Delhi High Court
Smt. Shakuntala Devi vs Fci & Ors. on 4 May, 2009
Equivalent citations: AIR 2009 (NOC) 2923 (DEL.)
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3051/1994
Date of decision : 04.05.2009
IN THE MATTER OF :
SMT. SHAKUNTALA DEVI ..... Petitioner
Through: Mr. Jai Pal, Adv.
versus
FCI & ORS. ..... Respondents
Through : Mr. J.P. Sengh, Sr. Adv. with
Mr. Raghuvender, Adv.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
HIMA KOHLI, J. (ORAL)
C.M. Nos.15331/2006 (for restoration) & 15332/2006 (u/S 5 of the Limitation Act) The present applications are filed by the petitioner praying W.P.(C) 3051/1994 Page 1 of 12 inter alia for recall of the order dated 3.1.2006, by which the writ petition was dismissed for non-prosecution, as also for condonation of delay. The aforesaid applications came to be filed on 7.11.2006.
It is stated on behalf of the petitioner that the writ petition was admitted, vide order dated 25.7.1994 and came up for regular hearing in the year 2006. The petitioner's counsel informed the petitioner that, as and when the case would reach for hearing, he would intimate her about the position and hence, the petitioner relied on her counsel to follow up the case in Court. However, as the counsel, who was engaged earlier, did not give a satisfactory reply to the petitioner, she engaged a new counsel on 21.9.2006 and requested him to inspect the case file and inform her about the status of the case. The newly engaged counsel inspected the case file on 28.9.2006 and applied for a certified copy of the relevant order dated 3.1.2006 which was provided on 10.10.2006. Counsel for the petitioner states that immediately thereafter, the petitioner has filed the present applications praying inter alia for setting aside the order dated 3.1.2006 and for condonation of delay, if any, in filing the application for restoration.
W.P.(C) 3051/1994 Page 2 of 12
No reply has been filed to the present applications till date, though notice was issued on these applications on 12.12.2006. Thereafter, innumerable adjournments were sought on behalf of the petitioner for addressing arguments, due to which the present applications have remained pending.
Considering the submissions made in the present applications and keeping in mind the fact that none was present even on behalf of the respondent when the writ petition was dismissed for non-prosecution on 3.1.2006, the applications are allowed on the ground that just and sufficient cause has been shown by the applicant for recall of order dated 3.1.2006. The delay in filing the application seeking recall of the order dated 3.1.2006 is condoned. The order dated 3.1.2006, by which the present writ petition was dismissed for non-prosecution, is recalled and the writ petition is restored to its original position.
The applications are disposed of.
W.P.(C) 3051/1994
1. The present writ petition is filed by the petitioner praying inter alia for quashing of the order dated 16.8.1988, passed by the W.P.(C) 3051/1994 Page 3 of 12 Consolidation Officer, allowing the application filed by the respondents for mutation of the land, subject matter of the writ petition, in their favour and the order dated 25.2.1994 passed by the Additional Collector on an appeal filed by the petitioner under Section 64 of the Delhi Land Revenue Act, 1954 against the order dated 16.8.1988 allowing the mutation in favour of the respondents in respect of the land, and finally, the order dated 25.4.1994 passed by the Financial Commissioner on a second appeal preferred by the petitioner under Section 66 of the Delhi Land Revenue Act, dismissing the said appeal as devoid of merits.
2. Briefly stated, the facts of the case are that one Shri Sri Lal, father of the petitioner, was the co-owner of agricultural land measuring 69 bighas 4 biswas situated within the revenue estate of Village Alipur, Delhi comprised in Khasra No.566(4-16), 570 (4-16), 635 (4-16), 636 (0-3), 637/2 (4-11), 638 (4-11), 639 (4-8), 640 (4-
16), 641 (5-19), 645 (2-9), 648 (4-16), 649 (4-16), 652 (4-16), 990 (4-16), 1016 (3-5), 1017 (1-12) and 1029 (3-13).
3. The father of the petitioner expired in the year 1965. Vide mutation case No.1339 dated 23.4.1966, mutation was sanctioned in W.P.(C) 3051/1994 Page 4 of 12 favour of Smt. Pato, mother of late Shri Sri Lal, and Shakuntala, minor unmarried daughter of Shri Sri Lal. Thereafter, the petitioner was married in the year 1977. The respondents herein filed an application after 22 years, on 14.1.1988 during the course of consolidation proceedings of the village by seeking correction in the revenue records and sought deletion of the name of the petitioner and substitution of their names as successors-in-interest of late Shri Sri Lal. The petitioner herein filed an objection to the aforesaid application and pleaded that the application filed by the respondents was hopelessly barred by limitation as the mutation had been carried out in her favour on the application of the respondent No.3 on 23.4.1966. On merits, it was stated that the provisions of the Delhi Land Reforms Act were not applicable and that the mutation was done with the consent of the respondents in accordance with the provisions of the Hindu Succession Act, 1956. Hence, it was urged that the provisions of Section 50 of the Act had no applicability to the inheritance. Lastly, it was urged that as the respondents were party to the mutation which took place as long back as in the year 1966, they were estopped from challenging the mutation.
W.P.(C) 3051/1994 Page 5 of 12
4. The aforesaid contentions of the petitioner were rejected by the Consolidation Officer/Revenue Assistant, who passed an order dated 16.8.1988 allowing the application of the respondents for deletion of the name of the petitioner to the extent of 115/1384 being half the share of the petitioner from out of the share of late Shri Sri Lal in the land in question. The revenue records were directed to be corrected by substituting the name of the respondents in place of the name of the petitioner.
5. Aggrieved by the abovesaid order, the petitioner filed an appeal before the Additional Collector under Section 64 of the Delhi Land Revenue Act. The Additional Collector considered the arguments of the parties and arrived at a conclusion that there was no bar of limitation that could be invoked by the petitioner and the mutation could be sanctioned on payment of the prescribed penalty. It was further observed that the petitioner being a rural villager, was governed by the provisions of the Delhi Land Reform Act and by virtue of Section 51 of the Act, the right of the female devolved upon the male successor after marriage. Hence, the appeal of the petitioner came to be dismissed.
W.P.(C) 3051/1994 Page 6 of 12
6. The aforesaid order dated 25.2.1994 was assailed by the petitioner in the second appeal preferred by her before the Financial Commissioner, who, by virtue of the impugned order dated 25.4.1994, dismissed her appeal by holding that the right of the petitioner had extinguished under Section 51 of the Delhi Land Reform Act and that mutation had to take place in terms of Section 50 of the above said Act thereof. It was further held that the contention raised on behalf of the petitioner that any challenge to the mutation could have been laid within a period of three years, was devoid of merits in view of Rule 165 of the Rules framed under the Delhi Land Revenue Act, whereunder only a penalty could be levied for filing a delayed petition. Aggrieved by the dismissal of the appeal by the Financial Commissioner, the petitioner has preferred the present writ petition.
7. Counsel for the petitioner states that the land in question could not be mutated by the Revenue Authorities in favour of the respondents No.2 & 3 by invoking the provisions of Section 50 of the Delhi Land Reform Act because the mutation was to take place under W.P.(C) 3051/1994 Page 7 of 12 the Hindu Succession Act. The aforesaid plea though taken on behalf of the petitioner in the writ petition is, however, not seriously urged by the counsel for the petitioner, who concedes that the Act applies to the land in question. He, however, argues that the findings of the Financial Commissioner to the effect that the limitation of three years is not applicable to these proceedings, is misconceived. He states that considering the fact that mutation of half of the property took place in favour of the petitioner and the remaining half took place in favour of the mother of Shri Sri Lal in the year 1966, in the presence of the respondent No.3, and the fact that the respondents were well aware of the marriage of the petitioner which took place in the year 1977, she being their niece and hence, the application filed by them for mutation of the land in their favour in the year 1988, was barred by limitation.
8. In response, counsel for the respondents draws the attention of this Court to Section 22 of the Delhi Land Revenue Act, which deals with the report of succession or transfer of possession, Section 23, which deals with procedure on report to be followed by the Tehsildar on receiving such a report, Section 24, which deals with the W.P.(C) 3051/1994 Page 8 of 12 powers to prescribe the fees for mutation and Section 25, which deals with fine for neglect to report. He states that a perusal of the aforesaid provisions makes it abundantly clear that there is no limitation prescribed in the Act for changing the entries in the register for the purposes of mutation and the Tehsildar is empowered to make an inquiry on receiving such a report and direct the Patwari of the Halka to record the same in the annual register.
9. Section 25 of the Delhi Land Revenue Act prescribes that any person neglecting to make the report as required by Section 22, within three months from the date of obtaining or delivery of possession, as the case may be, under a lease or other transfer, or from the date of succession, shall be liable to a fine not exceeding five times the amount of the fee which would otherwise have been payable under Section 24, or, when no fee is payable, not exceeding such amount which the Chief Commissioner may prescribe. Rule 165 of the Delhi Land Revenue Rules, 1962 prescribes the levy of fine as a maximum of Rs. 100/- in cases of succession, transfer and any other case of land revenue.
W.P.(C) 3051/1994 Page 9 of 12
10. Hence, counsel for the respondents is justified in stating that at best, the revenue authorities could impose a mutation fine on the respondents and recover the same from them after the application for mutation was allowed. The proceedings for correction in the annual register do not attract the Limitation Act. Hence, the plea of the petitioner to the effect that the application of the respondents for correction in the annual register is barred by limitation, is devoid of merits.
11. The second plea raised on behalf of the petitioner that as the respondents were party to the mutation, which took place in favour of the petitioner and her mother in the year 1966, any application filed by respondent No.3 for change in the mutation in the year 1988 is barred by estoppel, is misconceived for the reason that at the relevant time in the year 1966, when an entry was made in the register, the correct position was recorded to the effect that the petitioner was an unmarried daughter of late Shri Sri Lal. Hence, the fact that the respondent No.3 was a witness to the said correction W.P.(C) 3051/1994 Page 10 of 12 would not come in the way of the respondents at a late stage, when the circumstances underwent a change. All the three orders passed by the revenue authorities held that at the time when the land was mutated in her favour, the petitioner was unmarried and only on her marriage did her entitlement to the land disappear. This is in consonance with the provisions of Section 51 of the Act which stipulates as below :
51. Succession in the case of a woman holding an interest inherited as a widow, mother, daughter etc. -
(1) When a Bhumidhar or Asami, who has after the commencement of this Act inherited an interest in any holding as a widow, mother, step-mother, father's mother, unmarried daughter or unmarried sister, shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 50) of the last male Bhumidhar or Asami other than one who inherited as a father's father.
(2) When a Bhumidhar who has before the commencement of this Act, inherited an interest in any holding as a widow, mother, step- mother, father-mother, father's mother, daughter, sister or step- sister
(a) Dies and such Bhumidhar was on the date a proprietor of the land comprised in the holding and -
(i) She was in accordance with the personal law applicable to her entitle to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provision of section 50) of the last male proprietor or tenant aforesaid; and if
(ii) She was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in section 53;W.P.(C) 3051/1994 Page 11 of 12
(b) and such Bhumidhar on the date immediately before the said date held the holding otherwise than as a proprietor, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provision of the section 50) of the last male tenant other than one who inherited as a father's father.
(3) The provision of sub section (1) shall mutatis mutandis apply to an Asami who inherited the holding before the commencement of this Act.
(4) Nothing in sub- section (1) shall apply to a person, succeeding to an interest in any holding under the provision of section 53.
12. It is apparent from a perusal of the aforesaid provision that the petitioner as the married daughter of the deceased late Shri Sri Lal was not entitled to the estate of her father after the year 1977 and hence she could not lay any claim to the said estate. This Court does not find any illegality, arbitrariness or perversity in the impugned order dated 25.4.1994 passed by the learned Financial Commissioner which deserves interference in judicial review.
13. The writ petition is, therefore, dismissed. The parties are left to bear their own costs.
HIMA KOHLI,J MAY 04, 2009/sk W.P.(C) 3051/1994 Page 12 of 12