Parminder Singh & Others vs Financial Commissioner & Others
2010 Latest Caselaw 1490 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 23498-501/2005

      PARMINDER SINGH & ORS.                     ..... Petitioner
                     Through           Mr. N.S. Dalal, Adv.

                    versus

      FINANCIAL COMMISSIONER & ORS.        .... Respondent
                       Through  Mr. Som Dutt Kaushik and
                                Mr. S. Kumar Srivastava,
                                Adv. for R-1 and 9.
                                Mr. V.P. Rana, Adv. for R-8.
+     W.P.(C) 23917/2005

      JITENDER SINGH                         .... Petitioner
                             Through   Mr. V.P. Rana, Adv.

                    versus

      GOVT. OF NCT OF DELHI & ORS.      .... Respondent
                      Through     Mr. Som Dutt Kaushik and
                                  Mr. S. Kumar Srivastava,
                                  Adv. for R-1, 2, 15 & 16.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                             ORDER

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1. On 20th December, 1996, a notification under Section 14 of

the East Punjab Holding (Consolidation and Prevention of

Fragmentation) Act, 1948 was issued in respect of revenue estate

in the village of Khera Kalan, Delhi. Subsequent thereto, the

W.P.(C) Nos.23498-501/2005 & 23917/2005 Page 1 repartition was effected during the period 7th December 1999 to

10th December, 1999.

2. The grandfather of the petitioners herein, namely, Mr.

Khazan Singh was a recorded co-bhumidar in respect of land

measuring 94 bighas 9 biswa in the said village. His undivided

share in the said land was 1/3. Mr. Khazan Singh died on 1st

October, 1994.

3. On 8th February, 1995, the petitioners on the basis of will

dated 4th July, 1994 applied to revenue authorities for mutation of

assets/holding in their favour. The said application was moved

before the notification under Section 14 of the East Punjab

Holding (Consolidation and Prevention of Fragmentation) Act,

1948 was issued. This application was allowed and mutation was

made in the revenue records in favour of the petitioners on 17th

December, 1999 i.e. few days after the re-partition was

implemented during the period 7th December, 1999 to 10th

December, 1999.

4. The allegation of the petitioners is that they have not been

given any residential or industrial plot as per the consolidation

W.P.(C) Nos.23498-501/2005 & 23917/2005 Page 2 scheme though they had submitted an application before the cut

of date, i.e. 18th June, 1999, for surrender of agricultural land and

allotment of residential plot/industrial plot.

5. Learned Financial Commissioner in the impugned order

dated 24th November, 2005 has rejected the revision petition filed

under Section 42 of the East Punjab Holding (Consolidation and

Prevention of Fragmentation) Act, 1948 recording as under:-

"7. I have carefully considered the submissions made by the Ld. Counsels. It is true that during the consolidation proceedings from 20.12.1996 to 10.12.1999, the petitioners were not bhoomidars. They become bhoomidars only on 17.12.99. As only a bhoomidar could have asked for residential and industrial plot, obviously, the petitioners had no locus standi to ask for them. Evidently, one of their brothers on behalf of all of them raised objections but subsequently on being explained by the CO, withdrew the same. It is also true that appeal was time barred before the SO(C) and he has rightly observed it."

6. It is not possible to agree with the observations and findings

of the Financial Commissioner that the petitioners were not

entitled to ask for residential and industrial plot because they

were recorded as bhumidar only on 17th December, 1999. What is

W.P.(C) Nos.23498-501/2005 & 23917/2005 Page 3 relevant is that date on which the petitioners had made the

application for being recorded as bhumidar after the death of Mr.

Khazan Singh. In case of death inheritance is immediate and takes

place by law of transmission and there is no gap. The property is

inherited immediately on death. Further, the petitioners cannot

be blamed for the delay in the mutation they cannot be penalized,

and punished if their application for recording of mutation had

remained pending and consideration with the revenue authorities.

Mutation once allowed will relate back to the date when the

application was filed unless there is a reason or ground to

prescribe another date. Therefore, the Financial Commissioner

was not justified in not examining the contentions raised by the

petitioners on merits only on the ground that the petitioners were

recorded as bhumidars on 17th December, 1999 and the

repartition was implemented during the period 7th December,

1999 to 10th December, 1999.

7. The Financial Commissioner has also recorded in the

impugned order that one of the petitioners, namely, Mr. Jitender

Singh, who is brother of the other petitioners, had withdrawn his

W.P.(C) Nos.23498-501/2005 & 23917/2005 Page 4 objections before the Consolidation Officer under Section 21(2) of

the East Punjab Holding (Consolidation and Prevention of

Fragmentation) Act, 1948 and had belatedly filed an appeal before

the Settlement Officer (Consolidation).The aforesaid facts appear

to be correct in view of the documents, which have been placed

on record to show that the objections filed under Section 21(2) of

the aforesaid Act were withdrawn by Mr. Jitender Singh on 30th

August, 2001 and thereafter no appeal was filed till 30th August,

2002. Other petitioners, is can be presumed, were aware about

the said withdrawal and had not taken any step to file an appeal.

To this extent, the order of the Financial Commissioner appears to

be correct and merits no interference.

8. Counsel for the petitioners have submitted that even if they had not filed or withdrawn their objection u/S.21(2), they were entitled to and had invoked revisionary power of the Financial Commissioner under Section 42 of the of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948 as they were wrongly denied allotment of residential or industrial plot and even otherwise as per the scheme itself they were entitled to allotment at a specific location. Counsel for the petitioner have drawn my attention to the revision petition filed

W.P.(C) Nos.23498-501/2005 & 23917/2005 Page 5 under Section 42 of the aforesaid Act in which various contentions and issues have been raised. This aspect has not been examined by the Financial Commissioner. Accordingly, the matter is remanded back to him to examine this aspect and contention. The Financial Commissioner will examine and consider whether any direction or prayer can be granted under Section 42 of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948, even if the objections under Section 21(2) of the aforesaid Act were withdrawn or not filed. All contentions are left open except to the extent indicated above. The writ petitions are accordingly disposed of. In the facts and circumstances of the case, there will be no order as to costs. Parties will appear before the Financial Commissioner on 19th April, 2010, when a date of hearing will be fixed. Separate notice for hearing need not be issued to the parties.

SANJIV KHANNA, J.

MARCH 17, 2010
NA/P




W.P.(C) Nos.23498-501/2005
& 23917/2005                                                  Page 6