Rakesh Dabas vs Financial Commissioner & Ors.
2008 Latest Caselaw 1609 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     LPA No.777/2006

                                        Reserved on:       5th August, 2008
                                                               th
                                        Date of Decision : 11 September, 2008

       RAKESH DABAS                                           .....Appellant
                   Through              Mr. Deepak Dhingra, Adv.

                  versus

       FINANCIAL COMMISSIONER & ORS.              .....Respondents
                    Through Mr. Jayant Bhushan, Sr. Adv. with
                            Mr. (appearance not given), Adv.
                            Mr. B.S. Mann and Mr. Jai Prakash, Advs.
                            for Respondents 4 to 7.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1.     Whether the 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 the Digest?                      Yes

                                JUDGMENT

: MUKUL MUDGAL,J.

1. This Letters Patent Appeal challenges the judgment dated 17th April 2006

passed by the learned Single Judge in Writ Petition(C) No.2615/2006. The

aforesaid judgment while quashing the impugned order dated 16th February 2006

rejected the appellant's prayer for impleadment and held as follows:

"I have carefully considered the submissions made by the Ld. Counsels. I find it is true that during the hearing of the application for impleadment of Gaon Sabha, it was contended on behalf of Gaon Sabha that it would not be in a position to to give double the agricultural land in case the petition of the applicant was allowed and his land included in Phirni. It is also true that on the request of Gaon Sabha, the applicant had given an affidavit that he would not claim double the agricultural land in lieu of his land in case it was included in Phirni. In any case, he has to be given residential and industrial plot out of the suit land. The remaining land could then be available for distribution to others only if he is given double the value of agricultural land in lieu thereof. However, if the Gaon Sabha is unable to give him the requisite value of agricultural land as was indicated during the impleadment application of the Gaon Sabha, the entire suit land in Khasra No.38/6 and 38/7 belonging to the applicant may have to remain with him."

2. The brief facts of the case are as follows:

(a) The appellant (respondent no.3 in the writ petition) is a native of village

Kanjhawala, Delhi and family of the appellant owned various lands in Delhi and

said land was ancestral land from time immemorial.

(b) The consolidation proceedings were held in village Kanjhawala, Delhi in

year 1951/52 and again Notification dated 8th September, 1993 was issued by the

Government under Section 14 of East Punjab Holdings (Consolidation and

Prevention of Fragmentation) Act, 1948 for Consolidation of holdings in Village

Kanjhawala.

(c) The draft scheme of Consolidation was announced by the Consolidation

Officer on 14th November, 1996 and same was confirmed on 24th April 1997 by

the Settlement Officer.

(d) The respondent no.3 was co-owner with his brother Sh. Ajit Singh and

they both executed the sale deed dated 22nd January 1998 in favour of their sons

namely Sh. Surinder Singh, Sh. Jitender Singh and Sh. Virender Singh sons of

Sh. Tarif Singh and Sh. Anil Kumar, Sh. Sunil Kumar sons of Sh. Ajit Singh and

Smt. Birmati w/o Sh. Ajit Singh and same were registered at Bombay. They

filed an application dated 23rd January 1998 for mutation of the said land in their

favour and the said land was mutated in their favour on 5th March 1998.

(e) The Respondent no.3 along with some other persons filed WP(C)

No.3082/1998 and obtained the interim orders dated 10th July 1998 in respect of

land covered by the Consolidation Scheme against the Consolidation proceedings

in respect of the whole village.

(f) The said Writ Petition (C) No.3082/1998 was decided vide order dated 13th

September, 2002. Other similar petition WP(C) No.3081/1998 which was almost

identical and which was heard along with WP(C) No.3082/1998 and other writ

petitions were dismissed later.

(g) The respondent no.3, his brother and their sons filed objections under

Section 21(2). The said objections were decided by the Consolidation Officer

vide order dated 28th February 2000.

(h) However, the respondent no.3 filed a Revision Petition No.231/2002/CA

against the said order. The said Revision Petition was later given case

No.62/2003-CA and at present the case No. is 103/2004-CA. Similarly, his son

Surinder Singh filed Revision Petition No.250/2000-CA and later on, the said

Revision Petition was given case No.63/2003-CA and thereafter, case

no.262/2004-CA. Both the said Revision Petitions are pending.

(i) In the said Revision petitions except the Consolidation Officer no other

person was impleaded as party. Initially, the said Revision petitions were

adjourned sine die in view of pendency of WP(C) No.3082/1998. Thereafter, the

Financial Commissioner allowed the Revision Petition filed by the Respondent

no.3 vide order dated 20th June 2003 passed in case No.72/2003-CA and directed

to allot plot no.142/194/15 and passed other directions. The Revision Petition

filed by his son was also allowed vide order dated 20th June 2003 passed in case

No.63/2003-CA and it was directed that Plot No.142/94/14 be allotted to Sh.

Surinder Singh.

(j) The plot No.142/94/15 was owned by Sh. Mahender Kumar Jain on record

who is also the respondent no.4 herein. Similarly, Plot No.142/94/14 was owned

by one Smt. Sumitra and Sh. K.R. Bagadia.

(k) Sh. Mahender Kumar Jain, the respondent no.4 herein filed WP(C)

No.4473/2003 and this Court vide order dated 20th April 2004 disposed of the

said Writ Petition. The matter was remanded back to the Financial

Commissioner with a direction that respondent no.4 be heard.

(l) The Respondent no.4 was accordingly impleaded as a party before the

Financial Commissioner. In the remanded proceedings one Ratan son of Sh. Net

Ram sought impleadment. Vide order dated 5th April 2005, the Financial

Commissioner dismissed the application for impleadment filed by Ratan, for

being impleaded as a party. The said order dated 5th April 2005 was challenged

before this court by Writ Petition (C) No.8600/2005.

(m) When WP(C) No.8600/2005 was pending, Revision Petition No.43/2003-

CA filed by appellant was disposed of by the Financial Commissioner vide order

dated 5th August 2005.

(n) In his Revision petition, the appellant had sought inclusion of land

comprised in Khasra No.38/6 and 38/7 (pre-consolidation) within the extended

abadi. Vide Order dated 5th August 2005 the Financial Commissioner accepted

the request of the appellant and the aforesaid lands were included within the

extended phirny.

(o) Writ Petition (C) No.8600/2005 was disposed of on 17th November, 2005

directing the Financial Commissioner to dispose of revision petition filed by the

respondent no.3 after taking note of the fact that additional land was available

within the extended abadi.

(p) In the said revision petition filed by the respondent no.3, the appellant

moved an application under Order 1 Rule 10 praying that he should be impleaded

as a party in the revision.

(q) The basis of his claim was that he was the recorded owner of the land

comprised in khasra no.38/6 and 38/7 and since the respondent no.3 claimed

allotment of a plot on said land, he ought to be impleaded as a party.

(r) The respondent no.3 opposed the said application by pleading that the land

comprised in khasra no.38/6 and 38/7 was in the pre consolidation holding of the

appellant. The aforesaid fact did not entitle him to be impleaded as a party for

the reason that after the inclusion of the land within the extended phirni it had to

be allotted to those whose claims remained unsatisfied for allotment of

residential plots. The claim of the appellant for allotment of a residential plot

was fully satisfied when 3 bighas and 8 biswas of land comprised in khasra

no.142/94/6 (2-2), 143/241 (0-6), 142/311 min (0-4) and 142/210 min (0-16),

was allotted. The respondent no.3 stated that as per the scheme and the

Consolidation Rules, no person could be allotted more than 2 bighas and 8

biswas of land within the village abadi. He pointed out that the appellant had

already been alloted land in excess of that limit within the abadi by one bigha.

(s) By the order dated 16th February 2006, the Financial Commissioner

impleaded the appellant as a party.

3. The writ petitioner/respondent no.3 herein filed the Writ Petition (C)

No.2615/2006 against order dated 16th February 2006 passed by the Financial

Commissioner impleading the appellant. By his order dated 17th April 2006, the

learned Single Judge allowed the Writ Petition No.2615/2006 filed by the

respondent no.3 and dismissed the application filed by the appellant under Order

1 Rule 10 for impleadment in Revision Petition filed by the respondent no.3.

4. The learned Single Judge had rightly framed the question requiring

consideration that as to whether after including pre consolidation holding

comprised in khasra no.38/6 and 38/7 within the extended abadi, merely because

said lands belonged to appellant, could he join the proceedings pending before

the Revenue Authorities, when the claim of the applicant before the Revenue

Authorities was that his claim for land within the extended abadi should be

satisfied.

5. The learned Single Judge inter alia held as follows:

(a) Under no circumstances, the respondent no.3 in the writ petition/appellant

herein, i.e., Mr. Rakesh Dabas could be given land more than 2 bighas and 8

biswas within the extended phirny as he had already got more than said share.

Consequently, the appellant could not be allotted the land in question.

(b) The order passed by the Revenue Authorities including the land in

question within the extended phirny, i.e., amendment of the scheme of

consolidation had attained finality.

(c) The appellant himself wanted the aforesaid land to be included within the

phirny and it was at that stage, that Gaon Sabha could have objected by pleadings

that if the land in question was included within the phirny, to satisfy the

requirement of law and the claim of the appellant, twice the value of land outside

had to be allotted to the appellant and that so much land was not available. At

this stage, the matter would have been decided with a reference to availability of

land outside the phirny. But this had not happened.

(d) The inclusion of the said land within the extended phirny having attained

finality, and under no circumstances could the appellant get any further land

within the extended phirny. The above factors had been lost sight by the

Financial Commissioner. Under no circumstances could the appellant have had

any interest left in the writ land.

(e) The appellant was neither a necessary or a proper party in the revision

petition filed by the writ petitioner.

6. Consequent to the above findings, the order dated 16th February 2006 was

quashed and the application filed by the respondent no.3/appellant under Order 1

Rule 10 to be impleaded in the revision filed by the writ petitioner was

dismissed. The appellant has challenged the above order.

7. The learned counsel for the appellant has placed reliance on Delhi

Holdings (Consolidation and Prevention of Fragmentation) Rules 1959, East

Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948.

The relevant Clause J of Rule 6 of the Rules reads as follows:

"(J)(i) Bhimidar whose land has been included in the extension of the village abadi may be given agricultural land worth two times the value of land surrendered.

(ii) Bhimidar who has applied for allotment of plot in the extension of the village abadi shall surrender in exchange during consolidation two times the size of agricultural land subject to the size of plot and his eligibility.

(iii) The maximum size a residential plot to be provided in the extension of the village abadi to a bonafide resident of the village be two bighas and eight biswas out of which the "bhumidar" can take industrial plot upto a maximum size of six biswas. Allotment of such plot shall be done through draw of lots."

(emphasis supplied)

8. The learned counsel for the appellant has stressed on sub clause (i) by

highlighting the fact that since his land had been included in the extension of

village abadi, he had to be given agricultural land worth two times of the value of

the land surrendered. This not having been done, the appellant was said to be a

vitally interested party in the revision petition filed by the writ petitioner.

9. The learned counsel for the appellant contended that the land comprising

Khasra No.38/6 and 38/7 in the extended abadi belongs to him and since the

agricultural land two times of the value of the land surrendered was not given to

him, he was entitled to be heard in the proceedings preferred by the writ

petitioner.

10. In our view, the learned Single Judge has rightly held that the maximum

size provided in the extension of the village abadi to a bonafide resident of the

village shall be 2 bighas and 8 biswas, out of which the "bhumidar" can take an

industrial plot upto to maximum size of six bigha. The appellant has no interest

left in the proceedings preferred by the respondent. The learned Single Judge is

right in holding that the appellant having accepted 3 bighas and 8 biswas of land,

cannot lay any further claim to any other land in the extended abadi. In our view,

the plea based on sub section (ii) is not relevant in view of the fact that the

maximum size of the residential plot to be provided to the appellant, i.e., 2 bighas

8 biswas has been shown to already been received by the appellant. In such a

situation, the reliance on the plea of two times of the value of the land

surrendered cannot come to the rescue of the appellant.

11. Accordingly, there is no merit in this appeal and the judgment of the

learned Single Judge does not warrant any interference. The appeal is

accordingly dismissed but with no orders as to costs.

MUKUL MUDGAL, J.

MANMOHAN, J.

September 11, 2008 dr