Sh. Raghubir Singh & Ors. vs Financial Commissioner & Ors.
2010 Latest Caselaw 844 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment reserved on : 14th January, 2010
                           Judgment delivered on: 15th February, 2010


+      W.P.(C) 7392/2002

SH. RAGHUBIR SINGH & ORS.            ..... Petitioners
             Through: Mr. Vikram Nandrajog, Advocate


                         -versus-


FINANCIAL COMMISSIONER & ORS.       ..... Respondents
            Through: Mr. V.K. Tandon, Advocate


CORAM:-
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE VEENA BIRBAL


1.     Whether the Reporters of local papers may be allowed to
       see the judgment?

2.     To be referred to the Reporter or not? yes

3.     Whether the judgment should be reported in Digest? yes


VEENA BIRBAL, J.

1. On 01.09.1988, the Delhi Government issued a

notification under Section 14(1) of the East Punjab Holdings

(Consolidation and Prevention of Fragmentation) Act, 1948

(hereinafter referred to as the „said Act‟) as extended to Delhi

whereby it declared its intention to make a scheme for the

consolidation of holdings in the village Nangli Poona.

Consolidation proceedings started accordingly.

2. Rule 6 of the Delhi Holdings (Consolidation and

Prevention of Fragmentation) Rules, 1959 (hereinafter referred

to as "the said Rules") lays down the principles which guide the

Consolidation Officer in preparing the scheme. Rule 6 as

originally stood was as follows:-

"6. Statement of principles etc. of the Scheme. - In preparing a scheme of Consolidation, the Consolidation Officer shall have regard to the following principles:-

(a) Blocks shall comprise of homogenous land of similar quality.

(b) The number of plots to be allotted to an owner shall not except with the previous sanction of the Settlement Officer and for reasons to be recorded in writing exceed the number of blocks into which a village has been divided.

(c) As far as possible only those owners shall be allotted land in any particular block who already held land therein.

(d) Every owner shall, as far as possible, be allotted land in a block at the place where he holds the biggest plot.

(e) The owner holding land in two contiguous villages shall, as far as possible, be allotted land on the common boundary line.

(f) The owners belonging to the same family, shall, as far as possible, be given neighbouring plots.

Explanation:- The family of a person includes the wife or husband, the sons and their wives, the daughters, grand-children and great grand children.

(g) If a land-owner has all his land in one compact block of 8 acres or upwards, his existing holding shall not, as far as possible, be disturbed or divided, irrespective of the multiplicity of blocks.

(h) The alignment of canal water courses shall be as determined by the Irrigation Department. The well water courses shall as far as possible run straight and along the boundaries of the plot.

(i) All agricultural labourers and village artisans who are without accommodation or who have insufficient accommodation shall be allotted land for residential purposes, free of compensation, upto 2 ½ biswas (126 square yards) at a suitable place.

(j) Such other matters as the Settlement Officer (Consolidation) may consider necessary in this behalf."

3. During the pendency of the abovesaid consolidation

proceedings, the Delhi Holdings (Consolidation and Prevention

of Fragmentation) Rules, 1959 as framed under the said Act got

amended vide notification dated 03.02.1992. Amongst other

amendments, Rule 6 was amended. The then existing clause (j)

in said rule was renumbered as clause (m) and new clauses (j),

(k) & (l) were added which run as follows:-

"(j) the ratio for exchange of agricultural land with the land to be provided in the extended abadi area shall be 3:1 during consoliation.

(k) The size of the plot to be provided in the extended abadi area to a bonafide resident of the village shall not exceed the area of half an acre i.e. (2 bighas and 8 biswas).

(l) The facility of providing residential plots in the extended abadi area shall be available only to the bonafide residents of the village residing in the village for the last twenty years. The record date for counting this period shall be the date of issue of first statutory notification for consolidation of holdings in the village."

4. Again on 12.06.1996, another amendment was made to

the aforesaid Rules. This time the clause (j) was inter alia

again amended and the same was substituted with a new clause

which runs as follows:-

"(j)(i) Bhumidhar whose land has been included in the extension of the village abadi may be given agricultural land worth two times the value of land surrendered.

(ii) Bhumidhar who has applied for allotment of plot in the extension of the village abadi shall

surrender in exchange during consolidation two times the size of agricultural land subject to the size of plot and his eligibility.

(iii) The maximum size of a residential plot to be provided in the extension of the village abadi to a bonafide resident of the village shall be two bighas and eight biswas out of which the "bhumidhar" can take industrial plot upto a maximum size of six biswas. Allotment of such plot shall be done through draw of lots.

(iv) Wherever necessary, the maximum "Muzarai" that may be deducted shall be two biswas per bigha only (when adequate gaon Sabha land is not available in the village for common purpose.)

(v) The allottee of industrial plot shall neither transfer or sell the same in any manner nor shall amalgamate it with other land."

In addition, clause (l) was renumbered as clause (k) and

then the following was inserted:

"(l)(A) cases fit for regularization as „Kayami‟ shall be as under:-

(l) Residential units constructed for self occupation, on the individual‟s own holding, by a person who has resided in the village for a period of at least twenty years, and subject to the condition that the size of the plot does not exceed the area of half an acre (2 bighas and 8 biswas)."

5. The scheme of consolidation at Village Nangli as had

been initiated in the year 1988 was prepared by the

Consolidation officer on 02.08.1996 and confirmed by the

Settlement Officer in the year 1999.

6. The case of the petitioners in the writ petition is that they

are the residents of the village Nangli Poona since the year

1972 and have been carrying out commercial activity in the

said village since then. It is further their case that upon

consolidation, their pre-consolidation land holdings came

within the extended abadi area and thus they became entitled

to allotment of residential plots in the post-consolidated

holdings. It is also their case that on receipt of copy of the

consolidation pass book depicting the land allotted to them on

02.06.2001, they became aware of the fact that though they

had been allotted land in the village, they had neither been

allotted residential plot within the extended abadi area nor any

industrial plot even though they had made demands for

allotment of residential and industrial plot.

7. The petitioners accordingly filed objections under Section

21(1) of the said Act before the Consolidation Officer. The

Consolidation Officer after hearing their counsel vide its order

dated 29.06.2001 dismissed the objections. The petitioners

preferred a revision petition under Section 42 of the said Act

before the Financial Commissioner which also got dismissed on

04.07.2002. Both authorities were of the opinion that as the

petitioners admittedly had not been the residents of the village

for a period of twenty years prior to the date of the notification

dated 01.09.1988, they were not entitled for the land as desired

by them. The Consolidation Officer as also the Financial

Commissioner did not agree with their contention that as the

proceedings had commenced before the amendment of the Rule

which stipulated the condition of twenty years residence, the

same shall not apply to the present consolidation proceedings.

8. In the present writ petition, the petitioners besides

challenging the orders passed by the Consolidation Officer and

Financial Commissioner also impugn the constitutional validity

of the Rule 6(k) to the extent that the same stipulates that the

residential plots shall be available to the persons resident in

the village for the last twenty years as arbitrary and

discriminatory. It is contended that normally the consolidation

proceedings take place once in every 40-50 years and thus it

may not be possible for the persons such as the petitioners to

attain the residential plot in their life. It is also contended that

arbitrariness of Rule 6(k) is evidenced from Rule 2 (3) of the

Rules, which pertains to declaration of „Kayami‟ and provides

that the land on which structures are in existence, prior to the

Section 14 notification under the Act, are eligible for being

declared „Kayami‟. The Rules do not provide time period for

which the structure should be standing whereas Rule 6(k)

provides onerous condition of 20 years residence counted from

the date of first statutory notification for consolidation of

holdings. Thus a person who might have built the structure

just prior to the notification under Section 14 of the Act may be

entitled to the benefit, but persons such as the petitioners may

not be so entitled. In the alternative, it is contended that as the

proceedings had commenced before the amendment of the Rule

which stipulated the condition of twenty years residence, the

same shall not apply to the present consolidation proceedings.

We find it difficult to accept the contentions on behalf of

the petitioners.

Prior to 1992, the Rules did not contemplate grant of

residential or industrial plot to land holder in lieu of the

agricultural land. The enabling provision for exchange of

agricultural land with the land to be provided in the extended

abadi area was made by the amendment of the Rules in the

year 1992 and 1996. While introducing the provision for

exchange, it was certainly open for the rule making authority to

lay down such terms and conditions including requirement of

tenure of residence in the village as may be considered

appropriate by it. The requirement of long residence in the

village prior to the date of notification under Section 14 of the

Act as a precondition for exchange of agricultural land in lieu of

land in extended abadi area cannot be considered as arbitrary

or discriminatory in any manner. That part of the rule is also

not liable to be struck down on the ground that normally that

consolidation proceedings take place once in every 40-50 years

and thus it may not be possible for the persons such as the

petitioners to attain the residential plot in their life. The rule is

merely laying down the condition for exchange of agricultural

land in lieu of land in extended abadi. The petitioners were the

holders of the agricultural land and they have been allotted

agricultural land accordingly. May be the petitioners feel

aggrieved that they are residing in the village for 16 years

which is very close to 20 years but they don‟t fulfil the criteria

which is laid down in the Rules. Further, hardship in individual

cases is not a ground for striking down a provision of law.

In view of above discussion, no case is made out by the

petitioners which calls for interference under Article 226 of the

Constitution of India.

Petition stands dismissed.

VEENA BIRBAL, J.

SANJAY KISHAN KAUL, J.

February 15, 2010 kks