Balbir Singh And Ors., Gda Finvest ... vs Govt. Of N.C.T. Of Delhi And Ors.
2002 Latest Caselaw 1621 Del

JUDGMENT

S.B. Sinha, C.J.

1. These three writ petitions involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

2. The petitioners are said to be tenure holders / owners / bhumidhars of agricultural holdings situated in Village Kanjhawala. The said village is in rural area of Delhi established under Section 150 of the Delhi Land Reforms Act, 1954 (hereinafter for the sake of brevity referred to as, 'the Reforms Act'). It is not in dispute that a notification under Section 14(1) of the East Punjab Holdings (Consolidation and Prevention of Frangmentation) Act, 1948 (hereinafter for the sake of brevity referred to as, 'the said Act') was issued on 08.09.1993 for commencement of proceedings with the object of consolidation of holdings in the said village allegedly for better cultivation of land therein.

According to the petitioners, the consolidation of holdings in the said village had taken place in the year 1952-53. The petitioners contend that some of them owned farm houses, which had been sanctioned in terms of Section 336 of the Delhi Municipal Corporation Act (hereinafter for the sake of brevity referred to as, 'DMC Act').

According to the petitioners, they are paying tax to the Municipal Corporation of Delhi (in short, 'the Corporation) wherefor the reteable value in respect of each farm house has been determined at Rs. 1,55,900/- w.e.f. 01.04.1992. The said farm houses are also assessed for property tax by the Corporation.

3. According to the petitioners, the said farm houses are required to be reserved as 'Kayami' in the aforesaid consolidation proceedings. Although on several occasions, the petitioners prayed that appropriate order be passed in relation to the said farm houses declaring the said to be 'Kayami' in nature and despite promises made in this behalf by the competent authorities, no action had been taken. It is stated that the petitioners have filed applications before the Settlement Officer in terms of Section 36 of the said Act, which are yet to be disposed of.

4. The respondents, however, denied and disputed that the petitioners are entitled to be considered for regulation under the scheme of 'Kayami'.

5. According to the respondents, the petitioners were informed that consolidation proceedings in the village would start on 24.06.1996. The Consolidation Officer was appointed on 06.07.1996. An Advisory Committee was also appointed. Allegedly Shri Balbir Singh, one of the petitioner, had signed the proceedings for appointment of the Advisory Committee; and Sewa Singh, S/o Shri Chandgi Ram, who is one of the petitioners in a connected writ petition, is a Member thereof. The respondents further contend that value of the land of the petitioners had inter alia also been fixed. Objections on the value of the land were raised. Such objections were heard and the petitioner Balbir Singh had put his signatures in the proceedings also. After fixation of value of the lands, the scheme was announced on 14.11.1996. Objections on the price of the land were heard on 05.02.1996. The objections raised by some of the petitioners were accepted as a result whereof value of the land was enhanced.

6. The respondents further alleged that the petitioners, who had raised demands for plots admeasuring 2 Bighas and 2 Biswas for residential purposes; a plot of 6 Biswas for Industrial purposes each have been allotted in their favor by an order dated 24.04.1997. It is stated that the scheme of the petitioners had been confirmed and demand of the villagers had been met.

7. It has further been submitted that one of the petitioners, i.e., Balbir Singh had also filed an application under Section 21(2) of the said Act for change of his residential plot. He demanded Khasra 144/146 is stead and place of Khasra No. 144/126. Upon hearing objections, the same had also been decided in his favor by an order dated 29.10.1999. It is further the contention of the respondents that the petitioners herein again filed objections under Section 21(2) of the said Act on 29.06.1998 and since they did not pursue the same, the said objections were dismissed by an order dated 17.02.2000. The respondents while contending that the petitioners case do not come in the definition of 'Kayami' stated:-

"There was no construction on the land when the notification under Section 14(1) was issued on 8.9.1993. As per Petitioners own averments the completion certificate of the alleged structure where there is only 1 Room, Kitchen, Bathroom & Varanda was given on 17.4.1998 it is highly improbable that a construction of 1 Room, Kitchen, Bathroom & Veranda will have a reteable value of Rs. 1,55,900.00 which construction is allegedly completely on the agricultural land after the consolidation notification under Section 14(1) was issued. The construction can only be raised with the permission of the Consolidation Officer under Section 30(A) of the Act of 1948."

8. The petitioner in the writ petitions had prayed for the following reliefs:-

"(a) Issue an appropriate order/direction or writ in the nature of certiorari against the respondents thereby strucking down the provisions of Rule 6(i)(iii) of the Delhi Holdings (Consolidation & Prevention of Fragmentation) (Amendment) Rule, 1996 to the extent of making provision of allotment of industrial plot to the Bhumidar during the consolidation proceedings;

(b) Issue appropriate order / direction or writ in the nature of certiorari thereby quashing and setting aside the consolidation proceedings in respect of Village Kanjhawla, Delhi-110081; Commenced by notification dtd. 8-9-93 but started in Oct - Nov, 96 and proceedings are still at initial stage

(c) Issue appropriate order / direction or writ in the nature of mandamus thereby directing the respondents to conduct / carry out the consolidation proceedings strictly in accordance with the provisions of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 and rules framed there under and for the object and the purpose as enshrined under the said act and the rules;

(d) Issue appropriate order / direction or writ in the nature of mandamus thereby directing the respondents to supply the copy of draft scheme of consolidation to the petitioners and to publish the same in the Village, to invite objections from the residents and to decide the same before finalisating and scheme of consolidation and proceedings further in the matter;

(e) Issue appropriate order / direction or writ in the nature of mandamus thereby directing the respondent No. 4 to reserve the farm houses of the petitioners in their land as stated in para 8 and 10 of the petition, in accordance with the provisions of Rule 6 of the rules.

(f) Pass appropriate order/direction or writ in the nature of prohibition thereby restraining the respondents from allotting any land to the Growth Centre out of the Gaon Sabha land during the consolidation proceedings and also disturbing the possession of the petitioner of their farm houses in order to allot land for Growth Centre therein.

(g) Pass such other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

9. However at the time of hearing, the learned counsel appearing on behalf of the respondents would confine their case only to hearing of the applications filed by the petitioners before the Settlement Officer in terms of Section 36 of the said Act.

As noticed hereinbefore, the respondents themselves have contended that the draft scheme framed under the provisions of the said Act and the Rules framed there under have been confirmed.

10. Section 36 of the said Act reads thus:-

"36. Power to vary or revoke scheme.--A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the Chief Commissioner that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act."

11. A bare perusal of the aforementioned provisions would clearly go to show that once an application has been filed for alterations of the scheme, the same should be considered by the appropriate authority.

12. Rule 2(3) of Delhi Holding (Consolidation and Prevention of Fragmentation) Rules, 1959 defined 'Kayami' in the following terms:-

"'Kayami' means reservation of particular place of land on which some kind of structure exists prior to the date of notification under Section 14 of the Act and cases which should be considered for regularisation under the Scheme of 'Kayami' as part of consolidation proceedings as enumerated in Clause (1) of Rule 6."

In terms of Sub-section (3) of Section 2 of the said Act, only those structures, which were constructed prior to issuance of notification in terms of the aforementioned Rule, may be considered for regularisation under the Scheme of 'Kayami' as a part of consolidation proceedings.

13. The petitioners contend, as indicated hereinbefore, that they are owners of farm houses, which are required to be reserved as 'Kayami'. In support of their contentions, they have filed documents to show that for the aforementioned purpose, they had obtained permission from the competent authorities of the DMC Act. They have also been assessed for the purpose of payment of property tax.

14. In a proceeding under Article 226 of the Constitution of India, it is not for this Court to enter into the merit of the matter.

The Settlement Officer in terms of Section 36 of the said Act is enjoined with a duty to determine such disputes, which are brought before him so that in an appropriate case, a direction for alterations in the scheme may be made. At this stage, this Court is not concerned as to whether the petitioners have been able to make out a case on merit. The Settlement Officer under the provisions of the said Act and the Rules framed there under is a statutory authority. Once the petitioners have raised their grievances before the said statutory authority, we are of the opinion that the matter at the first instance should be determined by the said authority. We, therefore, are of the opinion that as the parties can raise all their contentions before the said authority, it would not be appropriate for this Court to enter into the merit of the matter, as was submitted by Ms. Ahlawat.

15. In State of W.B. and Ors. v. Nuruddin Mallick and Ors. , the Apex Court refuted a similar contention stating:-

"28. ... Submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on record to set at rest the longstanding issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter."

"30. ... As we have held above, without the statutory authority applying its mind for their approval and the impugned order not adjudicating the issue in question how could the impugned orders be sustained. ..."

16. We, therefore, dispose of these writ petitions by directing the Settlement Officer to consider the applications filed by the petitioners under Section 36 of the said Act on merit and pass an appropriate order after giving an opportunity of hearing to the parties.