JUDGMENT S. Ravindra Bhat, J.
1. In this petition under Article 226 of the Constitution, the relief claimed is raising two orders dated 13.7.1998 and 13.2.2003 as well as certain earlier orders dated 18.01.1993 and 17.2.1992 under Section 81 of the Delhi Land Reforms Act (hereinafter called "The Act") have been question.
2. The petitioner claims to be owner of agriculture land in Khasra Nos.24/20 measuring 17 bighas and 2 biswa, in Revenue Estate of Pandawala Khurd, Delhi (hereinafter called as "suit property") The petitioner avers that the suit property was purchased on 7.1.1988. On 15.7.1991, the Halka Patwari is said to have reported that a road was carved out in the suit property, in the cultivable land in contravention of Section 81 of the Delhi Land Reforms Act (hereinafter called "The Act").
3. The Revenue Assistant on an order dated 17.2.1992, passed a conditional order under Section 81 of the Act requiring the petitioner to restore the suit property to agricultural house. This order was made final on 18.1.1993 on the ground that the petitioner had not complied with the conditional order. The effect of this was that the land of the petitioner was directed to vest with the Gaon Sabha.
4. The petitioner, being aggrieved filed an application under Appendix-VI, Rule 14 of the Delhi Land Reforms Rules, some time in 1996 on the ground that he was unaware of the proceedings under Section 81. This application was rejected on 13.7.1998. The Revenue Assistant called for the records and held that the order sheet of 17.2.1992 revealed that the petitioner did not appear in spite of service. It was also held that even as per the date of knowledge claimed by the petitioner, the application for setting aside the order was passed beyond the period of limitation. The application was therefore dismissed. This order was appealed against. On 13.9.2000, the Collector set aside the order of vesting. It was held that the procedure for serving of notices had not been adopted and that no inquiry had been held before vesting the land in Gaon Sabha. The Collector also held that the petitioner was using the suit property for the purposes of agricultural only. It was, therefore, directed that the mutation of the Khasra no. be made in favor of the petitioner.
5. The Gaon Sabha, purporting to be aggrieved by the order of the Collector, sought for its revision under Section 187 of the Act. The Financial Commissioner allowed the revision petition, holding that the conditional order had been made absolute in 1993 after serving notice on the petition. He was of the view that the only issue before the Collector in the appeal, was whether the application for setting aside the order have been dealt with properly by the Revenue Assistant. In that view the Financial Commissioner held that allowing of the appeal and directing mutation of the property in the name of the petitioner was improper. He, therefore, held that even if the order was quashed, the same did not effect the merits of the substantive orders, which had directed vesting and had already become operative. The Financial Commissioner, in parting, observed that due inquiry was held before the order vesting the suit land was passed.
6. The petitioner is aggrieved by the order of the Financial Commissioner. It is submitted on behalf of the petitioner that the order of vesting was initiated for two reasons, firstly, the petitioner was not served and was, therefore, in the dark about the existence of proceedings. Secondly, it is submitted that after the initial report of the Halka Patwari which led to the initiation of proceedings in 1991, a subsequent inspection had been carried out. The report of that inspection, made some time in December, 1992 clearly mentioned that the suit property which is in the ownership of Shri Om Prakash, the petitioner, was being cultivated. A copy of that report has been produced along with the petition. Learned counsel relies heavily on this document to state that the spot where the puce road was stated to be in existence, is in relation to other lands.
7. Mr. Tandon, learned counsel appearing for the respondent on the other hand contents that the records of the case clearly reveal that the petitioner have been negligent in the prosecution of the case. The Revenue Assistant, while dealing with the application for setting aside the order, as also the Financial Commissioner had summoned the record which clearly showed that that the summons issued in 1991 was received by the petitioner. Learned counsel has drawn notice to the signature appearing at the reverse of the summons issued by the SDM, to the petitioner on 29.10.1991. In this view of the matter, it is submitted that the conditional order as well as the final order were justified, rejection of the application for setting aside the ex parte order was also proper and consequently no infirmity could be made out in respect of the Financial Commissioner's order.
8. The issue involved in these proceedings is whether the order of the Revenue Assistant declining the petitioner's request for setting aside orders is correct and legal. Undoubtedly, the petitioner did not attend the hearings. The application for setting aside the conditional order was also made belatedly. Nevertheless one significant factor stands out namely, that the Halka Patwari had inspected the land some time in December 1992 and reported that as far as the petitioner was concerned, the suit property was being used for agricultural purposes. This aspect had to be, considered by the Revenue Assistant while deciding whether to pass the final order or not under Section 81 of the Act. The final order, however, does not reflect application of mind on this aspect.
9. The Financial Commissioner proceeded on the footing that the Collector could not have directed mutation in favor of the petitioner since he was seized of the correctness of an order rejecting the petitioner's application for setting aside the final order. To that extent, he is right. However, the Financial Commissioner exceeded the scope of the revision proceedings under Section 187 by observing that due enquiry had been held before the orders vesting the suit land were passed.
10. The present case discloses errors and mistakes on the part of the authorities as well as the petitioner. On the one hand the authorities; particularly the Revenue Assistant appears to have ignored the materials on record while passing the final order, the petitioner was remiss and not diligent in seeking his remedies within time. The fact that the petitioner did not appear in the proceedings, did not absolve the authorities from considering all the materials as required by law. Equally the petitioner should have been forthright in his approach and sought remedies, at the earliest point in time.
11. Having regard to all the circumstances, I am of the view that the impugned orders cannot be sustained in law. At the same time, the petitioner's in action and conduct can also not be condoned. The appropriate course, in my view would be to direct the Revenue Assistant to pass a final order in relation to the proceedings initiated in November, 1992 under the Delhi Land Reforms Act, after hearing the petitioner and considering all the relevant materials.
12. A direction is, therefore, issued quashing the order of the Revenue Assistant dated 13.7.1998, 18.1.1993 and the order of the Financial Commissioner, dated 13.2.2003 on the condition of the petitioner depositing an amount of Rs.10,000/- with the Prime Minister's Relief Fund within four weeks from today. The Revenue Assistant shall thereafter, on being satisfied about the deposit of amounts, proceed to hear the petitioner and pass final orders under Section 81, in accordance with law after considering all materials and after dealing with the contentions raised on behalf of the petitioner, within four months from today.
13. Petition is allowed in the above terms.