Narain Singh & Another vs Financial Commissioner, Delhi
2008 Latest Caselaw 1016 Del

WP(C) NO.670/1995                     Page No.1


                                                         REPORTABLE

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        WRIT PETITION (CIVIL) No. 670 OF 1995


%                               Date of Decision :    July 14th , 2008.

         NARAIN SINGH & ANOTHER          ..... Petitioners.
                      Through Mr. Anand Yadav, Advocate.

                     versus

         FINANCIAL COMMISSIONER, DELHI         ..... Respondent.
                      Through Mr. V.K.Tandon with Ms.Manpreet
                      Kaur, Advocate for respondent nos.1-4.
                      Mr. R.P. Bansal, Sr. Advocate with Mayank
                      Yadav, Advocate for respondents 2-3.

         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA

         1. Whether Reporters of local papers may be

         allowed to see the judgment?

         2. To be referred to the Reporter or not ?    YES

         3. Whether the judgment should be reported

         in the Digest ?                               YES


SANJIV KHANNA, J.:

Background

1. Mr. Narain Singh and Mr. Som Dutt (hereinafter referred

to as the petitioners, for short) claim that they have purchased 2

bighas 18 biswas and 2 bighas of land, respectively in khasra No.

6/19/2 (min) village Samepur, Delhi vide two separate sale deeds

dated 4th May, 1989 executed by one Mr. Maman Singh. The WP(C) NO.670/1995 Page No.2

said Mr. Maman Singh is father of Mr. Som Dutt. After purchase of

land vide sale deeds dated 4th May, 1989, the petitioners had

applied for mutation under the provisions of the Delhi Land

Revenue Act, 1954, (hereinafter referred to as the Revenue Act).

Mr. Maman Singh was a recorded bhumidar of the land till sale

deeds were made. Mutation entries were allowed in favour of the

petitioners. By the impugned order dated 10th February, 1995

passed by the Financial Commissioner, the mutation entries have

been cancelled.

Impugned Order

2. The Financial Commissioner, has held, that the aforesaid

land consisting of 4 bighas and 18 biswas was subject matter of

proceedings under Section 81 of the Delhi Land Reforms Act,

1954(hereinafter referred to as the Reforms Act, for short) and was

ordered to be vested in the Gaon Sabha by order passed by

SDM/Revenue Assistant dated 7th February, 1984 and, therefore,

mutation entries made in favour of the petitioners pursuant to the

sale deeds dated 4th May, 1989 are liable to be set aside.

Financial Commissioner has further held that Mr. Maman Singh

had earlier executed sale deeds dated 9th March, 1970 in favour of

one Mr. Bhai Ram and the said Mr. Maman Singh had also made

a statement before Mr. Nathu Singh, Revenue Assistant in Case

No. 62/RA/81 that the land in question had never been cultivated WP(C) NO.670/1995 Page No.3

by him. Apart from these reasons, the Financial Commissioner

has held that sale of land by Mr. Maman Singh to the petitioners

by two sale deeds dated 4th May, 1989 had resulted in violation of

Section 33 of the Reforms Act as Mr. Maman Singh was left with

uneconomic holding in form of land in extended abadi located in

khasra No.23/18/2 measuring 1 bigha 7 biswas and, therefore,

consequences as stipulated in Section 42 of the Reforms Act

would follow. In these circumstances, mutation entries made

under the Revenue Act in favour of the petitioners were directed to

be cancelled with a direction that the land would vest with the

Gaon Sabha/Union of India. The Financial Commissioner also

observed that once mutations in favour of the petitioners were held

to be invalid, then the petition under Section 85 of the Reforms Act

filed by Respondent Nos. 2 and 3, Mr. Mohinder Singh and

Mr.Rajinder Singh, against the petitioners was also not

maintainable. In these circumstances, the petition filed by private

respondents herein viz. respondent Nos. 2 and 3, was held to be

incompetent and dismissed.

Litigations

3. There have been three proceedings amongst the parties.

Two proceedings were before the authorities under the

Revenue and the Reforms Act. The petitioners have also filed a

civil suit.

WP(C) NO.670/1995 Page No.4

4. Respondent Nos. 2 and 3 in November, 1989 filed a petition

under Section 85 of the Reforms Act against the petitioners. This

petition was subsequently amended. Respondent Nos. 2 and 3

claimed that they were in possession of the land for a period of more

than three years and the recorded bhumidars had failed to eject them

and accordingly they should be declared bhumidars. It was stated

that Mr. Maman Singh was wrongly recorded as a bhumidar of the

land till 4th May, 1989 and thereafter the petitioners have been

wrongly recorded as bhumidars.

5. Notice on this petition was issued to the petitioners who had

entered appearance. The said petition was dismissed by an ex parte

order dated 4th June, 1990. It is the case of the respondent Nos. 2

and 3 that they were never served with notice for the hearing fixed on

4th June, 1990 and the case in fact had been adjourned to 25th June,

1990. I have examined the order passed by the Revenue Assistant

on 4th June, 1990. The said order is a non-speaking and a non-

reasoned order. It records the contentions of the petitioners herein

and without any discussion holds that the respondent Nos. 2 and 3

had not been able to make out a prima facie case. I may note here

that the parties had not led any evidence before the Revenue

Assistant.

6. Against order dated 4th June, 1990, the respondents Nos. 2 and

3 herein filed an application for review/restoration, an appeal before WP(C) NO.670/1995 Page No.5

Additional Collector/ADM and a revision petition before the Financial

Commissioner. Review/restoration application was dismissed. The

revision petition filed before the Financial Commissioner was

dismissed as withdrawn as not maintainable. The appeal filed before

Additional Collector/ADM was also dismissed on the ground that a

restoration application had been filed by respondent Nos. 2 and 3

before the Revenue Assistant. However, this order passed by

Additional Collector/ADM was set aside by the Financial

Commissioner vide his order dated 12th December, 1991.

Accordingly, the matter was remanded back to the Additional

Collector/ADM for decision of the first appeal on merits by the

Financial Commissioner vides order dated 12th December, 1991.

7. By another order dated 12th December, 1991, the Financial

Commissioner disposed of the appeal filed by respondent Nos. 2 and

3 under Section 66 of the Revenue Act. In the said appeal,

respondent Nos. 2 and 3 herein had challenged the mutation entries

made in favour of the petitioners and the two separate orders dated

9th August, 1991 passed by Additional Collector dismissing the

challenge to the mutation orders dated 31st May, 1991. The Additional

Collector, Delhi had dismissed appeals on the technical ground that

the certified copy of the impugned order dated 31st May, 1989 was

not enclosed with the grounds of appeal. The Financial

Commissioner in his order dated 12th December, 1991 held that the WP(C) NO.670/1995 Page No.6

appeals were rightly dismissed by the Additional Collector as certified

copy of the impugned order had not been enclosed. He, however,

held that the appeal filed by the petitioners should be treated as a

petition under Section 71 of the Revenue Act and the Additional

Collector should examine the legality or propriety of the mutation

order.

8. As a result of the two orders passed by the Financial

Commissioner, both dated 12th December, 1991, the appeal filed by

the respondent Nos. 2 and 3 dismissing their application under

Section 85 of the Reforms Act was revived to be decided on merits

and the Additional Collector was also required to examine the

complaint made by the respondent Nos. 2 and 3 under Section 71 of

the Revenue Act.

9. Additional Collector by two orders dated 10th January, 1994

disposed of both matters. Appeal under Section 85 of the Reforms

Act was dismissed on the ground that the respondent Nos. 2 and 3

had not been able to produce evidence that they were in continuous

cultivatory possession of the land for more than three years and,

therefore, cannot claim bhumidari rights. It was stated that Mr.

Maman Singh was a recorded bhumidar of the land since 1981. The

complaint under Section 71 of the Revenue Act was also dismissed

holding that there was no violation of Section 33 of the Reforms Act

and Rule 22 of the Rules framed thereunder. It was observed that WP(C) NO.670/1995 Page No.7

the sale deed dated 4th march, 1970 stated to have been executed by

Mr. Maman Singh in favour of Mr. Bhai Ram was not free from

suspicion as the Sub-Registrar‟s office had stated that the document

was not on record.

10. The, abovementioned two orders passed by the Additional

Collector were made subject matter of appeal/proceedings before the

Financial Commissioner in Appeal Nos. 12/94-CA and 13/94-CA.

The first appeal was filed under Section 185(4) of the Reforms Act

and the second appeal was filed under Section 72 of the Revenue

Act. Appeal under the Reforms Act was disposed of by an order

dated 4th February, 1994 passed by the Financial Commissioner

remanding the matter back once again to the Additional Collector

holding that he had failed to examine the matter on merits.

Observations were also made against the Revenue Assistant, who

had proceeded to dispose of the petition under Section 85 of the

Reforms Act on merits without recording evidence and in the absence

of respondent Nos. 2 and 3. The Financial Commissioner made

reference to the statement of Mr. Maman Singh made before the

Revenue Assistant in Case No. 162/RA/81 as well as vesting of land

in Union of India/Gaon Sabha pursuant to the order passed by the

Revenue Assistant under Section 81 of the Reforms Act vide order

dated 4th February, 1984.

WP(C) NO.670/1995 Page No.8

11. Appeal under Section 72 of the Revenue Act was also disposed

of remanding the matter back to be decided afresh. However, while

disposing of the appeal, the Financial Commissioner rejected the

contention of the petitioners herein that the said appeal was not

maintainable under Section 72 of the Revenue Act against the order

passed under Section 71. It was observed as under:-

"8. As regards the locus standi, I find that this fact was also taken notice of by my learned predecessor or when the earlier cases were filed in this Court. He treated the petitioners in the capacity of informer/complainants. That being so, the submission made by the learned counsel have force and stand sustained. At the same time, I do not consider it appropriate to throw away these petitions on this ground itself, and proceed to consider the legality/propriety, passed by the learned Additional Collector. The second ground taken by the learned counsel does not hold good. It is clear from a plain reading of Section 71 of the Act that if the Deputy Commissioner is of the opinion that the proceedings taken or order passed by a subordinate officer should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for orders of the Chief Commissioner (This court) and the Chief Commissioner shall thereupon pass such orders as he thinks fit. It clearly follows that this court has every jurisdiction to examine the matters regardless the fact that the same has been considered by the Deputy Commissioner under Section 71 of the Act. Furthermore, the revisional powers under Section 72 are independent and can be exercised even suo moto. In this view of the matter, I proceed to examine the impugned orders in the light of the material placed on record by the parties and as pointed out on behalf of the petitioners."

12. The petitioners challenged both orders dated 4th February, 1994

in Civil Writ No. 966/1994, which was disposed of by a Division WP(C) NO.670/1995 Page No.9

Bench of this Court on 11th July, 1994. The Division Bench referred

to three set of proceedings between the parties including proceedings

before the Civil Court, which had resulted in orders being passed by

the Supreme Court. It was noticed that the Additional Collector while

disposing of the appeals by order dated 10th January, 1994 had not

decided the same in consonance with the directions given by the

Supreme Court. The matter was remanded back to the Financial

Commissioner to be decided afresh on merits after hearing the

parties and, if necessary, recording evidence. However, the Court

rejected the contention of the petitioners that they should be put in

possession of the land in question. It is pursuant to this remand order

dated 11th July, 1994 that the impugned order dated 10th February,

1995 has been passed by the Financial Commissioner.

The Civil Proceedings

13. The petitioner No. 1, Mr. Narain Singh, had filed a suit for

permanent injunction against the respondent Nos. 2 and 3 in 1990.

An ex parte injunction order was granted in favour of the petitioner

No. 1 restraining the respondent Nos. 2 and 3 herein from interfering

with plaintiff‟s work for filling up the ditch and from dispossessing him.

The said stay order was vacated by a detailed speaking order dated

29th June, 1990 and the application filed by the petitioner No. 1 under

Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908

was dismissed. The petitioner No. 1 filed an appeal before the High WP(C) NO.670/1995 Page No.10

Court, which was also dismissed on 18th December, 1991. The

petitioner No. 1 thereupon approached the Supreme Court by way of

a Special Leave Petition. The Supreme Court issued notice in the

SLP and also directed the Station House Officer, Police Station

Samepur Badli to take over possession of the land in question vide

Order dated 24th February, 1991. However, after hearing counsel for

the respondent Nos. 2 and 3, the SLP was dismissed holding that

there was no reason to interfere with the impugned orders. The

Supreme Court was informed that proceedings under Sections 84

and 85 of the Reforms Act were pending before the Revenue

Assistant and it was directed that the Revenue Assistant shall decide

the proceedings independently and in accordance with the provisions

of the Reforms Act on the basis of evidence. In fact, the proceedings

on the said date were not pending before the Revenue Assistant but

before the first Appellate Authority i.e. Additional Collector/ADM.

14. The respondent Nos. 2 and 3 thereafter filed an application

before the Supreme Court stating that the local Police, who had taken

possession of the land, was refusing to deliver possession of the said

land to the said respondents. The Supreme Court noticed the stand

taken by the Police that they had taken possession from Mr. Narain

Singh but in view of the categorical findings given by the civil and the

appellate court directed that possession of the land should be given

to the respondent Nos. 2 and 3 in conformity with the orders passed WP(C) NO.670/1995 Page No.11

by the courts. The Supreme Court reiterated their earlier observation

that Revenue Assistant shall decide the issues independently and

without being affected by orders passed by the Supreme Court and

shall give an independent finding as to which of the two parties were

in possession of the land, prior to the possesson being taken by the

local police.

Contentions Raised and Decision:

Maintainability of the petition/appeal under section 72 of the

Revenue Act.

15. The contention of the petitioners that Section 72 of the

Revenue Act was not attracted and no revision petition under Section

72 was maintainable, has to be rejected in view of the earlier order

passed by the Financial Commissioner dated 4th April, 1994. I have

already quoted above the relevant portion of the said order holding

that a revision petition under Section 72 of the Revenue Act was

maintainable. This order dated 4th February, 1994 was made subject

matter of challenge before the High Court in Civil Writ No. 966/1994.

The matter was remanded back to the Financial Commissioner to be

decided on merits. The petitioners herein it appears did not

specifically question and argue before the Division Bench the

question whether the Financial Commissioner was entitled to

entertain a revision petition under Section 72 of the Revenue Act.

Findings given by the Financial Commissioner in his order dated 4th WP(C) NO.670/1995 Page No.12

February, 1994 to this extent were not set aside and quashed by

judgment dated 11th July, 1994 in Civil Writ No. 966/1994 titled

Narain Singh and Another versus The Financial Commissioner

and Others. The findings given by the Financial Commissioner in his

Order dated 4th February, 1994 to this extent have become final and

binding on the petitioners. By judgment dated 11th July, 1994, the

Division Bench of this Court had only set aside the portion relating to

remand. The other finding given by the Financial Commissioner with

regard to maintainability of the petition under Section 72 of the

Reforms Act remained untouched and was not set aside. This aspect

was not after the remand specifically argued before the Financial

Commissioner as per the impugned order.

Section 33 of the Delhi Land Reform Act,1954

16. It was submitted by the petitioners that while deciding

proceedings relating to mutation under the Revenue Act, reference

cannot be made to Section 33 of the Reforms Act, a separate

enactment. In this regard, reliance was placed upon judgment of this

Court in Master Mayank Vashishth versus Financial

Commissioner and Others, reported in 114 (2004) DLT 162. In the

said case, the Court had examined Section 23 of the Revenue Act

with regard to mutation and which reads as under:-

"23. Procedure on report - The Tehsildar, on receiving such report or upon the facts otherwise coming to his knowledge, shall make WP(C) NO.670/1995 Page No.13

such inquiry as appears necessary and in undisputed cases, if the succession or transfer appears to have taken place, shall direct the Patwari of the halka to record the succession or transfer is disputed or the Tehsildar finds that it is in contravention of the provisions of the Delhi Land Reforms Act, 1954, he shall refer the case to the Revenue Assistant, who shall decide it after such inquiry as may be prescribed and where necessary, direct the Annual Register to be amended accordingly."

17. It was observed that while dealing with an application under

Section 23 of the Revenue Act, if a Tehsildar comes to a finding that

there is contravention of the provisions of the Reforms Act, he can

make reference to the designated authority under the Reforms Act to

adjudicate upon the same. The Tehsildar, however, cannot take over

the role and adjudicate upon a dispute which has to be referred to the

Revenue Assistant under the Reforms Act. A dispute relating to

Reforms Act has to be decided and adjudicated upon by the

authorities under the Reforms Act and not by a Tehsildar, who is not

a competent authority under the Reforms Act to go into the said

question.

18. The aforesaid decision would have been relevant in case the

Financial Commissioner was dealing with an appeal under Revenue

Act and not proceedings under the Reforms Act. As already stated

above, the Financial Commissioner was dealing with both,

proceedings under the Revenue Act as well as the Reforms Act.

Financial Commissioner is a competent authority under the two Acts.

 WP(C) NO.670/1995                   Page No.14


Moreover,     the   question   of   competence      and authority loses

significance in the present case as this Court in its judgment dated

11th July, 1994 passed in Civil Writ No. 966/1994 had directed the

Financial Commissioner to decide the two matters in accordance with

law on merits after affording opportunity to the parties. The two

orders dated 4th February, 1994 remanding the matter back to the

Additional Collector were quashed. Therefore, even if the Financial

Commissioner felt that reference under Section 33 of the Act should

have been made by the Tehsildar or the authorities while deciding the

application under Section 23 of the Act on the question of violation of

Reforms Act, his hands were tied in view of the judgment dated 11th

July, 1994. The purport of the said judgment was clear that the entire

issue should be resolved by the Financial Commissioner himself and

not remanded back. The petitioners themselves had invited the said

judgment by filing the writ petition and had opposed the remand order

passed on the appeal/revision filed by the respondent Nos. 2 and 3.

This aspect also looses significance in view of the other findings

given below.

19. The question whether there was violation of Section 33 of the

Reforms Act is not free from difficulty. Learned counsel for the

petitioner in this regard had drawn my attention to distinction between

the terms "holding" and "land" as used in the Reforms Act. It was

submitted that for the purpose of Section 33 of the Reforms Act, the WP(C) NO.670/1995 Page No.15

term "holding" or land would only include agricultural land and would

not include land in lal dora/village abadi or extended abadi. The

contention raised by the petitioners is that the Reforms Act makes a

distinction between "land‟‟ and „„holding‟‟ and for the purpose of

Section 33 of the Reforms Act, only "holding" of the petitioners i.e.

agricultural land, has to be taken into consideration and land existing

in lal dora/abadi land cannot be taken into account for deciding

whether the holding is economic or uneconomic. Learned counsel for

the petitioner in this regard has drawn distinction between "abadi

land" and "agricultural holding" and contended that different principles

are applicable to the two types of land. He has relied upon Section

3(11)(a) which defines "holdings" and also on Sections 42, 50, 23, 36,

62, 64, 65a, 82, 154 and on the basis of the said provisions has

submitted that for the purpose of Section 33 of the Reforms Act,

"land" means agricultural land and not land included in the Abadi

area. Respondent Nos. 2 and 3, on the other hand, have relied upon

judgements in the case of Balbir Singh versus ADM (Revenue) and

Ors. Reported in (1995) 57 DLT 547, Umed Singh versus

Government of NCT of Delhi reported in (1997) 69 DLT 957 DB,

Smt. Kasturi Through LRs versus Gaon Sabha reported in

(1989) 4 SCC 55 and Additional District Magistrate (Revenue)

Delhi Administration versus Siri Ram reported in (2000)5

SCC 451. It was submitted that in these judgments WP(C) NO.670/1995 Page No.16

it has been held that the term „land‟ as defined in the Reforms Act

includes abadi land. I need not decide this controversy in the present

case and leave this question open. I also find that judgments relied

upon by the parties do not directly deal with the question of „holding‟

and „land‟ with reference to Section 33 of the Act. The reason why I

am not deciding this issue in the present case is that the findings

given by the Financial Commissioner can be sustained and upheld in

view of other grounds and reasons given by the financial

Commissioner.

Reasoning and Grounds why the impugned order should be upheld :-

20. Learned counsel for the petitioner had submitted that the

Financial Commissioner had erred in relying upon the Order dated 7th

February, 1984 passed by the SDM/RA under Section 81 of the

Reforms Act, vesting the land with Gaon Sabha/Union of India. He

had submitted that the petitioners and Mr. Maman Singh were not

party to the said order. The petitioners obviously were not required to

be party to the said order and they admittedly as per their own case

had purchased the land only on 4th May, 1989. Moreover, I find that

the Order dated 7th February, 1984 is not subject matter of challenge

in the present writ petition. Order dated 7th February, 1984 can be

challenged in appropriate proceedings.

WP(C) NO.670/1995 Page No.17

21. Learned counsel for the petitioners had submitted that the

Order dated 7th February, 1984 is not on record. This is found to be

incorrect. The said order is available on record/ files of the Revenue

Authorities including the Financial Commissioner as per original

records produced in the Court.

22. Order dated 7th February, 1984 was passed in the proceedings

initiated against Balbir Singh and Mohinder Singh respondent No. 2,

in respect of land in Khasra nos. 6/18 (3-7) and 6/19/2 (4-18). The

Order states that the land in question was a pond and the

respondents therein had started construction of boundary walls with a

view to develop the same for constructing factories. Thereupon notice

dated 18th January, 1984 was issued under Section 81 of the

Reforms Act. The SDM/RA has specifically recorded in his order that

he had conducted site survey on 6th February, 1984 and on spot-

inspection it was found that the land in question was situated

between Libaspur Road and Badli Railway station adjoining G.T.

Karnal Road. The land was not being used for agricultural purposes

for a considerable period of time. The SDM/RA had also recorded

that it is not understood why the Revenue Officials had not cared to

inform the Court for initiating proceedings. Construction of the

boundary walls by Mr.Baljeet Singh and others was recorded.

23. It will be appropriate to also notice here the statement given by

Mr.Maman Singh before the Revenue Authorities in Case No. WP(C) NO.670/1995 Page No.18

162/RA/81 filed by Mr. Baljeet Singh. The said statement reads as

under :-

"That land bearing Kh.No.6/19/2 (4 bighas 18 biswas) situated in village Samepur, Delhi, has never been cultivated by me before the commencement of the Act or thereafter any point of time after the commencement of the Act. Petitioner has been cultivating the land from the very beginning and the girdavari, if any, in my name is wrong and contrary to facts on the spot as I never cultivated the land. The Petitioner is entitled to the bhumidari of the land and I have no objection if the Petitioner is made bhumidhar of the above land. I am giving my this statement of my own accord and without any influence or coercion and am in complete sence (sic)."

24. The statement was recorded on 19th October, 1981. This case

was ultimately dismissed in default on 2nd December, 1981. Mere

dismissal of the case did not prevent the Financial Commissioner

from relying upon the aforesaid statement made by Mr.Maman Singh

on 19th October, 1981 before the Revenue Assistant as a relevant

evidence. It was for the petitioners to rebut the said statement of

Mr.Maman Singh before the Financial Commissioner. It was also for

the petitioners to explain the statement and admissions made

therein.

25. It may be relevant to note here that Respondent Nos. 2 and 3

have already initiated proceedings questioning the Order dated 7th

February, 1984 passed under Section 81. It is clarified that this Court WP(C) NO.670/1995 Page No.19

has not expressed any opinion on the merits of the Order dated 7th

February, 1984. It is also clarified that the petitioners have the option

to join the said proceedings or initiate separate proceedings, if so

advised. The other parties will be entitled to raise all objections

including objection on the ground of limitation, if such option is

exercised by the petitioners.

26. Learned counsel for the petitioners submitted that the Financial

Commissioner had erred in relying upon the sale deed dated 9th

March, 1970 stated to have been executed by Mr. Maman Singh in

favour of Bhai Ram. In the written submissions filed by the

petitioners, it is stated that the Sale Deeds were never executed by

Mr.Maman Singh and no record of the sale deeds is available in the

office of the Sub-Registrar. Reference in this regard can be made to

noting in the files of the Sub-Registrar. I have examined the said

noting. It has been mentioned that as per records, two Sale Deeds

executed by Shri Maman Singh dated 4th March, 1970 were

registered as Document Nos. 2008 and 2009. However, copy of Sale

Deeds was not traceable in the records and further time was

required. The private respondents have filed an affidavit in this Court

enclosing therewith certified copy of the two Sale Deeds dated 4th

March, 1970. Thus, it is incorrect to state that as per the records of

the Sub-Registrar the two Sale Deeds dated 4th March, 1970 were

never executed. The records of the Sub-Registrar confirm that two WP(C) NO.670/1995 Page No.20

Sale Deeds dated 4th March, 1970 were executed and were duly

registered but the copy thereof was not traceable. It is also well

settled that mutation is not a document of title. Sale Deed is a

document of title.

26A. Learned counsel for the petitioner submitted that sons of Mr.

Bhai Ram had filed a civil suit against Mr.Maman Singh but the said

suit was dismissed in default and for non prosecution. No such

averment or allegation was made before the Financial Commissioner.

The said statement has not been supported with necessary

documents.

27. The impugned order cancelling mutation in favour of the

petitioners is liable to be sustained for the following reasons:-

(a) The land in question is subject matter of the order dated

7th February, 1984 passed by SDM/RA under Section 81

of the Reforms Act. The land was vested in Union of India

with immediate effect. Mutation entries in respect of the

same land should not have been made in favour of the

petitioners in 1989.Once a vesting order under Section 81

of the Reforms Act had been passed, an order directing

mutation entries in favour of a third party on the basis of

sale deeds was not justified and contrary to law. It may

be also noted that Union of India was not served before WP(C) NO.670/1995 Page No.21

mutation entries had been made. Whether or not said

order under Section 81 of the Reforms Act was valid and

in accordance with law cannot be examined in the

mutation proceedings. If the said order under Section 81

of the Reforms Act is illegal and bad in law, it has to be

questioned and challenged in accordance with law.

(b) Mutation entries should not have been made in favour of

the petitioners without recording, who was in actual

physical possession of the land in question. Noting of

SDM/RA in the proceedings under Section 81 of the

Reforms Act show that the land in question in form of

pond had been encroached upon by Mr. Balbir Singh and

Mr. Mohinder Singh after raising boundary walls for

constructing factories.

(c) Mr. Maman Singh had made a statement before the

revenue authorities in the case filed by Mr. Baljit Singh

that he had never cultivated the said land and had no

objection in case Mr. Baljit Singh stakes a claim as a

bhumidar.

(d) Mr. Maman Singh had earlier executed sale deeds dated

9th March, 1970 in favour of Mr. Bhai Ram for the land in

question.

WP(C) NO.670/1995 Page No.22

28. It may be noted here that a writ Court cannot examine

merits of the decision given by the Financial Commissioner as

an appellate court. This Court is to examine whether any error

was made by the Financial Commissioner in the decision

making process for arriving at the final conclusion. The

Financial Commissioner has taken relevant facts into

consideration and thereafter opined that the mutation entries in

favour of the petitioners should be cancelled. He has observed

that in view of the order passed under Section 81 of the

Reforms Act, mutation entries in favour of the petitioners should

not have been made.

29. In addition to the grounds and reasons given by the

Financial Commissioner, I may note that for years 1988 and

1989 entries in form P-5 were made in favour of respondent

Nos. 2 and 3. However, the said entries did not get ultimately

recorded in the revenue records as SDM on actual physical

verification found that the land was vacant. Thus, on the site

inspection, the land was not found to be in possession of any

person. For recording mutation, it is accepted by learned

counsel for the parties that possession should have been

transferred in favour of the petitioners.

Section 507 of the Delhi Municipal Corporation Act, 1957,

and the Notification WP(C) NO.670/1995 Page No.23

30. The last submission made by the learned counsel for the

petitioners was with reference to Notification dated 23rd April,

1982, issued by the Municipal Corporation of Delhi under

Section 507 of the Delhi Municipal Corporation Act, 1957

(herein after referred to the DMC Act) whereby Village Samepur

ceased to form part of rural area. Learned counsel for the

petitioner in this regard referred to judgment of a learned Single

Judge of this Court in Trikha Ram versus Sahib reported in

1997 (69) DLT 749 and the observation made that jurisdiction

of the Civil Court is not barred. Learned counsel for respondent

nos. 2 and 3, on the other hand, submitted that Notification

under Section 507 of the DMC Act has limited purpose and

does not affect the applicability of the Reforms Act and the

Revenue Act. Learned counsel for the said respondents relied

upon another judgment of a learned Single Judge of this Court

in Ram Lubhaya versus Dr. J.R. Chawla reported in 1986

R.L.R. 432.

31. The DMC Act separately defines "rural areas" and "urban

areas". In the Notification issued under Section 507 of the DMC

Act, the areas mentioned therein ceased to be "rural areas" and

thereafter do not enjoy certain benefits. In the case of Ram

Lubhaya (supra), learned Single Judge of this Court examined

the provisions of the Reforms Act and the DMC Act and held WP(C) NO.670/1995 Page No.24

that the two Acts do not conflict with each other and can

operate concurrently. The affect of Notification under Section

507 of the DMC Act was that the areas in question were

considered to be "urban areas" and not "rural areas". The DMC

Act does not override or repeal any of the provisions of the

Reforms Act or the Revenue Act. The affect of the Notification

is to transform "rural areas" to "urban areas" and accordingly

the said areas cease to enjoy benefits which are available to

"rural areas" under the DMC Act. This, however, does not

render the provisions of the Reforms or the Revenue Act as

inapplicable. Accordingly, it will not be correct to state that

merely because village Samepur has been declared to be an

urban village by issue of Notification under Section 507 of the

DMC Act, Reforms Act or the Revenue Act have ceased to be

applicable.

32. In the case of Ram Lubhaya (supra), the learned Single

Judge of this Court had thereafter gone on to examine definition

of the term "land" as used in the Reforms Act and held that

"land" for the purpose the said Act must be occupied for

purposes connected with agricultural, horticulture or animal

husbandry, etc. In the said case, it was found that the land

since 1960 had been shown as constructed. In the Revenue

records the whole land has been described as "gair mumkin WP(C) NO.670/1995 Page No.25

plot va makan". Accordingly, the learned Single Judge held that

the Revenue Act or the Reforms Act had ceased to be

applicable as the area was not "land " within the meaning of the

Reforms Act and it was observed that the civil suit was

maintainable.

33. In the case of Trikha Ram (supra) again, the Court was

concerned with the maintainability of a civil suit in respect of

land measuring 300 sq. yds. which was sold by a registered

sale deed in 1970 and on which construction has been raised

by both the parties and a third party. A suit for partition was

thereafter filed. Contention raised by the petitioners was that

the suit was not maintainable and was barred under Section

185 of the Reforms Act. The Single Judge of this Court noticed

that the definition given in Section 3(13) was an inclusive

definition and it was observed :

"It would be seen from the definition of „land‟ that apart from the land occupied for various purposes connected with agricultural, horticultural, animal husbandry, poultry etc. or buildings appurtenant being treated as land for purposes of Land Reforms Act, the inclusive definition of land describes the various other kinds of land viz. groveland, village Abadi, etc."

34. Judgment of a Division Bench of this Court in the case of

Regal Theatres Pvt. Ltd. And others versus Lt. Governor

and others reported in 42 (199) DLT 44 was cited in Trikha WP(C) NO.670/1995 Page No.26

Ram's Case (Supra). Specific reference was made to the

observations made therein that once provisions of the Reforms

Act are applicable, the land in question would continue to be

governed by the said Act and would not be taken out of purview

of the said Act by any subsequent Act. It was also stated that

abadi land was covered by the inclusive definition. Learned

Single Judge of this Court, however, distinguished the said

judgment holding that the question involved in the said case

was with reference to building regulations and the exemption

granted to village abadi from certain Sections of the DMC Act. It

was held that the effect of the said Notification was limited and

accordingly the said judgment cannot be applied to determine

and decide whether Section 185 of the Reforms Act was

applicable. After recording the above ratio, the learned Single

Judge of this Court examined the question whether the

provisions of the Reforms Act would continue to be applicable

once the land had ceased to be a village-abadi within the

meaning of Section 3(13)(b) of the Act. Learned Single Judge

of this Court answered the said question in negative. The

earlier judgment of this Court in the case of Ram Lubhaya

(supra) was not cited and brought to the notice of the learned

Single Judge in Trikha Ram (supra). However, there is no

conflict between the two judgments. In both the cases the WP(C) NO.670/1995 Page No.27

finding was that plots had been carved out on land which was

earlier covered by the Reforms Act and the said construction

had remained there for long. In these circumstances, learned

Single Judges of this Court have held that Section 185 of the

Reforms Act was no longer applicable as the said land was not

covered within the definition of the term "land" within the

meaning of Section 3(13) of the Act. Thus, the Reforms Act was

not applicable.

35. I may note here judgment of a Division Bench of this

Court in Umed Singh versus Government of National

Capital Territory of Delhi and others reported in 69(1997)

DLT 957 (DB). The Court in this case was considering the

applicability of East Punjab Holdings (Consolidation and

Prevention of Fragmentation) Act, 1948 and the Rules framed

thereunder after issue of Notification under Section 507 of the

Act by which the village was declared to be an urbanized

village. Another contention raised by the petitioners therein was

with reference to Section 12 of the Delhi Development Act,

1957 as the area in question had been declared to be a

development area. The Court specifically examined the

provisions of Section 507 of the DMC Act and Section 150 (3)

of the Reforms Act. Section 150 (3) reads as under :-

WP(C) NO.670/1995 Page No.28

"If the whole of a Gaon Sabha area ceases to be included in rural areas as defined in the Delhi Municipal Corporation Act, 1957, by virtue of a notification under Section 507 of that Act, the Gaon Sabha constituted for that area shall thereupon stand dissolved and on such dissolution -

(a) all properties, movable and immovable, and all interests of whatsoever nature and kind therein including moneys held in Gaon Sabha Area Fund, vested in the Gaon Sabha immediately before such dissolution shall with all rights of whatsoever description, used, enjoyed or possessed by such Gaon Sabha , vest in the Central Government.

(b) all duties, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Gaon Sabha before such dissolution shall be deemed to have been incurred, entered into or engaged to be done with or for the Central Government.

(c) all rates, taxes, cesses, rents and other charges due to the Gaon Sabha immediately before such dissolution shall be deemed to be due to the Central Government.

(d) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Gaon Sabha may be continued or instituted by or against the Union of India;

(e) the provisions of this Act shall apply in relation to lands in such Gaon Sabha area, not being lands vested in the Central Government under WP(C) NO.670/1995 Page No.29

Clause (a) subject to the modification that references threin to Gaon Sabha and gaon Panchayat shall be construed as references to the Central Government.

(f) Notwithstanding anything contained in Clause

(b) of Sub-section (2) of section 1, the provisions of Sections 84, 85, 86, 86A and 87 and any other provision of this Act relating to ejectment of persons shall apply in relation to lands vested in the Central Government under Clause (a) subject to the modification that references therein to Gaon Sabha and Gaon Panchayat shall be constructed as references to the Central Government."

36. After referring to the said provisions, it was observed by

the Court as under:-

"No other provision of the Delhi Land Reforms Act or any other provision of any other enactment was brought to our notice due to which the revenue estate on being declared to be urbanized might affect the status of the land located therein. Accordingly, the lands situated in Village Bamnolli, irrespective of issuance of the notification under Section 507 of the Delhi Municipal Corporation Act, 1957 would continue to remain agricultural land and will not affect its status. Consequently, it cannot have any effect on the on going process of consolidation, which is being carried out under a valid piece of legislation, namely, Consolidation Act, the object of which is to provide for better cultivation of land within the estate concerned."

WP(C) NO.670/1995 Page No.30

37. Section 150(3)(e) of the Reforms Act makes it clear that

provisions of the said Act continue to apply except in respect of

land vested in the Central Government. After issue of

notification under Section 507 of the DMC Act references to

Gaon Sabha have to be construed as references to the Central

Government. Thus, issue of notification does not affect the

impugned order and the said order cannot be set aside for the

said reason.

38. The present judgment and observations made herein will

not be binding on the revenue authorities in the proceedings

pending against the Order dated 7th February, 1984. These

proceedings will be decided independently on their own merits

and on the basis of records and evidence. As already

mentioned above, the petitioners herein have the option to join

said proceedings or initiate separate proceedings, if so advised

with the right to other parties to raise all objections including

objection on the ground of limitation. The claim or contentions

of the petitioner will be decided on their own merits and

evidence produced. The civil suit pending between the parties

will be decided on the basis of evidence and material produced

by the parties. It may be noted that parties have right and

opportunity to lead oral evidence before the civil court, whereas WP(C) NO.670/1995 Page No.31

in the proceedings under the Revenue Act, parties have not

lead any oral evidence.

39. In view of the findings given above and subject to the

observations made herein, I do not find any merit in the present

Writ Petition and the same is accordingly dismissed.

However, in the facts and circumstances of the case, there will

be no order as to costs.

                                               (SANJIV KHANNA)
                                                    JUDGE


JULY         14, 2008.
P