Subh Ram (Dead) Through Lrs. And ... vs Financial Commissioner And Ors.
2007 Latest Caselaw 1149 Del

JUDGMENT

S. Muralidhar, J.

1. The challenge in this writ petition is to an order dated 11.8.1995 passed by the Tehsildar, Najafgarh carrying out mutation of inheritance in respect of 1/9th share in Khata No. 371 in village Tikri Kalan, Tehsil Najafgarh in the name of Sarvashri Raj Singh, Vinay Kumar, Satyawan and Satpal Singh all sons of Smt. Bharto D/o Shri Harphool Singh. The writ petition also challenges an order dated 10.8.1998 passed by the Tehsildar dismissing the application filed by the petitioners for recall of the order dated 11.8.1995 and an order dated 10.9.1998 passed by the Financial Commissioner dismissing the revision petition filed by the petitioners here.

2. The facts leading to the filing of this petition are that Shri Harphool Singh, the father of the petitioners and their sister Smt. Bharto, died intestate in 1964. Smt. Bharto was at that time married. Shri Harphool Singh was the joint recorded bhumidar in respect of 55 bighas and 6 biswas of agricultural land in village Tikri Kalan. According to the petitioners, on Shri Harphool Singh dying intestate in 1964, his total holding devolved on the petitioners being the male descendants as per Section 50 of the Delhi Land Reforms Act, 1954 (DLRA). It is stated that in the year 1968-69 a mutation was carried in favor of Smt. Bharto by the Patwari on his own whereby 1/3rd share each of the father's share (i.e. 1/9th share in the property) in favor of the two petitioners and Smt. Bharto, was carried out. It is stated that the Patwari did this on his own applying the general law of succession.

3. Smt. Bharto died on 14.8.1986. Upon her death, her four sons Sarvashri Raj Singh, Vinay Kumar, Satyawan and Satpal Singh (Respondents 6 to 9 herein) applied for mutation in respect of her entire 1/9th share in the total land which had earlier been mutated in her favor. By the impugned order dated 11.8.1995, the Tehsildar allowed this application. It is stated that this was done without any notice to the petitioners.

4. The petitioners claim to have come to know of this mutation only on 22.5.1998 whereupon they moved an application under Section 55 of the Delhi Land Revenue Act, 1954 ('Revenue Act') before the Tehsildar for recall of the order dated 11.8.1995. That application was dismissed by the second impugned order dated 10.8.1998. Thereafter the petitioners filed revision petition under Section 72 of the Revenue Act before the Financial Commissioner who dismissed it by the third impugned order dated 10.9.1998 on the ground that the petitioners could not explain why they did not file objections before the Tehsildar despite notice being issued.

5. It is then stated that out of the total land of 55 bighas and 6 biswas, land measuring 34 bighas and 5 biswas was acquired in 1997 under the Land Acquisition Act 1894 ('LA Act') by an Award No. 17/97-98. Compensation was also assessed. The petitioners as well as the respondent Nos. 6 to 9 applied for withdrawal of the compensation. While the petitioners withdrew their share, they objected to the withdrawal of the amount by respondent Nos. 6 to 9. It is stated that the petitioner, on 2.9.1998, filed an application under Section 30 and 31 of the LA Act before the Land Acquisition Collector (LAC) (Punjabi Bagh Special Division), respondent No. 2, for referring the dispute to the Civil Court but that respondent No. 2 was not inclined to accept such request. In these circumstances, on 30.10.1998, the petitioners filed the present writ petition challenging the mutation in favor of Respondent Nos. 6 to 9 and the subsequent orders confirming the said mutation.

6. A prayer was also made for a direction to the LAC to make a reference under Sections 30 and 31 of the LA Act to the civil Court and for a direction to prevent the respondent Nos. 6 to 9 from receiving payment of land acquisition compensation till the decision on such dispute is rendered by the civil court. It was also prayed that respondent Nos. 6 to 9 should not be permitted to sell or alienate the unacquired land to third parties without following due process of law.

7. Notice was directed to issue in this writ petition on 5.11.1998. An interim order was passed on that date restraining the respondents from disbursing compensation and selling, transferring, alienating and creating any third party interest and dispossessing the petitioners from the unacquired land. Subsequently, when despite several opportunities the respondents did not file counter affidavits, the matter was set down for a final hearing. The legal representatives of petitioner No. 1 were brought on record by an order dated 14.2.2001. By virtue of the said application, Shri Kanwar Singh and Shri Devender Singh have been brought on record as legal representatives of petitioner No. 1 Shri Subh Ram.

8. Shri Kanwar Singh himself died on 12.9.2006 leaving behind six LR's i.e., his wife, mother, two sons and two daughters. The applications for bringing them on record in his place were allowed on 24.4.2007.

9. At one stage during hearing of these matters, an order was passed on 6.7.2005 by this Court directing that proceedings under Section 30 and 31 of the LA Act pending before the civil court should be heard and disposed of not later than 30.4.2006. The civil court was permitted to release the amounts in favor of respondent Nos. 6 to 9 upon their furnishing bank guarantees. The prayers in the writ petition in this regard, therefore, do not survive any longer.

10. The submissions of Mr. Chauhan, learned Counsel appearing for the petitioner are as under:

(a) The initial mutation in favor of Smt. Bharto, the mother of respondent Nos. 6 to 9 was itself erroneous and contrary to the provisions of Section 50 DLRA which provides for succession only by male descendants in respect of a male land holder dying intestate.

(b) He further submitted that in any event, in terms of Section 51 read with Section 53 DLRA, after the death of Smt. Bharto on 14.8.1986, the entire land would devolve in favor of the petitioners here as the surviving male descendants.

(c) There was, therefore, no occasion for the Tehsildar to have granted the mutation in favor of the sons of Smt. Bharto, the respondent Nos. 6 to 9, without issuing the petitioners prior notice. The mutation so granted was illegal.

(d) The application for recall filed by the petitioners was rejected by the Tehsildar without any application of mind and without giving reasons. It was incumbent on the Financial Commissioner exercising revisional jurisdiction under Section 72 of the Revenue Act to interfere and set aside the erroneous order dated 11.8.1995.

11. The submissions of Mr. Ramesh Chandra, learned Senior Counsel on the other hand is that Shri Devender Singh, the son of Shri Subh Ram, was himself present to identify Respondent Nos. 6 to 9 when the mutation took place in their favor on 11.8.1995. The proceedings show that Shri Devinder Singh did not object to the mutation being carried out in favor of the sons of Smt.Bharto. Therefore, the plea that there was no notice of mutation was absolutely erroneous. Moreover, after permitting mutation to be carried out it was not open to Shri Devinder Singh to substitute himself for Petitioner No. 1 in these proceedings and oppose the mutation. He further submits that the present petition is an abuse of process of law since the fight is only for land acquisition compensation money to which respondent Nos. 6 to 9 were entitled and a small portion of the unacquired land. Admittedly the land in question no longer belongs to either party. The petitioners have received the land acquisition compensation and are only interested in depriving Respondent Nos. 6 to 9 of their share.

12. In the first place the factual aspect of mutation in favor of respondents No. 6 to 9 requires to be examined. The impugned order dated 11.8.1995 passed by the Tehsildar reads as under:

File along with P-1 presented. After registration of mutation case on a proclamation and notice have been issued, which after duly certified upon the parties, are present on record. Out of all the legal heirs the statement of Shri Sat Pal Singh is recorded who has been identified by one Shri Devinder Singh. The death certificate of deceased along with one affidavit is also submitted. From the death certificate the death is found confirmed and thereby the legal heirs are determined testified. Till today there is no objection is found. Therefore, the mutation of inheritance out of Khata No. 371 for 1/9 share is announced in the name of one Raj Singh, Vinay Kumar, Satyavan and Sat Pal Singh all sons of Smt. Bharto d/o Harphool Singh w/o Shri Randhir Singh equally from the name of Smt. Bharto. The mutation fee Rs. 0.31 paise and Rs. 1.25 total Rs. 1.56 has been charged and be deposited in Govt. Treasury. And after implementation of this order in revenue record, the file be consigned to record room.

13. In addition, the respondents have also placed on record the precise statement made by Shri Devinder Singh before the Tehsildar on 24.7.1995 by way of identification of the respondent No. 6 Shri Satpal. The statements of Shri Satpal and Shri Devinder Singh made on that date before the Tehsildar read as under:

STATEMENT OF SATPAL, S/O SHRI RANDHIR SINGH. DISTTT. ROHTAK, HARYANA.

It is submitted that my mother has died and we are the four sons who are the legal representative/L.Rs. of my mother. I have submitted the death certificate of my mother and with my own affidavit. My mother has not made any Will in the name of any one during her life time and now the properties of my mother may kindly be transferred in the name of our four brothers.

Statement recorded and found correct.

Sd/ Tehsildar 24.7.1995

SD/- Signature of Satpal Singh

STATEMENT OF DEVINDER SINGH S/O SUBH RAM AGE 30 year DOING SERVICES AND R/O V.P.O. TIKRI KALAN, NEW DELHI.

It is submitted that I know Satpal very well. He has made his statement and recorded the same in my presence. I absolutely confirmed his statement. Statement recorded and explain.

Sd/-Tehsildar, Nazafgarh

Sd/- Devinder Singh. Dated 24.7.95.

14. There can be no manner of doubt that Shri Devinder Singh was present at that time of mutation and did not object to the mutation being granted.

15. When the above fact was brought on record by the respondents No. 6 to 9, the petitioners on 21.4.1999 filed a rejoinder affidavit of Shri Subh Ram contending that Shri Devinder Singh 'never appeared as alleged by the respondents as identifying witness of the said mutation.' It is was claimed that Shri Devinder Singh neither appeared before the Tehsildar nor signed any proceedings. It was further stated as under:

And the bare first glance over the Annexure-C, it prima facie shows that the signature of its signatory were obtained on blank paper and thereafter the same had been used for recording statement. The same is a result of collusion, misrepresentation, fraud and conspiracy hatched between the mutation sanctioning authority and respondents. Moreover, it is also submitted that the petitioners have no concern with Shri Devender Singh as he is residing separately since more than six-seven years and is very friendly with the respondents. And moreover, for the acts, deeds and things done by Shri Devender Singh, the petitioners are not bound and as per their best of knowledge they first time came to know about the mutation in favor of respondents No. 6 to 9 on 22.5.1998, when he got issued a copy of khatoni, from the halqa patwari.

16. It is indeed strange that after Shri Subh Ram petitioner No. 1 took a categorical stand as aforementioned in the rejoinder affidavit dated 21.4.1999, Shri Devinder Singh himself substituted Shri Subh Ram as his legal heir as noticed hereinbefore. The application under Order 22 Rule 3 CPC for substitution filed on 25.1.2002 by the counsel for the petitioners does not talk of any conflict of interest. The application was allowed and the amended memo of parties was taken on record. Obviously, therefore, the whole story of Shri Devinder Singh not binding the petitioners by his acts and deeds is unworthy of acceptance.

17. Interestingly, Shri Devinder Singh himself has not filed an affidavit in this Court denying that he was present at the time of mutation. Factually, therefore, it is not permissible for Shri Devinder Singh to now assail the mutation carried out on 11.8.1995 when despite being present at the time he did not object to it. It is also difficult to believe that the petitioners did not discover this fact earlier than 1998 i.e., only after the land acquisition Award was passed. The Award sets out the amounts of compensation payable to the different parties and the petitioners obviously knew who would get what amount as compensation.

18. Moreover as has been noticed in the impugned order dated 10.9.1998 of the Financial Commissioner, the mutation was ordered by the Tehsildar 'after checking up the death certificate and after noticing/hearing the LR's of the deceased.' The Financial Commissioner also noted that a general notice/proclamation had been given by the Tehsildar before ordering the mutation. There is no occasion for the Court to disbelieve this factual recording of the position obtained from the records of the case by the Financial Commissioner in the impugned order. Thirdly, as has been rightly pointed out by Shri Ramesh Chandra, learned Senior Counsel, the mutation of 1/9th share in favor of Smt. Bharto was pursuant to a family settlement as can be seen from the entry in the khatoni itself.

19. The Court is required to examine if substantial justice has been done or, to put it conversely, whether the denial of the reliefs prayed for by the petitioners would result in substantial injustice being caused to them. In the circumstances, given the developments that have taken place since 1968 the question whether the mutation made way back in 1968-69 in favor of Smt. Bharto was valid or not, need not be examined at this late a stage. The fact that the mutation in favor of Smt. Bharto remained unchallenged for nearly three decades, the fact that the petitioners have not been deprived of their respective shares of land acquisition compensation and the fact that son of the petitioner No. 1 himself was a witness of the mutation in favor of Respondent No. 6 to 9 are all factors that weigh against the grant of relief to the petitioners here. The neat legal question that may have merited consideration in some other appropriate case, therefore, need not be examined in the present case. The impugned orders do not call for interference.

20. For all the above reasons, this Court finds that there is no merit in the writ petition and it is dismissed with no orders as to costs. The interim orders stand vacated and the bank guarantees furnished by respondent No. 6 to 9 will stand discharged. The applications are also disposed of.