Raj Kumar vs Financial Commissioner & Ors.
2009 Latest Caselaw 5270 Del

i.23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                          Date of Decision : December 17, 2009


+                       LPA 346/2004

       RAJ KUMAR                              .... Appellant
                Through:      Mr.Ramesh Chandra, Senior
                              Advocate with Ms.Geeta Mehrotra
                              and Mrs.R.Ratnam Nagar,
                              Advocates.

                  versus

       FINANCIAL COMMISSIONER & ORS.             .... Respondents
                 Through: None.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

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

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



PRADEEP NANDRAJOG, J. (Oral)

1. Land admeasuring 1 bigha and 2 biswa situated in

Khasra No.15/1 in the revenue estate of Village Shahbad

Daulatpur, Delhi was under the bhumidari of one Jabar Singh.

He sold the said land to Vinod Chopra on 25.6.1988 whose

general attorney, in turn, sold the land to the appellant on

5.3.1992 by and under a registered sale deed.

2. Having purchased the land, the appellant applied to

the Revenue Authorities i.e. the Tehsildar for the land to be

mutated in his name in the revenue records. Vide mutation

order dated 16.7.1993 the land was mutated in the name of

the appellant. But, prior thereto, on 17.1.1992, with reference

to a show-cause notice issued in the name of the previous

recorded owner, a conditional order under Section 81 of the

Delhi Land Reforms Act 1954 was passed by the Revenue

Assistant.

3. Holding that the land required to be used for an

agricultural purpose was being misused, it was directed, vide

order 17.1.1992, that if within 3 months land use was not

restored for the purpose prescribed as per law the same would

be liable to be vested in the gaon sabha.

4. Thereafter, on 28.9.1995 a vesting order was

passed holding that since the land use was not reverted to the

permissible land use, the land stood vested in the gaon sabha.

5. When sought to be executed in the year 2000, the

appellant filed an application on 7.7.2000 under Appendix VI

Rule 14 of the Delhi Land Reforms Rules 1954 stating that the

vesting order dated 28.9.1995 was passed without any notice

to him and hence should be recalled.

6. The said application was dismissed by the Revenue

Assistant on 21.8.2000 holding that since a conditional order

for ejectment had been passed on 17.1.1992 after serving the

then recorded owner and the appellant having purchased the

land subsequent to said date, it could not be claimed by the

appellant that no notice had been served.

7. The appellant filed a Revision Petition before the

Financial Commissioner challenging the order dated 21.8.2000

passed by the Revenue Assistant stating that the appellant

was laying a challenge to the vesting order dated 28.9.1995

which was passed without any show-cause notice being served

upon the appellant.

8. The Revisional Authority i.e. the Financial

Commissioner dismissed the Revision Petition vide order dated

30.10.2000 holding that before the conditional vesting order

was passed, the recorded bhumidar of the land was served. It

was further held that having got the land mutated in his favour

in the year 1993, it was not explained as to how after a gap of

5 years, the vesting order dated 28.9.1995 was challenged

when the application was filed before the Revenue Assistant

on 7.7.2000.

9. The appellant challenged the order passed by the

Financial Commissioner by and under WP(C) No.835/2001

which has been dismissed by the learned Single Judge holding

as under:-

"The only contention raised before the Revenue Assistant was that the vesting order has come into being in the year 1995 despite the transfer in the name of the petitioner in pursuance to the sale deed of 1992 recorded by the entry in the khatauni of 20.09.1993. The Revenue Assistant, however, found that the order had been passed on 17.01.1992 prior to the entry in favour of the petitioner and the order of vesting was a consequence of the earlier order dated 17.01.1992. Since the recorded owner Jabbar Singh was served, the occasion to serve the petitioner did not arise.

This is the same reasoning which has weighed with the Financial Commissioner when the petitioner filed the revision petition.

Learned counsel for the petitioner today sought to contend that prior to the transfer being recorded in favour of the petitioner in 1993, there was an intervening sale in favour of Shri Vinod Chopra which was recorded prior to the order of 17.01.1992. Learned counsel for the petitioner was specifically asked to show as to where such a plea was raised before the Revenue Assistant or before the Financial Commissioner. There is no answer to this query. A reading of both the orders show that there is no such plea raised. In para (3) of the order of the Financial Commissioner what is recorded is that the petitioner purchased the land from Shri Vinod Chopra who had in turn purchased the land from Jabar Singh. Shri Jabar Singh was the lone recorded bhoomidar to whom admittedly notice has been given by the Revenue Assistant before passing the conditional order on 17.01.1992.

In my considered view, in order to raise the plea about non-service of notice on Shri Vinod Chopra, this matter should have been agitated before the forums below showing the mutation in the name of Shri Vinod Chopra and the non service on Shri Vinod Chopra coupled with the affidavit of Shri Vinod Chopra for non- receipt of the said notice. The petitioner cannot now be permitted to raise this fresh plea which has not been raised before the Revenue Assistant or before the Financial Commissioner."

10. We have perused the application filed by the

appellant before the Revenue Assistant on 7.7.2000

challenging the order dated 28.9.1995 as also the Revision

Petition filed before the Revenue Assistant.

11. We find that the appellant has categorically raised a

plea that pursuant to the sale deed dated 5.3.1992 land was

mutated in his name vide mutation order dated 16.7.1993.

The appellant questioned the vesting order dated 28.9.1995

urging that before the same could be passed he was required

to be served with a show-cause notice.

12. We further note that with respect to the conditional

vesting order dated 17.1.1992 the appellant urged that having

sanctioned mutation in his name on 16.7.1993 the revenue

authorities could not predicate any right under the conditional

vesting order dated 17.1.1992.

13. As regards the delay, the appellant has specifically

pleaded that he learnt about the order dated 28.9.1995 only

when the same was attempted to be executed.

14. We note that the revenue authorities have not

bothered to consider whether the order dated 28.9.1995 was

served upon the appellant, who by virtue of the mutation

dated 16.7.1993 was shown as the recorded bhumidar of the

land. Thus, the claim of the appellant with respect to the bar

of delay required to be considered with reference to the

vesting order being served and if not served, to consider

whether knowledge was gained by the appellant when the

vesting order was sought to be executed.

15. Further, it had to be considered whether the vesting

order dated 28.9.1995 was legal and valid for the reason the

appellant was never served with a prior notice before the order

was passed; he having been shown as the recorded bhumidar

of the land when mutation was effected in his favour on

16.7.1993.

16. We allow the appeal and set aside the impugned

order dated 8.1.2004. WP(C) No.835/2001 filed by the

appellant stands allowed. Order dated 30.10.2000 passed by

the Financial Commissioner dismissing Case No.273/2000-CA

is set aside. The Revision Petition i.e. Case No.273/2000-CA is

restored for fresh adjudication in accordance with law.

17. We direct the Financial Commissioner to re-decide

the Revision Petition and while so doing to take note of the

facts noted herein above by us.

18. Needless to state, on revival of the proceedings, the

Financial Commissioner shall serve the respondents.

19. The appellant is directed to appear before the

learned Financial Commissioner on 22.2.2010 and is further

directed that on or before 1.2.2010 under cover of an

application, certified copy of the present order would be filed

in the office of the learned Financial Commissioner so that the

Reader of the learned Financial Commissioner can trace out

the file of Case No.273/2000-CA and list the same before the

learned Financial Commissioner on 22.2.2010.

20. No costs.

21. Copy of this order be supplied dasti to learned

counsel for the appellant.

PRADEEP NANDRAJOG, J.

                                SURESH     KAIT, J
DECEMBER 17, 2009
Dharmender