Chanda Ram And Ors. vs Madan Jha, The Financial ...
1999 Latest Caselaw 541 Del

JUDGMENT

CM. Nayar, J.

1. This petition has been filed for issuance of a writ of certiorari to quash an order dated January 11, 1988 of Shri Madan Jha, Financial Commissioner, Delhi passed in Case No. 252/87 (Smt. Rajwati v. Consolidation Officer & Others) whereby order dated May 15,1987 of Shri Ram Kishan, Tehsildar-cum-Consolidation Officer passed in Case No. 18/MIS./87 of village Dera Mandi, Delhi.

2. The facts as emerged from reading of the petition are that Mangat, Shahmal and Member, respondents 3 to 5 moved the Revenue Assistant, Delhi for declaration under Section 85 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as 'the Act') on the ground that they had been in possession of land measuring 5 Bighas 12 Biswas of Field No. 1464, 1 Bigha 4 Biswas out of 1910/1474 and 1 Bigha 4 Biswas out of 1911/1474, in all, 8 Bighas situated at village Dera Mandi, Delhi, without the consent of the Bhoomidars and otherwise than in accordance with law and had not been ejected by the Bhoomidars of the land nor proceedings for ejectment had been instituted within 3 years. Copy of application dated 7th February, 1974 is Annexure A to the petition. A fraud was alleged to be perpetuated in the aforesaid proceedings in the aforesaid proceedings in that the petitioners or their predecessors then living who were then the recorded Bhumidars of the aforesaid land were never notified about the proceedings. The result was that an application under Section 85 of the Act was allowed on the concession made and the declaration was made by Shri K.N. Srivastva, Revenue Assistant, Delhi by an order dated September 20, 1974. The petitioners subsequently found out that respondents 3 to 5 had managed to procure false entries in the Khasra Girdawari for some period and even after passing of the order dated September 20, 1974 they as recorded Bhoomidars were in possession of the land. The subsequent facts are stated in paragraphs 3 and 4 of the petition which may be reproduced as follows :

"3. That inasmuch as the operation of consolidation of holdings was going on in the village respondents 3 to 5 got Kila Nos. 81 /21 (4 Bighas 16 Biswas) and 104/ 1/1 (2 Bighas 4 Biswas) in all measuring 7 Bighas allotted in their names during the course of repartition proceedings on account of the aforesaid 8 Bighas of land.

4. That inasmuch as the allotment made in repartition to the petitioners was deficit the petitioners made enquiries and to the their utter consternation found that respondents 3 to 5 had managed to procure false entries in the Khasra Girdawari for some period much less than the statutory period of 3 years, that even after the passing of the order dated 20.9.1974 of Shri K.N. Srivastva RA they as recorded Bhoomidars were in possession of the land, that a false Vakalatnama whereon the signatures of Advocate were not legible, purporting to have been signed by them was lying on the record and that no notices were ever issued to them in respect of the application Under Section 85 of the Act and that order allowing the application under Section 85 of the Act had been passed on 20.9.1974 when the date fixed by the Revenue Assistant was 30.9.1974."

2. The petitioners as a consequence approached the learned Financial Commissioner, Delhi in Revision under Section 187 of the Act and imp leaded Smt. Kiran Banal and Smt. Rameshwari as respondents as well as respondents 3 to 5 who were conscious of the fraud that had been played by them had made transfer in their favour after seeking the declaration of Bhoomidari. The revision petition came up for hearing before Shri D.K. Dass, Financial Commissioner, Delhi who accepted the contentions raised in the petition and set aside the order dated September 20, 1974 passed by Shri K.N. Srivastva, Revenue Assistant and remanded the matter to the Revenue Assistant with direction to pass an order after making an enquiry and after recording the evidence. The operative portion as incorporated in paragraphs 4 and 5 of the judgment may be reproduced as under :

"4. Arguments in rebuttal have been addressed by Mr. O.P. Tyagi, Advocate Mr. Mahipal Singh adopted the submissions made by Mr. Tyagi. The learned Counsel for the opposite contending parties could not controvert the submissions made on behalf of the petitioners, relating to the various discrepancies and facts available on record. It was not able to offer any plausible reply to the discrepancies in the date of order recorded in the order-sheet and the date of order written by the Presiding Officer at the bottom of the order-sheet in his own hand. I have myself examined the Lower Court file thoroughly and this discrepancy is not reconcilable. It gives me a firm impression that the Court below had conducted the proceedings very casually and in a most perfunctory manner. It, therefore, follows that the matter needs thorough enquiry and examination. The other contention for the learned Counsel for the petitioners that the thumb mark of petitioner and the signatures of the respondent Nos. 6 to 11 are also bogus is also a very serious allegation which too requires detailed probe. This can only be done by inviting evidence through the parties, at the Lower Court. I thus find it appropriate that the matter be referred to the Court of the Revenue Assistant for making an enquiry on these points in this case and thereafter to pass a fresh order on the application under Section 85 of the Act after recording the evidence that may be led by the parties concerned.

5. In view of the above discussions, the revision petition is accepted and the case is remanded to the Revenue Assistant for doing the needful in accordance with the above directions."

3. The petitioners next alleged that the fraud was further attempted on the Court of Revenue Assistant after remand by the Financial Commissioner and the matter was dismissed for non-prosecution vide order dated November 10, 1986 which is filed as Annexure 'H' to the writ petition and reads as follows :

"10.11.1986

Case called. Counsel Mr. O.P. Tyagi and Mr. Reghubir Singh are present. Service to be effected on Smt. Kiran Bahal one of the respondents. The petitioners' Counsel nor the Counsel for the receiving respondent are ready to file process fee and show their interest against continuing the proceeding further.

The file be consigned to Record room.

Sd/-R.A."

4. The obvious effect of the above said order was that respondents 3 to 5 who had been allotted land in Killa Nos. 81/21 and 104/1/1 in the course of operation of consolidation on account of the land for which they sought declaration of Bhoomidari under Section 85 of the Act and of which the recorded Bhoomidars were the petitioners or their predecessors-in-interest became divested of Bhoomidari rights and the transfers made by them in favour of Kiran Bahal and Smt. Rameshwari fell through. At this stage the Consolidation Officer was requested to make correction in the Revenue records pursuant to the order dated December 14, 1981 passed by Shri D.K. Dass, Financial Commissioner. The Consolidation Officer called report and withdrew land in Killa No. 81/21(4-4) and 101/1/1(1-18) from respondents 3 to 5 and their transferees Smt. Kiran Bahal and Smt. Rameshwari. Copy of the order dated May 15, 1987 of Shri Ram Kishan Tehsildar-cum-Consolidation Officer is Annexure I. This order reads as follows :

"This order is being passed to dispose of an application filed by S/Sh. Vijay s/o Hansa s/o Prithi deceased s/o Sh. Bhonta, Bijender s/o Hansa s/o Pirthi deceased s/o Har Gian s/o Bhonta, Chanda Ram s/o Bhonta, Ram Rikh s/o Prithi s/o Bhonta, Charan Pal s/o Prithi s/o Bhonta, Har Kishan s/o Jamadar Ghasi and Ram Kishan s/o Jamadar Ghasi all residents of village Dera Mandi, New Delhi for allotment of post-consolidation land in lieu of pre-consolidation land of village Dera Mandi.

Brief facts of the case are that by order of Shri K.N. Srivastva, Revenue Assistant, Delhi dated 30.12.1974 in Case No. 87/RA/74 the land comprised in pre-consolidation Khasra Nos. 1464 min (5-12) and 1910/1474 min (1-4) total measuring 6 Bighas 16 Biswas situated in village Dera Mandi of the bhumidari of Prithi, Hargian, Chanda Ram s/o Bhonta 1/2, Harkishan, Ram Kishan ss/o Jamadar Ghasi Ram in equal share 1 /2 were declared as Bhoomidars of Mangat, Shahmal and Member ss/o Sh. Badle under Section 85 of the Delhi Land Reforms Act, 1954.

The said order of the R.A. was upset by the Financial Commissioner, Delhi in revision by the Bhumidars and the case was remanded to the Revenue Assistant who filed the same without any order. Thus the said land stood in the Bhoomidari of old Bhoomidars.

Meanwhile the consolidation in the Dera Mandi Revenue Estate had been completed and the said land was also transferred by Mangat etc. to others.

The applicants who were/are the Bhoomidars have applied for implementation of the orders of the Financial Commissioner and the Revenue Assistant, Delhi.

A report was called from the field staff and on that basis the office of Kanungo Mehrauli after consulting the Consolidation Basta consigned in the Tehsil record room has reported that the said land was allotted to Mangat etc. alongwith their joint-Chak. If the said land is re-allotted to the applicants, some more Haqdars states that this land at its new site be allotted to Gaon Sabha and Gaon Sabha land be allotted to the applicants.

Keeping in view the proposal and to comply with the orders of the Financial Commissioner and the Revenue Assistant, Delhi the following allotment is being made in between the parties :

Sl. No. Name of Haqdar Area withdrawn Area allotted Remarks

1. Mangat etc.

Vendors Smt. Kiran Bahal and Smt. Rameshwari Vendees, Bhoomidars

81/21/(4-4)

104/1/1(1-8)

6-02

--

--

2. Gaon Sabha Dera Mandi 27/14/(1-03)

15(1-03)

16/1(0-10)

17(1-04)

24(1-04)

25 min. (0-04)

north

6-02

27/14(1-03)

81/21(4-4) 104/1/1(1-18)

6-02

3. Prithi, Hargian, Chand Ram ss/o Bhonta 1/2 Harkishan, Ram Kishan ss/o Jamadar Ghasi Ram

15(1-03) 16/1(0-10) 16/2(0-14) 17(1-04) 24 (1-04) 25m in (0-04) north 6-02

Order announced in the open Court. File be consigned to record room after implementing the order in the Revenue records.

Sd/- (Ram Kishan)

Tehsildar Mehrauli/C.O.(M)

New Delhi"

5. Smt. Rajwati, respondent No. 8 challenged the above said order passed by the Consolidation Officer by filing Revision Petition under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 as applicable to Delhi. Her case was that she had purchased the land in Killa No. 81/21 and 104/1/1 (0-7) (4-16) from recorded Bhoomidar but no notice had been served on her predecessor-in-interest. She admitted that after remand the proceedings had been dismissed for non-prosecution but contended that it was Chanda Ram who was responsible for the same. She challenged the order dated May 15, 1987 as being illegal and without jurisdiction. The matter was examined and heard by Shri Madan Jha, Financial Commissioner who disposed of the same by an order dated January 11, 1988. The learned Financial Commissioner in his order dated January 11, 1988 referred to the enquiry as contemplated by his predecessor Shri D.K. Dass as will be indicated from reading of the following portion of the order :

"...... It is an admitted fact that the inquiry before the Revenue Assistant has not been completed. The Revenue Assistant has consigned the proceedings without satisfying the order of this Court. It is for Shri Chanda Ram to get his interest the roughly examined from the Revenue Assistant, since his revision was accepted and inquiry into the affairs of the declaration under Section 85 of the Delhi Land Reforms Act was ordered. Admittedly there was no notice by the Consolidation Officer to the petitioner. The learned Counsel for the respondents wanted me to hold that the order of the Consolidation Officer is within his competence in terms of Section 43-A of the Act. This is untrue. Section 43-A deals with only clerical mistakes and not the changes in the allotment which stands made either under Section 21(1) or 21(2) long, long back. When the case was under inquiry before the Revenue Assistant, how could Consolidation Officer come into picture and adjudicate upon his own again in the presence of the consolidation operations having ended in 1982. It, therefore, follows that he has acted beyond jurisdiction. Further, there is no notice to the affected parties. This is a serious lapse. Even the Pardhan of the Gaon Sabha has asserted that there was no notice to the Gaon Sabha at all. The learned Counsel also admitted the factum of non-issue of notice by the Consolidation Officer before passing the order to the affected persons. I may observe here that, obviously, the Revenue Assistant has not fully understood the implications of the order of this Court, since he has not given any findings on the points involved in the inquiry before him. Keeping all these facts in view. I come to the conclusion that this is a fit case deserving interference under Section 42 of the Act since the order of the Consolidation Officer is contrary to law, being passed without having any jurisdiction. In end result, the present revision stands allowed. Order as impugned is hereby upset."

6. The order of the Revenue Assistant dated May 15, 1987 was thus set aside.

7. The learned Counsel for the petitioners has argued that petitioners are aggrieved by this order only to the extent that the Financial Commissioner did not appreciate the earlier order made by Shri D.K. Dass, the then Financial Commissioner who had remanded the, case to the Revenue Assistant for compliance of the directions as contained in the order dated December 14, 1981. The operative portion of that order has already been reproduced in the earlier part of the judgment. There is force in the contention as the earlier order passed by the Financial Commissioner has remained unimplemented and further order now made does not take care of the anomalous situation that has arisen in the facts and circumstances of the present case.

8. In view of the above, it will be appropriate and in accordance with law that the matter is remanded back to the Revenue Assistant who had earlier dismissed the case for non-prosecution on 10th November, 1986. The subsequent directions in respect of making the allotments by Tehsildar, Mehrauli could be issued after all the parties were heard and full compliance was made of the order passed by Shri D.K. Dass, Financial Commissioner. It is ordered accordingly. By an interim order made by this Court on August 25, 1988 the respondents were directed not to make any further transfer of holdings in their possession. This order will continue to remain operative till the matter is finally disposed of by the Revenue Authority and such authority will not effect any further mutation in respect of the land in dispute.