Manju Jain & Anr. vs Deputy Commissioner (S-W) & Ors.
2009 Latest Caselaw 2537 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                                   #7
+      LPA 209/2009

       MANJU JAIN & ANR.                         ..... Appellants
                  Through Mr. A.K. Sen, Mr. Shahzad Khan and Ms. Mnati
                  Murari, Advoates.
                  versus

       DEPUTY COMMISSIONER (S-W) & ORS.           ..... Respondents
                Through Mr.V.K. Tandon, Adv. for R-1 & R-2.
                Mr. Sunil Chauhan, Adv. for R-3 & R-4.

       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE MANMOHAN

                           ORDER

%                          09.07.2009

       Admit.

2. Learned counsel appearing for the respondents waive service of notice.

By consent of the parties, the appeal is taken up for hearing.

3. The appellant no. 2 and the respondent nos. 2 and 3 are real brothers and

appellant no. 1 is the wife of appellant no. 2. The appellants claim that appellant

no. 1 owns the agricultural land falling in Khasra No. 193/1(6-19), 193/2/2 min

(6-7), 193/2/2 min (0-8), of village Bijwasan, Tehsil Vasant Vihar, New Delhi.

The adjoining landed property [Khasra No. 193/2/4 (6-15)] belongs to her husband

i.e. appellant no.2, and the total land admeasures 20 Bighas 9 Biswas. The case of

the appellants is that sometime in the year 1990 they shifted to Mumbai in

connection with their business. In August 1998, when the appellant no. 2 came to

Delhi he could know that the respondent no. 3 along with other members of his

family by means of forged and fabricated documents got the agricultural land

belonging to the appellants transferred to M/s Luhadia Developers (P) Ltd.

wherein the respondent nos. 3 & 4 and their wives were the Directors. On making

enquiry, it was revealed that the respondent no. 3 on the strength of a forged and

fabricated GPA represented himself as attorney of appellant no. 1 and transferred

her above land to M/s Luhadia Developers (P) Ltd. According to the appellants

respondent no. 3 got the name of his company mutated in the revenue record as

owner / bhumidar in place of appellants. However, in an appeal filed by

appellants before Deputy Commissioner / Collector (South-West), the said

mutation / entry was cancelled.

4. Further the case of the appellant is that a complaint was lodged with the

DCP (Crime Branch) and after registering a case vide FIR No. 23/99 at P.S.

Kapashera the accused persons were arrested. After investigation a charge sheet

under Section 173 Cr.P.C. has been filed and a criminal case is pending before

the Metropolitan Magistrate, Patiala House, New Delhi. The appellant no. 1 has

filed a Civil Suit being Suit No. 2598/1998 in the High Court of Delhi seeking

declaration of those sale deeds in favour of M/s Luhadia Developers (P) Ltd. as

null and void. The said suit is transferred and pending in the court of ADJ, Delhi.

It is also brought to our notice that respondent nos. 3 and 4 have filed Suit No.

134/04/2003 for permanent injunction wherein the respondent nos. 3 and 4 have

alleged that the property in question has been sold by them on the basis of power of

attorney executed by the appellant no. 1. This suit is also pending before the

ADJ, Delhi.

5. The appellants further alleged that the respondent nos. 3 and 4 in order to

grab their property took advantage of their being out of Delhi, filed WP (C) No.

691-692/2004 and without any notice being served upon the appellants, obtained

an order from this court directing the revenue authorities to take a decision on the

application made by the petitioners therein i.e. respondent nos. 3 & 4 herein in the

present appeal, for entering their names as cultivators in possession for the year

2004. It is further alleged by the appellants that taking advantage of this ex parte

order the respondent nos. 3 and 4 managed to influence the lower revenue staff to

record their names as cultivators in possession on the agricultural land belonging

to appellants. It is also contended that there were no crops in the land at the

relevant time and therefore the question of making any entry as cultivators in view

of Rule 63(3) of the Delhi Land Revenue Rules, 1962 could not arise. The

appellants have challenged those entries in Form P-4 and Form P-5, by filing

appeals which are pending before the respondent no. 1 Collector (South-West) at

Kapasehra, Delhi. The appellants have further alleged that the respondent nos. 3

and 4 again moved an application before the revenue authorities for entering their

names as cultivators for the period Kharif crop 2004 onwards on the ground that

the same was not recorded by the revenue authorities. According to the

appellants as per the entries in form P-4 for Rabi 2005, Kharif 2005 there is no

crop in the land. The entries are already made by the Revenue authorities and

question of recording names of respondent nos. 3&4 would not arise. The

respondent nos. 3 and 4 then filed WP(C) No. 16723/2006 which was disposed of

by the learned single Judge by order under appeal with a direction to the revenue

authorities to hold an enquiry with regard to the cultivator possession of the land

comprised in Khasra No. 193/1, 193/2, and 193/2/4 situated in the revenue estate

of village Bijwasan, New Dehi for the period with effect from Kharif Crop 2004

onwards and thereafter to pass an order within eight weeks.

6. Learned counsel appearing for the appellants strenuously argued that the

entries have already been made in respect of khasra girdawries for the Rabi 2005,

Kharif 2005 which shows that there is no crop in the land and consequently no

entry could have been made under the provisions of Rule 63 of the Delhi Land

Revenue Rules particularly in view of the specific bar created under sub Rule 3 of

the Rule 63 of the Rules. The learned counsel submitted that the entries of

possession sought are based on the alleged title which is under challenge in Civil

Court and criminal proceedings are also pending between the parties. Both the

parties have filed suits and the matter is seized by the Civil Court and under the

circumstances there is no occasion for recording any entries in respect of the lands

in question. Learned counsel for the appellant further submitted that entries

which were made earlier for the year 2004 pursuant to an order made by this Court

without notice to the appellants are being challenged in appeal before the Collector

(South-West) at Kapashera, Delhi. On the other hand, learned counsel appearing

for the respondent nos. 3 and 4 submitted that pendency of the aforesaid appeal

does not preclude the revenue authorities from inspecting the land in question and

recording the cultivatory possession thereof for subsequent years, in accordance

with the provisions of the Delhi Land Revenue Act, particularly when there is no

stay operating against the revenue authorities in that regard.

7. Having considered rival submissions, we are of the view that there is no

need to consider merits of the respective arguments of the learned counsel

appearing for the parties. Apparently there is a serious dispute about the title in

respect of lands in question and cross suits have been filed by the parties against

each others and those suits are pending before the Civil Court and also the criminal

proceedings are pending before the Metropolitan Magistrate, Patiala House, New

Delhi under Section 173 Cr.P.C. In view of the pendency of the civil suits the

revenue authorities in the facts of the case should await orders of the Civil Court

and then make appropriate entries in the revenue record as per the decision of the

Civil Court. Moreover, an appeal is also pending before the Collector against the

entries made in 2003. In our opinion, in the background of above facts the

learned single Judge ought not to have invoked power under Article 226 to direct

the Revenue officials to record entries in respect of period after 2004. In our

opinion the ends of justice would be served if the Civil Court is directed to dispose

of the suits expeditiously. The ADJ, Tis Hazari Courts is accordingly directed to

dispose of the Suit No. 134/04/2003 titled Praveen Jain & Ors. v. Manju Jain &

Ors, Suit No. CS 247/2004 titled Manju Jain v. Manak Chand Jain & Ors. and Suit

No. CS 246/2004 titled Ramesh Jain v. Praveen Jain & Ors. expeditiously and

preferably by end of April 2010. The Deputy Commissioner / Collector

(South-West), Delhi is also directed to dispose of the Revenue Appeal titled Manju

Jain & Ramesh Jain v. Praveen Jain & Ors. within six months from today. All

contentions on merits are left open to the parties. The appeal is accordingly

allowed.

CHIEF JUSTICE

MANMOHAN, J JULY 09, 2009 dk