Kashmiri Lal vs Financial Commissioner Of Delhi & ...
2010 Latest Caselaw 5664 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 13th December, 2010.

+        W.P.(C) No.1849/2010 & CM No.3670/2010 (for Stay) & CM
         No.21361/2010 (for amendment of petition)

%        KASHMIRI LAL                                     ..... PETITIONER
                            Through:      Mr. Mukesh Gupta, Mr. Sumit Gupta
                                          & Mr. Kapil, Advocates.

                                       Versus

    FINANCIAL COMMISSIONER OF DELHI
    & ORS                                 ..... RESPONDENTS
                 Through: Mr. Arvind Kumar Gupta with Mr.
                           Bipin Bihari Singh, Advocates for R-
                           1 to 5.
                           Mr. Sanjay Poddar & Mr. D.S. Patial,
                           Advocates for R-7 to 13.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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           NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 26 th December, 2008 of the

Financial Commissioner, Delhi in a revision petition under Section 42 of the

East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act,

1948 preferred by one Smt. Dharam Devi.

2. Smt. Dharam Devi had filed W.P.(C) No.11117/2009 in this Court

challenging the said order. The said writ petition was dismissed in limine on

9th November, 2010.

3. This writ petition was filed after the writ petition filed by Smt.

Dharam Devi. No notice of this writ petition was issued and this writ

petition was simply being adjourned from time to time along with the writ

petition preferred by Smt. Dharam Devi. This writ petition was listed before

this Court on 9th November, 2010 also when the writ petition of Smt.

Dharam Devi was heard and dismissed. However the petitioner herein

appearing in person on that date stated that his counsel was not available. In

the circumstances, this writ petition was adjourned to the next day i.e. 10th

November, 2010 when again adjournment was sought and finally the

counsel for the petitioner has been heard today.

4. Though the counsel for the petitioner has challenged the order on

merits and also cited following judgments:-

(i) State of Andhra Pradesh Vs. Abdul Khuddus (Dead) by LRs.

(2007) 15 SCC 261.

(ii) Sumathi P. Rai Vs. Isac D'Almeida (2004) 13 SCC 524.

(iii) Ahmedabad Municipal Corporation Vs. Virendra Kumar

Jayantibhai Patel AIR 1997 SC 3002.

(iv) B.K. Muniraju Vs. State of Karnataka AIR 2008 SC 1438.

however need is not felt to go into the matter on merits inasmuch as

the counsel for the respondents no.7 to 13 has contended that the interest of

the petitioner and the case of the petitioner is the same as of that of Smt.

Dharam Devi and the present writ petition was filed when notice of the writ

petition filed by Smt. Dharam Devi was not being issued inspite of the same

having been listed several times. It is contended that the present writ

petition is an abuse of the process of this Court and amounts to re-litigation.

Reliance is placed on Mahant Surinder Nath Vs. Union of India 2008

(146) DLT 438.

6. It emerges that the petitioner had preferred his separate Revision

Petition to the Financial Commissioner, the Revision Petition preferred by

the petitioner and the Revision Petition preferred by Smt. Dharam Devi were

earlier heard together by the Financial Commissioner and dismissed vide

order dated 23rd April, 2002. The petitioner was satisfied with the order

dated 23rd April, 2002 and did not challenge the same. Only Smt. Dharam

Devi challenged the order dated 23rd April, 2002 of dismissal of her

Revision Petition by preferring W.P.(C) No.3650/2002 in this Court which

was disposed of vide judgment dated 3rd September, 2004 and the matter

remanded to the Financial Commissioner. The order dated 26 th December,

2008 impugned by the petitioner in this writ petition is the order in the said

remand proceedings in the Revision Petition of Smt. Dharam Devi only. It

is urged that the petitioner having accepted the order dated 23 rd April, 2002

and having not challenged the same is now not entitled to challenge the

order which came to be made on remand in the revision petition of Smt.

Dharam Devi only.

7. I have enquired from the counsel for the petitioner whether the

petitioner was a party to the W.P.(C) No.3650/2002 earlier filed by Smt.

Dharam Devi. The answer is in the negative. The counsel for the petitioner

has however contended that since on remand pursuant to the order in the

writ petition filed by Smt. Dharam Devi, the petitioner also participated

before the Financial Commissioner and the petitioner is also affected by the

order dated 26th December, 2008, he has a right to challenge the same.

8. Though undoubtedly in the order dated 26th December, 2008 the

presence of the petitioner and his Advocate is noted but the said order is

only in the Revision Petition preferred by Smt. Dharam Devi. On the

contrary the earlier order dated 23rd April, 2002 of the Financial

Commissioner was on the Revision Petitions preferred by both, Smt.

Dharam Devi as well as the petitioner. The petitioner herein was not even a

party in the Writ Petition preferred by Smt. Dharam Devi.

9. The petitioner has no locus to challenge the order in the Revision

Petition of Smt. Dharam Devi and to which he was not a party and

especially when the petitioner though having earlier preferred a revision

petition and which was dismissed on 23rd April, 2002, chose not to pursue

the matter further. Though the counsel for the petitioner is correct in

contending that had Smt. Dharam Devi on remand succeeded in the revision

petition, the petitioner would also have benefited therefrom but the

petitioner having given up the proceedings after the dismissal of his

Revision Petition on 23rd April, 2002, allowed his fate to be linked to that of

Smt. Dharam Devi and lost any independent right. Since the petitioner

would have been the beneficiary in the event of the revision petition of Smt.

Dharam Devi being allowed on remand, the petitioner may have also had a

right to oppose the writ petition if any filed by the respondents no.7 to 13.

However, he cannot have an independent right of challenging the order in a

revision petition preferred by somebody else and to which he was not a

party.

10. I am thus of the opinion that the petitioner has no locus to maintain

the present writ petition and the same is liable to be rejected on that ground

also. Even otherwise though the counsel for the petitioner has argued the

matter on merits also but has been unable to make any dent on the reasoning

given in the order dated 9th November, 2010 dismissing the Writ Petition of

Smt. Dharam Devi.

11. The Writ Petition is dismissed in limine. I refrain from imposing any

costs on the petitioner though find merit in the argument of the same being

in abuse of the process of the Court.

RAJIV SAHAI ENDLAW (JUDGE) 13th December, 2010 bs (Corrected and released on 20th December, 2010)