Krishan Kumar vs Financial Commissioner, Etc.
2010 Latest Caselaw 660 Del

R.5A
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        Writ Petition (Civil) No. 500/1993

%                                 Date of decision : 05th February, 2010.

      KRISHAN KUMAR                            ..... Petitioner.
                                    Through Mr.D.N.Vohra, Sr.Advocate
                                    with Ms.Tanuja Rawat, advocate.

                    versus

       FINANCIAL COMMISSIONER, ETC.            ..... Respondent
                      Through Ms.Sujata Kashyap, advocate for R.1
                      & 3.
                      Mr. N.S.Dalal, advocate for respondent-2.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                              ORDER

The petitioner has challenged order dated 29th October, 1992

passed by the Financial Commissioner under Section 42 of the East Punjab

Holdings (Consolidation and Prevention of Fragmentation) Act, 1948

(hereinafter referred to as Act, for short) and has also prayed for

restoration of allotment made by the Consolidation Officer in the order

dated 24th July, 1981.

2. In 1975, consolidation proceedings were initiated in village Mundka,

Delhi. A scheme of consolidation was drawn up inviting applications for

WPC No.500/1993 Page 1 residential plots in extended lal dora within 30 days from 1st April, 1976.

The scheme was published and was confirmed by the Settlement Officer

(Consolidation) on 27th July, 1976.

3. On 29th April, 1979 a resolution was passed by the village panchayat

suggesting modification in the scheme. Thereafter on 8th May, 1979

Settlement Officer (Consolidation) passed an order accepting claims of

some parties and observed that their claims should be included in the

scheme. This required amendment to the consolidation scheme. A draft

amended scheme was published on 6th August, 1980 but subsequently

dropped by the Settlement Officer (Consolidation) on 22nd May, 1982 on the

ground that no land was available for further allotment/demands in the lal

dora and some of the right holders had opposed allotments.

4. There was litigation as to whether or not the consolidation scheme

should be amended or not. Writ petitions were also filed before the High

Court challenging the order passed by the Settlement Officer

(Consolidation) dropping the proposal for amendment of the consolidation

scheme with regard to inclusion of demands for plots within the lal dora.

Orders were passed in some of the writ petitions.

5. The Consolidation Officer on 20th May, 1988 passed an order after

obtaining report from Patwari with regard to availability of land within lal

dora holding, inter alia, that it was not possible to meet additional demands,

WPC No.500/1993 Page 2 in terms of orders passed by the High Court in the writ petitions, within the

existing lal dora area. He further noticed that there was already deficiency of

lal dora area to meet existing demands of persons in the village and some

right holders had filed writ petitions which were pending but were likely to

succeed in view of the earlier orders passed by the High Court. Accordingly,

he came to the conclusion that existing lal dora was required to be extended

to meet the additional demand. By order dated 20th May, 1988, the

Consolidation Officer directed that an area of 92 bigha and 8 biswa be

included in the said lal dora by amending the consolidation scheme. In this

order it was noticed that as per record the petitioner made a claim for

deficiency of 4 bigha.

6. This order dated 20th May, 1988 was challenged in two revision

petitions before the Financial Commissioner under Section 42 of the Act by

Mr. Surjan Singh, Mr. Hari Singh and others. Financial Commissioner by his

order dated 31st October, 1989 set aside the amended consolidation

scheme with a direction that amendments could be carried out only after

following the prescribed procedure specified under the Act. In these two

revision petitions, Settlement Officer (Consolidation) and Consolidation

Officer were impleaded as respondents, but other parties who were likely to

be affected by the outcome of the decision were not impleaded. Some of

the persons who were adversely affected by the order passed by the

WPC No.500/1993 Page 3 Financial Commissioner, filed writ petitions before the High Court. These

writ petitions were disposed of vide Order dated 24 th March, 1992 holding,

inter alia, that the Financial Commissioner should have issued notices to

the interested of parties before disposing of the revision petitions and there

was violation of the principles of natural justice and the Act. The High Court,

however, observed that it was not going into merits and directions were

given to the Financial Commissioner to decide the revision petitions afresh

after giving notices to all interested parties and a reasonable opportunity to

represent their case.

7. Upon remand, the Financial Commissioner issued notices to the

concerned parties and published public notices to enable all persons

interested in the said subject matter to appear before him. By the impugned

order dated 29th October, 1992, learned Financial Commissioner has held

that the Consolidation Officer could not have amended the scheme for

consolidation without following the procedure prescribed under the Act and

therefore the Settlement Officer had erred in granting approval of the

amended scheme. At the same time, the Financial Commissioner noticed

that several right holders could not be allotted land within the lal dora as per

the original scheme. He directed allotment to these persons who were

wrongly left out, in exercise of powers vested under Section 42 of the Act. In

this connection, he referred to the public notices

WPC No.500/1993 Page 4 through press as well as proclamation in the village, issued about the

proceedings pending before him to enable the affected persons to prefer

objections and make their submissions. He further held that the amended

consolidation rules reducing the maximum permitted holding in lal dora

were not applicable as orders passed by him were an integral part and in

continuity of the original scheme.

8. The aforesaid directions in the order dated 29th October, 1992

passed by the Financial Commissioner were challenged before this Court in

Writ Petition (Civil) Nos. 348/1993 and 5815/2000 filed by Mr.Sujan Singh

and others and Mr.Kishan Lal and others respectively. By judgment dated

2nd July, 2007, the challenge was rejected, inter alia, holding that the

Financial Commissioner had power under Section 42 of the Act to issue the

said directions and the amended rules were not applicable.

9. Mr. Krishan Kumar, the petitioner herein had represented and

appeared before the Financial Commissioner before order dated 29th

October, 1992 was passed. An objection was raised before the Financial

Commissioner that Mr.Krishan Kumar-the petitioner herein had not filed any

writ petition and therefore his claim for allotment should not be examined

and was not justified. It was contended that Mr.Krishan Kumar did not have

any recorded demand. Financial Commissioner dismissed the claim of

Mr.Krishan Kumar observing as under:-

WPC No.500/1993 Page 5 " 14. In reply, Shri C.S. Saroha, Advocate representing Shri Krishan Kumar frankly admitted that there was no demand of Shri Krishan Kumar. He, however, sought to plead that there are extenuating circumstances for accepting his demand and that this court has the jurisdiction to entertain his demand under section 43-A of the Act treating it as a clerical error or ommission. Shri Saroha did not contest the plea on facts.

15. There is no merit in the submission of Shri Saroha. The amendment is being restored to pursuant to the orders of the High Court. Undisputedly, Shri Krishan Kumar had not preferred any demand for the plot. Nor had he approached the High Court. That being so, it is not practically possible to entertain his demand for the first time at this stage as it may open new fronts for other similarly placed right holders. I, therefore, disallow the request of Shri Saroha. Resultantly, it is held that the demand of Shri Krishan Kumar cannot be included in the amended scheme."

10. The petitioner thereafter filed an application for deletion of the

aforesaid paragraph nos. 14 and 15 along with an affidavit of the advocate

who had appeared for the petitioner, to controvert the statement attributed

to the said advocate. It was stated in the application that Mr.Hoshiar

Singh-father of Mr. Krishan Kumar had preferred a demand within a period

of 30 days from 1st April, 1976 and therefore paragraph nos. 14 and 15 in

the order dated 29th October, 1992 should be recalled. This application was

dismissed vide order dated 14th December, 1992 observing:

" 5. I have examined the case file. It is a fact that a copy of the application of the father of Krishan Kumar as well as a copy of the list of demands wherein the name of the father of Shri Krishan Kumar figures have been filed. From these documents, it is apparent that

WPC No.500/1993 Page 6 father of Shri Krishan Kumar had preferred the demand and not Krishan Kumar. At the same time, it is also a fact that the very basis for amendment of the scheme was to include the demands of those persons who had approached the High Court and whose demands had been approved by the High Court. That being so, entitlement of Krishan Kumar for allotment of plot through the amendment cannot be taken into consideration regardless the fact that his father had preferred the demand and the same was included in the list.

6. In view of the above, it is clarified that the admission of Shri C.S.Saroha that Krishan Kumar had not preferred any demand recorded in the earlier order shall be taken to imply that admittedly there was no demand of Krishan Kumar, but his father had preferred the demand. But this fact also does not make the applicant, Krishan Kumar, entitled to a plot since the amendment was to include those persons only whose demand had been approved by the High Court and it is an admitted fact that Krishan Kumar had not filed any writ petition in the High Court. The present applicant stands disposed of accordingly."

11. Learned counsel for the petitioner states that the Financial

Commissioner does not have any power of review and therefore he did not

have jurisdiction to re-examine the order dated 29th October, 1992 by way

of the review application. However, he relies upon observations made in

this order to the effect that Mr.Hoshiar Singh, father of the petitioner had

filed an application and his name was included in the list of demands. It is

also submitted that in the order dated 14th December, 1992, the Financial

Commissioner has wrongly recorded that the earlier order dated 29th

October, 1992 was only to include demand of those persons who had

WPC No.500/1993 Page 7 approached the High Court and where demands were approved by the High

Court.

12. While examining the revision petition under Section 42 of the Act, the

Financial Commissioner had taken a holistic and a broad view of the entire

matter. He came to the conclusion that the amended consolidation scheme

was invalid for failure to follow the procedure prescribed under the Act

before it was settled, yet at the same time he was conscious that several

persons whose demand for allotment of land within the lal dora was justified

could not be allotted land as land within the lal dora was not available. In

these circumstances he exercised his wide powers under Section 42 of the

Act to extend the lal dora area so that persons who have been wrongly

denied land within the lal dora could be accommodated. The said approach

of the Financial Commissioner has been accepted as correct and upheld by

the High Court in the case of Mr.Sujan Singh and Mr.Kishan Lal (supra) in

the judgment dated 2nd July, 2007. It has been held that Section 42 of the

Act is of widest magnitude and keeping in view the nature of the order

passed; the widespread participation in the proceedings before the

Financial Commissioner; and the fact that no prejudice was caused though

vaguely pleaded and urged to the contrary; the order of the Financial

Commissioner was legal and valid. By the same reasoning in case the

petitioner's claim is correct and justified, the same should not be rejected on

WPC No.500/1993 Page 8 the ground that he had not filed any writ petition against the earlier order

passed by the Financial Commissioner setting aside the amended

consolidation scheme. While setting aside the order dated 31st October,

1989 passed by the Financial Commissioner in Writ Petition (Civil)

No.3250/1989 in Gulshan Kumar and others (supra) learned single Judge

in the judgment dated 4th March, 1992 had directed issue of notice to all

interested parties who were also directed to be given an opportunity of

being heard. Obviously, learned single Judge did not want to restrict the

benefits and advantage of the judgment only to the writ petitioners. Further,

what was the subject matter of challenge before the Financial

Commissioner was the amended consolidation scheme prepared and

approved on 20th /25th May, 1998 under which the petitioner's demand with

regard to deficiency was accepted. The amended scheme in which the

claim of the petitioner was accepted was subject matter of challenge before

the Financial Commissioner.

12A. In the counter affidavit filed before this Court by the

respondent-GNCT of Delhi has been pleaded as under:

"An application of Shri Hoshiar Singh, father of the petitioner is found attached with the record but it has not been entered in the demand register nor any residential plot was recommended for allotment at the time of confirmation of the scheme because the application was filed after the stipulated time. It was time barred application."

WPC No.500/1993 Page 9

13. Learned counsel for the petitioner has submitted that the petitioner

had filed on record, certified copy of the demand register which establishes

that Mr.Hoshiar Singh's name appears against Entry No.50 which is the last

entry in the said register. Learned counsel for the respondent-GNCT of

Delhi however submits that interpolation while making the said entry is

clearly visible as difference in hand-writing is apparent. She also relies upon

subsequent certified copy which shows that the last entry was scored

off/cancelled. Learned counsel for the petitioner however submits that the

allegation is false for the reason that Mr.Hoshiar Singh expired within one

year after making the said demand in 1977 and the petitioner at that time

was only 14 years of age. Learned counsel for the respondent-GNCT of

Delhi, however, submits that the amended scheme was prepared in the

year 1988 and not in the year 1977. She in this connection relies upon the

earlier statement by the learned counsel for the petitioner recorded in

paragraph 14 of the order dated 29th October, 1992 by the Financial

Commissioner. She states that the said statement should be read and

understood in the said context. With regard to the subsequent order dated

14th December, 1992 it is stated that the said order proceeds on the basis of

the certified copy of the list of demands, which was produced by the

petitioner and there is no finding or observation given by the Financial

Commissioner with regard to the authenticity and genuineness of the said

WPC No.500/1993 Page 10 demand.

14. With reluctance, as the matter has remained pending in this Court for

some time, I am constrained to remand the matter back to the Financial

Commissioner to examine the question of authenticity of entry 50 in the

demand register and the question whether the petitioner's

father-Mr.Hoshiar Singh has made any application within 30 days from 1st

April, 1976. This is a matter of fact which requires indepth examination of

evidence and material. Petitioner will be entitled to allotment in case his

father-Mr.Hoshiar Singh had made an application within 30 days from 1st

April, 1976 and would not be entitled to benefit of any additional land in case

no such application was made.

15. Learned counsel for the petitioner has relied upon Section 21(2) of

the Act and submitted that after amended scheme was prepared and

approved in May 1988, the petitioner was allotted land and as the said

allotment was not challenged and objected to, the same has become final.

The said contention has no merit. The demarcation and allotment, if any,

was under the amended scheme which was made subject matter of

challenge in the proceedings under Section 42 of the Act before the

Financial Commissioner. The said challenge has been upheld and the

amended scheme has been set aside. Any allotment or demarcation under

the amended scheme therefore must be treated as wrong and illegal and

WPC No.500/1993 Page 11 has to go. As already stated above, allotments have now been made to the

right holders pursuant to the directions issued by the Financial

Commissioner under Section 42 of the Act and not under the amended

scheme. Reliance on Section 21(2) of the Act is misconceived.

16. As the matter has remained pending for a very long time, the

Financial Commissioner will try and dispose of the matter as early as

possible. Parties will appear before the Financial Commissioner on 4 th

March, 2010 when further date of hearing will be given. It is clarified that the

observations made in this Order will not be binding on any other party in

CCP No. 230/1997 and Writ Petition (Civil) No.5137/1999. The said

proceedings will be decided on merits. In the facts and circumstances of the

case there will be no order as to costs.

SANJIV KHANNA, J.

       FEBRUARY 05, 2010
       P/NA




WPC No.500/1993                                               Page 12