Delhi High Court
Dy. Commissioner (South West) ... vs Ramesh Kumari on 5 December, 2008
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 7687/2004
Date of Judgment: December 5, 2008
DY. COMMISSIONER (SOUTH WEST) KAPASHERA
..... Petitioner
Through Ms. Avnish Ahlawat and
Ms. Latika Chaudhuy, Advocates with
Mr. Satish Verma, LDC.
versus
RAMESH KUMARI & ORS. ..... Respondents
Through Mr. Sanjay Jain, Senior Advocate with
Mr. Pankaj Vivek, Advocate for R-1.
Mr. Mukul Rohtagi, Senior Advocate and
Mr. Sandeep Sethi, Senior Advocate with
Mr. Lakshay Sawhney, Advocate for R-5.
Mr. Shalabh Singhal, Advocate for Vipin Vohra.
Mr. Rajender Aggarwal, Advocate
for AB Towers.
2. W.P.(C) 2193/2006
GALLANT HOTELS AND ESTATES P. LTD. ..... Petitioner
Through Mr. Pankaj Vivek, Advocate.
versus
STATE & ORS. ..... Respondents
Through Ms. Avnish Ahlawat and
Ms. Latika Chaudhury, Advocates.
3. W.P.(C) 2194/2006
HITESH BHARDWAJ ..... Petitioner
Through Mr. Pankaj Vivek, Advocate.
versus
STATE & ORS. ..... Respondents
Through Ms. Avnish Ahlawat and
Ms. Latika Chaudhury, Advocates.
4. W.P.(C) 2219/2006
DEEPAK BHARDWAJ ..... Petitioner
Through Mr. Pankaj Vivek, Advocate.
W.P. (C) No.7687 of 2004 etc. Page 1 of 47
versus
STATE & ORS. ..... Respondents
Through Ms. Avnish Ahlawat and
Ms. Latika Chaudhury, Advocates.
5. W.P.(C) 2263/2006
DEEPAK RESORTS & HOTELS PVT. LTD. ..... Petitioner
Through Mr. Pankaj Vivek, Advocate.
versus
STATE & ORS. ..... Respondents
Through Ms. Avnish Ahlawat and
Ms. Latika Chaudhury, Advocates.
6. W.P.(C) 3770/2006
HITESH BHARDWAJ ..... Petitioner
Through Mr. Pankaj Vivek, Advocate.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through Ms. Avnish Ahlawat and
Ms. Latika Chaudhury, Advocates.
7. CONT. CASE (CIVIL) No. 307 of 1997
RAMESH KUMARI ..... PETITIONER
Through Mr. Sanjay Jain, Senior Advocate
with Mr. N.S. Vasisht &
Mr. Pankaj Vivek, Advocates
versus
MANOJ KUMAR & ORS. .....RESPONDENTS
Through Ms. Avnish Ahlawat with
Ms.Latika & Ms. Simran, Advocates for
Respondents 1,2,4 & 6.
8. CONT. CASE (CIVIL) No. 353 of 1997
M/S BRB CONSTRUCTIONS PVT. LTD. ..... PETITIONER
Through Mr. Pankaj Vivek, Advocate
versus
MANOJ KUMAR & ORS. .....RESPONDENTS
Through Ms. Avnish Ahlawat with
W.P. (C) No.7687 of 2004 etc. Page 2 of 47
Ms.Latika & Ms. Simran, Advocates
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Yes
Digest?
Dr. S. Muralidhar, J.
Introduction
1. The subject matter of all these petitions is land to an extent of over
40 bighas in Village Kapashera, New Delhi belonging to the Deputy
Commissioner (South-West) („DC‟), Government of National
Territory of Delhi („GNCTD‟). The DC is the petitioner in the first
mentioned writ petition W.P. (C) No. 7687 of 2004. Accordingly, all
these petitions, including the two contempt petitions are being
disposed of by this common judgment.
Relevant Facts
2. On 17th April 1986 a notification was issued under Section 14 of
the East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act 1948 („Holdings Act) by the competent authority
commencing the process of consolidation of land in the Village
Kapashera in New Delhi. Pursuant to the said notification dated 17th
April 1986 the Consolidation Officer („CO‟) published a draft scheme
under Section 19 of the Holdings Act on 19th December 1986. After
considering the objections the scheme was confirmed by the
Settlement Officer (Consolidation) on 24th July 1987. Thereafter
repartition under Section 21 (1) of the Holdings Act was announced
by a Resolution No. 14 dated 13th/20th July 1988.
3. It is stated that land to an extent of over 40 bighas in village
Kapashera stood recorded in the name of the DC since 1924 and has
been in the possession of the DC since then. On 6th December 1991
the consolidation scheme which had been announced in 1986 was
amended in terms of Section 36 of the Holdings Act. The occasion for
this was that some of the right holders had placed a demand for
allotment of plots on the eastern side of the village and at the time of
finalisation of the scheme they had not been allotted plots. The CO
published the amended scheme and stipulated that objections thereto
would not be entertained after the stipulated period of thirty days.
The main features of the amended scheme announced on 6th
December 1991 were that the land belonging to the Gram Sabha
(Grazing Land) which was earlier valued at 12 annas + 8 annas would
now be valued on the basis of 16 annas. The total area of such land
was measuring 145 bighas, 4 biswas. Inter alia in clause 8 of the
scheme it was stated as under:
"8. In this village the holding in the name of
D.C. Delhi is located at 3 different places
and under Section 21 (1) the same had been
retained at 3 places. Attempt would be made
to consolidate the same at one place as far as
possible without lowering the value of the
land."
4. It is stated that on 12th March 1995 a letter was written to the DC by
one Shri H.S. Yadav on behalf of the Gramin Uthan Avum Jain
Kalyan Samiti, Kapashera in which it was stated that approximately 7
to 8 acres of land which was with the DC could be made available for
construction of a sports stadium. It was pointed out that the
consolidation of land in the village "is under final process of
completion" and that some alternative suitable site should be
identified by the authorities. Another letter was written on 28th April
1995 to the DC by the then Development and Education Minister,
Delhi Government Shri Saheb Singh that in Village Kapashera during
consolidation, a land should be reserved for a sports ground so that the
young children in the area could be given training to participate in
sports competitions.
5. It appears that the CO on 3rd November 1995 issued a public notice
by way of beat of drums proposing that in terms of Clause 8 of the
amended scheme "attempts will be made to consolidate the area of the
DC, Delhi as per scheme and the value will not be lowered down." It
was also stated that since the land belonging to the DC was at two
places and was divided into small partitions there was apprehension
that there may be unauthorized encroachment thereon and therefore
the said area could not be effectively used. A reference was made to
the demand by the villagers as well as the then Development and
Education Minister that the land should be made available for a
playground of the children. It was directed that the public notice
should be announced by beat of drums in the village and notice should
also be pasted at the public place of the village as well as at Shiv
Mandir.
6. On 17th November 1995 Smt. Ramesh Kumari made an offer to
provide a consolidated piece of land at one place in lieu of the DC‟s
lands and that she could also urge her adjoining farmers to exchange
their land for the DC‟s land. On 1st December 1995 the CO passed an
order withdrawing 40 bighas 4 biswas of land from the DC and
allotting the DC the land in certain other Khasra Nos. which were low
lying and which could not be put to use without incurring heavy
expenditure just for leveling. The land withdrawn from the DC was
allotted to four haqdars/Bhumidars viz., Smt. Ramesh Kumari, Shri.
C.L. Jain, Sheo Narain, Shri.Virender Khosla and the Gram Sabha. In
particular, Smt. Ramesh Kumari was allotted 27 bighas and 5 biswas
of DC‟s land in exchange for the land surrendered by her.
Corresponding entries were made in the Karyawahi Register
mentioning the withdrawal and allotment of land as indicated
hereinabove.
7. On 11th December 1995 permission under Section 30 of the
Holdings Act was granted to Smt. Ramesh Kumari to sell the land
allotted to her. Consequently Smt. Ramesh Kumari executed a sale
deeds on 13th and 15th December 1995 in favour of the other
respondents in respect of the lands allotted to her. Numerous other
sales took place thereafter in a short span of time as will be referred to
later.
8. That on 11th January 1996, a further order was passed by the CO
stating that the earlier order dated 1st December 1995 whereby the
DC‟s land was exchanged with the land belonging to the respondents
herein was conditional upon the Bhumidar/Haqdar taking possession
of their respective lands within thirty days from the said date of order.
It was stated that as per the report of Haqdar Patwari, Kapashera dated
10th January 1996 the said land had not was not levelled till then and
no efforts were made by the Haqdars in that regard.
9. It is stated that on 15th December 1995 some of the purchasers
applied for recording mutation of their names in the revenue record.
When this was not done, Suit No. 189 of 1996 (M/s. RGC Credits Pvt.
Ltd. v. Hutment Land Developers Pvt. Limited) and Suit No. 190 of
1996 (Tricolour Hotels Limited v. A.K. Ganguly, Director Sampark
Credits and Leasing Pvt. Limited) were filed in this Court. On 23rd
January 1996 the learned Single Judge of this Court ordered status
quo to be maintained in respect of the lands mentioned in the suit.
10. M/s. Tricolour Hotels Limited also filed Writ Petition No. 1055 of
1996 in this Court. On 13th March 1996 the Court directed notice to
issue to the respondents and the case was adjourned to 18th July 1996.
The case was thereafter adjourned to 12th September 1996 and 16th
January 1997. Till that time no counter affidavit had been filed.
11. It is stated that on 15th January 1997 the respondents i.e.
purchasers came to know some foundation stone of a Government
Office was to be laid on the land in question. They claim to have sent
telegrams to the Lt. Governor on 16 th January 1997 in this behalf.
Simultaneously Tricolour Hotels Limited filed WP (Civil) 186 of
1997 and Sampark Credits and Leasing Limited filed WP (Civil) 187
of 1997. It is stated that in both these cases then the CEO Shri G.C.
Sharma filed a counter affidavit pointing out that land in question
belonged to the DC. It was disclosed in the counter affidavit that the
order dated 1st December 1995 had been made without any notice to
the DC and that subsequently on a representation of an MLA Shri Sat
Prakash Rana requesting that the land belonged to the DC should be
made available for being utilized as a playground, an order dated 18th
July 1996 had been passed by the CO reversing the order dated 1 st
December 1995. In effect the land taken from the DC by the order
dated 1st December 1995 was restored to him. After recording this
fact, the learned Single Judge of this Court on 24th January 1997
dismissed the aforementioned writ petition as withdrawn with liberty
to the petitioners to pursue alternative remedies as against the order
dated 18th July 1996 passed by the CO.
12. Smt. Ramesh Kumari then filed a revision petition before the
Financial Commissioner (FC) under Section 42 of the Holdings Act
challenging the CO‟s order dated 18th July 1996. By an order dated
28th January 1997 the learned Financial Commissioner („FC‟) directed
notice on the revision petition. By an order dated 7th February 1997
the FC stayed the order dated 18th July 1996 and issued notice to the
DC for 11th March 1997. Thereafter by an order dated 25th March
1997 the FC set aside the order passed by the CO on the ground that
the CO had no power to review his earlier order dated 1st December
1995. Further the DC (Delhi) was permitted to separately initiate
disciplinary proceedings against the concerned CO and furnish his
findings within a period of three months.
13. Meanwhile, on 19th March 1997, the DC filed a revision petition
No. 96 of 1997 before the FC against the CO‟s order dated 1st
December 1995. By an order dated 11th April 1997 the FC passed an
interim order staying the CO‟s order dated 1st December 1995 till the
next date of hearing i.e. 9th May 1997. On 10th September 1997 the
interim order was directed to continue.
14. Aggrieved by the interim order 11th April 1997 passed by the FC,
Writ Petition (C) No. 3292 of 1997 was filed by Smt. Ramesh Kumari
in this Court which an order was passed on 4th August 1997 by the
learned Single Judge staying dispossession "in the meanwhile" while
issuing notice in the petition returnable on 10 th September 1997.
Against the same interim order dated 11th April 1997, B.R.B.
Constructions Pvt. Ltd., which had purchased 7 bighas and 3 biswas
of land from Tricolor Hotels Ltd. by sale deeds dated 24 th January
1996, filed Writ Petition (C) No. 2392 of 1997 in this Court. In the
said writ petition an interim order was passed on 13 th June 1997
direction that there would be a stay of dispossession of the petitioner
till the next date. The stay was continued on 8th July 1997. It was
made clear by an order dated 22nd April 1998 that the interim order
passed "does not come in the way of the Financial Commissioner to
proceed ahead with the matter before him."
15. It has been stated in the accompanying contempt petition
Contempt Case (C) No.307 of 1997 filed by Smt. Ramesh Kumari in
this Court that on 9th September 1997 the officers of the DC along
with the police force visited the site and thereafter they took the
petitioner, her husband and the labourers to the police post,
Kapashera. It is stated that after the police officers were shown a
copy of the interim order, they released the petitioner and her
husband. On the next date of hearing i.e. 10th September 1997 when
W.P. (C) No. 3292 of 1997 case was heard by the learned Single
Judge of this Court an order was passed adjourning the case to 2nd
December 1997 and continuing the interim order passed on 4th August
1997. Likewise a similar order was passed in the W.P. (C) No. 2392
of 1997 continuing the interim order dated 13th June 1997. The
differing versions of what transpired on 10th September 1997 and
whether any contempt was committed by the government officials as
alleged by Smt. Ramesh Kumari will be considered separately later in
this common judgment while dealing with the contempt petitions, one
by Smt.Ramesh Kumari and the other, Contempt Case (C) No. 353 of
1997 by BRB Constructions Pvt. Ltd.
16. The revision petition No. 96 of 1997 by the DC was disposed of
by the FC by the impugned order dated 27th June 2003. The FC came
to the conclusion that with the disposal of the earlier revision petition
by the FC on 25th March 1997 and the quashing of the order dated 18th
July 1996, the original allotment made by the CO by order dated 1st
December 1995 stood confirmed. Therefore, the said order could not
be further revised. Accordingly, the FC upheld the preliminary
objection of the respondents and clarified that the order dated 1st
December 1995 was to be implemented. With the dismissal of the
revision petition, the interim order dated 11th April 1997 stood
vacated. Aggrieved by the order dated 27th June 2003 the DC filed
Writ Petition (C) No. 7687 of 2004 in this Court. While notice was
directed to issue on 14th May 2004, no interim orders were passed.
The pleadings in the writ petition were thereafter completed.
17. It appears that on 11th September 2003, shortly after the dismissal
of the DC‟s revision petition by the FC, Smt.Ramesh Kumari filed
W.P. (C) No.6134 of 2003 in this Court praying for mutation of the
land in her favour in terms of the CO‟s order dated 1 st December
1995. This was resisted by the DC by pointing out that the FC‟s order
was being separately challenged in a writ petition which was pending.
Recording this submission, W.P. (C) No.6134 of 2003 was disposed
of by a learned Single Judge by an order dated 4th May 2004 by
directing that "the mutation as done in petitioner‟s favour, will be
subject to outcome of any decision as applicable on the respondent‟s
action in assailing the order of the Financial Commissioner."
18. It may be recalled that prior to the order dated 11 th April 1997 by
the FC, several sales of different parcels of the land in question took
place at a furious pace soon after the CO‟s order dated 1 st December
1995. Hutment Land Developers Pvt. Ltd. (HLDPL) purchased land
admeasuring 5 bighas and 18 biswas from Shri C.L. Jain (represented
by his power of attorney Smt.Ramesh Kumari) and Shri Sheo Narain
on 13th and 15th December 1995 respectively. Another piece of land
admeasuring 2 bighas 8 biswas in Khasra No. 30/10 and 4 bighas and
15 biswas in Khasra No.30/11 was sold on 13th December, 1995 by
Ramesh Kumari to Tricolor Hotels Ltd. („THL‟). On 24th January,
1996 THL sold the said land to BRB Constructions Pvt. Ltd. On 12th
December 1995 3 bighas land in Khasra No.74 min was purchased by
Hirtesh Bharadwaj, the son of Smt.Ramesh Kumari, from C.L.Jain.
15th December, 1995 another parcel of 9 bighas and 8 biswas of land
was sold to the same Hitesh Bhardwaj. 3bighas and 10 biswas of land
in Khasra No. 74 min is claimed to have been purchased by Gallant
Hotels and Estates Pvt. Ltd. whose Directors are Shri Deepak
Bharadwaj and his wife Smt. Ramesh Kumari. Likewise land
measuring 5 bighas and 11 biswas in Khasra Nos. 44/21 min and 49/1
was purchased by Deepak Resorts and Hotels Pvt. Ltd. whose
Directors are Shri Deepak Bharadwaj and his wife Smt. Ramesh
Kumari Another parcel of 7 bighas and 18 biswas of land was
purchased in 1996 by Shri Deepak Bharadwaj, the husband of
Smt.Ramesh Kumari.
19. The sale of land appears to have been temporarily halted during
the pendency of the DC‟s revision petition before the FC. However,
once those proceedings came to an end and no stay was granted by
this Court, on the strength of the conditional order dated 4th May 2004
in favour of Smt.Ramesh Kumari in W.P. (C) No.6134 of 2003 further
sales of different parcels of the land in question ensued. 13 bighas of
land were sold to Sampark Credits of which Deepak Bhardwaj was
Director on 15th December, 1995. 5 bighas and 6 biswas were sold to
Delhi Apartments Pvt. Ltd., again a company of Hitesh Bhardwaj and
Deepak Bhardwaj. They in turn sold the land on 4th September, 2006
to HLDPL the front company of the Bhardwajs. There was a sale of
the shareholding of HLDPL in favour of the Salujas. On 7th October,
2004 BRB Constructions Pvt. Ltd. sold their holding to Vipin Vohra.
On 20th October, 2006 HLDPL sold 29 bighas and 5 biswas of land in
several Khasra Nos. to Vindo Saluja. Then we have A.B. Towers Pvt.
Ltd who claim to have purchased 12 bighas 1 biswa land in Mustatil
No.30 on 4th September 2006 for Rs.18 crores.
20. Some of the subsequent purchasers who bought the land lis
pendens have filed separate writ petitions seeking varied reliefs. Some
of them have been impleaded as respondents in DC‟s writ petition.
The point made is more or less the same. It is stated the despite order
of the FC directing the CO to consider the request of the purchasers
for mutation, the shortage of land was not made good. It is stated that
the respondents have sought to explain this with reference to the order
dated 4th May 2004 passed by this Court in WP (Civil) 6134 of 2003
in favour of Smt. Ramesh Kumari. In is urged in all these petitions
that they should be dealt with separately. WP (C) 2193 of 2006 by
Gallant Hotels Pvt. Limited seeks a direction for allotment of land
comprised Khasra Nos. 74 min (3-10) situated in Kapashera in its
favour. WP(C) 2194 of 2006 by Hitesh Bhardwaj seeks a direction for
allotment of the land measuring of 9 bighas 8 biswas and to record the
petitioner as owner. WP(C) 2219 of 2006 by Deepak Bhardwaj
seeking a direction for allotment of the land total measuring of 7
bighas 18 biswas and to record the petitioner as owner. WP(Civil) No
2263 of 2006 filed by M/s. Deepak Hotels and Resorts Pvt. Limited
seeks a direction for allotment of the land total measuring of 5 bighas
11 biswas and to record the petitioner as owner. WP (Civil) No. 3770
of 2007 filed by Hitesh Bhardwaj seeks a direction to make good
deficiency of 1 bighas 14 biswas and record the petitioner as owner of
3 bighas land.
21. Pursuant to the information provided by Smt. Ramesh Kumari, the
subsequent transferees have all been impleaded as party respondents
in DC‟s writ petition W.P.(C No. 7687 of 2004 and some of them
have also made submissions. The hearings of these petitions, along
with the contempt petitions, was spread over several days. It involved
recording of evidence in the contempt petition as well.
Submissions of Counsel
22. The submissions of Ms. Avnish Ahlawat, learned counsel
appearing for the DC are as under:
(a) Under Rule 6 (c) of the Rules, the owner of a land is to be allotted
a land where he owns the biggest plot. The CO instead of actually
bringing the three chunks of the DC‟s land lying at different locations
to be placed where the biggest of the pieces was located, gave away
the entire holding in exchange to the land mafia in violation of the
Holdings Act and Rules. The land abutted the main pathway and
therefore was extremely valuable. The land given in exchange was
having no connecting road. Therefore per se the exchange was
unfavourable to the DC and has tremendous value for the property
dealers.
(b) The fact that the DC‟s land was bartered away illegally by the
CO to property dealers is clear from the fact that Smt. Ramesh
Kumari and her family members, within a fortnight of the CO‟s order
dated 1st December, 1995 obtained a No Objection Certificate
(„NOC‟) on 13th December, 1995 from the Notification
Branch/ADM/CO for sale in favour of HLDPL and in respect of a sale
made by her to her son Hitesh Bhardwaj.
(c) The DC was kept totally in dark about the order dated 1 st
December, 1995. Even the subsequent order dated 18th July, 1996
was without notice to the DC. Even the NOC issued for the sales was
without the knowledge of the DC. The use of powers by the CO was
therefore malafide and per se illegal.
(d) The order of the FC passed on 27th June, 2003 failed to consider
that no possession was in fact handed over by the DC in terms of the
Section 23 of the Holdings Act and in the circumstances the CO had
no authority to pass the order dated 1st December, 1995. The order
was much after the proceedings under Section 21 had concluded.
There was no power under the Holdings Act to pass such an order.
The passing of the said order was an instance of fraud on powers.
(e) Since the CO‟s order dated 1st December, 1995 was entirely
without jurisdiction, the learned FC could not have afforded to put a
seal of approval on the said order only because the earlier order dated
25th March, 1997 had set aside the order dated 18th July 1996 passed
by the CO which in turn reversed the order dated 1st December 1995.
(f) In addition, Ms. Ahlawat submitted that during the consolidation
proceedings those who were the recorded owners as on the cut off
date will alone be entitled to be given land in exchange as part of the
consolidation proceedings. The respondents here were not bhumidars
on the date of closure of the consolidation proceedings and they came
into picture only thereafter. The scheme had already been confirmed
on 19th December, 1996. The repartition proceedings took place
between 13th and 20th July, 1988. The amendment on 6th December,
1991 also applied only to the recorded bhumidars. At no point of time
did the DC make a request to the CO that the lands of the DC need to
be consolidated. Such a move therefore could not have been initiated
by the CO himself. Even if the request had been made by the villagers
or a Minister, the consolidation proceedings could not have
commenced without notice to the DC. She pointed out that after the
objections had been finalized and the scheme stood confirmed on 7th
July, 1992 (i.e. after amendment) none of the right holders made any
representation or raised any objection. The proceedings had concluded
somehow in May or June 1992. The entire scheme of consolidation
was only for the benefit of the right holders. It was not open to the
CO therefore to recognize those consolidation proceedings thereafter
without even information to a right holder.
(g) The facts of the case negated any plea of equity in favour of the
subsequent purchasers. If the root order dated 1st December 1995 was
bad in law, there was no sanctity to any of the subsequent purchases.
(h) As regards, the contempt proceedings, she referred to the evidence
recorded in great detail to show that no case for contempt against the
officials was made out. She prayed for dismissal of the contempt
petitions with exemplary costs.
23. On behalf of the respondents in the DC‟s writ petition, i.e.
Smt.Ramesh Kumari and some of the transferees, submissions were
made by Mr. Sanjay Jain, Mr. Sandeep Sethi, learned Senior
Advocates and Mr. Pankaj Vivek, Mr. Shalabh Singhal and Mr.
Rajinder Aggarwal, learned Advocates. Their submissions were as
follows:
(a) The FC had rightly set aside the CO‟s order dated 18th July, 1996
by the order dated 25th March, 1997. There was no power under the
Holdings Act for the CO to review its own order. Even though the
order dated 1st December, 1995 was not specifically put in issue since
it had merged with the order dated 18th July 1996, since the order
dated 25th March, 1997 was passed in presence of both counsel i.e. the
claimant as well as the DC, it only meant that the order dated 1 st
December, 1995 got revived.
(b) The order dated 18th July 1996 was itself a fabricated document to
somehow explain away the lapse on the part of the CO. The DC ius
presumed to have been aware of the consolidation proceedings and the
steps taken for exchange of the land. Such a move is envisaged even
by Section 36 of the Holdings Act. Even the transfers were valid in
terms of Section 30. Moreover, the karyawahi register maintained
under Section 23 had recorded these transfers. The khasra girdawries
would also show the transferees as being in legal possession.
(c) The actual date of the filing the revision petition by the DC
challenging the order dated 1st December, 1995, was in doubt.
According to him the affidavit in support of the revision petition was
typed on a stamp paper of 31st March, 1997 and attested on 11th April,
1997 and therefore the petition was deliberately ante dated to make it
appear that it was filed on 19th March, 1997 i.e. before the order dated
25th March, 1997 was passed. Therefore the DC was guilty of
suppression of facts before the FC regarding the earlier order dated
25th March, 1997. He refers to the reply filed by the CO at page 45
where it is stated that the failure to issuing notice to the DC before
ordering the exchange was due to inadvertence. He pointed out that
the order dated 1st December, 1995 was also not in accordance with
Rules.
(d) The DC had to take sanction from the Chief Secretary or the Lt.
Governor to file a writ petition. There was no notification that such
sanction had been obtained. It is too much to state that the DC was
unaware of the amendment of the scheme. He referred to Rule 3(2)(c)
of the Rules according to which notice had to be given to the CO, SO
and the FC. The DC cannot possibly plead ignorance of the
amendment of scheme or the public notice issued by the CO. In any
event this was not the plea raised by the DC before the FC. It is
further pointed out that the DC made no move from 18th March, 1996
till March 1997 to recover the land in question. Numerous transfers
had taken place and that no objection certificate issued by the DC‟s
office itself.
(e) Innocent third party purchasers should not be made to suffer if all
statutory clearances had indeed been granted by the officials
themselves. Moreover, huge sums had been invested on the projects
for building motels on the land of some of the transferees and
therefore it would be inequitable to set at naught all these transactions
at this stage.
(f) As regards the contempt petitions, it was submitted that the
evidence showed that the officials of the DC‟s office were in blatant
disobedience of the stay order passed by this Court and had tried to
overreach its orders at every stage. It was submitted that this called for
punishment of the contemnors.
24. Mr. Mukul Rohtagi, learned Senior counsel appearing for
Respondent No.5 HLDPL first pointed out that NOCs have been
issued by both the ADM as well as the MCD for the transfer of its
shares in October 2006 and February 2007. Half the land had already
been sold pursuant to the NOCs. The land allotted to the DC was no
less valuable than the land which was earlier available to it. A large
amount of moneys had changed hands during these transactions and
therefore it would be unjust to put the clock back by declaring all
these transactions illegal. He also pointed out that government
officials were themselves responsible for bringing out the situation
and it would be unfair to blame the subsequent purchasers who had as
part of the due diligence and exercise obtained the NOC and clarified
that there was no encumbrance of the property. He finally submitted
that the MCD has already sanctioned the plan for building a motel and
HLDPL had already spent Rs.68.06 lakhs. Of the 5 bighas and 18
biswas of its land which forms part of the disputed land, 2 bighas and
6 biswas have been taken away for widening the road and only 3
bighas and 12 biswas of land remains. Any interference at this stage
would be inequitable. Reliance is placed on the decisions in Oil &
Natural Gas Commission Limited v. Sendhabhai Vastram Patel
(2005) 6 SCC 454, P.Srinivas v. M. Radhakrishna Murti (2004) 4
SCC 459, Chandra Singh v. State of Rajasthan (2003) 6 SCC 545,
Rajesh D. Darbar v. Narasing Rao Krishnaji Kulkani (2003) 7 SCC
219, Ram Niwas Gagar (Dead) by Lrs v. Debojyoti Das (2002) 10
AD SC 306, Air India Limited v. Cochin International Airport
Limited (2000) 2 SCC 617, P.S. Sadashivswami v. State of
Tamilnadu 1975 (1) SCC 152, Balwant Rai Chimanlal Trivedi v.
M.N. Nagrashna AIR 1960 SC 1292, A.M. Alison & H.P. Brigg. v.
B.L. Sen AIR 1957 SC 227, Hukum Chand v. Financial
Commissioner 111 (2004) DLT 21.
25. In the connected writ petitions it was submitted that the lands
allotted in lieu of the lands surrendered were in fact of lesser extent
than was due. It is urged that in view of the large number of
subsequent purchasers who had parted with money and had plans
sanctioned by the MCD for the construction of motels, the
cancellation of the transactions would lead to chaos and
inconvenience and therefore no interference was called for with the
order dated 1st December, 1995 passed by the CO.
Issues for determination
26. On the above submissions the following issues arise for
determination in these petitions:
(i) The validity of the order dated 1st December 1995.
(ii) The jurisdiction of this Court to judicially review the CO‟s
order dated 1st December 1995 even if the CO could not himself
review such order.
(iii) The maintainability of the revision petition by the DC before
the FC challenging the order dated 1st December 1995 after the
order dated 25th March 1997 passed by the FC setting aside the
CO‟s order dated 18th July 1996.
(iv) The validity of the subsequent transfers.
(v) If the above issues are decided against the, whether any of the
transferees of the DC land are entitled to equitable relief?
Validity of the order dated 1st December 1995
27. The facts narrated indicate that the consolidation proceedings
commenced in the instant case on 17th April 1986 with the issuance of
a notice under Section 14 of the Holdings Act. In terms Rule 4 (2) of
the Delhi Holdings (Consolidation and Prevention of Fragmentation)
Rules 1959 („Rules‟) a Village Advisory Committee comprising
members of the Gram Panchayat, land holders and landless villagers
was constituted under the chairpersonship of the Consolidation
Officer, who at the relevant time was one Shri Layak Ram Sharma.
The draft scheme in terms of Section 19 was announced on 19th
December 1986. After considering the objections, the scheme was
confirmed on 24th July 1987 in terms of Section 20 of the Holdings
Act. A copy of the scheme as finalised has been placed on record. It
shows that the procedure under the Holdings Act and the Rules were
duly followed. Thereafter the repartition proceedings under Section 21
commenced. Individual landholders were provided passbooks which
recorded the extent and value of the land surrendered by them. The
repartition was completed between 13th and 20th July 1988. Under
Section 21 (3) of the Holdings Act any person aggrieved by the order
of repartition passed by the CO under Section 21 (2), can file an
appeal to the Settlement Officer (Consolidation) [SO]. At this stage
nobody filed any appeal. Since the DC‟s land, in three chunks to the
extent of 40 bighas and 2 biswas was left intact there was no occasion
for him to file any appeal either.
28. The amendment proceedings also appear to have taken place
thereafter in accordance with Section 36 of the Holdings Act and the
Rules. The counsel for the transferees have been unable to point out
any provision that permits the reopening of the consolidation scheme
after the notification of the amended scheme. The reference to the
entries in the karyavahi register cannot confer legality on the
subsequent re-opening of the scheme by the CO by his order dated 1 st
December 1995. What is significant is that even after the amendment
the DC‟s holding was left untouched.
29. It was repeatedly urged on behalf of the respondents that Clause 8
of the amended scheme had permitted the consolidation of the lands
of the DC. It was submitted that inasmuch as the amended scheme
containing this clause was approved by the LG, it therefore "carried
inherent consent of the DC as it was forwarded by the DC himself." It
is submitted that the DC has not challenged the scheme in any court of
law, he cannot now challenge the orders passed by the CO pursuant to
the said clause.
30. This submission is without merit. In the first place it requires to
be noticed that clause 8 of the amended scheme is not a source of
power to the CO to amend the scheme beyond what has already been
amended. As regards the DC‟s land, it merely stated that "attempt
would be made to consolidate the same at one place." By no stretch of
imagination can it be said that this clause actually empowers the CO
to proceed to further amend the consolidation scheme and that too
without notice to the DC. The admitted position is that the DC made
no request whatsoever to the CO to have his lands exchanged for
some other land. The perusal of the records of the case clearly
indicates that this entire move to have the DC divested of his land was
at the instance of none other than Respondent No.1 who on behalf of
herself and other land holders offered to "exchange" their lands for
the DC‟s. They had no locus to do so after the amended scheme had
been notified.
31. The private respondents in DC‟s writ petition appear to have come
into the picture only after the finalisation of the amended scheme.
Admittedly all their purchases were after the order dated 1 st December
1995. Learned counsel for the DC is right in her submission that under
the scheme of the Holdings Act it is only the right holders who can
demand participation in consolidation proceedings. They can make
claims in lieu of the lands expected to be surrendered by them. In the
instant case the respondents have nowhere shown how they can claim
to be the original bhumidars on the date of the scheme or even the
amended scheme. They clearly lack the locus now to claim that they
should be provided with lands in lieu of the lands surrendered by
them. As already noticed the scheme which even in its amended form
was finalized in 1991 cannot be reopened by the CO on the pretext
that the consolidation is not yet complete. Clause 8 was not meant to
provide an indefinite limitation for reopening of the scheme. The
respondents in fact lack the locus standi to demand consolidation of
the DC‟s land then there is no explanation at all as to the legal basis of
the action of the CO in giving the DC‟s land to the respondents in lieu
of the land surrendered by them by the order dated 1 st December,
1995.
32. The scheme of the Holdings Act appears to be that under Section
21 it is possible for the repartition to take place but once the amended
scheme was passed and objections were invited, the finalization of the
scheme thereafter was not intended to be reopened again and again.
In any event there is nothing in the Act to indicate that six years after
the amended scheme is notified it can be reopened under any pretext.
Otherwise it would be an endless process of consolidation which is
not envisaged under the Act.
33. There are even more serious problems with the order dated 1st
December 1995. At no stage was any notice issued to the DC prior to
the passing of the said order by the CO. There is in fact no provision
under the Holdings Act that permits such "exchange" after the
consolidation scheme has come to an end. The presumption that the
DC would not have had notice is not borne out by the record at all.
Also there is absolutely no answer by the respondents in DC‟s writ
petition to the submission made with reference to Rule 6 (c) and (d) of
the Rules which read as under:
"(c) As far as possible only those owners shall be allotted
land in any particular block who already held land therein.
(d) Every owner shall, as far as possible, be allotted land in a
block at the place where he holds the biggest plot."
34. The submission that the DC has in fact benefitted by the
"exchange" is preposterous to say the least. There can be no doubt
that by getting for themselves DC‟s land abutting the main road in
exchange for land nowhere near it, the transferees have reaped a huge
advantage. The furious pace of the sales soon after 1st December 1995
is testimony to the value of the land. There is little doubt that the
transferees acted in concert to exploit the situation with the
connivance of a pliant government official and deprive the DC of
valuable land behind his back. The CO was induced to exercise a
power he did not have as a result of which an order that constitutes a
fraud on power came to be passed.
35. This Court is of the view that the order dated 1st December 1995
by the CO whereby he divested the DC of his land without notice to
the DC in exchange for the land offered by the allottees was without
any authority of law whatsoever. As the investigation by the CBI and
the consequent chargesheet filed by it shows, there is sufficient
material to prima facie show that the subsequent transfers of the lands
so allotted soon after the order shows that this was an instance of
malafide exercise of power by the CO. Apart from causing enormous
loss to the government it has embroiled it in avoidable litigation for
over a decade. This Court therefore quashes the order dated 1 st
December 1995 passed by the CO as being without the authority of
law and therefore illegal. Consequently, as regards the DC land, the
position that obtained prior to the passing of that order will revive.
Power of this Court to judicially review the order dated 1 st December
36. It was not suggested by any of the counsel for the private
respondents in DC‟s writ petition that this Court exercising
jurisdiction under Article 226 cannot review the legality of the order
dated 1st December 1995. The said order was entirely without any
legal basis and therefore was illegal even to start with. The fact that
the said order has not been interfered with by the FC will make no
difference to the position since the FC is under the Holdings Act a
quasi judicial authority subject to the supervisory jurisdiction of this
Court and whose orders are judicially reviewable under Article 226 of
the Constitution.
37. An order that is illegal to start with can be corrected at any stage
by the High Court in order that the ends of justice are served. In A.V.
Papayya Sastry v. Government of A.P. AIR 2007 SC 1546, the
Supreme Court held that a judgment, decree or order obtained by
playing fraud on the court, tribunal or authority is a nullity and non est
in the eye of law. Such a judgment, decree or order -- by the first
court or by the final court -- has to be treated as nullity by every court,
superior or inferior. It can be challenged in any court, at any time, in
appeal, revision, writ or even in collateral proceedings. In
S.P.Chengalvaraya Naidu v. Jagannath AIR 1994 SC 853 it was
observed:
"The principle of "finality of litigation" cannot be
pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of
dishonest litigants. The Courts of Law are meant
for imparting justice between the parties. One who
comes to the Court, must come with clean hands.
We are constrained to say that more often than not,
process of the Court is being abused. Property-
grabbers, tax-evaders, bank-loan-dodgers and other
unscrupulous persons from all walks of life find the
Court process a convenient lever to retain the
illegal-gains indefinitely. We have no hesitation to
say that a person whose case is based on false-
hood, has no right to approach the Court. He can be
summarily thrown out at any stage of the litigation.
38. Consequently, it makes no difference if the CO was not legally
empowered to make the subsequent order dated 18th July 1996 which
had the effect of reversing the earlier order dated 1 st December 1995.
The mere fact that the subsequent order dated 18th July 1996 was
reversed by the FC will not automatically clothe the 1 st December
1995 with legality it did not possess to start with. It may be recalled
that the order dated 25th March 2007 passed by the FC was based
merely on the fact that there was no statutory power in the CO to
review his order. There was no occasion for the FC to examine the
merits of the CO‟s order dated 1st December 1995 at that stage. Indeed
he did not. Unfortunately when the order dated 1st December 1995
was challenged before him by the DC, it was rejected by the FC on a
technical ground and not on merits. Therefore, there is absolutely no
bar to this Court examining the validity of the CO‟s order dated 1 st
December 1995 on merits in exercise of its powers under Article 226
of the Constitution. The cases cited by the learned counsel for the
transferees including ONGC Limited and Chandra Singh talk of
instances where the High Court may decline to exercise its discretion
to strike down a wrong order only because it would be lawful to do so.
The decisions in AM Alison and Hukum Chand are to the same
effect. However, the facts of the present case leave this Court in no
doubt that the discretion must be exercised to strike down the order
dated 1st December 1995 which, on the face of it is without
jurisdiction. The facts further show that allowing this order to stand
any longer would only result in the perpetuation of an illegality which
might result in further exploitation of the situation by unscrupulous
elements.
Maintainability of the DC's revision petition
39. At this stage it is necessary to deal with two distinct submissions
of the private respondents and transferees. The first was that the CO‟s
order dated 18th July 1996 was vitiated both substantively as well as
procedurally. They went so far as to suggest that it was a fabricated
document. It was suggested that the proceedings were written up by
the CO to show that notices were issued to Shri C.L. Jain, Ramesh
Kumari, Shiv Narain and Virender Khosla but refused by them when
in fact no notice was ever issued. The discrepancy in the letter of the
MLA Shri Sat Prakash Rana is also made much of.
40. As far as this objection is concerned it must straightaway be
pointed out that apart from their mere allegation, no factual
foundation for the fabrication of any document has been laid by the
respondents in DC‟s writ petition. In the considered view of this
Court, the submissions regarding the alleged fabrication of the order
dated 18th July 1996 or the proceedings leading to it do not really help
the transferees. If the root order was itself bad, in law, then the mere
fact that NOCs were obtained under Section 30 or that the transfers
were recorded under Section 23 in the karyavahi register will not
make any difference to the position. Indeed, this may not carry them
very far because they have to still be able to show that the order dated
1st December 1995 as a result of which they stake claim to DC‟s land
is in fact a validly passed order. Unfortunately, any effort, even a
successful one, at showing that the subsequent order of the CO dated
18th July 1996 is bad in law, will not somehow render the earlier order
dated 1st December valid. In fact this is a basic fallacy in the reasoning
of the FC in the impugned order dated 27th June 2003 dismissing the
DC‟s revision petition challenging the order dated 1st December 1995.
41. The second ground is about the filing of the second revision by the
DC. It is submitted that on 25th March 1997 an order was passed by
the FC setting aside the order dated 18th July 1996 passed by the CO
but in the meanwhile the DC on 19th March 1997 filed another
revision petition challenging the earlier order dated 1st December 1995
passed by the CO. It is stated that on the date of the filing of the
revision petition, the order dated 1st December 1995 did not exist and
had in fact merged with the order dated 18th July 1996 passed by the
CO. Therefore, when such an order dated 1st December 1995 did not
exist no revision petition challenging it could have been filed. It is
explained that on 29th March 1997 during the hearing of the other
revision petition by the transferees, the counsel for the DC did not
inform the FC of the pendency of the DC‟s revision petition. It is
claimed that in the circumstances, probably the revision petition of the
DC was filed only on 31st March 1997 as is evident from the affidavit
filed in support of the revision petition which was verified on 7th April
1997.
42. It appears to have been a matter of coincidence that the revision
petition of the DC challenging the order dated 1st December, 1995
could not be considered by the FC prior to disposal of the revision
petition challenging the CO‟s subsequent order dated 18th July, 1996
at the instance of the respondents. While the record does show that
the order dated 25th March, 1997 was passed in the presence of the
counsel for the DC, this cannot be interpreted to mean that the DC has
waived his right to challenge the CO‟s order dated 1st December,
1995. It is not possible to infer that since the affidavit in support of
the revision petition was attested only in April 1997, the revision
petition itself could not have been filed before that date. There is
nothing to indicate that the date of filing was tampered to show that
the petition was filed before 25th March, 1997. This Court rejects that
submission outright. So also the submission regarding the DC not
having obtained the formal sanction from the LG or the Chief
Secretary to file the writ petition. With the order under challenge
being held by this Court to be illegal, these objections do not merit
consideration. In any event, these technicalities cannot come in the
way of this Court exercising its jurisdiction under Article 226 to
correct patent illegalities and do complete justice.
43. The fact that a petition was filed challenging the order dated 1 st
December 1995 on the date that the subsequent order dated 25th
March, 1997 was passed indicates that as far as the DC was
concerned, it did not accept the order dated 1 st December, 1995. The
FC was therefore not correct in rejecting the petition only on the basis
that the subsequent order dated 18th July, 1996 had already been set
aside by the FC by the order dated 25th March, 1997. In other words,
the setting aside of the CO‟s order dated 18th July, 1996 did not ipso
facto mean that the CO‟s earlier order dated 1st December, 1995 stood
revived. Also, the FC seems to be contradicting himself in the
impugned order dated 27th June 2006 where he holds the DC‟s
revision petition to be not maintainable since it is "against a non-
existent order" and later states that the said order dated 1st December,
1995 requires to be implemented. In the considered view of this Court
the FC was not right in rejecting the DC‟s revision petition on the
ground that it was not maintainable. In any event, notwithstanding the
FC‟s order dated 25th March 2007, for the reasons already discussed,
the order dated 1st December 1995 is not valid and the position
obtaining prior to that order will revive.
Subsequent transfers & equitable relief
44. The submission on behalf of the respondents is that although an
illegality may have been committed by the CO in passing the order
dated 1st December 1995, in view of the number of transactions that
have taken place since then the present position should not be
disturbed. The length of time is also advanced as another factor. Each
of the transferees, including those who have filed separate petitions
plead equity in view of the plans for building motels some of which
have been sanctioned.
45. The nature of illegality in the present case is a grave one. The
private respondents in DC‟s writ petition were property dealers who
were eyeing valuable government land for a long time. They knew
very well it was abutting the road and would fetch a higher price in
the market. In connivance with the CO the entire scheme appears to
have been worked out and the land of the DC was given to the
unscrupulous property dealers and substituted with poor quality lands
fetching a lower value and located away from the road. The
transactions described in paras 18 and 19 of this judgment indicate
that these were hardly innocent purchasers. They undertook a risk in
entering into sales transactions even during the pendency of this
litigation for over a decade. They were looking to exploit the situation
where prices of land were soaring with the increased demand in and
around the NCR of Delhi. In fact it is shocking that Smt. Ramesh
Kumari and her family members persisted with the sale transactions
notwithstanding this litigation. None of the interim orders in her
favour could have created any equity in her favour, much less in the
subsequent transferees. These are not cases where the court should
grant equitable relief to the transferees. As pointed out by the
Supreme Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu
(1999) 6 SCC 464, in the context of unauthorised constructions by
builders, "a discretion cannot be exercised which encourages illegality
or perpetuates an illegality......judicial discretion cannot be guided by
expediency."
46. The mere fact that NOCs were issued by the revenue authorities
and even the DC‟s office cannot legalise the transfers which were
tainted by the illegality of the COs‟ order dated 1st December 1995
which as pointed out is the root document. Clearly, there cannot be
any estoppel against law. The tainted transactions really cannot be
washed away with the passage of time. Condoning such transactions,
thereby impliedly legitimising them, would not only be contrary to
law but would send a wrong signal to the land mafia which uses these
tactics to grab valuable government land. Although some of the
subsequent purchasers may have got their plans for motels sanctioned
or obtained NOCs and invested monies, these transactions cannot be
the ground for regularizing their purchases. They will have to proceed
independently against their vendors to work out their remedies.
Having observed that, this Court expresses its concern that the
functioning of the Office of the Tehsildar and the DC leaves much to
be desired. Strict action needs to be taken disciplinarily against the
delinquent employees who were involved in facilitating the transfers
of DC‟s land in the manner indicated earlier. Nevertheless this Court
is not persuaded to accede to the plea of the subsequent purchasers
that the transfers consequent upon and subsequent to the order dated
1st December, 1995 of the CO should not be disturbed. No case for
equitable relief is made out by any of the transferees, who took a risk
in entering into illegal transactions concerning the land in question
despite the pendency of court proceedings.
47. The plea of the other petitioners that they have been allotted land
of a lesser extent than is due to them as a consequence of
consolidation, deserves rejection in so far as they trace their right to
the same tainted document of 1st December 1995. These questions do
not survive once it has been held that the land belonging to the DC
will remain with it undisturbed. The order dated 4th May 2004
permitting conditional mutation in favour of Smt. Ramesh Kumari
will not survive. No mutation can be granted now in her favour in
respect of DC‟s land. All subsequent transfers involving any portion
of the DC‟s land cannot legally subsist and will have to meet the same
fate of ab initio illegality. The remedy to any person who may be
aggrieved is to proceed in accordance with law against the transferor
through whom they claim a right. If according to them, the parcels of
land they have purchased are outside the lands of the DC forming
subject matter of DC‟s petition, they will have to work out their
remedies independently. The writ petitions by them are misconceived.
48. For all of the above reasons, the writ petition filed by the DC, i.e
W.P. (C) No. 7687 of 2004 is allowed with costs of Rs.10,000/-. The
impugned order dated 27th June, 2003 passed by the FC is hereby set
aside. The order dated 1st December, 1995 passed by the CO is hereby
set aside. The DC will take immediate steps with the aid of the police
to ensure that the DC‟s land remains fully protected and all
encroachments thereon be removed permanently. All transfers of any
part of the DC‟s land subsequent to and consequent upon the CO‟s
order dated 1st December 1995 are hereby declared illegal and the
authorities including the DC will take all necessary consequential
steps to give effect to the declaration. Each of the respondents [except
respondent No.9 in W.P. (C) No. 7687 of 2000] will pay costs of
Rs.10,000/- to the petitioner within a period of four weeks from today.
Each of the remaining writ petitions is dismissed with the
observations in para 47 hereinabove.
Contempt Case (C) No.307 of 1997 and Contempt Case (C) No.353
of 1997
49. Next the contempt petitions filed by Smt.Ramesh Kumari and
B.R.B Constructions are taken up for consideration. It will be recalled
that it was the case of Smt. Ramesh Kumari that on 9th September
1997 the officers of the DC along with the police force visited the site
and thereafter they took the petitioner, her husband and the labourers
to the police post, Kapashera. It was stated that after the police
officers were shown a copy of the interim order passed by the learned
Single Judge, they released the petitioner and her husband. On the
next date of hearing i.e. 10th September 1997 when W.P. (C) No. 3292
of 1997 case was heard by the learned Single Judge of this Court an
order was passed adjourning the case to 2nd December 1997 and
continuing the interim order passed on 4th August 1997. Likewise a
similar order was passed in the W.P. (C) No. 2392 of 1997 continuing
the interim order dated 13th June 1997.
50. There were further developments arising out of the incidents of 9 th
and 10th September 1997. Smt. Ramesh Kumari had filed criminal
complaints in regard to those incidents and when no action was taken
thereon by the police, she filed Writ Petition No. 108 of 1998 in this
Court seeking a direction to the respondents to register a case against
the Station House Officer, Police Station Kapashera. By an order
dated 24th January 2002 a Division Bench of this Court dismissed the
writ petition after observing that the Contempt Petition No. 307 of
1997 was already pending. It was observed that complainant had an
effective alternative remedy. Aggrieved, Smt.Ramesh Kumari filed
Criminal Appeal No. 1229 of 2002 in the Supreme Court. By its
order dated 21st February 2006 the Supreme Court directed the Central
Bureau of Investigation („CBI‟) to register a case and investigate of
the complaint filed by the appellant on 9 th September and 13th
September 1997. The CBI was further directed to complete
investigation within a period of three months. The Supreme Court
requested this Court to expedite the disposal of the contempt petitions.
In the contempt petition by Smt.Ramesh Kumari evidence by way of
affidavits of the contemnors as well as the petitioners was received
and they were cross-examined. However, in the companion contempt
petition by BRB Constructions, the petitioner did not participate or
file any affidavit. This is by itself sufficient to dismiss its petition with
exemplary costs.
51. At this stage it will be useful to set out the two issues formulated
by this Court in the contempt petition. Two issued formulated by this
Court by its order dated 30th October 2001 as amended by the
subsequent order dated 4th February 2003 read as follows :
(i) Whether the petitioner was in possession of the land
in question on 9th and 10th September 1997? If so, to
what effect?
(ii) Whether the respondents have tried to dismisses the
petitioner from the site on the aforesaid dates? If so,
to what effect?
52. It is stated that the DC and its officers were present in the court
room and they were apprised of the order passed by this Court by the
standing counsel of the GNCTD. It is then stated that on 10th
September 1997 at about 2.00 pm the respondents along with police
force appeared outside the property. The petitioner apprehended the
use of force and atrocities, she informed her husband and telegrams
were sent to the Station House Officer, Police Station Kapeshera as
well as to the Chief Justice of this Court. At about 5.00 pm the
petitioner was asked by the police to open the gate and when some
time was sought to call the labourers the police did not wait and broke
the gate. They had entered into the property and started removing the
assets.
53. According to the DC, they were always in the possession of the
property in question and the status quo order passed by the High Court
was wrongly interpreted by Smt. Ramesh Kumari and others as
permitting them to forcibly take possession of the property in
question.
54. From the cross-examination of Smt. Ramesh Kumari she admitted
that she was unable to produce any document that evidencing the
handing over the possession of the disputed land. She further
maintained that she had been given the possession of the property by
Shri G.C. Sharma, CO. She claimed not to have received any notice
from the CO before the order dated 18th July 1996 was passed.
55. The cross-examination of Ramesh Kumari on 3rd March, 2007 in
the contempt proceedings confirms that she was able to produce sale
deed only from 1994 onwards. Therefore on the date of the original
scheme of consolidation i.e. in 1986 she clearly was not in the picture
at all. The relevant questions and answers in this regard read as under:
"Q. Where are the original documents?
Ans. Perhaps these are available at my house. It is correct that I was
asked to produce the original records at the previous hearing on
19.12.2006. I apologize for not producing the same.
Upon repeating the question whether the originals are available, the
witness now says that she cannot recollect that she has the originals.
Q. You had at the previous hearing on 19.12.2006 stated that you
were the owner of the lands in question in 1986, whereas what you
have produced today are documents pertaining to the year 1995.
Where are those documents of 1986?
Ans. I made a mistake at the previous hearing when I said that I was
the owner of the lands in question in 1986. What I meant was relating
to other lands in Village Kapharsera whereas the land in dispute to
which I refer in my affidavit was purchased in 1994-95. The
documents produced by me today pertain to those lands.
I do not recollect filing any objections before the Consolidation
Officer under Section 21 of the East Punjab Holdings (Consolidation
& Prevention of Fragmentation), Act. I am not in a position to either
refuse or admit the suggestion that I had filed any objections under
Section 21 of the East Punjab Holdings Act.
Q. Can you tell the Court whether pursuant to order dated
1.12.1995, when were you put in your physical possession of the
exchanged land and which officer put you in possession of that
exchanged land?
Ans. I was put in physical possession of the exchanged land in
December, 1995 (witness is not able to recollect the exact date) by
Shri G.C. Sharma, the Consolidation Officer. (Mr. G.C. Sharma is
present in Court and is identified by the witness).
I am unable to produce any documents evidencing the handing over of
the possession of the disputed land. It should be available the
records. I deny the suggestion that Mr. G.C. Sharma had not given
me the physical possession of the land. I did not inform the Office of
the Deputy Commissioner that the lands belonging to the Deputy
Commissioner, had been allotted to me by way of exchange. The
witness adds that it was the duty of the Officers concerned to pass on
the necessary information in this regard to the Deputy
Commissioner."
56. According to Smt. Ramesh Kumari till time she was forcibly
dispossessed on 9th September 1997 she continued to remain in
possession of the property in question. However, she was unable to
produce khasra girdawri entries which would show her ownership or
possession of the land in question.
57. In his statement Shri Manoj Kumar, Additional Secretary,
Urban Development, GNCTD who was, at the relevant time, working
as Joint Secretary, Department of Urban Development, GNCTD, he
affirmed whatever is stated by an affidavit dated 28 th August 2006. He
added:
"During the time April 1997 to November 1997 I was ADM
Headquarters, having additional charge of Deputy
Commissioner (South-West), Kapashera, New Delhi. Shri G.C.
Sharma, CO ceased to be holding charge as such also, he did
not report directly to the DC."
This witness stated that he was not shown by the petitioner any copy
of a stay order passed by this Court. He was unable to identify the
portion of the site because more than ten years was elapsed. This
witness denied the suggestion that pursuant to the order dated 1st
December 1995 passed by the CO, possession was handed over to
Smt. Ramesh Kumari and he affirmed that there was no kabza
karwahi to that effect in the records of the case.
58. The next witness was Shri Mahesh Kumar, Inspector who clarified
that the complaint made to him about removal of the foundation stone
and ploughing of the land in question. He was apparently present on
9th September 2007 at the place of the incident. He specifically states
that he reached the site, he noticed that "the petitioner Smt. Ramesh
Kumari was attempting to flee the place." He also noticed that some
old tyres and other junk type articles in the premises. He did not
notice any trailer or mobile van in the premises. In response to the
specific question whether in view of the contesting claims made at the
spot on 9th September 1997 he verified the facts with the revenue
officials, this witness replied that he had no doubt that the land
belonged to the DC and therefore, there was no occasion to ask such a
question.
59. Shri Devendra Singh who was, at the relevant time i.e. 9 th
September 1997, working as SDM, Vasant Vihar, New Delhi was
examined on behalf of the DC office. He had identified the
photographs produced by petitioner. In response to the question
whether the appellant had asked the DC office to produce documents
evidencing DC‟s ownership of the possession in question, he replied
that he informed the police that the Junior Engineer (PWD) will be
asked to furnish those documents to the police. He affirmed that the
Khasra Girdawari is maintained by the Patwari indicating that the land
is in the possession of the DC. He admitted that the Patwari was
present on 9th September 1997. He denied that any trailer was found at
the site within the boundary wall. He was informed by the Standing
Counsel for the State about the Court having apprised of DC to have
taken the possession of the site in question.
60. G.C. Sharma is the key person since he has affirmed that the
reply affidavit filed by him on 13th March 2007 is true and correct. He
added in his examination-in-chief that "he was not present on 9th/10th
September 1997 at the site and by that time he was working in North-
West District situated at Kanjhawala, Delhi." Despite opportunities
being given to the learned counsel for the petitioner he did not cross-
examine this witness. Thus, the uncontroverted affidavit of G.C.
Sharma completely negates the case of any contempt having being
committed. In this affidavit, he has stated categorically in particular
para 9 that:
"9. That in reply to para no. 9 of the contempt
petition, it is submitted that Smt. Ramesh Kumari
did not take possession of the said land in question
nor had she cultivated. She has not produced any
documentary evidence to prove her possession and
cultivation. Respondent No.4 seeks permission of
this Hon'ble Court to file relevant revenue record
i.e. Khasra Girdawri for the relevant period, of the
land in question, which clearly shows that Smt.
Ramesh Kumari was never in possession of the
said land, and she was never in cultivation on the
land in question. Original Khasra girdawri is
enclosed, as Annexure B."
61. Again in para 10 he states that he did not trespass into the
property of Smt. Ramesh Kumari nor he did make the labourers to
demolish her property. He has also pointed out that by an order dated
11th September 2007 passed by this Court in paras 2 and 5, the DC
was directed to be deleted and therefore, expunging the remarks that
the CO had not findings properly in accordance with law.
Nevertheless this Court clarified that some respondent was free to deal
with the representation to be made by G.C. Sharma in accordance
with law.
62. To this Court it appears that the claim of Smt. Ramesh Kumari
that she was in the possession of the land in question is not borne out
by the records at all. The evidence shows that on the date the Court
passed the interim order granting stay of dispossession she was in fact
not in possession. The said order could not have been operationalized
since it was contrary to the factual situation prevailing on the ground.
At the highest it could have been construed to be status quo order in
the case neither party could have remedy therein to alter to the status
quo order.
63. It appears that since Smt. Ramesh Kumari was never in the
possession of the land in question prior to the passing of the interim
order, an attempt was made by her to forcibly enter the property. This
was foiled by the DC‟s office. The khasra girdawri and other records
confirm that the land belonged to the DC and the DC was in the
possession of the property in question. The DC office had in fact
planned the use of land for building a mini secretariat. That proposal
is evidenced by the notes on file which have been produced in these
proceedings. A foundation stone was laid for this purpose and on 17th
January 1997 and the new office of the DC was inaugurated at the old
terminal tax building Kapashera by the then Governor and Chief
Minister. The photographs of the ceremony have also been placed on
record. It has emerged in the evidence of Devender Singh that the site
in question was handed over to the PWD on 8th January 1997 for the
purpose of construction of boundary wall. The proposal of Shri
Mehto in respect of the building plans and approval from the Delhi
Development Authority was approved by the then Chief Minister on
29th January 1997. On the complaint of Shri Ajmer Singh, Junior
Engineer, PWD-27 to the police force Kapashera informing the police
that the petitioner had removed the inauguration stone of the
secretariat on the site and a case was registered under Section
379/427/447 IPC and the petitioner‟s son was arrested. The
inauguration stone was recovered from his possession. The said
affidavit also states that the work of construction of the boundary wall
was entrusted to the contractor by the PWD and the construction of
the boundary wall is completed on 24th June 1997.
64. A collective consideration of the above facts, these lead to the
conclusion that the petitioners were never in the possession of the land
in question; that after obtaining the stay order from this Court they
sought to disturb the possession of the DC; that the revenue records
and entries in the khasra girdawri clearly show that the land belonging
to the DC. Therefore, the interim order has to be understood as not
disturbing the possession of whichever party was as on that date in
possession of the property in question. The events antecedent to the
incidence of 9th and 10th September 1997 support the case of the DC
that they never ceased to be in possession of the land in question even
as on that date. The evidence also shows that no attempt was made by
the DC to forcibly dispossess Smt. Ramesh Kumari on 9th or 10th
September 1997 from the land in question. Therefore, the inevitable
conclusion is that no contempt was committed by the DC‟s office or
by any of its officers by disobeying the interim orders passed by this
Court. The contempt petitions have sought to be built up on the
edifice of a false case against the respondent officers and have
involved a waste of precious judicial time. As noticed earlier, in one
of the petitions by BRB Constructions, the petitioner did not even to
choose to lead evidence to substantiate the allegations despite being
afforded an opportunity. They deserve dismissal with exemplary
costs.
65. The contempt petitions are dismissed with costs of Rs.50,000/-
each will be paid by the petitioners to the DC within a period of four
weeks from today.
Summary of Conclusions
66. To summarise the conclusions:
(a) The order dated 1st December 1995 passed by the Consolidation
Officer whereby he divested the DC of his land without notice in
exchange for the land offered by the transferee respondents was
without any authority of law whatsoever. Such an order could not
have been passed after the completion of the consolidation
proceedings, as amended, in 1991. The order dated 1st December
1995 is illegal and is hereby set aside. The position regarding DC‟s
land which was sought to be exchanged by the said order will stand
restored to the position that obtained prior to the passing of the said
order.
(b) This Court has ample powers under Article 226 of the Constitution
of India to strike down the CO‟s order dated 1st December 1995
notwithstanding order being passed by FC on 25th March 1997.
(c) The FC was not right in rejecting the DC‟s revision petition on the
ground that it was not maintainable. The setting aside of the CO‟s
order dated 18th July, 1996 by the FC by his order dated 25th March
1997 did not ipso facto mean that the CO‟s earlier order dated 1 st
December, 1995 stood revived.
(d) No case for equitable relief is made out by any of the transferees,
who took a risk in entering into illegal transactions concerning the
land in question despite the pendency of court proceedings.
Nevertheless this Court is not persuaded to accede to the plea of
the subsequent purchasers that the transfers consequent upon and
subsequent to the order dated 1st December, 1995 of the CO should
not be disturbed. Since the root order dated 1st December 1995 is
bad in law, all subsequent transfers on that basis will have to meet
the same fate.
(e) All transfers of any part of the DC‟s land subsequent to and
consequent upon the CO‟s order dated 1st December 1995 are
hereby declared illegal and the authorities including the DC will
take all necessary consequential steps to give effect to the
declaration.
(f) The writ petitions by those complaining of shortage of allotment of
land pursuant to consolidation are misconceived. If their lands are
not part of the DC‟s land, then they will have to work out their
rights independently.
(g) There is no merit in the contempt petitions. The evidence shows
that the DC never ceased to be in possession of the land in question
even as on 9th and 10th September 1997. The evidence also shows
that no attempt was made by the DC to forcibly dispossess Smt.
Ramesh Kumari on 9th or 10th September 1997 from the land in
question. Therefore, the inevitable conclusion is that no contempt
was committed by the DC‟s office or by any of its officers by
disobeying the interim orders passed by this Court. Each of the
contempt petitions is dismissed with exemplary costs.
67. To conclude, for the reason set out hereinbefore and with the
direction as aforesaid, WP(C) No. 7687 of 2004 is allowed with costs
of Rs. 10,000/-. Each of the respondents [except respondent No.9 in
W.P. (C) No. 7687 of 2000] will pay costs of Rs.10,000/- to the DC
within a period of four weeks from today. Writ Petition (Civil) Nos.
2193 of 2006, 2194 of 2006, 2219 of 2006, 2263 of 2006 and 3770 of
2006 are dismissed. Contempt Case (Civil) No. 307 of 1997 and
Contempt Case (Civil) No. 353 of 1997 are both dismissed with costs
of Rs. 50,000/- each which will be paid by each of the petitioners to
the DC within a period of four weeks. The applications in all the
matters stand disposed of.
S. MURALIDHAR, J.
DECEMBER 5, 2008
rk/dn
