Delhi District Court
Chelmsford Club Ltd vs ) Smt. Suman Jain on 8 November, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
APPELLATE OFFICER UNDER THE EVACUEE
INTEREST (SEPARATION) ACT 1951
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
MCA - 60209/2016
Chelmsford Club Ltd.,
Through its Chief Administrative Officer,
1, Raisina Road, New Delhi110001.
......Revisionist
Versus
1) Smt. Suman Jain,
Assignee of Mohd. Akhtar,
W/o Sh. V.K. Jain,
R/O D10, Prashant Vihar, Delhi110085.
2) Mohd. Akhtar,
S/o Late Mohd. Shera @ Sheruddin,
R/o Ambedkar Colony, Village Chattarpur,
Behind Chattarpur Temple, New Delhi.
3) Sh. V.K. Jain,
R/O D10, Prashant Vihar,
Delhi110085.
MCA60209/2016
Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 1 of 17
4) Union of India,
Through its Secretary,
Ministry of Home Affairs,
(Rehabilitation Division)
Jaisalmer House, Man Singh Road,
New Delhi.
5) State of NCT of Delhi,
Through its Secretary,
Department of Land & Building,
Evacuee Property Cell, CWing,
IP Estate, Vikas Bhavan, New Delhi.
6) The Sub Divisional Magistrate,
Tehsil Mehrauli,
Mehrauli, New Delhi.
7) Naib Tehsildar, Tehsil Mehrauli,
District Hauz Khas, New Delhi.
.......Respondents
Date of institution of revision : 21.04.2012
Date of reserving the order : 22.10.2016
Date of pronouncement of order : 08.11.2016
MCA60209/2016
Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 2 of 17
O R D E R
1. The present revision under Section 15 of The Evacuee Interest (Separation) Act, 1951 (in short the Act) read with Section 151 of the Code of Civil Procedure, 1908 (in short CPC) is directed against the impugned order of Sh. Ajay Goel, Ld. SCJCumCompetent Officer, Delhi, dated 21.02.2012, thereby disposing of the execution petition of respondents/DHs1 and 2, bearing Execution No. 01/2012, titled "Smt. Suman Jain & Anr. Vs. Union of India & Ors.," in terms of directions therein. Said execution petition was filed on 18.01.2012 by respondent no1 as assignee of respondent no2 for execution of judgment and decree dated 19.11.2011 of the Competent Officer in case number 01/2011, titled "Mohd. Akhtar Vs. Union of India & Anr."
2. Feeling aggrieved with the order of the Competent Officer, present revision was preferred by the revisionist on the premise that (i) impugned order had erroneously allowed execution of the decree which was a nullity in law as the Ld. Competent Officer had no jurisdiction nor powers to pass such a decree; (ii) impugned order was illegal, arbitrary MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 3 of 17 and deserves to be set aside in equity and in law; (iii) the impugned order for no reason or rhyme had ousted the petitioner from its property without following the due process of law; (iv) impugned order was an outcome of misfeasance and nonfesance on the part of the Ld. Competent Officer; (v) impugned order was against the principle of natural justice and the well established tenets of law, passed in gross violation of the valuable right of the petitioner of a fair and reasonable hearing; (vi) the Ld. Competent Officer without having jurisdiction had dealt with the Khasras Nos. 354, 356, 357 and 361, which was against the provisions of the statute thereby vitiating the impugned order; (vii) Ld. Competent Officer while passing the impugned order transgressed his jurisdiction by dealing with properties which were held to be not composite properties; (viii) Ld. Competent Officer in the impugned order while providing relief had transgressed the confines of the categorical provisions of the statute; (ix) Ld. Competent Officer while adjudicating valuable rights merely went by the submissions made by the claimant that he was in possession of Khasra Nos. 354, 356, 357 and 361 and had not bothered to verify or examine the veracity of the said claim, thereby resulting in gross negligence; (x) impugned order amounted to an abuse of the judicial MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 4 of 17 powers conferred on Ld. Competent Officer by the statute and Ld. Competent Officer had moulded the relief as per his whims and fancies and against the letter of law; (xi) Ld. Competent Officer noted in the order dated 19.11.2011 that the Assistant Settlement Commissioner cum Assistant Custodian General (in short ASC) categorically excluded Khasra Nos. 354, 356, 357 and 361 and held that the respondent/DH no1 was not entitled to and cannot claim any claim or right thereto, could not have dealt with the said Khasras at all and ought not to have allowed execution of the patently illegal order dated 19.11.2011; (xii) on one hand Ld. Competent Officer affirmed and reiterated the findings of order dated, 26.08.2011, passed by the ASC that rights and claims of respondent no2 are not enforceable but on the other hand indirectly enforced the said claims by means of a decree in favour of respondent/DH No2 with respect to lands in which respondent no2 was admittedly in unauthorized possession. Without examining whether the respondent/DH No2 was in possession of afore mentioned lands in khasras and having considered the ownership of the said khasras, wherein, the rights had been held to be not enforceable; so it could not have been enforced by the Ld. Competent Officer by way of providing alternate land to the MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 5 of 17 respondent/DH No1 at the cost of the petitioner, hence the impugned order deserves to be set aside; (xiii) Ld. Competent Officer had not given any notice to the petitioner having vested interest in the subject property and having title as recorded in the revenue records. Revisionist prayed for setting aside of the impugned order.
3. Respondents/DH No. 1 and 3 filed reply to the revision petition taking preliminary objections viz. (i) present petition was not maintainable as no right had accrued in favour of the petitioner herein to assail the impugned order; (ii) petitioner had no locus standi to file the present petition particularly when the petitioner was not a party before the Ld. Competent Officer and the petitioner had not participated in the proceedings. However, petitioner without any justification with their ulterior motives had filed the present petition to harass the respondents/DHs; (iii) petitioner had not approached with the clean hands and had been acting in collusion with those people with their ulterior motives to defeat the rights of the answering respondents/DHs; (iv) petitioner had concealed and suppressed various material facts relating to the land owned by the petitioner as allotted by the Government of India MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 6 of 17 and submitted that the petitioner did not have any right whatsoever to make any claim with respect to the land, which had been allotted to the answering respondents/DHs by the Competent Officer; (v) present petition was barred by limitation and there was no sufficient justification and reason to condone the delay; (vi) Ld. Competent Officer passed a very reasonable, reasoned and legal order in accordance with law and did not suffer from any irregularity and illegaity, passed within the ambit and jurisdiction of the provisions of The Evacuee Interest (Separation) Act, 1951; (vii) petitioner had filed incomplete documents; (viii) petitioner played fraud with the Government and other persons and got much more land than it was allotted to the petitioner by the Government and subsequently certain lands had been surrendered by the petitioner and separate land had been allotted to the petitioner; (ix) respondents/DHs No. 4 to 7 had filed the relevant documents before the Ld. Competent Officer and the present petition had been filed without any good reason with ulterior motives only to harass the answering respondents/DHs; (x) present petition was an abuse of process of law, had no substance at all and not maintainable for want of relevant documents; and (xi) order dated 19.11.2011 had been upheld by the Appellate authority vide order dated MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 7 of 17 03.12.2012 and it could not be reopened and the order dated 19.11.2011 had attained finality. It has been averred that there was no violation of the law as well as the provisions of the Act involved in the present petition and also there was no violation of principles of natural justice and the alleged rights of the petitioner had never been violated. Therefore, the entire allegations that the impugned order had been passed without giving notice to the petitioner, are totally misconceived and denied. It has been further averred that if the petitioner had any grievance against the respondents/DH No. 4 to 7 with respect to any entry in the revenue record or any of its rights were involved relating to the land owned by respondents/DHs No. 4 to 7, it would be open for the petitioner to agitate its rights, however, the petitioner could be permitted to make any grievance against the impugned order in the present petition. Also, has been averred that the petitioner had got exchanged the land and under all circumstance the petitioner did not have any right to make claim over the land more than 137 bigha 17 biswa, however, the petitioner had illegally trespassed huge lands of the Government and started claiming that petitioner had purchased the same from the individual persons privately. However, the petitioner had not produced any relevant MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 8 of 17 documents for purchasing the same. It has also been averred that Sh. Gurdip Singh had also filed a petition before this Court claiming his right in the land through Chelmsford Club. The allegations that subsequent to acquisition, purchase of the land by the petitioner, the petitioner introduced a scheme for its members and developed the same into plots of 1 acre each and thereafter on the basis of the draw the plots had been allotted to the members of the club under the lease deed, are totally misconceived and did not give any right to file the present petition. The present petition was collusive and had been filed at the instance of Sh. Gurdip Singh in order to harass the answering respondents/DHs. It has also been averred that the documents as relied upon by the petitioner, had no substance. There was no substance in the application dated 18.04.2012 of petitioner, which was moved to create hurdles against the respondent/DH No. 1 related to the land allotted to her and the same was impermissible in law. It has also been averred that there was no necessity to issue any notice to the petitioner, nor the petitioner was ever a proper or necessary party for any purpose because the land, which was owned by the Government had been allotted to the respondent no1. The findings of the Ld. Competent Officer as mentioned in the impugned order would MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 9 of 17 not preclude the allotment of the afore mentioned land to the respondent no1 or her predecessor in interest. The order dated 19.11.2011 of Ld. Competent Officer subsequently modified vide order dated 21.02.2012, were passed on the basis of the revenue record produced by the competent authority and as such the entire allegations for not examining the documents etc., have no substance. The impugned order was perfectly legal and needs to be upheld. There was no violation of any right of the petitioner and the whole foundation of the petition was baseless. The petitioner had misread the provisions relating to the jurisdiction of Ld. Competent Officer. The rest of the contents of the petition are totally misconceived and denied. The respondents/DHs prayed for dismissal of the present revision petition with costs.
4. I have heard the arguments of Sh. Sanjeev Behl, Sh. Kishan Rawat, Ld. Counsel for revisionist; Sh. S.D. Singh and Sh. Vijay K. Gupta, Ld. Counsel for respondents no. 1 and 3, Sh. N. Prabhkar, Ld. Counsel for respondent no2, Sh. Santosh Kumar Yadav; Ld. Counsel for respondent no5; perused the record of this revision and the entire record of the trial court received on requisition and have given my thoughts to MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 10 of 17 the rival contentions put forth.
5. Vide judgment dated 19.11.2011 in Case No. 01/2011, titled "Mohd. Akhtar through Power of Attorney Sh. V.K. Jain Vs. Union of India & Anr." the Competent officer passed a decree in favour of claimant/assignee/successor in interest separating his interest/share from the stated composite property and his interest/share was assessed to be 31 bigha 15 biswa. The Competent Officer further passed a decree of possession in favour of the claimant/assignee/successor in interest only to the extent of 31 bigha 5 biswa land out of the land comprised in Khasra No. 355 (416), 358 (505), 354 (416), 356 (503), 357 (819) and 361 (4
16) total measuring 33 bigha 15 biswa in Village Gadaipur, Mehrauli, Delhi. The claimant/assignee/successor in interest was also directed to handover possession of two bigha 10 biswa land from the land comprised in khasra No. 361 (416) in village Gadaipur, Mehrauli to the Custodian of Evacuee Property, Govt. of NCT of Delhi within four weeks. Necessary changes in revenue/municipal records were directed to be carried out accordingly by the concerned authorities.
MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 11 of 17
6. Vide impugned order dated 21.02.2012 in the execution petition no. 01/12, titled "Suman Jain & Anr. Vs. Union of India & Anr." the Competent Officer in execution proceedings had passed following order : "VI Now regarding Gurdeep Singh, it has come on record that there are entries in favour of Gurdeep Singh as possessor and under Chamsford Club as owner/occupier in Kh. No. 354, 355, 361 to the tune of 2 bigha 9 biswas and 12 biswas respectively thus totaling to 3 bigha 1 biswas. The claimant/assignee have failed to place any document to show their possession thus decree of this land in favour of claimant/assignee cannot be allowed to stand and if they had to challenge the entries in revenue record, they will again have to take steps as per law for getting them rectified. Though it is correct that Gurdeep Singh has also failed to show the basis of entries in their favour specifically in the circumstances when the land is shown vacant in khasra girdawris. Further, it is not made out as to how the name of Chams Ford club or Gurdeep Singh came into existence but those are to be rectified by competent revenue court on approaching them and is not the domain of this court and as such continuous past long entries as on today have to be considered. As per order dated 19.11.2011, 2 Bigha 10 biswas was required to be given back to custodian by Mohd.
Akhtar/assignee as it was found to be in excessive possession of claimant/assignee but now as 3 bigha 1 MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 12 of 17 biswas is not shown to be in their possession hence that part becomes redundant and now it is upon custodian to agitate their matter regarding this land with Gurdeep Singh and Chamsford Club and not with Mohd. Akhtar. Mohd. Akhtar/assignee are entitled for remaining 11 biswas and custodian will give the same to them as alternative within 2 months from today. The SDM office has failed to clarify as to how entries in the name of Chamsford Club came hence the same are required to be rectified after due process of law. Hence in view of above observation, now it is apparent that there is no impediment in executing the remaining part of judgment dated 19.11.2011 in respect of Khasra mentioned therein as modified above and SDM Hauz Khas is directed to demaracte the said land and to carry out the necessary mutation entries in concern revenue records and handing over the possession within 2 months to the assignee/claimant. As dispute has arisen regarding the rights of Mohd. Akhtar as well as Suman Jain, he can write the words in mutation entries qua suit land as assignee Suman Jain of Mohd. Akhtar and further entries will be subject to outcome of any civil litigation between the parties. With above direction, the execution petition as on today stands disposed off with liberty to approach the court after 2 months if further action is required after the order is complied with as no useful purpose will be served by keeping the execution file pending. This file be consigned to record room."
MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 13 of 17
7. Vide separate order of even date in RCA60933/2016, titled "Chelmsford Club Ltd. Vs. Mohd. Akhtar & Ors." the impugned judgment therein of date 19.11.2011, in Case No. 01/2011, titled "Mohd. Akhtar Vs. Union of India & Anr." has been set aside and the matter had been remanded back to Competent Officer for 08.12.2016 in terms detailed therein. So, on this count the execution petition/application does not survive.
8. There is period of 60 days of limitation from date of order to file appeal by any person aggrieved, in terms of Section 14 of the Act. But there is no such prescribed period of limitation in case of powers of revision of appellate officer in terms of Section 15 of the Act and at any time the appellate officer can call records and pass orders in terms of Section 15 of the Act. Even otherwise, as per Article 131 of the Schedule of the Limitation Act, period of limitation for exercising powers of revision under the CPC by any Court is 90 days. Revision against order of date 21.02.2012 was filed on 21.04.2012, which is well within period of limitation of 90 days.
MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 14 of 17
9. No formal decree in prescribed form or otherwise, defined in Section 2 (2) of CPC was drawn in the Court of Competent Officer consequent to the Judgment in Case No. 01/2011, titled "Mohd. Akhtar Vs. Union of India & Anr." As per Order XXI Rule 11 (2) of CPC, the written application/petition for execution of a decree can be preferred in terms thereof and not of a judgment. Without the decree in existence, no application for execution would lie nor be maintainable. So, on this count the execution petition/application does not survive.
10. Even otherwise, it is basic fundamental principle in execution proceedings that the executing court cannot go behind the decree and neither can review nor modify the original decree. Even, under Section 16 of the Act, the clerical or arithmetical mistakes in order passed by Competent Officer or errors arising therein from any accidental slip or omission, may, at any time, be corrected by the Competent Officer. But the Competent Officer had no power to review or modify his own judgment of date 19.11.2011 in terms of the impugned order as "As per order dated 19.11.2011, 2 Bighas 10 Biswas was required to be given back to custodian by Mohd. Akhtar/assignee as it was found to be in MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 15 of 17 excessive possession of claimant/assignee but now as 3 Bighas 1 Biswas is not shown to be in their possession, hence that part becomes redundant and now it is upon custodian to agitate their matter regarding this land with Gurdeep Singh and Chamsford Club and not with Mohd. Akhtar. Mohd. Akhtar/assignee are entitled for remaining 11 biswas and custodian will give the same to them as alternative within 2 months from today." The Executing Court exceeded its jurisdiction as afore elicited by modifying the judgment dated 19.11.2011 adversely affecting rights of revisionist without issuing any notice to revisionist not adhering to the principle of natural justice of audi alteram partem and passed the impugned order at the back of the revisionist, condemning it unheard, who had to suffer by virtue of impugned order as its lands/properties owned as per registered sale/conveyance deed dated 06.07.1962, mutated in revenue records in its name, were adversely affected. Accordingly on all the aforesaid premises the impugned order is held to be bad in law and cannot sustain. The impugned order dated 21.02.2012 is set aside. Since, the original judgment dated 19.11.2011 in Case No. 01/2011, titled "Mohd. Akhtar Vs. Union of India & Anr." has been set aside as aforesaid in RCA60933/2016, titled "Chelmsford Club MCA60209/2016 Chelmsford Club Ltd. Vs. Smt. Suman Jain & Ors. Page 16 of 17 Ltd. Vs. Mohd. Akhtar & Ors." vide judgment of this Court of date 08.11.2016, there is no need for remand of this matter back to the executing Court of Competent Officer.
11. File of this revision be consigned to record room and the requisitioned file of execution petition of the Competent Officer be sent back against receipt. Copy of this order be also sent to the Court of Competent officer.
Announced in open Court (GURVINDER PAL SINGH)
th
on 8 Day of November, 2016. Addl. Distt. Judge01 (Central) Appellate Officer Under The Evacuee Interest (Separation) Act 1951 Tis Hazari Courts, Delhi.
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