Sh.Mohinder Singh & Ors. vs Financial Commissioner & Ors.
2009 Latest Caselaw 1575 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                  Date of decision : 21.04.2009


+       LPA 443-449/2006, CM 3863/2006 and CM 17399/2008


SH.MOHINDER SINGH & ORS.                                  ...APPELLANTS

                               Through:        Ms.Amita Sehgal Mathur,
                                               Mr.Satinder Singh Mathur,
                                               Ms. Sweety Singh
                                               and Mr.Vikram Singh, Advs.

                                        Versus


FINANCIAL COMMISSIONER & ORS.                              ...RESPONDENTS

                               Through:        Ms.Ruchi Sidhwani and
                                               Ms.Aakanksha Sharma,
                                               Advocates for R-2 and R-3.

                                               Mr.Mahender Rana, Advocate
                                               for the applicant
                                               in CM No. 17399/2008.

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                No

2.     To be referred to Reporter or not?                 No

3.     Whether the judgment should be                     No
       reported in the Digest?



SANJAY KISHAN KAUL, J. (Oral)

1. The appellants came to occupy land of one Sh. Mir Singh

unauthorizedly and thereafter, on 06.02.1978, filed an

application under Section 85 of the Delhi Land Reforms Act,

1954 („the DLR Act‟ for short) in respect of the said land

claiming bhoomidari rights. The claim of the appellants was

predicated on the plea of continuous cultivatory possession

and the absence of any action by Sh. Mir Singh under

Section 84 of the DLR Act for ejectment of the appellants.

The land was alleged to be one of 123 bighas and 5 biswas

and included plot no.415 situated in the revenue estate of

village Bijwasan, New Delhi, which plot is the subject matter

of dispute.

2. Sh. Mir Singh appeared in pursuance to the notice issued by

the competent revenue authority and admitted the claim of

the appellants. This resulted in an order being passed by the

Revenue Assistant, Delhi on 26.02.1979 declaring the

appellants to be the bhoomidars of the land.

3. It may be noticed that prior to the institution of the aforesaid

proceedings, a scheme for consolidation was sought to be

prepared for the village Bijwasan under East Punjab Holdings

(Consolidation and Prevention of Fragmentation) Act, 1948 as

per a notification dated 27.03.1974 giving opportunity to the

right holders to make demands for residential plot in extended

Lal Dora phirni within the stipulated time. The appellants

alleged that Sh. Mir Singh s/o of Sh. Ram Nath made such a

demand for residential plot measuring 5 bighas as per an

application dated 26.06.1975 and was allotted residential plot

no.415 measuring 6 bighas and 6 biswas on 25.10.1975. The

appellants claimed that since the portion of consolidation of

holdings related only to agricultural land and right holders, the

appellants had no concern with the same which land became

vested in the Consolidation Officer and ceased to be

transferable. The repartition of agricultural land was

announced by the Consolidation Officer only on 03.12.1975

and objections invited which were subsequently disposed of.

4. The grievance of the appellants began with the action of the

Consolidation Officer who made an entry for allotment of plot

no.415 to Sh. Mir Singh while the appellants claimed to be in

actual possession. Such an entry was made vide Resolution

No.63 min dated 01.03.1979 to 03.03.1979. This action of the

Consolidation Officer was set aside in a revision petition by the

Financial Commissioner vide an order dated 13.11.1984.

However, despite this fact, vide the same order a direction was

issued vesting the plot in Gaon Sabha. This order of vesting

was challenged by the appellants in WP(C)2742/1984.

5. The writ petition was allowed on 06.08.2004 with the

directions to the Financial Commissioner whereby the

impugned order of vesting of plot no.415 was quashed and the

matter remanded back to the Financial Commissioner to

determine a fresh limited question whether or not the

allotment made in favour of appellants suffered from any

illegality.

6. The matter was once again examined by the Financial

Commissioner and the relevant record was summoned. It was

found that while the claim of the appellants was based on the

fact that they stepped into the shoes of Mr. Mir Singh s/o of Mr.

Ram Nath who had made the application for allotment of the

plot in phirni, the name of Mr. Mir Singh s/o Mr. Ram Nath was

not found in the relevant record nor were the names of the

appellants were found in the same. The "Part Patwar" being

the relevant record was perused for the same. On the other

hand, it was found that one Mr.Mir Singh s/o of Mr. Shiv Lal

made such an application but only for one bigha whereas the

plot no.415 was of 6 bighas and 6 biswas. It was thus

concluded that neither the appellants nor their predecessor in

interest had made any demand for allotment of land in the

extended Lal Dora during the consolidation proceedings and

thus there could not have been any allotment of plot no.415 to

the appellants which was directed to vest in the Gaon Sabha.

7. The appellants aggrieved by this order filed WP(C) No.1678-

84/2006 before this Court, which has been dismissed in terms

of the impugned order dated 08.02.2006.

8. We have heard learned counsel for the parties and perused

the record of the case as well as the impugned order.

9. It is quite apparent that the limited controversy arises from the

claim of the appellants that they stepped into the shoes of

Mr.Mir Singh s/o of Mr. Ram Nath who in turn had made an

application for allotment of land in phirni at the stage of the

consolidation proceedings. Since the agricultural land in

question stood vested in the appellants as a bhoomidar under

Section 85 of the DLR Act and they having also purchased the

land from Mr. Mir Singh during pre-consolidation stage, the

appellants claimed entitlement of benefit of the demand made

by Mr. Mir Singh s/o of Mr. Ram Nath. The relevant

application was claimed to have been made on 26.06.1975 by

Mr. Mir Singh s/o of Mr. Ram Nath. The aforesaid claim was

considered by the Financial Commissioner by summoning the

relevant record, but no such application was found on the

record. The only claim was by one Sh.Mir Singh s/o of Mr.Shiv

Lal and that too only of one bigha. In the absence of any

claim of Mr.Mir Singh s/o of Mr.Ram Nath, the very substratum

of the claim of the appellants disappeared and it is this aspect

which has also found favour with the learned Single Judge.

10. The counsel for the appellants before the learned Single

Judge did seek to raise an alternative plea that they had an

independent right to make a demand, but such a demand

could have been made only when the appellants were

declared bhoomidars of the land. This plea was rejected on

the ground that this was never the submission of the

appellants in the earlier proceedings initiated by them by filing

WP(C) 2742/84 challenging the vesting of the land in the Gaon

Sabha. The claim was predicated only on Mr. Mir Singh s/o of

Mr. Ram Nath having made an application within the time

allotted under the consolidation proceedings. In this behalf,

another important aspect taken note of by the learned Single

Judge is that the Consolidation Officer while allotting the land

in Khasra No.415 to the appellants had done so by

withdrawing certain areas outside and not in reference to any

demands of the appellants.

11. The respondents have also submitted that the appellants

have, in fact, sold the entire land of 122 bighas and 7 bigwas

to various purchasers and have been left with not even an inch

of land.

12. It has further been pleaded that the appellants could not

have been declared bhoomidars of plot no.415 on 26.02.1979

before even the date of allotment stipulated for the land in

phirni i.e. 01.03.1979 to 03.03.1979. The learned Single Judge

of this Court while remanding the matter before the Financial

Commissioner vide order dated 06.08.2004 passed in WP(C)

No.2742/1984 had directed to determine afresh the limited

question whether or not the allotment in favour of the

appellants suffered from any illegality and thereafter on the

objections being filed by Mr. Mohinder Singh and Others

(vendees of Mir Singh) the Financial Commissioner passed the

fresh order.

13. We find force in contention of learned counsel for the

respondents that the very sub stratum of the case of the

appellants failed once a finding was reached that no

application for such allotment of land in phirni was made by

their predecessor in interest Mr. Mir Singh s/o of Mr. Ram Nath

or even by the appellants and the appellants were trying to

take advantage of an application made by Mr. Mir Singh s/o

Mr. Shiv Lal, which is a different person and the application is

also for a much lesser area.

14. We thus find no infirmity with the impugned order.

15. Dismissed.

SANJAY KISHAN KAUL, J.

APRIL 21, 2009                                     SUDERSHAN KUMAR MISRA, J.
dm