Delhi High Court
Rajinder Singh And Ors. vs Government Of The National Capital ... on 17 August, 2007
Author: S. Muralidhar
Bench: S. Muralidhar
JUDGMENT S. Muralidhar, J.
1. These writ petitions seek the quashing of an Order dated 1.12.2006 passed by the Financial Commissioner allowing the Revision Petition No. 20/06-CA filed by Respondent No. 3 under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 ('Holdings Act'). By the said order, the Financial Commissioner set aside an order dated 1.12.97 passed by the Consolidation Officer ('CO') allotting plots in the phirni in Village Bamnoli in favor of the petitioners here and remanded the matter to the CO for re-allotment of the plots to eligible villagers in terms of the Holdings Act.
Background facts
2. The consolidation proceedings in village Bamnoli commenced with the issuance of a Notification dated 21.6.1996. To aid the CO in the consolidation proceedings, a Village Advisory Committee was constituted. On 25.6.1996 applications for allotment of residential and industrial plots were invited by the CO. By a Resolution dated 17.8.1996, the Village Advisory Committee extended the deadline for submitting the applications for allotment of alternate residential and industrial plots till 25.9.1996.
3. Each of the petitioners purchased agricultural lands in village Bamnoli from their father Shri Hoshiar Singh through four separate registered sale deeds dated 22.7.1996. The petitioners state that the 'no objection certificate' for the sales in terms of Section 30 of the Holdings Act was obtained. The petitioners submitted claims to the CO on 23.9.1996, within the extended cut-off date, for allotment of plots in the extended phirni.
4. A draft Scheme of Consolidation was announced on 27.11.1996/29.11.1996 in terms of Section 20 of the Holdings Act and objections were invited. The Scheme of Consolidation was finalised on 11.4.1997 by the Settlement Officer (SO) after considering the objections. On 1.12.1997 the repartition of the land in terms of Section 21 of the Holdings Act took place. Petitioners 1 to 4 were allotted residential plot Nos. 138, 137, 136, and 208 respectively each measuring 1 bigha and 11 biswas as per their entitlement in terms of the Scheme of Consolidation. Respondent No. 3, Shri Narain Singh, was allotted plot No. 134 measuring 2 bighas and 2 biswas.
5. On 15.12.1997 the Respondent No. 3 and his brother Shri Ram Pal filed separate applications before the CO claiming that they should be allotted plots in the pre consolidation Khasra No. 522 which earlier belonged to them and in which there was a tubewell. The report of the Halqa Patwari, however, showed that there was only a boring in the pre-consolidation Khasra No. 522. The CO, by his order dated 21.6.1999 held that the boring could not be termed as a tubewell and, therefore, rejected the applications filed by Respondent No. 3 and his brother.
6. Aggrieved by the order dated 21.6.1999, the Respondent No. 3 filed an Appeal under Section 21(3) of the Holdings Act before the SO. By an order dated 28.2.2000 the Appeal was allowed by the SO and the case was remanded to CO for allotment of a plot to Respondent No. 3 out of the pre-consolidation Khasra No. 522 on the ground that a boring and a tubewell were for the same purpose i.e. irrigation.
7. Aggrieved by the order dated 10.4.2000, the petitioners filed a further Appeal under Section 21(4) of the Holdings Act before the Collector (SW) Kapashera, New Delhi. By an order dated 25.8.2000, the Collector (SW) allowed the appeal. He set aside the order of the SO and restored the order of the CO dated 21.6.1999.
8. Respondent No. 3 Shri Narain Singh then filed a Revision Petition under Section 42 of the Holdings Act before the Financial Commissioner. By the order dated 13.10.2001 the Financial Commissioner dismissed the revision petition as not maintainable since no Revision Petition could lie to the Financial Commissioner against an order passed in by the Collector Second Appeal under Section 21(4) of the Holdings Act. Shri Narain Singh then filed Writ Petition (C) No. 7403 of 2001 in this Court challenging the order dated 25.8.2000 of the Collector.
9. In the Order dated 9.12.2004 dismissing Writ Petition (C) No. 7403 of 2001 a learned Single Judge of this Court noted two issues raised by the Respondent No. 3. One issue raised before the learned Single Judge was that the Petitioners here (Respondents 2 to 4 in the Writ Petition (C) No. 7403 of 2001) did not have valid title to the property in question since purchases had been effected through sale deeds during the process of the consolidation proceedings. As regards this submission the learned Single Judge observed that this issue had been raised before the Financial Commissioner who had by the order dated 13.10.2001 already held that such a grievance of the Respondent No. 3 could not be entertained. The said order not having been challenged further, had become final. Moreover, the only prayer in the writ petition filed by the Respondent No. 3 was for quashing the order dated 25.8.2000 passed by the Collector.
10. On the other plea of the Respondent No. 3 that he should have been allotted a plot in the pre-consolidation Khasra No. 522, the learned Single Judge held that the Collector had balanced the equities while holding that Respondent No. 3 could not demand allotment of land in the pre-consolidation Khasra No. 522. The Court also noted that the very Scheme of Consolidation out of which the proceedings under challenge arose, had been affirmed by this Court in Umed Singh v. Govt. of NCT of Delhi and again in Harbans Lal v. Financial Commissioner . This fact coupled with the fact that the Collector had found that there was no permanent structure in pre-consolidation Khasra No. 522 strengthened the findings of the Collector that the petitioner was not entitled to any preferential allotment. Therefore, the learned Single Judge affirmed the order dated 25.8.2000 passed by the Collector.
11. Aggrieved by the judgment dated 7.12.2004, Respondent No. 3 filed LPA No. 1 of 2005 which was allowed by Division Bench of this Court on 14.12.2005. The Division Bench agreed with the contention of the Respondent No. 3 that no cogent reasons had been given by the Collector for not allotting the very same plot in the pre-consolidation Khasra No. 522 to Respondent No. 3 particularly when there was a boring in that plot. The other part of the judgment of the learned Single Judge was not expressly set aside by the Division Bench.
12. After the judgment dated 14.12.2005 was delivered, the Respondent No. 3 Shri Narain Singh filed an application being CM No. 342 of 2006 before the same Division Bench. In the said application Shri Narain Singh made a grievance that the Division Bench had not considered the other grounds raised by him in the Appeal concerning the illegalities committed by the Revenue Officials and in particular the CO, in making allotments in favor of the petitioners here. The Division Bench disposed of this application by an Order dated 17.1.2006 issuing the following direction:
By means of this application the appellant has submitted that there has been an illegality in respect of allotment of land to respondent Nos. 2, 3 & 4. In this connection, the applicant may make a representation before the competent authority, who will decide the same after hearing the parties concerned in accordance with law expeditiously.
13. On the strength of the above direction issued by the Division Bench, Shri Narain Singh approached the Financial Commissioner and the case was registered as case No. 24 of 2006. It was treated as a Revision Petition under Section 42 of the Holdings Act directed against the order dated 1.12.1997 passed by the CO. By the impugned order dated 1.12.2006, the Financial Commissioner held that there was nothing on record to show that prior permission of the CO had been taken before executing the sale deeds through which the land in question had been purchased. Further the contention of Respondent No. 3 that the cut-off date for submission of claims could not have been extended was accepted. Since the petitioners had purchased the lands on 10.7.1996 during the consolidation proceedings and had not submitted their claims within the original cut-off date, the claims made by the Petitioners here were held to be time barred. Accordingly, the order dated 1.12.1997 of the CO was set aside and the matter was remanded to the CO for re-allotment of the plots to the eligible villagers.
Submissions of the parties
14. Appearing for the Petitioners Mr. Sandeep Sethi, learned senior Counsel made the following submissions:
(i) The order dated 17.1.2006 passed by this Court could not confer a jurisdiction on the Financial Commissioner to again interfere with the order dated 1.12.1997 issued by the CO. The point regarding the validity of the sale deeds through which the petitioners had purchased the lands in question had already considered and rejected by the learned Single Judge and this part of the order was not interfered with by the Division Bench of this Court. Therefore, this point could not have been re-examined by the Financial Commissioner.
(ii) Respondent No. 3 had already been allotted the alternate plot in the pre-consolidation khasra No. 522 in terms of the order of the Division Bench dated 14.12.2005. There was no surviving grievance of the Respondent No. 3 which required to be accounted for. Therefore, the inference by the Financial Commissioner with the order of the CO dated 1.12.1997 at the instance of Respondent No. 3 herein was uncalled for.
(iii) Although the Financial Commissioner held that there was nothing on record to show that permission under Section 30 had been obtained, the fact of the matter was that such permission had indeed been obtained.
(iv) The challenge to the extension of the cut-off date for making claims was raised in W.P. (C) No. 7403 of 2001 by Harbans Lal and others and the said writ petition was dismissed by a learned Single Judge. The LPA thereagainst was dismissed by the Division Bench and the Consolidation Scheme was upheld. Respondent No. 3 himself was a party to those proceedings. The judgment of the Division Bench has been challenged before the Hon'ble Supreme Court by some of the petitioners in those proceedings excluding Respondent No. 3 here. Therefore as far as Respondent No. 3 was concerned, he had accepted the judgment of the Division bench negativing the challenge to the extension of the cut-off date. Accordingly, the present proceedings at his instance raising that very point was an abuse of the process of law.
(v) Two other writ petitions being W.P. (C) No. 14755 of 2004 and W.P.(C) No. 11356 of 2005 have been dismissed by this Court by Orders of the learned Single Judges dated 10.9.2004 and 1.11.2006 respectively negativing the challenge to the Consolidation Scheme. The Scheme has become final and has been acted upon. The impugned order disturbs the finality of the Consolidation Scheme.
(vi) The petitioners had surrendered agricultural land twice the extent of the residential plots allotted to them. The surrendered agricultural lands have been repartitioned to other persons and have been notified for acquisition under Section 4 of the Land Acquisition Act, 1894 on 3.10.2005. If the prayer of Respondent No. 3 were to be allowed then the Petitioners would lose not only the residential plots allotted to them but would also not be able to get back the agricultural lands that has already been acquired. This would cause great injustice to the petitioners. On the other hand, no right of Respondent No. 3 has in fact been affected by the allotments made in favor of the Petitioners here.
15. Appearing for the Respondent No. 3 Mr. Jayant Bhushan, learned senior Counsel made the following submissions:
(i) The petitioners purchased the lands during consolidation from their father through four separate sale deeds during the pendency of the consolidation proceedings only with a view to getting four separate plots in lieu of a single plot that would have been allotted in favor of their father. This in turn would have affected the entitlement of other persons who might have made claims for a different extent of alternate plots.
(ii) The allotment of four separate plots instead of one plot under the Consolidation Scheme would go against the Scheme itself and would be prejudicial to the interests of the villagers. It was, in any event, prejudicial to the Scheme itself. Therefore, the prior permission of the CO under Section 30 was mandatory.
(iii) A false statement had been made in ground 'O' of the writ petition to the effect that the NOC had been obtained prior to the execution of the sale deeds. The endorsement on the copies of the sale deeds to the effect that NOC has been granted does not pertain to the NOC under Section 30 of the Holdings Act but to the NOC under Section 8 of the Delhi Land (Restriction on Transfer) Act, 1972. Therefore, the mandatory requirement under Section 30 of the Holdings Act not having been complied, the sales are void in terms of Section 9 of the Holdings Act. Consequently, no residential plots in lieu of such plot could have been validly allotted to the petitioners.
(iv) Under Section 33 of the Delhi Land Reforms Act, 1954 ('DLRA') there can be no transfer of land of an extent less than 8 standard acres. The sale deeds therefore could not have been validly registered since the transfer of land under each of them is to an extent of less than 8 standard acres. The argument of the Petitioners that the restriction under Section 33 would apply only if the entire land holding of a person is sold would, if accepted, defeat the very purpose of the restriction imposed there under.
(v) The scope of the jurisdiction of this Court under Article 226 was limited to correcting errors of manifest injustice and this was not one such case.
Jurisdiction of the Financial Commissioner
16. This Court is first required to consider whether the Financial Commissioner had jurisdiction under Section 42 of the Holdings Act to entertain a Revision Petition against an order dated 1.12.1997 passed by the CO. According to the petitioners when the statutory remedy available to the Respondent No. 3 under the Holdings Act against the order dated 1.12.1997 was in fact availed of and those proceedings taken to their logical conclusion, there was no question of the Financial Commissioner re-opening the question of the validity of the order dated 1.12.1997, even on the strength of the order dated 17.1.2006 of the Division Bench of this Court.
17. The scope of the powers of the Financial Commissioner under Section 42 have been explained by the Hon'ble Supreme Court in Roop Chand v. State of Punjab 1963 Supp SCR 439 and by this Court in Suraj Mal v. Manohar Lal 2nd (1973) Del 1016 both of which have recently been followed by this Court in Dhani Ram v. Ram Sarup decision dated 2.7.2007 in W.P. (C) No. 3232 of 2002. The Hon'ble Supreme Court construed the word "any order passed by any Officer" occurring in Section 42 of the Holdings Act as not including an Order made under Section 21(4) by the Collector. In the instant case, the order dated 1.12.1997 passed by the CO under Section 21 of the Holdings Act could be challenged under Section 21(2) by filing objections. In fact, Respondent No. 3 availed of that remedy and filed an objection only to the extent that he was denied allotment of the plot in pre-consolidation Khasra No. 522 although he had a boring on the said plot. His objection was not, at that stage, to either the sale deeds executed by in favor of the petitioners here by their father on 22.7.1996 or even to the power of the CO to extend the time for submitting claims. Respondent No. 3 then appealed to the SO under Section 21(3). The SO allowed the appeal on 28.2.2000. Thereafter, the appeal by the petitioners under Section 21(4) was allowed by the Collector on 25.8.2000. The Financial Commissioner dismissed the revision petition filed thereafter by Respondent No. 3 as not maintainable. Thus as far as the statutory remedies were concerned, they were availed of and the result was that the order dated 1.12.1997 of the CO stood affirmed.
18. When the point regarding the sale deeds was raised in the writ petition filed by Respondent No. 3 in this Court against the order of the Collector dated 25.8.2000 passed under Section 21(4) of the Holdings Act, this Court did not entertain the plea since no relief was claimed on that aspect in the prayer clause in the writ petition. The only prayer in the writ petition was to quash the order of the Collector who had denied the allotment of a plot in favor of Respondent No. 3 in the preconsolidation khasra No. 522.
19. The decision of the Division Bench dated 14.12.2005 while setting aside the Orders of the learned Single Judge did not upset the findings of the learned Single Judge to the effect that Respondent No. 3 should not be permitted to raise the point about the sale deeds. In other words, the Division Bench confined itself to examining the tenability of the claim of the petitioner to allotment of a plot in the pre-consolidation Khasra No. 522. Having availed the statutory remedy of filing an objection under Section 21(2) against the CO's order dated 1.12.1997 and the subsequent appellate remedies having been taken to their logical conclusion by the Respondent No. 3, the finality of the Order dated 1.12.1997 passed by the CO could not have possibly been allowed to be disturbed once again through the sidewind by means of an application made before the Division Bench of this Court which heard the LPA. Considering that between the same parties the matter has already been agitated up to this Court earlier, this Court is of the view that the principles of res judicata in such a situation to negate the plea that the order dated 17.1.2006 permitted a re-opeining of the entire dispute concerning the validity of the sale deeds through which the petitioners purchased the lands in question.
20. Consequently, the order dated 17.1.2006 passed by the Division Bench of this Court cannot be interpreted to have conferred jurisdiction on the Financial Commissioner to entertain a Revision Petition under Section 42 to challenge the Order dated 1.12.1997 of the CO particularly when the validity of the said order had already been examined by him. In fact, by the previous order dated 13.10.2001, the Financial Commissioner had rightly declined to entertain a revision petition by Respondent No. 3 against the order dated 25.8.2000 of the Collector. All that was permitted by this Court by its order dated 17.1.2006 was to allow the Respondent No. 3 make a representation to the 'competent authority'. This was not meant to give rise to a fresh round of litigation.
21. On a considered view of the matter, this Court is of the opinion that the impugned order dated 1.12.2006 passed by the Financial Commissioner under Section 42 of the Holdings Act was without jurisdiction.
Estoppel
22. There is much merit in the contention of the petitioners here that Shri Narain Singh, Respondent No. 3 herein, was himself a party to the petition filed in this Court by Shri Harbans Lal and others which unsuccessfully challenged the Consolidation Scheme. The learned Single Judge dismissed the writ petition and the said dismissal was upheld by the Division Bench of this Court. The further appeal is stated to be pending in the Hon'ble Supreme Court at the instance of certain other persons, and not Shri Narain Singh. Therefore, as far as Shri Narain Singh is concerned, he has accepted the finality of the order of the Division Bench in the LPA upholding the validity of the Scheme of Consolidation. The principle of estoppel will apply to prevent the Respondent No. 3 from seeking to disturb the finality of that legal consequence. Likewise, the subsequent two petitions challenging these very consolidation proceedings have been dismissed by this Court. The net effect is that this Court has put its seal of approval on the Scheme of Consolidation. That Scheme has been worked out by allotment of plots to the eligible villagers including Petitioners 1 to 4 herein. Any attempt now to disturb this Scheme of Consolidation which has already been acted upon and enforced would cause great inconvenience.
Extension of the cut off date for submitting claims
23. This Court finds that the Financial Commissioner erred in observing that the claims of the Petitioners here were made beyond the cut off date. The cut-off date was validly extended and the extension of time for filing claims was never challenged by anyone, much less by Respondent No. 3. It was raised for the first time only after the matter was again taken up by the Financial Commissioner. The point regarding extension of time not having been raised earlier, the Financial Commissioner ought not to have permitted such a plea. On the other hand this Court finds that the Financial Commissioner failed to address the issues raised by the petitioners here regarding his powers and jurisdiction and the effect of the previous orders including those passed by this Court.
Prior permission under Section 30
24. Much has been said by the Respondent No. 3 about the no objection obtained by the petitioners as recorded in the sale deeds. The stand taken by the Respondent No. 1 (GNCTD) in the earlier writ petition of Shri Harbans Lal [W.P.(C) No. 7304 of 2001] in its counter affidavit dated 29.1.2002 was that "all the 30 persons to whom the plots have been allotted had acquired right of bhumidari/ownership by way of duly registered sale deeds in their favor after obtaining permission under Section 30 of the Consolidation Act from the Consolidation Officer." In view of the aforementioned stand taken in the earlier round, this Court, while reserving judgment on 12.7.2007 in the present case required the respondent No. 1 to confirm if it stood by what was stated in the aforementioned counter affidavit dated 29.1.2002. Pursuant to the said Order, the present Tehsildar, Vasant Vihar has filed an affidavit on 17.7.2007 stating as under:
1. That I am working as Tehsildar, Vasant Vihar, New Delhi in the aforementioned office and am well conversant with the facts of the case and competent to depose the present affidavit.
2. That in accordance with the order of the Hon'ble Court dated 12.7.2007, I am filing the present affidavit.
i. As regards the grant of NOCs, I say that enquiries conducted by the deponent have revealed that the records of NOCs, being temporary in nature, have been destroyed. However, it has been confirmed from the Tehsildar (HQ), Delhi, that NOC Nos. 5564, 5565, 5566 and 5567, all dated 19.07.1996, have, in fact, been issued as per NOC dispatch Register (Annexure-R1). Further enquiries from the office of Sub-Registrar-II, Janak Puri, New Delhi (where the Sale Deeds were registered) have revealed that the original NOCs are not pasted Along with the sale deeds (Annexure-R2).
ii. As regards the affidavit filed by Sh. Peter Bara in CWP 7304 of 2000, I say that the same is correct as regards the legal position for permitting any sale under Section 30 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and the contents of the affidavit are correct, apparently being based on the records available with Shri Peter Bara.
25. In view of the above clarification, based on the available records, there is no material to conclude that the Petitioners here did not obtain the permission under Section 30 of the Holdings Act before getting the sale deeds registered. Therefore the objection on this ground must necessarily fail.
26. There is also considerable merit in the contention of the Petitioners that Respondent No. 3 is in no way affected by the allotments made in favor of the Petitioners. It is not the case of Respondent No. 3 that by virtue of the allotments made in favor of the Petitioners either Respondent No. 3 himself or any other person has been deprived on their due share of allotment of lands in terms of the Consolidation Scheme. It is therefore not understood how Respondent No. 3 has the locus to question the allotment of plots made in favor of the Petitioners here.
27. A submission was made on behalf of Respondent No. 3 that it was not necessary for the rights of respondent No. 3 to be affected for him to question the absence of a prior permission under Section 30 of the Holdings Act. The said provision reads as under:
30. Transfer of property during consolidation proceedings - After a notification under Sub-section (1) of Section 14 has issued and during the pendency of the consolidation proceedings no landowner or tenant having a right of occupancy upon whom the scheme will be binding shall have power without the sanction of the Consolidation Officer to transfer or otherwise deal with any portion of his original holding or other tenancy so as to affect the rights of any other landowner or tenant having a right of occupancy therein under the scheme of consolidation.
The argument was that the Section implied that any allotment adverse to the scheme and not only the rights of "any other land owner or tenant" would require prior permission. This argument is ingenuous but unacceptable since it runs counter to the express wording of the provision. There is no scope for such an interpretation in light of the express words used i.e. "so as to affect the rights of any other landowner or tenant having a right of occupancy therein under the scheme of consolidation." Therefore, if the validity of any transfer of property during the scheme of consolidation has to be challenged as being in violation of the requirement of Section 30, the challenger will have to show that he is either a "landowner or tenant having a right of occupancy therein under the scheme of consolidation." That is how the locus of the challenger gets established. Otherwise it would be a free for all and there will be no end to challenging a scheme of consolidation. Considering the object of having a time bound consolidation proceedings, the interpretation sought to be advanced by the Respondent No. 3 would defeat that object. The provisions of the Holdings Act does not envisage proceedings by way of a public interest litigation where the person, who is himself or herself not affected by the decision of an authority, can invoke the jurisdiction of Financial Commissioner under Section 42 of the Holdings Act.
28. The further submission in this regard by the counsel for Respondent No. 3 that the Financial Commissioner could also suo motu exercise his powers under Section 42 is also not tenable in the facts and circumstances of the present case. The Financial Commissioner had already earlier considered these submissions and those orders have all merged in the Order of the learned Single Judge of this Court dated 7.12.2004 and the subsequent order dated 14.12.2005 of the Division Bench of this Court. The suo motu power cannot be exercised when there is no jurisdiction or where the plea of res judicata would get attracted or where the Financial Commissioner would be arming himself with powers of review which he clearly does not possess. Even the Division Bench of this Court, by its Order dated 17.1.2006, could not have conferred on the Financial Commissioner a jurisdiction that he did not possess.
Minimum size of transferred plot
29. The last point made concerns Section 33 of the DLRA about the extent of minimum standard acres in terms thereof. In the first place it must be noticed that this has been never urged at any stage earlier by Respondent No. 3 before the authorities or even the learned Single Judge. The objection throughout was only that Respondent No. 3 ought to have been given land in the pre consolidation Khasra No. 522 where Respondent No. 3 had a boring. It would be an abuse of process of law to permit Respondent No. 3 to raise new grounds of challenge to the allotment made in favor of the Petitioners with every round of litigation.
30. Secondly, the wording of Section 33(2) of DLRA does permit the interpretation sought to be placed on the said provisions by Petitioners here. In other words, it is possible to contend that where the entire holding of a person gets transferred then the restriction on the minimum plot size in the hands of the transferee may not apply. In that view of the matter this Court is not prepared to invalidate the allotments made in favor of the Petitioners on this ground at the instance of Respondent No. 3.
31. For all of the above reasons, the impugned order dated 1.12.2006 passed by the Financial Commissioner is unsustainable in law and is hereby set aside.
32. The writ petitions are accordingly allowed with costs of Rs. 5,000 which should be paid by Respondent No. 3 to the Petitioners within a period of four weeks. The application is disposed of.