Ram Phool vs Tej Singh & Others
2010 Latest Caselaw 974 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+        W.P.(C) 5135/2007


%                               Date of decision : 19th February, 2010.

         RAM PHOOL                  ..... Petitioner
                           Through Mr. Rajendra Dutt, advocate.

                    versus

         TEJ SINGH & ORS                    ..... Respondents
                           Through Mr. Arvind Rana, advocate for
                           Mr.V.P.Rana, advocate for R-1.
                           Mr.Parvinder Chauhan, advocate for R-2&3
                           Mr. N.S.Dalal, advocate for Respondent.
                           Mr. Subhash Kamboj, advocate for counsel
                           for L.R.s of R-6.

         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA


                                ORDER

1. Petitioner-Mr. Ram Phool and his five co-sharers-respondents

herein had a joint khata of agricultural land in Vill. Khera Kalan,

Delhi.

2. Consolidation proceedings were initiated vide Notification

dated 19th December, 1996 under Section 14(1) of the East Punjab

Holdings (Consolidation and Prevention of Fragmentation) Act, 1948

(hereinafter referred to as the Act, for short). Thereafter, draft

consolidation scheme was announced on 18th June, 1999 and

confirmed by the Settlement Officer on 13th August, 1999. The

repartition scheme was published and undertaken under Section

WPC No.5135/2007 Page 1 21(1) from 7th December, 1999 to 10th December, 1999.

3. Some of the co-sharers sought partition of the agricultural

land. The petitioner and another co-sharer-Mr.Ram Kishan objected

to the partition of Khewat. In view of the consolidation scheme and

Section 21(2) of the Act read with Rule 4(5) of the applicable Rules,

the objection was upheld and it was held that till all co-sharers

agreed to separation of the Khata of the Khewat, joint holdings

cannot be separated. This Order dated 9th November, 2001 passed

by the Consolidation Officer is now the subject matter of an appeal

pending before the Settlement Officer. In this appeal, there are

allegations that all the co-sharers had agreed to partition, etc. We

are not concerned with this appeal, which is still sub judice.

4. The consolidation scheme also provided for allotment of

residential plots and industrial plots. Each shareholder was entitled

to separate a industrial plot as well as residential plot after

necessary deduction of value from the joint khata. The petitioner

and all the co-sharers agreed to the said deduction from the joint

khata for allotment of separate industrial and residential plots.

Accordingly, the joint khata of the agricultural land was reduced by

the proportionate value and the joint holders/co-sharers were

allotted the following industrial and residential plots as per details

given below :-

WPC No.5135/2007                                                 Page 2
      S.No.    Name of Person      Industrial Plot   Residential Plot

     1.      Sh.Tej singh       108/492(0-06)       106/1 (1-14)
                                                    106/2 (0-08)
     2.      Sh.Om Parkash      108/496 (0-06)      106/172 (2-02)

     3.      Sh.Ram Kumar       108/487 (0-06)      106/475 (2-02)

     4.      Sh.Ram Phool       108/490 (0-06)      106/53 (2-02)

     5.      Sh.Sukhbir Singh   108/495 (0-06)      106/478 (2-02)

     6.      Sh.Ram Kishan      108/491 (0-06)      106/143 (2-02)

     7.      Sh.Raj Bir         108/494 (0-06)      106/2 (1-14)
                                                    106/455 (0-08)

5. The petitioner and all co-sharers were issued passbook and

even possession of the industrial and residential plots were given.

As noticed above, the scheme of partition was published and

implemented by 10th December, 1999. The petitioner did not at that

time raise any objection with regard to allotment of industrial and

residential plots.

6. On 6th January, 2000, the petitioner herein moved an

application for surrender of the industrial and residential plot

allotted to him in a consolidation scheme and wanted allotment of

agricultural land in lieu of the said plots. This application was

allowed by the Consolidation Officer vide order dated 8th May, 2003

and additional agricultural land measuring 4-16 biswa in khasra no.

68/18 was allotted to the joint khata of the petitioner with his co-

sharers.

WPC No.5135/2007 Page 3

7. One of the co-sharers, Mr.Tej Singh filed an appeal against the

said order of the Consolidation Officer before the S.D.M. i.e. the

Settlement Officer (Consolidation), Narela. During the pendency of

the appeal proceedings, son of the petitioner-Mr. Ajit Singh who was

also power of attorney holder of the petitioner, appeared and made

a statement that the matter had been amicably settled and in terms

of the said settlement, the appeal may be allowed and the

impugned order dated 8th May, 2003 passed by the Consolidation

Officer may be set aside. The petitioner has not disputed the said

statement or challenged the same.

8. The Settlement Officer (Consolidation) allowed the appeal vide

order dated 25th May, 2006. While allowing the appeal he recorded

on merits that all the co-sharers had agreed to deduction of value in

the joint khata of agricultural land and thereafter individual

industrial and residential plots were allotted to the co-sharers. Thus

right to allotment of industrial and agricultural land were crystallized

and perfected. He observed that after the said crystalisation and

perfection, no party could be allowed to withdraw and change their

stand as it would effect the entire scheme. It was further observed

that the Consolidation Officer was wrong in allowing the application

filed by the petitioner without notice to and hearing the other co-

sharers, as it would affect their rights.

9. The Settlement Officer (Consolidation) also went into the

question whether the petitioner should be allowed to retain the

WPC No.5135/2007 Page 4 industrial and residential plot allotted to him, which was

surrendered. It was noticed that the said plots had been allotted to

third parties and therefore the petitioner could not be reallotted the

said plots. Balancing out equities, Settlement Officer

(Consolidation), Narela held that the petitioner alone would be

entitled to further allotment of 4.16 biswa of agricultural land and

the said land would not be treated as joint khewat of the co-sharers.

This was a just and fair solution to the entire problem which had

arisen due to the petitioner's conduct of first agreeing to deduction

from joint khata for allotment of industrial and residential plots and

then backing out and seeking agricultural land in lieu of the

allotment made to him. The petitioner alone was responsible for the

said situation. In any case agricultural land of equal value was

directed to be allotted to him.

10. Learned Financial Commissioner has referred to these

aspects in his order dated 21st May, 2007 and has upheld the order

passed by the Settlement Officer (Consolidation).

11. Learned counsel for the petitioner submitted that there is a

contradiction in the impugned orders passed by the Settlement

Officer (Consolidation) and the Financial Commissioner and the

order dated 9th November, 2001 passed by the Consolidation officer

refusing to separate joint khata of the khewat. It is stated that

appeal against the order dated 9th November, 2001 is still pending.

The said contention though attractive at the first instance, on a

WPC No.5135/2007 Page 5 deeper scrutiny has no merit. Separation of joint khata of the

khewat on agricultural land is something separate and distinct from

allotment of industrial and residential plots to the co-sharers.

Agricultural land in the joint khata still remains common and the

issue whether it should be partitioned/separated is subject matter of

appeal. However, the parties had agreed to separate industrial and

residential plots and deduction of proportionate value from their

joint khata of their respective shares in the agricultural land. Having

agreed to the same, now the petitioner cannot be allowed to back

out after the said allotment of industrial and residential land had

crystallized and had become final. The impugned orders, therefore,

do not in any way effect or negate the order dated 9th November,

2001 passed by the Consolidation Officer. The appeal filed by Mr.

Tej Singh-respondent no.1 herein remains to be decided on merits.

It is clarified that the orders passed by the Financial Commissioner

and the Settlement Officer (Consolidation), Narela impugned in the

present Writ Petition will have no bearing on the decision of the

pending appeal which relates to separation of joint khata of

agricultural land.

Writ Petition is accordingly dismissed. No costs.

SANJIV KHANNA, J.

      FEBRUARY 19, 2010
      P/NA




WPC No.5135/2007                                                 Page 6