Mahinder Singh vs Financial Commissioner 7 Others
2010 Latest Caselaw 1108 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(C) 8947/2006 Date of decision: 25th February, 2010.

       MAHINDER SINGH                            ..... Petitioner
                              Through     Mr. R.K. Saini, Advocate.

                     versus

       FINANCIAL COMMISIONER & ORS.           .... Respondent
                       Through      Mr. V.K. Tandon, Advocate
                                    with Mr. Manoj Kr. Rath,
                                    Advocate and Halka Patwari.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

                              ORDER

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1. The petitioner, Mr. Mahinder Singh states that he has half

share in 3 bighas and 19 biswa of land in Khasra No.218, situated in

the revenue estate of village Hirnaki, Delhi. It is the contention of the

petitioner that he was not served in the proceedings initiated under

Section 81 of the Delhi Land Reforms Act, 1954 (hereinafter referred

to as the Act) and, therefore, the Revenue Assistant and the appellate

authorities were wrong in rejecting his application under Appendix VI

Rule 14 of the Act for setting aside the ex-parte order dated 27th

February, 2001 passed under Section 81 of the Act.

W.P.(C) No. 8947/2006 Page 1

2. Proceedings under Section 81 of the Act were initiated against

Mr. Rajender Singh, Mahender Singh both sons of Mr. Ranjit Singh,

Devender, Virender, Surender, Dinesh, Naresh, Satish all sons of late

Mr. Jagdev and Master Gaurav son of late Mr. Suresh Kumar and

grandson of late Mr. Jagdev. Late Mr. Jagdev was brother of Mr.

Rajender Singh and Mr. Mahender Singh.

3. Original file produced before me by the counsel for the

respondent, GNCTD reveals that the respondents were served in the

said proceedings and except the petitioner herein all had entered

appearance before the Revenue Assistant. This is clear from the order

sheets dated 27th July, 2000 and 21st September, 2000, when the

conditional order under Section 81 of the Act was passed.

4. Notice under Section 81 of the Act was also issued for service

of the petitioner, but as per the report of the Process Server, the

petitioner had refused to accept the notice. The petitioner is

therefore deemed to have been served.

5. It is not possible to accept the contention of the petitioner

that he was not aware and did not have knowledge of the said

proceedings or the date of hearings, specially, when his brother and

nephews were appearing in the said proceedings. It is not a case of

W.P.(C) No. 8947/2006 Page 2 the petitioner that he was residing at a different location and was not

in touch with his brother or nephews. All other parties were duly

served and had entered appearance to contest the proceedings

before the Revenue Assistant.

6. Counsel for the petitioner referred to the report of the Halqa

Patwari dated 17th January, 2001 and submitted that initiation of the

proceedings under Section 81 of the Act itself was bad as there was

no material to show misuse of agricultural land. The contention of the

petitioner is incorrect as the proceedings under Section 81 of the Act

were not initiated on the basis of the report of Halqa Patwari dated

17th January, 2001. The proceedings before the Revenue Assistant

under Section 81 of the Act were initiated on the basis of earlier

reports of Patwari; that bhumidars had constructed boundary walls

and a godown on the agricultural land. Thereafter, notices were

issued to the bhumidars including the petitioner under Section 81 of

the Act read with Rule 21 B. In the notice, it was specifically stated

that that a godown was constructed on the said agricultural land and,

therefore, the bhumidars were asked to explain why action should not

be taken against them. Vide order dated 17th August, 2000, the

bhumidars, who were respondents in the proceedings under Section

W.P.(C) No. 8947/2006 Page 3 81 of the Act, were directed to remove the boundary wall within a

week. This was not done. Thereafter, on 21st September, 2000, a

conditional order was passed with a direction to the bhumidars to

remove boundary wall within three months and restore the usage of

land in question to agricultural purposes, failing which the land shall

vest in the Gaon Sabha. Thus, in accordance with the provisions of the

Act, the bhumidars were given opportunity to bring the land back to

agricultural usage after removing boundary walls and godown.

7. Order sheet reveals that thereafter the matter was taken up on

11th January, 2001, when again presence of counsel for the

respondent bhumidars therein is recorded. Fresh report was called

from the Halqa Patwari vide order dated 18th January, 2001. One of

the respondent bhumidars was present in person on 18th January,

2001 and on 25th January, 2001. On 6th February, 2001, in the

presence of the respondent bhumidars, the Revenue Assistant

adjourned the case and recorded that the case was fixed for site

inspection.

8. Thereafter, report of Halqa Patwari dated 17th January, 2001

was received. I have examined the said report. The said report records

that boundary wall with height of about 7 feet was constructed

W.P.(C) No. 8947/2006 Page 4 around the land in question. It is further stated in the said report that

there was no roof on the boundary wall. Halqa Patwari had recorded

statement of one of the bhumidars that they intended to use the land

as a poultry farm. It is clear from the status report that boundary wall

was still in existence and was at least 7 feet high. It is incorrect to

state that as per the said report, the petitioner or other bhumidars

had stated that there existed a poultry farm. The report merely

records statement of one of the bhumidars that they want to in future

carry out poultry farming activity from the land in question.

9. The conditional order passed by the Revenue Assistant was

clear that the bhumidars should demolish the boundary wall as they

were carrying on non-agricultural activities in the land in question.

The bhumidars were required to demolish the godown. The

bhumidars did not file any affidavit or document before the Revenue

Assistant after the conditional order was passed on 21st September,

2000 to show and establish that godown constructed on the land had

been demolished and was no longer in existence. Even the report of

the Halqa Patwari does not state that the godown had been

demolished. Admittedly, the bhumidars had appeared before the

Revenue Assistant on 11th January, 2001, 18th January, 2001, 25th

W.P.(C) No. 8947/2006 Page 5 January, 2001 and 6th Feb., 2001. They could have easily pointed out

the said fact before the Revenue Assistant and submitted a written

reply affirming and stating on oath that the godown had been

demolished. This was not done. It is only in these circumstances that

the Revenue Assistant vide order dated 27th February, 2001 directed

vesting of land in Gaon Sabha.

10. Learned counsel for the petitioner has relied upon Khasra

Girdawari for the year 1999-2000, in which it is stated that there was

a boundary wall and the land in question was being used as a poultry

farm. In the present case, proceedings under Section 81 of the Act

were initiated in July, 2000 and the Khasari Girdawari relied upon by

the petitioner is for the period 12th October, 1999 to 8th April, 2000.

As stated above, the bhumidars, who had appeared in person before

the Revenue Assistant did not question and challenge the existence of

godown on the agricultural land.

11. After the order dated 27th February, 2001 was passed by the

Revenue Assistant, the petitioner filed an application for setting aside

of the ex-parte order on or about 17th May, 2001. It is clear that the

petitioner was fully aware of the said proceedings, date of hearings

fixed and deliberately and intentionally had not participated in the

W.P.(C) No. 8947/2006 Page 6 same. The application for setting aside of the ex-parte order,

therefore, has been rightly rejected by the Revenue Assistant.

12. Counsel for the petitioner has relied upon judgment of this

Court in Het Ram and Another Vs. Shri Ram Singh and Another, 2006

II AD (DELHI) 531 and has submitted that procedural law should be

liberally applied so that a party is not denied opportunity of

participating in the process of dispensation of justice. However, in the

present case, the petitioner deliberately and intentionally did not

participate in the proceedings and only after the conditional and final

order passed, moved an application for recalling of the said order and

re-open the proceedings. The petitioner is in fact guilty of trying to

misuse the procedural law and now trying to reopen the final order.

In view of the above, I do not find any merit in the present writ

petition and same is dismissed.

SANJIV KHANNA, J.

        FEBRUARY 25, 2010
        NA




W.P.(C) No. 8947/2006                                             Page 7