Rampal & Ors. vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 3457 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 1983/2007

                                          Date of decision : 31.08.2009
IN THE MATTER OF :
RAMPAL & ORS.                                       ..... Petitioners
                         Through: Ms. Geeta Mehrotra, Advocate

                    versus

GOVT. OF NCT OF DELHI & ORS.                     ..... Respondents
                    Through: Mr. Som Dutt Kaushik, Advocate for
                    GNCTD.
                    Mr. Sube Singh, Advocate for R-3 to R-8.
                    Mr. Ved Pal Rana, Advocate for R-9.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not? No.

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

HIMA KOHLI, J. (ORAL)

1. By the present writ petition, the petitioners have assailed the

order dated 18.01.2007 passed by the Financial Commissioner on a revision

petition filed by them under Section 187 of the Delhi Land Reforms Act,

1954 (hereinafter referred to as 'the Act'), against the order dated

03.08.2001 passed by the Revenue Assistant/SO(C), Narela, Delhi. Vide

order dated 03.08.2001, the Revenue Assistant directed restoration of the

physical possession of the land, bearing Khasra No. 1/24(1-4), 1/26(0-4),

139(3-8) and 146)(0-3) measuring 4 Bighas 19 Biswas in village Budhpur

(Bijapur), Delhi, (hereinafter referred to as „the subject land‟) handed over

to the petitioners on 21.04.2001, back to respondent No. 9, Yash Pal

Mahendru, on an application filed by him under Order 21 Rules 99, 100 and

101 read with Section 151 CPC.

2. By the impugned order dated 18.01.2007, the Financial

Commissioner dismissed the revision petition of the petitioners by holding

that the petitioners had not placed any document on the record, which

indicated that they were in possession of the subject land, when the order

dated 11.06.1990 was passed by the Financial Commissioner on an earlier

revision petition preferred by the petitioners, or to show that they were

dispossessed between the period June 1990 and the year 2001, till the time

they were put in possession on the basis of an order dated 08.02.2001,

passed by the Revenue Assistant, directing warrants of possession to be

issued in favour of the petitioners. The Financial Commissioner, therefore,

arrived at the conclusion that the order of the Revenue Assistant dated

03.08.2001 impugned before him, was well reasoned and that no ground

was made out by the petitioners, either on the basis of the records or

otherwise, which warranted interference with the said orders. Aggrieved by

the said order dated 18.01.2007, the petitioners have preferred the present

writ petition.

3. Though written synopsis was filed by the parties, as lengthy

arguments have been addressed by both the sides without adverting to

them, this court has also confined itself to the submissions made by the

counsels for the parties while disposing of the present petition. Considering

the fact that the issue arising for consideration in the present writ petition

has its seeds in the year 1984, it is necessary to recapitulate the relevant

dates and events which are as follows.

4. On 10.07.1984, an application was filed by respondents No. 3 to

8 before the SDM under Section 85 of the Act, claiming Bhumidari rights in

respect of the subject land. On 29.05.1986, the SDM passed an order

declaring respondents No. 3 to 8 as Bhumidars of the aforesaid land. On

06.09.1986, the petitioners filed an application seeking setting aside of the

aforesaid exparte order dated 29.05.1986. Prior thereto, on 17.11.1985, a

notification for consolidation proceedings was issued in respect of village

Bijapur, which were completed on 18.06.1990. On 09.07.1986, three sale

deeds were executed by respondents No. 3 to 8 in favour of respondent No.

9. Relying on the aforesaid sale deeds, respondent No. 9 approached the

revenue authorities for mutation of the subject land in his favour, which was

got mutated on 29.07.1986.

5. On 18.12.1986, an application was filed by the petitioners under

Order 39 Rule 1 and 2 CPC, seeking to restrain respondents No. 3 to 8 from

interfering in the peaceful possession of the subject land. In the very next

month, on 21.01.1987, the petitioners filed an application before the

Consolidation Officer to the effect that they were in possession of the land in

question. In the same application, the petitioners also sought to safeguard

their interest and requested insertion of a note in the consolidation papers

that the subject land was with them.

6. On 13.03.1987, another application was filed by the petitioners

before the Additional Collector, Delhi for transfer of the proceedings to the

Revenue Assistant/Settlement Officer on the ground that the village was

under consolidation. The said application of the petitioners was allowed on

08.04.1987. On 30.06.1987, the Revenue Assistant/SO passed an order

restraining respondents No. 3 to 8 from transferring or selling the subject

land, during the pendency of the proceedings initiated by them under

Section 85 of the Act. On 09.02.1990, the Revenue Assistant/SO rejected

the application filed by the petitioners seeking setting aside of the exparte

order dated 29.05.1986. Aggrieved by the aforesaid order, the petitioners

preferred a revision petition on 19.03.1990 before the Financial

Commissioner under Section 187 of the Act. On 11.06.1990, the Financial

Commissioner allowed the revision petition of the petitioners and set aside

the order of the Revenue Assistant/SO dated 29.05.1986, as also the

exparte proceedings and the final order of declaration of Bhumidari rights in

favour of respondents No. 3 to 8 and further directed the trial court to

conduct de novo trial of the application filed by respondents No. 3 to 8 under

Section 85 of the Act. After remand, the said proceedings are stated to be

pending till date.

7. After a lapse of about nine years, on 29.04.1999, the petitioners

filed an application before the Revenue Assistant, to whom the matter was

remanded, for implementation of the order dated 11.06.1990, passed by the

Financial Commissioner. On 31.07.1999, the aforesaid application of the

petitioners was allowed with the directions that the names of the petitioners

be included in the revenue records, till a final decision takes place in the

pending proceedings under Section 85 of the Act. On 22.08.2000, the

Revenue Assistant passed an order directing that the names of the

petitioners be included as Bhumidars against new Khasra numbers allotted in

lieu of the old Khasra numbers. On 01.11.2000, the petitioners filed an

application before the Revenue Assistant/SO for possession of the subject

land. On 08.02.2001, warrants of possession were directed to be issued in

favour of the petitioners. On the basis of the said warrants of possession, an

order dated 21.04.2001 was passed by the Revenue Assistant/SO(C)

directing the SHO of the area to give necessary police assistance to the

revenue officials on 27.04.2001 for handing over possession of the subject

land to the petitioners, whereafter the said warrants of possession were duly

executed in favour of the petitioners.

8. Immediately thereafter, on 04.05.2001, respondent No. 9 filed

an application before the Revenue Assistant/SDM under Order 1 Rule 10

CPC, for being impleaded in the pending proceedings under Section 85 of the

Act. Respondent No. 9 also filed an application dated 11.05.2001, before

the Revenue Assistant/SO(C) for restoration of physical possession of the

subject land. The said application was allowed by the Revenue

Assistant/SO(C), Narela, Delhi, by passing a detailed order dated

03.08.2001, holding that respondent No. 9 was entitled to restoration of

physical possession of the land, which was earlier handed over to the

petitioners vide order dated 08.02.2001. The operative para of the order of

the Revenue Assistant/SO(C) is reproduced herein below:-

"I have perused the entire record of this case file and heard submissions made by Ram Pal and his son and counsel for applicant Shri Yash Pal Mahendru. This case was remanded back to this Trial court by the court of Financial Commissioner for holding de-novo trial of the petition filed by Shri Ran Singh U/s 85 of DLR Act after giving opportunity of hearing to all the parties. No order of giving possession to Shri Ram Pal was passed by Financial Commissioner as the issue before Financial Commissioner was only legality of the ex-parte order. It was duty of the Trial court to decide afresh the proceedings U/s 85 of DLR Act in which the issue of possession was involved, but the record shows that the main petition of Shri Ran Singh filed U/s 85 was not decided, rather order of possession was passed by my predecessor Sh. Pankaj Kumar on the basis of the application filed by Shri Ram Pal. This order is without any basis and without any finding as no order of possession could be passed in this case without deciding, first the petition U/s 85 of DLR Act and it is also clear from the record that no notice was ever given to any of the party while passing the order of possession and no proceedings were ever held in the open court. Record shows that this file was taken up lastly on 6.7.99 and thereafter file was never taken up and the order of possession has been passed on the report of Tehsildar which is wrong procedure as it was judicial file and no order could be passed without noticing all the parties. It is also pertinent to mention that there are number of reports submitted by Halqa Patwari through Tehsildar that it is present applicant Sh. Yash Pal who is in possession of the land in question being purchaser from Shri Ran Singh, but the predecessor of this court did not issue notice to Shri Yash Pal, so the possession of land from Yash Pal was taken over and handing over to Sh. Sh. Ram Pal without giving any opportunity to Sh. Yash Pal of being heard and without impleading him as necessary party. Rule 99 & 100 of Order 41 CPC provides that where any

person other than Judgment Debtor is dispossessed of immovable property then such person can be ordered to be put back into possession, of the property. In this case Sh. Yash Pal applicant was not the party in the proceedings, therefore, his rights could not be affected without giving him an opportunity of being heard. In this case the petitioner Sh. Ran Singh was also not issued any notice. As per the directions of the order of Ld. Financial Commissioner, all the interested parties are to be noticed and thereafter, a fresh trial would be held and rights of the parties would be decided. So in my opinion Shri Yash Pal Mahendru is entitled for restoration of physical possession of the land which was handed over to Shri Ram Pal. So I allow the application of Sh. Yash Pal Mahendru and order that physical cultivatory possession of the land bearing kh. No. 1/24(1-4), 1/26(0-4), 139(3-8), 146(0-3) total measuring 4 bigha 19 biswas in village Budhpur (Bijapur), Delhi be handed over to Sh. Yash Pal Mahendru S/o Shri Jag Basaya R/o C-69, Mahendru Enclave, Delhi. Copy of this order be sent to the office of Tehsildar for compliance of this order on the spot and to submit this court compliance report within a week."

As noted earlier, aggrieved by the aforesaid order dated 03.08.2001, the

petitioners preferred a revision petition before the Financial Commissioner,

which was dismissed by the impugned order dated 18.01.2007.

9. The main grievance raised on behalf of the petitioners is that as

the petitioners were always in possession of the subject land and after the

notification for consolidation of the village was issued and the land was

transferred in favour of the petitioners, the respondents could not have been

put back in possession thereof. Counsel for the petitioners states that right

through the proceedings before the revenue authorities, respondents No. 3

to 8 failed to reveal that sale deeds had been executed by them in favour of

respondent No.9 and hence, the same could not have been taken into

consideration by the Revenue Assistant while allowing the restoration

application of respondent No. 9. She submits that as respondent No. 9 is

claiming his rights under respondents No. 3 to 8, who were in turn claiming

Bhumidari rights in respect of the land in question, which order had been set

aside by virtue of the order dated 11.06.1990 passed by the learned

Financial Commissioner, remanding the case to the trial court for de novo

trial, neither the respondents No. 3 to 8, nor respondent no. 9 could be

treated as in possession of the land in question. It is therefore contended on

behalf of the petitioners that the Financial Commissioner failed to appreciate

the fact that the land in question could not have been transferred in favour

of respondent No. 9 and as the transfer itself was impermissible, it did not

vest any legal right in respondent No. 9.

10. It is pertinent to note that the petitioners took an objection in

the writ petition with regard to the existence of any sale deed in respect of

the subject land in favour of respondent No. 9. As per the petitioners, the

sale deeds never saw the light of the day in the proceedings before the

courts below. The said stand was disputed by the counsel for respondent no.

9, who was directed to place on record, the sale deeds in question. Copies

of three sale deeds, all dated 09.07.1986, executed in favour of respondent

No.9, were filed by respondent No.9, alongwith his counter affidavit

[Annexure R9/1 (colly)]. In support of his submission that the sale deeds

were filed before the courts below, counsel for respondent No. 9 draws the

attention of this Court to an application for impleadment filed by his client

under Order 1 Rule 10 CPC, before the Revenue Assistant wherein in para 5,

a reference was made to the sale deeds, mutations and the consolidation

book enclosed with the said application.

11. In response to the arguments raised by the counsel for the

petitioners, counsel for respondent No. 9 states that all the aforesaid

submissions made by the petitioners are to be considered in the pending

proceedings under Section 85 of the Act, wherein the issue of Bhumidari

rights of the respondents No. 3 to 8 is to be decided. He submits that as

respondent No. 9 has derived his rights from respondent No. 3 to 8, he shall

also be governed by the outcome of the said proceedings wherein, his

application for impleadment is still pending. It is further stated that the

issue with regard to possession is such that evidence is required to be led in

the matter and that the said evidence has yet to be adduced in the pending

proceedings, though pleadings are complete.

12. While examining all the aforesaid submissions of the petitioners

with regard to possession, the Financial Commissioner referred to the order

dated 11.06.1990, passed by his predecessor-in-interest in the earlier

revision petition preferred by the petitioners by which, the matter was

remanded back to the trial court for a de novo trial and he concurred with

the findings of the Revenue Assistant in the order dated 03.08.2001 to the

effect that no order of giving possession of the subject land to the petitioner

was passed in their favour. The said conclusion is borne out by a perusal of

the aforesaid order dated 11.06.1990, which shows that the Financial

Commissioner had not decided the issue of possession at all. Rather, he had

confined himself to the issue of the exparte order dated 29.05.1986 passed

by the SDM declaring respondents No. 3 to 8 as Bhumidars of the subject

land, without putting the petitioners to notice. While upholding the

contention of the petitioners that they were entitled to notice, the order

dated 29.05.1986 passed by the SDM was set aside by the Financial

Commissioner and the matter was remanded back.

13. Keeping the aforesaid background in mind, the learned Financial

Commissioner, while passing the impugned order dated 18.01.2007, also

mentioned that the Revenue Assistant had rightly observed in his order

dated 03.08.2001 that the order dated 08.02.2001, directing warrants of

possession to be issued in favour of the petitioners could not have been

passed without first deciding the pending application of respondents No. 3 to

8, filed under Section 85 of the Act. The revision petition was therefore

rightly disposed of with the observation that the question of possession was

neither considered, or debated, nor were any orders passed on the said

issue by the Financial Commissioner while passing the earlier order dated

11.06.1990.

14. The contention of the learned counsel for the petitioners that the

petitioners were in possession of the subject land and ought to have been

permitted to remain in possession till the proceedings under Section 85 of

the Act were disposed of, is also found to be devoid of merits as admittedly,

on 01.11.2000, when the petitioners filed an application before the Revenue

Assistant/SO, for possession of the subject land, even as per them, they

were not in possession. The Revenue Assistant had rightly observed that no

order of possession could have been passed in that case, till a decision was

taken in the pending proceedings under Section 85 of the Act.

15. A perusal of the order sheets enclosed at pages 239-245 of the

paper book shows that the last proceeding taken by the Revenue Assistant

was dated 06.07.1999. Thereafter, came the order dated 08.02.2001

passed by the Revenue Assistant on the basis of the report of the Tehsildar,

issuing warrants of possession in favour of the petitioners. Counsel for

respondent No. 9 contends that the said order was passed on the

administrative side and not on the judicial side, which is denied by the

counsel for the petitioners. Even if it is assumed that the aforesaid order

came to be passed on the judicial side, it cannot be denied that the

adversely affected parties were required to be put to notice before such an

order directing warrants of possession of the subject land could have been

passed. By no stretch of imagination can the said order be treated as an

administrative order.

16. It is also pertinent to note that considering the fact that the

report of the Tehsildar, submitted to the Revenue Assistant to the effect

that possession of the subject land was in the hands of respondent No. 9, it

was incumbent on the then Revenue Assistant to put respondent No. 9 to

notice before warrants were issued, directing handing over possession of the

land to the petitioners. In such circumstances, the Revenue Assistant could

not have been faulted in directing restoration of the physical possession of

the land in question to respondent No. 9 as ordered on 03.08.2001. Nor can

the impugned order of the Financial Commissioner be faulted on the said

count.

17. Counsel for the petitioners has also raised a grievance to the

effect that the objection taken by the petitioners before the Financial

Commissioner that the order dated 03.08.2001 was ante-dated and there

were interpolations in the order-sheet, was not considered, thus depriving

the petitioners of an opportunity of hearing before the Revenue Assistant

and violating the principles of natural justice. It is, however, not denied

that a detailed hearing was granted to the petitioners by the Financial

Commissioner. The same is also apparent from a perusal of the impugned

order dated 18.01.2007. Thus, any grievance of the petitioners to the effect

that the petitioners were confronted with the order dated 03.08.2001,

without being afforded an opportunity of hearing, has been washed away by

the fact that the learned Financial Commissioner had admittedly granted a

detailed hearing to the petitioners before passing the impugned order.

Furthermore, both the parties have been granted ample opportunity in the

present proceedings to put forth their respective cases and address

arguments.

18. By arguing that the possession of the subject land in the hands

of respondent No. 9 was illegal, as he could not claim a better title to the

said land, than that claimed by respondents No. 3 to 8, the petitioners are

overlooking the fact that the issue with regard to possession has to be

ultimately governed by the result of the pending proceedings under Section

85 of the Act. Admittedly, the said proceedings are still hanging fire. The

parties are unable to explain as to why the aforesaid proceedings, which

were remanded back to the first court by the order dated 11.06.1990, have

still not culminated in any effective order. On being asked the status of the

said pending proceedings, counsels for the parties state that while pleadings

are complete, evidence has yet to be recorded. The application filed by

respondent No. 9 for impleadment is also stated to be pending.

19. For curtains to be drawn on the present proceedings, which

dates back to two and a half decades, it is necessary to direct the Revenue

Assistant to dispose of the pending application of respondents No. 3 to 8

under Section 85 of the Act, in a time bound manner. Directions are

therefore issued to the Revenue Assistant to decide the aforesaid pending

application for impleadment filed by respondent No. 9, as expeditiously as

possible and thereafter, proceed to deal with the application of the

respondents No. 3 to 8 under Section 85 of the Act and record the evidence

of the parties. It is hoped and expected that the said proceedings shall be

decided by the Revenue Assistant within a period of six months from the

date of receipt of this order. Till the aforesaid proceedings are decided, the

parties are directed to maintain status quo with regard to the possession and

title of the subject land. Needless to state that the status quo order shall

merge with the final orders that shall be passed in the pending proceedings

under Section 85 of the Act. In view of the fact that the arguments of the

parties with regard to the possession or otherwise have yet to be

considered, both the parties shall be at liberty to take all the pleas that may

be available to them in law.

20. The writ petition is disposed of with no orders as to costs.

HIMA KOHLI,J AUGUST 31, 2009 rkb