose of the writ petition filed by certain land owners of village Bamnoli, Tehsil Mehrauli whereby they had challenged the impugned order of the Financial Commissioner purported to have been passed in the exercise of his powers under Section 42 of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948 (in short referred to as `the Act'). The facts in short relevant for deciding this appeal are:-
A notification under Section 14 (I) of the Act was issued on 08th September, 1993, for carrying out consolidation proceedings in village Bamnoli. The Consolidation Officer was appointed under the Act on June 13, 1996. The Consolidation Officer initiated consolidation proceedings by issuing a notification on June 21, 1996. On June 26, 1996, Advisory Committee under the Act was constituted to supervise the consolidation proceedings in the village. Applications were invited from the residents of the village for allotment and exchange of land for different purposes. After evaluating different holdings in the village a draft consolidation scheme was announced on 26.11.1996. Objections were invited from the residents to this draft scheme. By a notification issued on 11.4.1997, the draft scheme was confirmed by the Settlement Officer. Pursuant to the confirmed scheme, the repartition and exchange of land was completed by December, 1997. In terms of the scheme certain land was given to the landless labourers. It appears that some persons in the village were not satisfied with the scheme and with the exchange, allotment and repartition of the land, pursuant to the said scheme and they, therefore, filed a revision petition under Section 42 of the Act before the Financial Commissioner, who had the delegated powers of the Lt. Governor under the Act. The Financial Commissioner by the impugned order on 21st August, 2000, allowed the revision petition and remanded the case to the Consolidation Officer for redetermination of the specific cases of the persons who had filed the petition before him after notice of hearing to the concerned parties and in accordance with the provisions of the Act, Rules and the scheme. This order has now been challenged by the petitioners by filing the present petition. It may not be out of place to mention here that the persons at whose instance the impugned order was passed by the Financial Commissioner have also filed a writ petition in this Court being CWP No.3479/2001 for a direction to be given to the respondents to implement the decision of the Financial Commissioner. That petition was also heard Along with this petition and is being disposed of separately.
2. The submissions of Mr.Bansal, learned senior advocate appearing on behalf of the petitioners is that once a scheme has been finalised and exchange and repartition had taken place under the provisions of the Act, the Financial Commissioner did not have jurisdiction to call for and examine the records and pass an order thereon. It is submitted that there must be a case pending before the Settlement Officer so as to give jurisdiction to the Financial Commissioner to hear the revision petition of any party. Further argument of Mr.Bansal is that even assuming that the Financial Commissioner had the jurisdiction to hear the revision petition at the instance of some of the villagers, he could not pass any order without issuing notice to the parties interested and without giving them an opportunity of hearing. The contention of learned counsel for the respondent, however, is that since the scheme itself was illegal and under the scheme land was given to certain persons who were not entitled to the same, the Financial Commissioner was within his rights to pass an order without issuing notice to the parties who may have been affected by this order. In support of their respective contentions, reference is made by both the parties to Section 42 of the Act, which reads as under:-
Section 42 - The Chief Commissioner may at any time for the purpose of satisfying itself as to the legality or propriety of [any order passed, scheme prepared or confirmed or repartition made by any officer under this Act] call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:
Provided that [no order, scheme or repartition shall be varied] or reversed without giving the parties interested notice to appear and opportunity to be heard [except in cases where the Chief Commissioner is satisfied that the proceedings have been vitiated by unlawful consideration.]
3. A bare reading of the proviso to Section 42 shows that no order passed, scheme prepared or confirmed or repartition made shall be varied or reversed without giving the parties interested notice to appear and an opportunity to be heard except in cases where the Chief Commissioner is satisfied that the proceedings have been vitiated by unlawful consideration. It is thus clear that no order varying the scheme or repartition could be passed by the Financial Commissioner without giving notice to the parties who are affected by his decision. However, in cases where the proceedings relating to the preparation of the scheme or repartition and exchange, etc. are vitiated by unlawful consideration, the Financial Commissioner may pass an order without issuing notice to the interested parties. It is admitted case of the parties that no notice was given by the Financial Commissioner to the interested parties before passing the impugned order. It was also nobody's case before the Financial Commissioner that the proceedings before the Settlement Officer were vitiated by any unlawful consideration , nor any such finding is recorded in the impugned oder and that being so, the Financial Commissioner had no authority to set aside or vary the order without complying the mandatory provisions of law.
4. Submissions of learned counsel for the respondent, however, is that the fact that the land has been given under the scheme to persons who were not entitled to the same clearly shows that the scheme was unlawful and consequently there was no need to issue notice to the interested parties. In support of this contention, reference is made to a judgment of the Supreme Court reported as Roop Chand Versus State of Punjab and another . In my view, the judgment of the Supreme Court will not be applicable to the facts of the present case inasmuch as it has not been held by the Financial Commissioner in the impugned order that the scheme was vitiated by any unlawful consideration. To give jurisdiction to the Financial Commissioner to pass an order without notice to the interested parties it must be held by the Financial Commissioner that the scheme or the proceedings were vitiated by unlawful consideration. No such observation has been made by the Financial Commissioner in the impugned order. It was not even the case of the respondent before the Financial Commissioner that the proceedings were vitiated for any alleged unlawful consideration nor any such finding has been recorded by the Financial Commissioner. The effect of the order is that the landless labourers to whom the land was given under the scheme would be deprived of the same in case the impugned order is implemented. They would, therefore, clearly be interested persons and had a right to be heard before any order adverse to them was passed. Even otherwise, admittedly notice as envisaged by Section 42 of the Act has not been given before passing order against them. It is now well settled that no order to the prejudice of a person can be passed by any administrative, quasi-judicial or any other authority without giving an opportunity of hearing to that person. Non-observance of the principle of natural justice is itself prejudice to a man and an order passed without following the principles of natural justice cannot be sustained.
5. I may add here that some of the residents of the village had earlier challenged this scheme by filing a writ petition in this Court and the said petition was dismissed by a judgment which has now been reported as Umed Singh Versus Govt. of NCT of Delhi and others and it was held by the Division Bench in the said judgment that there was a statutory remedy provided under the Act to raise objections to the draft scheme under Section 19 of the Consolidation Act, objections, if raised, are to be dealt with and decided by the Settlement Officer and on the disposal of such objections, the scheme is to be confirmed. It was held that since no objections were raised within the prescribed period, the scheme was duly confirmed and published. Repartition was to be carried out under the provisions of Section 21 of the Act and any person aggrieved by the repartition could avail remedy under the provisions of the Act by preferring an appeal or revision. The Division Bench, therefore, held that ample machinery having been provided under the Act for giving relief to an aggrieved party in case repartition was not carried out in accordance with the scheme, there was no ground to interfere by the High Court with the scheme prepared by the Settlement Officer. In the present case as well, no objections were filed by any of the respondents either to the draft scheme or to the exchange repartition and allotment under the scheme. It was only after three years of repartition and exchange that revision was filed before the Financial Commissioner by some of the residents. As no objections were filed by the respondents before the finalisation of the scheme and repartition, the Financial Commissioner should not have entertained the revision. Moreover, the scheme having already been upheld by a Division bench of this court, there was no reason for the Financial Commissioner to interfere with the same.
6. I am, therefore, of the opinion that the impugned order having been passed without giving notice to the parties interested and without following the principles of the natural justice, cannot be sustained and has to be set aside. Since, the impugned order has been held to be not sustainable, I have not considered the other argument of Mr.Bansal that to give jurisdiction to the Financial Commissioner under Section 42 of the Act, there must have been a case pending before the Settlement Officer.
7. For the foregoing reasons, I allow this petition, make the rule absolute and quash the impugned order dated 31.8.2000 passed by the Financial Commissioner.