Sh. Satish Chand Kapoor ... vs The Financial Commissioner, ...
2010 Latest Caselaw 4394 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 20th September, 2010.

+        W.P.(C) No.2037/1992 & CM No.3935/1992 (for interim relief).

%

SH. SATISH CHAND KAPOOR
(DECEASED) THROUGH LR's                                        ..... Petitioner
                  Through:                Mr. R.P. Bansal Sr. Advocate with
                                          Mr. Rakesh Mahajan, Mr. Amit Singh
                                          & Mr. Gautam Anand, Advocates.

                                      Versus

THE FINANCIAL COMMISSIONER, DELHI & ANR. .... Respondents
                 Through: Ms. S.S. Dalal & Mr. D.P. Singh,
                           Advocates for R-2.
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 petitioner by this writ petition impugns the order dated 28th

February, 1992 of the Financial Commissioner, Delhi. For better

appreciation, hereinafter the facts are set out in chronological order.

2. The petitioner filed an application under Section 85 of the Delhi Land

Reforms Act, 1954 for having himself declared as Bhoomidar of 36 bighas

17 biswas of land situated in the Revenue Estate of Village Samaspur

Khalsa, Delhi. The respondent no.2 herein was impleaded as a respondent in

the said proceedings. It was the case of the petitioner in his application under

Section 85 (supra) that he had been in adverse possession of the land

belonging to the respondent no.2 herein; that the respondent no.2 had failed

to initiate ejectment proceedings against the petitioner within the prescribed

time and hence the petitioner had become entitled to Bhoomidari rights of

the said land. Notice of the said proceeding under Section 85 is stated to

have been issued to the respondent no.2 herein. The process server is stated

to have reported that the respondent no.2 herein refused to accept the notice.

The respondent no.2 herein was proceeded against ex parte and the

petitioner was declared as the Bhoomidar of the said land by the

SDM/Revenue Assistant, Najafgarh, Delhi on 15th January, 1985.

3. The respondent no.2 herein on 12th October, 1987 applied before the

SDM/Revenue Assistant for setting aside of the said ex parte order

contending that he learnt of the order dated 15 th January, 1985 only on 27th

September, 1987 and that neither was he ever served with the summons of

the proceeding under Section 85 of the DLR Act nor had he refused to

receive the same.

4. The petitioner herein opposed the said application and pleaded that the

application was barred by time. The petitioner in this regard relied on a

document dated 18th March, 1985 allegedly having the thumb mark of the

respondent no.2 and signature of the son of the respondent no.2 and in which

the respondent no.2 had admitted knowledge of the order dated 15 th January,

1985 declaring the petitioner as Bhoomidar.

5. The SDM/Revenue Assistant accepted the plea of the petitioner of

respondent no.2 at least on 18th March, 1985 having knowledge of the ex

parte order dated 15th January, 1985 and dismissed the application of the

respondent no.2 herein for setting aside of the ex parte order as being time

barred.

6. Aggrieved therefrom the respondent no.2 herein preferred the

Revision petition before the Financial Commissioner and from the order

wherein the present writ petition has been filed.

7. The Financial Commissioner in the order impugned before this Court

has recorded that he had called for the file culminating in the ex parte order

dated 15th January, 1985 declaring the petitioner as Bhoomidar; however the

said file was found to be not available and was not available before the

SDM/Revenue Assistant even when the application for setting aside of the

ex parte was made. The Financial Commissioner set aside the order of the

SDM/Revenue Assistant dismissing the application of the respondent no.2

for setting aside of the ex parte order dated 15th January, 1985 and set aside

the said ex parte order and remanded the matter to the SDM/Revenue

Assistant for decision afresh on the application of the petitioner under

Section 85 of the DLR Act, after hearing the respondent no.2. The Financial

Commissioner held that the SDM/Revenue Assistant had not given proper

opportunity to the respondent no.2 to meet the case set up by the petitioner

on the basis of the document dated 18th March, 1985 and on the basis

whereof only the application for setting aside of the ex parte was held to be

time barred. The Financial Commissioner further held that the petitioner had

failed to explain as to what prompted the parties to execute the said

document. The Financial Commissioner also held the missing original case

file to be a suspicious circumstance enough to set aside the order therein

proceeding ex parte against the respondent no.2.

8. This Court in exercise of writ jurisdiction would interfere with the

orders of the Tribunals/Authorities under its jurisdiction only if finding the

order to be in excess of jurisdiction vested in such Tribunal or Authority or

in failure to exercise jurisdiction. The writ jurisdiction is not intended to be

the same as an appellate jurisdiction. (See Veerappa Pillai Vs. Raman &

Raman Ltd. AIR 1952 SC 192, Syed Yakoob Vs. K.S. Radhakrishnan AIR

1964 SC 477 & Sadhu Ram Vs. Delhi Transport Corporation AIR 1984 SC

1467). The legislature has deemed it appropriate not to provide any further

challenge under the Delhi Land Reforms Act, 1954 to the orders of the

Financial Commissioner. This Court in violation of the legislative intent

cannot act as the Appellate Court. Ordinarily, an order of the

Tribunal/Authority if within its power and if based on reasons would not be

interfered merely because this Court may have formed a different opinion.

9. The Supreme Court in Ashok Kumar Vs. Sita Ram (2001) 4 SCC 478

held "The question that remains to be considered is whether the High Court

in exercise of writ jurisdiction was justified in setting aside the order of the

Appellate Authority. The order passed by the Appellate Authority did not

suffer from any serious illegality, nor can it be said to have taken a view of

the matter which no reasonable person was likely to take. In that view of the

matter, there was no justification for the High Court to interfere with the

order in exercise of its writ jurisdiction. In a matter like the present case

where orders passed by the statutory authority vested with power to act

quasi-judicially is challenged before the High Court, the role of the Court is

supervisory and corrective. In exercise of such jurisdiction, the High Court is

not expected to interfere with the final order passed by the statutory

authority unless the order suffers from manifest error and if it is allowed to

stand, it would amount to perpetuation of grave injustice. The Court should

bear in mind that it is not acting as yet another appellate court in the matter.

We are constrained to observe that in the present case the High Court has

failed to keep the salutary principles in mind while deciding the case."

10. Recently in Punjab Roadways Vs. Punja Sahib Bus & Transport Co.

(2010) 5 SCC 235 the Apex Court reiterated that a writ court seldom

interferes with the orders passed by such authorities exercising quasi-judicial

functions, unless there is serious procedural illegality or irregularity or they

have acted in excess of their jurisdiction.

11. In the present case there is no dispute that the Revision petition was

maintainable before the Financial Commissioner. The Financial

Commissioner has given reasons for setting aside of the order of the

SDM/Revenue Assistant and for setting aside of the ex parte order dated 15th

January, 1985. The reasons given are not such which are totally beyond the

context or which may shock the conscience of this Court. The suspicion

raised owing to the file containing the report of refusal of service by the

respondent no.2 having gone missing cannot be said to be unfounded. In fact

this Court also in the last 18 years since when the petition has been pending

before this Court made repeated efforts to call for the said file. The same is

however not available. It may be noticed that the file was found missing

even when the application for setting aside of the ex parte was moved before

the SDM/Revenue Assistant within about 2 ½ years of the ex parte order.

The said period of 2 ½ years was not such in which the file would ordinarily

be destroyed or could be lost. The fact that the file was missing within a

short time does raise questions of propriety.

12. I am therefore of the opinion that the order of the Financial

Commissioner is incapable of interference in writ jurisdiction.

13. There is another aspect of the matter. The order of the nature of

setting aside of the ex parte decision is essentially a discretionary order,

though discretion has to be exercised within the established parameters.

Once the discretion exercised is found to be not unreasonable, even an

Appellate Court would refuse to interfere in the same. The Supreme Court in

Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel (2006) 8

SCC 726 held that the appellate court may not reassess the material and

seek to reach a conclusion different from the one reached by the Court below

if the one reached by that Court was reasonably possible on the material -

the appellate court would normally not be justified in interfering with the

exercise of discretion under appeal solely on the ground that if it had

considered the matter at the trial stage it would have come to a contrary

conclusion. Recently in Pavan Sachdeva Vs. S.M.S. Pharmaceuticals

Ltd.(2008) 10 SCC 803 the Supreme Court set aside the order of the High

Court in exercise of revisional powers setting aside the order of the Trial

Court setting aside the ex parte decree.

14. However since the notice of the writ petition was issued and the same

has remained pending before this Court for the last 18 years, I refrain from

dismissing the writ petition on the aforesaid grounds alone and proceed to

deal with the arguments raised by the counsel for the petitioner. However

before doing so I must record that it is the petitioner who has shown laxity in

pursuing this petition. The petitioner was not willing to have the petition

argued even now and was forced to have it argued only when the same was

listed on day to day basis. In the interregnum, both the petitioner and the

respondent no.2 have died and their legal heirs have been substituted.

15. The counsel for the petitioner has argued that the respondent no.2 had

in fact sold the land aforesaid. On being asked to show the sale deed, it was

told that the sale was by way of Agreement to Sell, original whereof have

been filed before this Court and kept in a sealed cover. The said sealed cover

was called for and opened. The documents therein besides the Agreement to

Sell also contain Registered Receipts. All documents purport to bear the

thumb impression of the respondent no.2. Besides the said Agreement to

Sell, the documents also comprise of affidavit and General Power of

Attorney. It is contended that the said documents were nowhere challenged

by the respondent no.2. It is further argued that the respondent no.2 was a

resident of the same village and after the ex parte order dated 15th January,

1985, the petitioner had made improvement on the said land by raising

construction, installing tube-well and planting eucalyptus trees thereon and

without any objection from the respondent no.2 or any other person. It is

urged that the respondent no.2 being a resident of the same village was

aware of the said activities and is thus deemed to have been aware of the ex

parte order dated 15th January, 1985.

16. On enquiry from the counsel for the petitioner whether the petitioner

had any copy of the refusal report on the process sent to the petitioner, the

counsel relies in negative.

17. The counsel for the petitioner has further contended that the

respondent no.2 had not challenged the Girdawari entries in the name of the

petitioner and it is also argued that there has to be presumption of

correctness of the proceedings held by the SDM/Revenue Assistant. It is

stated that the Financial Commissioner has wrongly held that the

SDM/Revenue Assistant in the proceedings for setting aside of the ex parte

order did not grant proper opportunity to the respondent no.2 to meet the

defence of the petitioner on the basis of the document dated 18th March,

1985 aforesaid as from the order sheets of those proceedings it is shown that

the respondent no.2 failed to file the rejoinder inspite of opportunity and also

failed to appear before the SDM/Revenue Assistant. On enquiry as to the

stand of the respondent no.2 vis-à-vis the document dated 18th March, 1985,

it is stated that the Revision petition preferred by the respondent no.2 before

the Financial Commissioner is not available. However from the reply of the

respondent no.2 to the present petition it is contended that the document has

not been denied and there is no categorical denial of having not thumb

marked the said document. It is urged that the respondent no.2 after having

sold the land to the petitioner had turned dishonest and was blackmailing the

petitioner owing to the Sale Deed having not been executed and the

document dated 18th March, 1985 was also executed for the said reason only.

It is also urged that the son of the respondent no.2 was employed by the

petitioner as the chowkidar for the said land and the document dated 18th

March, 1985 also bears the signatures of the son of the respondent no.2.

Reliance is placed on Section 43 of the DLR Act to contend that the transfer

of the land with possession is deemed sale and the right of the respondent

no.2 stood extinguished under Section 67 (d) of the DLR Act. It is contended

that no case for interference in Revision by the Financial Commissioner,

with the well reasoned order of the SDM/Revenue Assistant dismissing the

application for setting aside of the ex parte order was made out. Reliance is

placed on an order of the same Financial Commissioner in another

proceeding refusing to entertain the Revision against the order of dismissal

of application for setting aside of the ex parte order. Lastly, it is urged that

even if the Financial Commissioner was of the view that the application for

setting aside of the ex parte order had not been correctly decided by the

SDM/Revenue Assistant, the Financial Commissioner should have directed

decision of that application de novo instead of setting aside of the ex parte

order dated 15th January, 1985. On enquiry as to who is in possession of

land, it is informed that the petitioner is in possession of land.

18. The counsel for the respondent no.2 on the contrary contends that the

respondent no.2 had never sold or agreed to sell the land to the petitioner. It

is stated that the petitioner obtained the ex parte order dated 15th January,

1985 from the SDM/Revenue Assistant as a device to dispossess the

respondent no.2 from the land. It is stated that till the ex parte order dated

15th January, 1985 the petitioner was not in possession of the land and armed

with the said order dispossessed the respondent no.2 from the land and

entered into unauthorized possession thereof. It is further argued that with

this intent only the petitioner filed a false FIR against the respondent no.2 of

having trespassed on the said land and in prosecution whereunder the

respondent no.2 was acquitted. It is stated that since the present proceedings

have been pending, there was no occasion for the respondent no.2 to file any

other proceedings for possession or otherwise against the petitioner. It is also

argued that the case, of the respondent no.2 having sold/agreed to sell the

land to the petitioner has been set up for the first time in the present petition

and was not the case of the petitioner at any earlier point of time. It is urged

that in fact the case of Agreement to Sell is contrary to the case in the

application under Section 85 of the DLR Act. It is stated that Section 85 of

the DLR Act could not have been invoked if the petitioner was claiming title

to the land under Agreement to Sell. It is stated that the Agreement to Sell

was not produced before the SDM/Revenue Assistant or the Financial

Commissioner also. It is stated that it is for this reason only that the file

culminating in the ex parte order dated 15th January, 1985 has been got

misplaced.

19. The counsel for the petitioner has not been able to rebut the arguments

aforesaid.

20. None of the arguments of the counsel for the petitioner persuade me to

interfere even if permissible with the order of the Financial Commissioner.

The petitioner cannot now be permitted to rely on the Agreement to Sell and

other documents. The proceedings from which this petition has arisen, arose

from the application filed by the petitioner under Section 85 of the DLR Act.

Such an application lies only from non-institution of the suit for ejectment of

a person occupying land without title. The case of the petitioner in the said

proceedings was that he had occupied the land of the respondent no.2

without any title. The petitioner cannot at a subsequent stage in the same

proceedings be heard with inconsistent pleadings. In fact such inconsistent

pleadings in themselves constitute suspicious circumstances in addition to

those noticed by the Financial Commissioner.

21. On perusal of the order sheet of the SDM/Revenue Assistant in the

proceedings for setting aside of the ex parte order, I also do not find any

error in the reasoning of the Financial Commissioner of proper opportunity

having not been given to the respondent no.2 to meet the case set up by the

petitioner on the basis of document dated 18th March, 1985. Though it is

correct that the respondent no.2 had failed to file the rejoinder by/on the date

given therefor and had also failed to appear on that date but the

SDM/Revenue Assistant showed undue haste in disposing of the application.

The application was decided on the very same day when the same was listed

next for filing of rejoinder. There is also merit in the reasoning of the

Financial Commissioner of there being no occasion for execution of the

document dated 18th March, 1985. If the version of the petitioner of being in

unauthorized occupation of the land was correct, the petitioner after having

got himself declared as the Bhoomidar had no occasion to approach the

respondent no.2 for executing the declaration document. Similarly, if the

version now of the petitioner of being agreement purchaser of the land is

correct, then also the document dated 18th March, 1985 does not give

reference to the Agreement to Sell. The document dated 18th March, 1985

appears to have been produced only for decision of the application for

setting aside of the ex parte order even in the absence of the file in which the

respondent no.2 was proceeded against ex parte and in which file only the

report of refusal on the basis of which respondent no.2 was proceeded

against ex parte existed. Else in the absence of the file, the application for

setting aside ex parte order was bound to be allowed.

22. I do not find any merit in the contention of the petitioner of

respondent no.2 being not entitled to the relief of setting aside of ex parte

order for the reason of having not challenged the documents relied on by the

petitioner for the first time in the present proceedings. If the petitioner fails

in establishing the case under Section 85 of the DLR Act, the respondent

no.2 would be entitled to his remedies.

23. There is no merit in the petition. The petitioner having held up the

proceedings in pursuance to the order of the Financial Commissioner is

burdened with the costs of `25,000/-. The parties are directed to appear

before the SDM/Revenue Assistant on 20th October, 2010. The

SDM/Revenue Assistant is now directed to decide the application of the

petitioner under Section 85 of the DLR Act within eight months of 20 th

October, 2010.

RAJIV SAHAI ENDLAW (JUDGE) 20th September, 2010 pp..