Sheopal And Ors vs Gnct Of Delhi & Ors.
2010 Latest Caselaw 3141 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 2041/2010, CM No.4104/2010 (u/S 151 CPC for
         interim relief) & CM No.7690/2010 (of the respondents no.4 to
         6, 9 to 12, 14 to 16 & L.Rs of respondents no.7,8 & 13 for
         modification of the ex parte order dated 25th March, 2010).

%                                             Date of decision: 7th July, 2010

SHEOPAL AND ORS                                       ..... Petitioners
                            Through: Mr. Anand Yadav & Ms. Anita
                                     Tomar, Advocates

                                    Versus

GNCT OF DELHI & ORS.                      .... Respondents
                 Through: Mr. Rajiv Nanda & Ms. Rachna
                          Saxena,      Advocates        for
                          Respondents no.1 to 3.
                          Mr. Maheshwar Dayal, Sr. Advocate
                          with Mr. A.C. Mittal, Advocate for
                          Respondents no.4 to 16.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

2.       To be referred to the reporter or not?              No

3.       Whether the judgment should be reported             No
         in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petitioners preferred this writ petition impugning the order

dated 26th June, 2009 of the Financial Commissioner in the revision

petition under Section 42 of the East Punjab Holdings (Consolidation &

Prevention of Fragmentation) Act, 1948 preferred by the respondents

no.4 to 16. The Financial Commissioner by the said order has allowed

the said revision petition of the respondents no.4 to 16 and directed the

Consolidation Officer to reframe the Consolidation Scheme after taking

into consideration the findings / illegalities therein as recorded in the

said order.

2. It is inter alia the contention of the petitioners that they are the

"interested parties" within the meaning of proviso to Section 42 (supra)

requiring notice to be issued to all the "interested parties" but the

aforesaid order of the Financial Commissioner was made without

issuing notice to them. This Court vide ex parte order dated 25th March,

2010 while issuing notice of the petition stayed the operation of the

order of the Financial Commissioner.

3. CM No.7690/2010 was filed by the respondents no. 4 to 16 for

vacation / modification of the aforesaid ex parte order. This Court vide

order dated 4th June, 2010 on the said application recorded the

statement of the counsel for the petitioners and the counsel for the

respondents no.4 to 16 undertaking to this Court that none of them shall

transfer the land without permission of the Court and shall also

maintain the status quo with regard to the agricultural land. It was

further stated with respect to the Abadi land that the same shall not be

transferred and sold to any third party and in case any construction is

made neither party shall claim any equity and it will not be a ground

that will affect the final outcome / relief in this writ petition.

4. The senior counsel for the respondents no.4 to 16, without

prejudice to the rights and contentions of the said respondents, has

today at the outset stated that the matter be remanded to the Financial

Commissioner for decision afresh after hearing the petitioners. The

counsel for the respondents no.1 to 3 also has no objection to the said

order.

5. The counsel for the petitioners however opposes. He seeks an

opportunity to file the rejoinder to the reply filed by the respondents no.

4 to 16. He contends that he, besides the ground of having not been

granted an opportunity of being heard, has raised other grounds also

impugning the order of the Financial Commissioner. It is contended

that the consolidation proceedings had come to an end and there was no

consolidation officer who could have been heard by the Financial

Commissioner or who could have been impleaded as a respondent in

the proceedings before the Financial Commissioner. He further

contends that the power under Section 42 can be exercised by the

Financial Commissioner only during the pendency of the consolidation

proceedings and not after the same have been concluded and the record

thereof consigned. Reliance in this regard is placed on Chahat Khan

Vs. State of Punjab AIR 1966 Punjab 111 dealing with Section 36 of

the Act and laying down that the expression "at any time" in Section

36 would not mean after the proceedings have terminated.

6. It is contended by the counsel for the petitioners that since the

petitioners are challenging the very maintainability of the petition under

Section 42 before the Financial Commissioner, instead of the matter

being remanded back to the Financial Commissioner on the concession

aforesaid of the respondents, this Court should adjudicate upon the

maintainability of the revision petition preferred by the respondents

no.4 to 16 under Section 42 of the Act before the Financial

Commissioner.

7. Though it is deemed expedient to leave the aforesaid

adjudication to the Financial Commissioner, inasmuch as even if the

procedure under proviso to Section 42 (supra) of giving notice to the

petitioners had been followed by the Financial Commissioner, the

petitioners would have been required to first address their opposition to

the revision petition before the Financial Commissioner only, and this

Court in the exercise of writ jurisdiction i.e. of judicial review ought

not to entertain and decide pleas in the first instance but the counsel for

the petitioners insists that the matter be not remanded without first

dealing with the said aspect.

8. To appreciate the contention of the counsel for the petitioners, it

is necessary to set out Sections 36 and 42 herein below:

"36. Power to vary or revoke scheme - A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the Chief Commissioner that may be made in relation thereto and a

subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act."

"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 repartition 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:

Provided that no order, scheme or repartition shall be varied or reserved without giving the parties interested 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."

9. Section 42 expressly uses the words "......of any case pending

before or disposed of by such officer .........." which are missing in

Section 36. Thus the contention that the revision petition under Section

42 could be filed only during the pendency of the consolidation

proceedings and not after conclusion thereof appears to be contrary to

the express language of the statute. The judgment cited deals with

Section 36 only which is with respect to powers of Consolidation

Officer and whose powers are distinct from the powers of Financial

Commissioner under Section 42. Rather the Full Bench in Chahat

Khan (supra) expressly observed that they were not dealing with

Section 42 and refused to follow the judgments with respect to powers

of Financial Commissioner under Section 42. The Supreme Court in

Johri Mal Vs. Director of Consolidation of Holdings AIR 1967 SC

1568 distinguished between the powers under Section 36 & 42.

10. I also find that the same contention, raised by the counsel for the

petitioners herein, was negated by another Single Judge of this Court in

Rajinder Singh Vs. Financial Commissioner 122 (2005) DLT 151. It

was held that merely because objections had been adjudicated and

order had become final, the power under Section 42 could not be

curtailed or restricted in any manner and that the nature of finality and

the circumstances of a particular case are relevant factors to be

examined in each given case by the Financial Commissioner while

exercising or declining to exercise jurisdiction under Section 42.

11. Thus it cannot be said, as contended that the revision petition

under Section 42 before the Financial Commissioner was / is liable to

be dismissed at the threshold. It will however remain open to the

petitioners to contend so before the Financial Commissioner.

12. The writ petition is allowed in aforesaid terms. The order of the

Financial Commissioner is set aside and the matter is remanded to the

Financial Commissioner for decision afresh after hearing not only the

petitioners but also the other interested parties in accordance with the

proviso to Section 42. The counsels for the petitioners and the

respondents no.4 to 16 agree that the interim arrangement as aforesaid

shall continue till the disposal of the revision petition by the Financial

Commissioner. The senior counsel for the respondents no.4 to 16 seeks

time bound disposal of the revision petition by the Financial

Commissioner. Considering that notices may be required to be issued

to the other interested parties also, the Financial Commissioner is

requested to dispose of the writ petition within one year of today. It is

clarified that it will be open to all the parties to take all pleas available

to them in law in the proceedings before the Financial Commissioner.

The parties to appear before the Financial Commissioner on 28 th July,

2010. No order as to costs.

Dasti.

RAJIV SAHAI ENDLAW (JUDGE) 7th July, 2010 gsr