Narain Singh And Anr. vs Financial Commissioner And Ors.
1994 Latest Caselaw 449 Del

JUDGMENT

Devinder Gupta, J.

(1) Petitioners have in this writ petition filed under Article 226 of the Constitution of India prayed for quashing of the two orders passed by Respondent No. 1 on 4th February, 1994 (i) while exercising powers under Section 72 of the Delhi Land Revenue Act, 1954 and (ii) while exercising powers in appeal under Section 185(4) of the Delhi Land Reforms Act and have also prayed for putting the petitioners in possession of the disputed land in compliance with the orders passed on 02.09.1992 by the Supreme Court in Special Leave Petition No.20143 of 1991.

(2) The facts in brief are that an application under Section 85 of the Delhi Land Reforms Act, 1954 was filed, by respondents 2 & 3 before the Revenue Assistant, which was dismissed on 04.06.1990. Feeling aggrieved, three separate remedies were chosen by respondents 2 & 3- (i) an application for restoration was preferred before the Revenue Assistant; (ii) an appeal was preferred before the Additional Collector; and (iii) simultaneously a revision petition was preferred before the Financial Commissioner, which was got dismissed as withdrawn on 05.07.1990. The appeal preferred before the Additional Collector was dismissed on 28th August, 1991, against which further appeal was preferred before the Financial Commissioner, who on 12.12.1991 allowed the same by setting aside .the order of Additional Collector and made an order of remand with a direction to the Additional Collector and made an order of remand with a direction to the Additional Collector to decide the appeal afresh. It may be stated that respondents 2 & 3 claim to be in possession of the disputed property and on that basis are claiming Bhumidari rights therein.

(3) Petitioners who claim to have purchased the suit property by two separate sale deeds dated 04.05.1981. form one Maman Singh, claim that mutations in revenue records were attested in their favor on 31.05.1989. After dismissal of the applications of respondents 2 & 3 a civil suit was preferred by the petitioners in which an application under Order 39 Rules 1 .& 2 was made for grant of temporary injunction. This application was dismissed by the Trial Court on 29tfh June, 1990. An appeal preferred against the said order was dismissed by this court on 18.12.1991. The judgment is reported as Narain Singh Vs. Mahinder Singh etc. (1992 Rlr 52). Matter was taken up by the petitioners to the Supreme Court by way of Special Leave Petition No-20143/91 in which on 24.12.1991 and interim order was made directing the parties to refrain from entering the land till 10.01.1992. The Station House Officer, Police Station, Samaipur Badli was directed to take charge of the disputed land till 10.01.1992 who was also directed to ensure that none of the parties would enter into possession. Special Leave Petition was dismissed on 23.01.1992. While dismissing the special leave petition, the Revenue Assistant was directed to conclude the proceedings which were stated to be pending before him under Sections 84/85 of the Delhi Land Reforms Act within four mont. Interim order passed on 24.12.1991 was also vacated. It ap- pears that an application was moved subsequently before the Supreme Court on which an order was made on 02.09.1992 as regards possession of the suit property There was dispute among parties as to which of the parties possession had to be delivered after dismissal of the petition. Petitioners were claiming to be in possession and so respondents 2 & 3. The Court directed that Respondent No.2 be handed over possession of the land within two weeks and further directed that Revenue Assistant would decide the issue between the parties independently as to which of the parties had been in possession prior to the police taking over possession. It was directed that ultimately the possession would be delivered to the party entitled thereto. The said order reads as under : "This application has arising out of the special leave petition which was against an interlocutory order. While issuing notice on the Special leave petition this Court on December 24, 1991 directed as under: "In the meanwhile both the parties are directed to refrain from entering the land until 10.01.1992. The Station House Officer, Police Station of . Samaipur Badii, will be in charge of the suit-land till 10.01.1992. The Station House Officer shall ensure that none will enter into possession. Copy of this orders shall be notified to the concerned Police Authority immediately."

The Police took possession of the land in dispute on December 25, 1991. The police report states that at the time of taking possession Narain Singh was in possession of the land. The said report was placed on record of this Court. Finally the special leave petition was dismissed by this court on Jan. 23, 1992 and interim order dated Dec. 24, 1991 was vacated. This application is by Mahinder Singh, respondent, stating that the police is still in possession of the land and the same is not being delivered back to him. Mr. Kapil Sibbal, learned Counsel appearing for Narain Singh states that inspite of the prima facie findings of the Courts below upheld by this court the actual possession of the land has always been with his client. According to him the police took possession from Narain Singh and not from Mahinder Singh.

The Trial Court gave categorical finding while dismissing the application for interim relief that Mahinder Singh was in possession of the land. the finding was upheld by the High Court by a speaking order. This Court dismissed the special leave petition. We do not wish to go into the question as to whether actual possession on the spot was of Narain Singh or Mahinder Singh. Be that as it may, we arc of the view that the possession on the spot be brought in conformity with the order of the Courts. We, therefore, direct that Mahinder Singh be handed over the possession of the land within two weeks from today. This order has been passed in the peculiar facts and circumstances of the case and it shall not affect the merits of the same in any manner. As directed while dismissing the special leave petition the Revenue Assistant shall decide the issues between the parties independently and without being affected by-this order in any manner. He may give independent finding as to which of the two parties had been in possession before the police took the possession under orders of this court. The application is disposed of accordingly."

(4) After the matter had been disposed of by the Supreme Court, an application was made on 07.09.1992 before the Sub-Divisional Magistrate by the petitioners for complying with the directions of the Supreme Court. The Sub-Divisional Magistrate heard the matter and on 29.12.1993 made a speaking order. It was held by him that since no proceedings were pending under Sections 84 & 85 before the Revenue Assistant on 02.09.1992 when the Supreme Court passed the order and proceedings were in fact pending before the A.D.M.(R), therefore, application moved by the Petitioner No. 1was not maintainable. Sub-Divisional Magistrate also made observations in his order that the application for restoration which had been moved by the respondents before the Revenue Assistant had become infructuous.

(5) By two separate order passed on 10.01.1994, the Additional Collector, Delhi, dismissed the appeals of respondent No.2 arising out of the orders of attestation of mutations in petitioners' favor preferred under the Delhi Land Revenue Act 1954 and also dismissed the appeal preferred by respondent No.2 against order arising out of proceedings initiated by him under Section 85 of the Delhi Land Reforms Act 1954, Against these two order, respondents 2 & 3 went up in appeal before the Financial Commissioner who by two separate order dated 04.02.1994 allowed the same by setting aside the orders passed by the Additional Collector on 10.02.1994. These two order are under challenge in this writ petition. By the order in case No.12/94, the Financial Commissioner remanded the case to the Revenue Assistant of competent jurisdiction for deciding it afresh on facts and merits after properly hearing the parties. By the other orders passed jointly in case No.13/94 & 14/94 (CA), the Financial Commissioner remanded the appeals to the Additional Collector with a direction to decide it afresh in the light of the observation made in the order of the remand.

(6) In the light of aforementioned factual background, learned Counsel for the petitioner contends that the orders passed by the Financial Commissioner are bad by law.' He ought not to have remanded the matters but ought to have disposed of the same on merits. Further submission made by him is that since appeals of respondents 2 & 3 were dismissed by the Additional Collector merits, therefore, as a consequence of the order passed by the Supreme Court 02.09.1992, possession must be restored to the petitioners.

(7) We have gone through the pleadings of the parties as also various order passed from time to time in the proceedings taken out by the parties.

(8) The Supreme Court while dismissing the special leave petition petitioner No.1 observed that proceedings under Sections 84 & 85 of the Delhi Land Reforms Act, 1954 be decided and concluded within four months by Revenue Assistant independently in accordance with the provisions of the Delhi Land Reforms Act and on the basis of evidence before him. A clarification made in the subsequent order passed on 02.09.1992 by the Supreme Court the Revenue Assistant shall decide the issues between the parties independently and without being affected by the Court's order in any manner and independent finding will be given as to which of the parties had been possession before the police took the possession under the order of the Supreme Court. It is the admitted case of both the parties that when the aforementioned two orders were passed by the Supreme Court, proceedings were not pending before the Revenue Assistant. The Revenue Assistant had already disposed of the matter on 04.06.1990 against which order the appeal had been preferred by respondents 2 & 3 which was pending before the Additional Collector by virtue of the order dated 12.12.1991 passed by the Financial Commissioner. The matter as such was pending before the Additional Collector who had not disposed of the case till then. The Supreme Court passed the aforementioned two orders in view of the Statement made at the bar that proceedings were pending before the Revenue Assistant.

(9) The petitioners on 07.09.1992 moved an application before the Sub-Divisional Magistrate, who rightly dismissed the same observing that the said application was not maintainable since the matter was pending before A.D.M.(R) Additional Collector), who was seized by the related issue between the parties. Thus, by virtue of the order passed by the Supreme Court the matter had to be decided by the Revenue Assistant on the basis of the evidence before it after hearing the parties in accordance with the provisions of law and as per the directions of the Supreme Court by the Additional Collector before whom the proceedings were pending on that date. The Additional Collector, as noticed above heard the appeals on 10.01.1994 but perusal of the order passed by the Additional Collector on 10.01.1994, the matter was taken up before the Financial Commissioner who allowed the appeals of Respondents No.2 and made an order of remand to the Revenue Assistant with directions to decide the entire case on merits in accordance with the law.

(10) In case proceedings were not pending before the Revenue Assistant on date when the Supreme Court passed the orders on 23.01.1992 and 02.09.1992 but proceedings later on came to be heard by the Financial Commissioner, there is no reason why the Financial Commissioner ought not to have heard and decided the same on merits after hearing the parties and if necessary after taking evidence accordance with law and in the light of the observations made by the Supreme Court. In. these circumstances, in so far as the first submission made by the learned counsel for the petitioners is concerned, the same deserves acceptance that Respondent No.1 ought to have decided the proceedings before him on merits after hearing the parties in accordance with law and in the light of the observations made by the Supreme Court in the two orders.

(11) In so far as the second submission made by the Learned Counsel is concerned, the same is not capable of being accepted. There is no adjudication by yet the authorities as regards the party who was in possession as on the date immediately prior to police taking possession which was the requirement by virtue of the order passed by the Supreme Court on 24.12.1991 wherein it is recorded that possession will ultimately have to be delivered to the party entitled thereto.

(12) Consequently we partly allow the petition by quashing the two orders passed by Respondent No.1 on 04.02.194 with directions to Respondent No.1 to hear and decide the proceedings pending before him in accordance with law on merits after affording parties an opportunity of being heard and in the light of observations made by the Supreme Court in its order dated 23.01.1992 and 02.09.1992. Respondent No.1 will take a decision within a period of three months from the date of receipt of this order.

(13) A copy of this order be sent to Respondent No.1 forthwith. Petition stands disposed of.