Om Prakash Gupta vs Govt. Of Nct Of Delhi & Others
2010 Latest Caselaw 465 Del

   * IN THE HIGH COURT OF DELHI AT NEW DELHI
   + W.P.(C) 3167/2007               Date: 28th January, 2010.

        OM PRAKASH GUPTA                    ..... Petitioner
                       Through             Mr. B.K. Sood, Mr. V.P. Rana and
                                           Mr. Yogesh Kr. Bhatt, Advocates.

                    versus

        GOVT. OF NCT OF DELHI & ORS.         .... Respondent
                          Through    Ms. Ruchi Sindhwani, Adv. for
                                     GNCTD.
                                     Mr. Sanjay Poddar, Advocate.
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA

                                 ORDER

% The petitioner, Mr. Om Prakash Gupta has impugned the

order dated 3rd April, 2007 passed by the Financial Commissioner

rejecting his revision petition filed under Section 42 of the East Punjab

Holdings (Consolidation and Prevention of Fragmentation) Act, 1948

(hereinafter referred to as the Act).

2. On 19th December, 1996 and 5th March, 1997, notification

under Section 14 (1) of the Act was issued for consolidation of

holdings in village Khera Kalan, Delhi. Scheme for consolidation was

finalized under Section 20 of the Act and was published on 18th June,

1999.

3. It is the case of the petitioner that as per the scheme, the

W.P.(C) No.3167/2007 Page 1 petitioner was allotted land measuring 1 bigha out of Khasra No.47/5

Min. by the Consolidation Officer in the general re-partition, which

took place between 7th December, 1999 and 10th December, 1999. It

is, however, the case of the petitioner that after the said dates, he was

allowed to cultivate the land in the said Khasra by the Consolidation

Officer/Tehsildar and he was given permission to construct boundary

wall vide permission dated 3rd October, 2001 by the Revenue

Assistant/SDM, Model Town.

4. Mr. Ram Gopal, the respondent No.2 herein vide sale deed

dated 25th July, 1989 had purchased 1 bigha land, which has been

allotted to the petitioner in the re-partition proceeding. During the

pre-consolidation proceedings, the respondent No.2 was in possession

of said land. It is the case of the respondent No.2 that he was never

dispossessed and continues to remain in possession.

5. The respondent No.2 filed an application dated 14th June,

2000 before the Consolidation Officer. The said application does not

state the provision under which it has been filed, but the prayer made

was that the respondent No.2 should be allotted land in Khasra

No.47/5, Min instead of Khasra No.64/2, Min. On this application, the

Consolidation Officer without issuing notice to any of the parties

W.P.(C) No.3167/2007 Page 2 including the petitioner reserved his order on 26th November, 2001

after Patwari had submitted his report. By order dated 26th November,

2001, the application filed by the respondent No.2 was allowed and he

was allotted land in Khasra No. 47/5, Min, which was earlier allotted to

the petitioner in the re-partition proceedings and the petitioner was

directed to be allotted land on the value to be computed.

6. The petitioner herein on 18th February, 2002, filed a revision

petition under Section 42 of the Act before the Financial

Commissioner. The revision petition was entertained and has been

dismissed on merits by the Financial Commissioner. The petitioner

herein had raised two main objections before the Financial

Commissioner; (i) The application filed by the respondent No.2 for

change of allotment under the consolidation scheme was time barred

and beyond the period of 15 days stipulated in Section 21(2) of the

Act; and (ii) the petitioner was not heard before the impugned order

dated 26th November, 2001 was passed by the Consolidation Officer.

7. The learned Financial Commissioner rejected the said

submissions, inter alia, recording as under:-

"8. It is not the case of the petitioner that the suit land lies in his preconsolidation holding nor has he rebutted the claim of the

W.P.(C) No.3167/2007 Page 3 respondent that the suit land was actually within his preconsolidation area. The respondent has submitted that he had purchased the suit land from one Sh,. Ram Kumar Gupta through a registered sale deed in July, 1989 and got a mutation done in favour of his wife and himself though mutation dt. 30.5.95. Admittedly, the consolidation proceedings was started in the village in 1996 and therefore the suit land was in his preconsolidation land. These facts have already been endorsed through the written submissions of the CO. Another important fact submitted by the respondent and the CO is that the physical possession of the allotted land was handed to the allottees after resolution no.77 dt. 18.6.04 was passed. It has been effectively rebutted the claim of the petitioner that he has been in physical possession of the land and has even cultivated the land with crops. The petitioner has not been able to place any record or documentation to establish his cultivation or physical cultivator possession on the suit land. Although the petitioner has relied upon permission granted by RA/SDM, Model Town to him to raise the boundary wall, there is no evidence placed on record to show that the boundary wall had actually been constructed consequent upon the approval dated Oct.

2001. The respondent has submitted that he had filed the objection to the allotment of the suit land to the petitioner and this has been admitted by the petitioner also. The copy of the Consolidation Scheme has a provision that only after objections u/s 21(2) of the Act have been finalized, the physical possession of the plots would be handed over to the allottees and copies of the

W.P.(C) No.3167/2007 Page 4 Register Karwahi Chakbandi shows an entry dt.18.6.204 which shows that the proceedings u/s 21(2) had been completed and intimation is given to the allottees to take over the possession of their plots.

Under these circumstances I do not find any reason for interfere with the impugned order.

8. The aforesaid reasoning given by the Financial Commissioner

does deal with the main contention of the petitioner that the

respondent No.2 had not filed any application under Section 21(2) of

the Act within a period of 15 days from the date of publication.

Learned Financial Commissioner, on the other hand, has gone on the

basis of the resolution, by which the physical possession was directed

to be given to the allottees. The said resolution was passed on 18th

June, 2004. The Financial Commissioner treated the date 18th June,

2004, as the end point, when objections under Section 21(2) of the Act

were required to be filed. This, it has been stated by the Financial

Commissioner, shows that the re-partition proceedings were complete

and thereupon intimation was given to the allottees to take the

possession of their plots. The learned Financial Commissioner has

failed to notice that the respondent No.2 had not filed any objection

within 15 days from the date boundary of the holding was demarcated

W.P.(C) No.3167/2007 Page 5 and shown in the Sharja, which has to be published in the prescribed

manner in the estate or estates concerned, as stipulated in Section

21(2) of the Act. It may be relevant to reproduce Section 21(1) and (2)

of the Act, which read as under:-

"21. re-partition-(1) The Consolidation Officer shall after obtaining the advice of the landowners of the estate or estates concerned, carry out re-partition in accordance with the scheme of consolidation of holdings confirmed under Section 20, and the boundaries of the holding is demarcated shall be shown on the sharja which shall be published in the prescribed manner in the estate of estates concerned.

(2)Any person aggrieved by the re-partition may file a written objection within fifteen days of the publication before the Consolidation Officer who shall after hearing the objector pass such orders as he considers proper confirming or modifying the re-partition."

9. Under Section 21(1) of the Act, the Consolidation Officer is to

carry out re-partition in accordance with the scheme after the same

has been confirmed under Section 20 and the boundary of the holding

is demarcated and shown in the sharja, which has to be published in

the prescribed manner in the estate or estates concerned. Under sub-

section (2), any person aggrieved by the re-partition has a right to file

written objection within 15 days of the publication before the

W.P.(C) No.3167/2007 Page 6 Consolidation Officer. Sub-section (2) does not provide for extension

of period of limitation in filing of objections. The Financial

Commissioner, therefore, has erred in referring the date 18th June,

2004, the date on which the resolution was passed for handing over

the possession to the allottees. The said resolution records that the

proceedings under Section 21(2) of the Act had been finalized. This

means that the objections, which were filed by the third parties within

the period specified under Section 21(2) of the Act, had been

examined and dealt with. This does not mean that objections by

others, who had not filed objections under Section 21(2) of the Act can

be entertained at any time ever after expiry of 15 days from the date

of publication of sharja. It is not a case of the respondent No.2 that

any application/objection filed under Section 21(2) of the Act had a

chain reaction and deprived the said respondent or the petitioner of

their respective allotments as per the sharja. If that was the case, the

position may have been different. In the present case, the allotment

made under the scheme/sharja to the petitioner or the respondent

No.2 was not subject matter of the objections filed under Section

21(2) of the Act within 15 days from the date of the publication of

sharja.

W.P.(C) No.3167/2007 Page 7

10. Counsel for the respondent No.2 during the course of

hearing has drawn my attention to the Sections 24 and 42 of the Act.

The said Sections read as under:-

"24. Coming into force of scheme-[(1)- As soon as the persons entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them the scheme shall be deemed to have come into force and possessin of the allottees affected by the scheme of consolidation or, as the case may be, by re-partition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of sub-section (2), (3), (4) of Section 21 or an order passed under Section 36 or 42 of this Act].

[(2) A Consolidation Officer shall be competent to exercise all or any of the powers of a Revenue Officer under the Delhi Land Revenue Act 1954, or the U.P. Land Revenue Act, 1901, as in force in the Union Territory of Delhi. As the case may be, for purpose of compliance with the provisions of sub-section (1)]"

42. Power of Chief Commissioner to call for proceedings-The Chief Commissioner may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or re- partition made by any officer under this Act call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:

W.P.(C) No.3167/2007 Page 8 Provides that [no order, scheme or re- partition shall be varied] or reserved without giving the parties interest notice to appear and opportunity to be heard [except in cases where the Chief Commissioner is satisfied that the proceedings have been vitiated by unlawful consideration:]"

11. Section 24 of the Act states that the scheme is deemed to

have come into force when persons entitled to possession of holdings

under the scheme have entered into possession of their holdings and

possession of the allottees affected by the scheme of consolidation by

re-partition shall remain undisturbed until a fresh scheme is brought

into force or an order is passed under Section 36 or 42 of the Act. It

also stipulates that change may be ordered pursuant to sub-section (2)

(3) or (4) of Section 21. Section 24(2) of the Act stipulates that a

Consolidation Officer is competent to exercise all or any of the power

of a Revenue officer under the Delhi land Revenue Act, 1954 or the

U.P. Land Revenue Act, 1901 as in force in Union Territory of Delhi for

the purpose of compliance to the provisions of the sub-section (1).

Under section 42, the Chief Commissioner can exercise revisionary

power. The said power is exercised by the Financial Commissioner.

Under the said provision, the Financial Commissioner, can at any time,

for satisfying himself as to the legality or propriety of re-partition

W.P.(C) No.3167/2007 Page 9 made by any officer under this Act, call for and examine the records. It

is a contention of the counsel for the respondent No.2 that the said

respondent could have/can at any time move before the Financial

Commissioner under Section 42 of the Act as the re-partition made by

the Consolidation Officer was contrary to the scheme itself and there

were other illegalities also. He further submits that the respondent

No.2 did not move any application under the said Section as vide order

dated 26th November, 2001, the Consolidation Officer had allowed his

application. It is accordingly submitted that he was not required to

move and file a revision petition under Section 42 of the Act as the

grievances of the said respondent were redressed.

12 In view of the aforesaid discussion, I set aside the order

passed by the Financial Commissioner dated 3rd April, 2007 and the

order dated 26th November, 2001 passed by the Consolidation Officer.

Authorities will proceed in accordance with law and the provisions of

the Act. It is clarified that the respondent No.2 is at liberty to file a

revision petition under Section 42 of the Act or any other appropriate

proceedings, if so advised. It is clarified that this Court has not

examined whether any such proceedings are maintainable and the

claim of the respondent No.2 or the petitioner on merits. If any

W.P.(C) No.3167/2007 Page 10 proceedings are initiated by the respondent No.2, the same will be

considered without being influenced by the observations made in this

order which is solely based on the fact that the respondent No.2 had

not filed any objections within a period of 15 days under Section 21(2)

of the Act. Only the said finding and effect thereof will be binding on

the parties. The writ petition is disposed of. No costs.

SANJIV KHANNA, J.

      JANUARY 28, 2010
      NA




W.P.(C) No.3167/2007                                                Page 11