Delhi High Court

Smt. Shakuntala Devi vs Fci & Ors. on 4 May, 2009

Author: Hima Kohli

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

              +         W.P.(C) 3051/1994

                                       Date of decision : 04.05.2009
IN THE MATTER OF :
SMT. SHAKUNTALA DEVI                                ..... Petitioner
                            Through: Mr. Jai Pal, Adv.

                       versus


FCI & ORS.                                  ..... Respondents
                            Through : Mr. J.P. Sengh, Sr. Adv. with
                                     Mr. Raghuvender, Adv.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

    1. Whether 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


HIMA KOHLI, J. (ORAL)

C.M. Nos.15331/2006 (for restoration) & 15332/2006 (u/S 5 of the Limitation Act)

The present applications are filed by the petitioner praying

inter alia for recall of the order dated 3.1.2006, by which the writ

petition was dismissed for non-prosecution, as also for condonation of

delay. The aforesaid applications came to be filed on 7.11.2006.

It is stated on behalf of the petitioner that the writ petition

was admitted, vide order dated 25.7.1994 and came up for regular

hearing in the year 2006. The petitioner's counsel informed the

petitioner that, as and when the case would reach for hearing, he

would intimate her about the position and hence, the petitioner relied

on her counsel to follow up the case in Court. However, as the

counsel, who was engaged earlier, did not give a satisfactory reply to

the petitioner, she engaged a new counsel on 21.9.2006 and

requested him to inspect the case file and inform her about the status

of the case. The newly engaged counsel inspected the case file on

28.9.2006 and applied for a certified copy of the relevant order dated

3.1.2006 which was provided on 10.10.2006. Counsel for the

petitioner states that immediately thereafter, the petitioner has filed

the present applications praying inter alia for setting aside the order

dated 3.1.2006 and for condonation of delay, if any, in filing the

application for restoration.

No reply has been filed to the present applications till date,

though notice was issued on these applications on 12.12.2006.

Thereafter, innumerable adjournments were sought on behalf of the

petitioner for addressing arguments, due to which the present

applications have remained pending.

Considering the submissions made in the present

applications and keeping in mind the fact that none was present even

on behalf of the respondent when the writ petition was dismissed for

non-prosecution on 3.1.2006, the applications are allowed on the

ground that just and sufficient cause has been shown by the applicant

for recall of order dated 3.1.2006. The delay in filing the application

seeking recall of the order dated 3.1.2006 is condoned. The order

dated 3.1.2006, by which the present writ petition was dismissed for

non-prosecution, is recalled and the writ petition is restored to its

original position.

The applications are disposed of.

W.P.(C) 3051/1994

1. The present writ petition is filed by the petitioner praying

inter alia for quashing of the order dated 16.8.1988, passed by the

Consolidation Officer, allowing the application filed by the respondents

for mutation of the land, subject matter of the writ petition, in their

favour and the order dated 25.2.1994 passed by the Additional

Collector on an appeal filed by the petitioner under Section 64 of the

Delhi Land Revenue Act, 1954 against the order dated 16.8.1988

allowing the mutation in favour of the respondents in respect of the

land, and finally, the order dated 25.4.1994 passed by the Financial

Commissioner on a second appeal preferred by the petitioner under

Section 66 of the Delhi Land Revenue Act, dismissing the said appeal

as devoid of merits.

2. Briefly stated, the facts of the case are that one Shri Sri

Lal, father of the petitioner, was the co-owner of agricultural land

measuring 69 bighas 4 biswas situated within the revenue estate of

Village Alipur, Delhi comprised in Khasra No.566(4-16), 570 (4-16),

635 (4-16), 636 (0-3), 637/2 (4-11), 638 (4-11), 639 (4-8), 640 (4-

16), 641 (5-19), 645 (2-9), 648 (4-16), 649 (4-16), 652 (4-16), 990

(4-16), 1016 (3-5), 1017 (1-12) and 1029 (3-13).

3. The father of the petitioner expired in the year 1965. Vide

mutation case No.1339 dated 23.4.1966, mutation was sanctioned in

favour of Smt. Pato, mother of late Shri Sri Lal, and Shakuntala, minor

unmarried daughter of Shri Sri Lal. Thereafter, the petitioner was

married in the year 1977. The respondents herein filed an application

after 22 years, on 14.1.1988 during the course of consolidation

proceedings of the village by seeking correction in the revenue records

and sought deletion of the name of the petitioner and substitution of

their names as successors-in-interest of late Shri Sri Lal. The

petitioner herein filed an objection to the aforesaid application and

pleaded that the application filed by the respondents was hopelessly

barred by limitation as the mutation had been carried out in her favour

on the application of the respondent No.3 on 23.4.1966. On merits, it

was stated that the provisions of the Delhi Land Reforms Act were not

applicable and that the mutation was done with the consent of the

respondents in accordance with the provisions of the Hindu Succession

Act, 1956. Hence, it was urged that the provisions of Section 50 of

the Act had no applicability to the inheritance. Lastly, it was urged

that as the respondents were party to the mutation which took place

as long back as in the year 1966, they were estopped from challenging

the mutation.

4. The aforesaid contentions of the petitioner were rejected by

the Consolidation Officer/Revenue Assistant, who passed an order

dated 16.8.1988 allowing the application of the respondents for

deletion of the name of the petitioner to the extent of 115/1384 being

half the share of the petitioner from out of the share of late Shri Sri Lal

in the land in question. The revenue records were directed to be

corrected by substituting the name of the respondents in place of the

name of the petitioner.

5. Aggrieved by the abovesaid order, the petitioner filed an

appeal before the Additional Collector under Section 64 of the Delhi

Land Revenue Act. The Additional Collector considered the arguments

of the parties and arrived at a conclusion that there was no bar of

limitation that could be invoked by the petitioner and the mutation

could be sanctioned on payment of the prescribed penalty. It was

further observed that the petitioner being a rural villager, was

governed by the provisions of the Delhi Land Reform Act and by virtue

of Section 51 of the Act, the right of the female devolved upon the

male successor after marriage. Hence, the appeal of the petitioner

came to be dismissed.

6. The aforesaid order dated 25.2.1994 was assailed by the

petitioner in the second appeal preferred by her before the Financial

Commissioner, who, by virtue of the impugned order dated 25.4.1994,

dismissed her appeal by holding that the right of the petitioner had

extinguished under Section 51 of the Delhi Land Reform Act and that

mutation had to take place in terms of Section 50 of the above said

Act thereof. It was further held that the contention raised on behalf of

the petitioner that any challenge to the mutation could have been laid

within a period of three years, was devoid of merits in view of Rule

165 of the Rules framed under the Delhi Land Revenue Act,

whereunder only a penalty could be levied for filing a delayed petition.

Aggrieved by the dismissal of the appeal by the Financial

Commissioner, the petitioner has preferred the present writ petition.

7. Counsel for the petitioner states that the land in question

could not be mutated by the Revenue Authorities in favour of the

respondents No.2 & 3 by invoking the provisions of Section 50 of the

Delhi Land Reform Act because the mutation was to take place under

the Hindu Succession Act. The aforesaid plea though taken on behalf

of the petitioner in the writ petition is, however, not seriously urged by

the counsel for the petitioner, who concedes that the Act applies to the

land in question. He, however, argues that the findings of the

Financial Commissioner to the effect that the limitation of three years

is not applicable to these proceedings, is misconceived. He states that

considering the fact that mutation of half of the property took place in

favour of the petitioner and the remaining half took place in favour of

the mother of Shri Sri Lal in the year 1966, in the presence of the

respondent No.3, and the fact that the respondents were well aware of

the marriage of the petitioner which took place in the year 1977, she

being their niece and hence, the application filed by them for mutation

of the land in their favour in the year 1988, was barred by limitation.

8. In response, counsel for the respondents draws the

attention of this Court to Section 22 of the Delhi Land Revenue Act,

which deals with the report of succession or transfer of possession,

Section 23, which deals with procedure on report to be followed by the

Tehsildar on receiving such a report, Section 24, which deals with the

powers to prescribe the fees for mutation and Section 25, which deals

with fine for neglect to report. He states that a perusal of the

aforesaid provisions makes it abundantly clear that there is no

limitation prescribed in the Act for changing the entries in the register

for the purposes of mutation and the Tehsildar is empowered to make

an inquiry on receiving such a report and direct the Patwari of the

Halka to record the same in the annual register.

9. Section 25 of the Delhi Land Revenue Act prescribes that

any person neglecting to make the report as required by Section 22,

within three months from the date of obtaining or delivery of

possession, as the case may be, under a lease or other transfer, or

from the date of succession, shall be liable to a fine not exceeding five

times the amount of the fee which would otherwise have been

payable under Section 24, or, when no fee is payable, not exceeding

such amount which the Chief Commissioner may prescribe. Rule 165

of the Delhi Land Revenue Rules, 1962 prescribes the levy of fine as a

maximum of Rs. 100/- in cases of succession, transfer and any other

case of land revenue.

10. Hence, counsel for the respondents is justified in stating

that at best, the revenue authorities could impose a mutation fine on

the respondents and recover the same from them after the application

for mutation was allowed. The proceedings for correction in the

annual register do not attract the Limitation Act. Hence, the plea of

the petitioner to the effect that the application of the respondents for

correction in the annual register is barred by limitation, is devoid of

merits.

11. The second plea raised on behalf of the petitioner that as

the respondents were party to the mutation, which took place in

favour of the petitioner and her mother in the year 1966, any

application filed by respondent No.3 for change in the mutation in the

year 1988 is barred by estoppel, is misconceived for the reason that at

the relevant time in the year 1966, when an entry was made in the

petitioner was an unmarried daughter of late Shri Sri Lal. Hence, the

fact that the respondent No.3 was a witness to the said correction

would not come in the way of the respondents at a late stage, when

the circumstances underwent a change. All the three orders passed

by the revenue authorities held that at the time when the land was

mutated in her favour, the petitioner was unmarried and only on her

marriage did her entitlement to the land disappear. This is in

consonance with the provisions of Section 51 of the Act which

stipulates as below :

51. Succession in the case of a woman holding an interest inherited as a widow, mother, daughter etc. - (1) When a Bhumidhar or Asami, who has after the commencement of this Act inherited an interest in any holding as a widow, mother, step-mother, father's mother, unmarried daughter or unmarried sister, shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 50) of the last male Bhumidhar or Asami other than one who inherited as a father's father.

(2) When a Bhumidhar who has before the commencement of this Act, inherited an interest in any holding as a widow, mother, step- mother, father-mother, father's mother, daughter, sister or step- sister

(a) Dies and such Bhumidhar was on the date a proprietor of the land comprised in the holding and -

(i) She was in accordance with the personal law applicable to her entitle to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provision of section 50) of the last male proprietor or tenant aforesaid; and if

(ii) She was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in section 53;

(b) and such Bhumidhar on the date immediately before the said date held the holding otherwise than as a proprietor, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provision of the section 50) of the last male tenant other than one who inherited as a father's father.