Virender Singh & Ors. vs Financial Commissioner & Ors.
2010 Latest Caselaw 4561 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 28th September, 2010.

+                           W.P.(C) 9014/2007

VIRENDER SINGH & ORS.                                          ..... Petitioners
                 Through:                 Mr. S.K. Raut, Ms. Suman Chaudhary
                                          & Mr. J.K. Sharma, Advocates.

                                      Versus

FINANCIAL COMMISSIONER & ORS.                ..... Respondents
                 Through: Mr. V.K. Tandon, Advocate for R-1.
                           Mr. Sunil Chauhan, Advocate 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 two petitioners by this writ petition impugn the order dated 19th

October, 2007 of the Financial Commissioner in exercise of powers under

Section 42 of the East Punjab Holdings (Consolidation & Prevention of

Fragmentation) Act, 1948. This Court while issuing notice of the petition,

vide order dated 3rd December, 2007 directed the parties to maintain status

quo with regard to title, possession and construction on the subject land. The

said order was confirmed on 25th February, 2009. Neither of the respondents

have filed counter affidavit inspite of opportunities. The counsels have been

heard.

2. The dispute arose from the re-partition proceedings under Section

21(1) of the Act aforesaid in village Rawta, Delhi. The respondent no.2 on

25th June, 2002 applied to the Consolidation Officer stating that a plot of

land ad-measuring 2 bighas 8 biswas had been allotted during the

consolidation proceedings; that he was not in need of the said plot of land

and the same may be allotted to Sh. Puran and Sh. Pappu sons of Shri Jage

Ram; that the land of Sh. Puran and Sh. Pappu in place of the plot of land be

given to the respondent no.2 "at his previous site where his land was

situated"; it was also stated that Sh. Puran and Sh. Pappu were also

agreeable to the same.

3. The order sheet of the Consolidation Officer shows that the

respondent no.2 on 18th September, 2002 stated before the Consolidation

Officer that his earlier holding had one old village well and borewells and

his said pre-consolidation land had been allotted to someone else; he

expressed desire for his land to be restored to him. The order sheet of 23rd

October, 2002 shows that the respondent no.2 stated that his residential plot

should be reduced to 1 bigha as he did not require such a large plot. The

Consolidation officer vide order dated 8th November, 2002 deleted certain

land/plot earlier allotted to the respondent no.2 and allotted another plot/land

to the respondent no.2 on re-partition.

4. The two petitioners herein are the sons of Sh. Dharambir Singh. The

pre-consolidation holding of the respondent no.2 was joint with the said Sh.

Dharambir Singh and certain others and who had expressed desire for

separation. The Consolidation Officer in re-partition while allotting land to

the respondent no.2 in his pre-consolidation holding, allotted to the

respondent no.2 the land which had on consolidation been allotted to Sh.

Dharambir Singh; in lieu thereof Sh. Dharambir Singh was allotted some

other land.

5. It is the case of the petitioners that Sh. Dharambir Singh had been

missing for a number of years and was presumed dead; they being his sons

along with certain others are his legal heirs. The petitioners being aggrieved

by the order aforesaid of the Consolidation Officer of re-partition, vesting a

portion of their land in the respondent no.2, preferred an application under

Section 21(3) of the Act to the Settlement Officer against the order aforesaid

of the Consolidation Officer.

6. It was the case of the petitioners before the Settlement Officer that the

land of which they had been divested as aforesaid had been allotted to them

on consolidation and no notice had been given to them by the Consolidation

Officer of withdrawing the said land from them and vesting the same in

respondent no.2. It was further their case that their predecessor Sh.

Dharambir Singh had been allotted the said land owing to the same being his

pre-consolidation land and without any objection whatsoever from any

person. They further contended that the respondent no.2 while applying for

re-partition had not even demanded the said land and had demanded the land

of Sh. Puran and Sh. Pappu.

7. The respondent no.2 contended before the Settlement Officer that the

petitioners had no locus; that the land was in the name of Sh. Dharambir

Singh and had not been mutated in the name of the petitioners till then.

8. The Settlement Officer vide his order dated 2nd January, 2004 held

that the respondent no.2 while applying for re-partition had not demanded

the land of Sh. Dharambir Singh and yet the Consolidation Officer had

allotted the said land. He further found that no notice had been issued to the

petitioners by the Consolidation Officer. He thus set aside the order of the

Consolidation Officer and reverted the land to the petitioners.

9. Aggrieved therefrom the respondent no.2 preferred a revision petition

before the Financial Commissioner and from the order wherein this petition

has arisen. It was the case of the respondent no.2 before the Financial

Commissioner that he had made improvements on the said land by

providing water pipeline for irrigation purposes; he further claimed a better

title to the land, the same being his pre-consolidation site; that the

Settlement Officer could not have entertained the application under Section

21(3) of the Act of the petitioners as they were not the recorded owners of

the land and their claims could have been preferred only after they had

obtained mutation in their name and the order of the Settlement Officer

amounted to illegally mutating and recognizing the petitioners alone as the

legal heirs of Sh. Dharambir Singh. It was also submitted that the respondent

no.2 had an existing tubewell and other wells on his pre-consolidation site

and thus had a preferential right thereto.

10. The petitioners opposed the said revision petition; they supported the

order of the Settlement Officer and impugned the order of the Consolidation

Officer. They contended that the irrigation line had been installed by the

respondent no.2 on the land after the order of status quo by the Settlement

Officer and had since been removed. They further claimed that they as heirs

of Sh. Dharambir Singh who was the co-bhoomidar along with the

respondent no.2 of the pre-consolidated land, they had the same preferential

rights with respect to the said land. They impugned the order of the

Consolidation Officer on the ground that no notice was issued to them.

11. The Financial Commissioner held (i) that since the subject land was

not mutated in the name of the petitioners, the Consolidation Officer was not

required to issue any notice to them; that it was not the case of the

petitioners that notices were not issued to Sh. Dharambir Singh in whose

name the land stood; (ii) that mutation in the name of the petitioners as legal

heirs of Sh. Dharambir Singh had not been carried out and thus they had no

rights; (iii) that besides the petitioners there were other legal heirs also of

Sh. Dharambir Singh; (iv) that the respondent no.2 had a preferential right to

the subject land; (v) that the respondent no.2 had made improvements over

the subject land by investing in the water channel; (vi) that the

Consolidation Officer had passed the order of re-partition after weighing all

the facts; the Settlement Officer had not considered all the facts. Finding a

case of interference in revision to have been made out, the Financial

Commissioner set aside the order of the Settlement Officer and restored the

order of the Consolidation Officer.

12. The counsel for the petitioners has argued that the respondent no.2

could have applied for re-partition under Section 21(2) of the Act within 15

days only and his application dated 25th June, 2002 was beyond time. It is

contended that the subject land was allotted to Sh. Dharambir Singh on 17 th

April, 2002 and 7th May, 2002 and the application under Section 21(2) of the

Act could have been filed within 15 days thereof only. It is urged that after

the expiry of 15 days, the Consolidation Officer could not have entertained

such an application.

13. The counsel for the respondent no.2 has opposed the said plea by

contending that the said period of 15 days would have commenced only

when the right holders were made aware of the said partition i.e. when

passbooks were handed over and counted from the said date, the application

of 25th June, 2002 was within time. It is argued that the same would be

evident from the record of consolidation if summoned before this Court.

14. Not finding any mention of the said plea of limitation in the order of

the Settlement Officer or in the order of the Financial Commissioner, I

enquired from the counsel for the petitioners as to whether the said plea was

taken in the application under Section 21(3) of the Act before the Settlement

Officer or in opposition to the revision before the Financial Commissioner.

Though, the counsel for the petitioners states that the plea was taken but is

unable to show the same from any document. I am not inclined, in exercise

of writ jurisdiction to entertain such pleas which are not borne out from the

orders impugned in this petition and which are not shown to have been

urged before the Authorities / Courts below.

15. I enquired from the counsel for the petitioners as to what prejudice the

petitioners have suffered by the order in as much as the size of their land

remains the same; it is not as if the size of their holding has been reduced.

Though the counsel for the petitioners could not answer but I find that the

petitioners in ground 10 of the petition have stated that their holding has

been fragmented owing to the order aforesaid of the Consolidation Officer.

The same would undoubtedly be prejudicial to the petitioners.

16. The legislature has vested finality in the order of the Financial

Commissioner. The question which arises is whether inspite of the aforesaid,

interference in the order of the Financial Commissioner is called for. The

state of affairs now in existence has been prevailing since the last eight

years. It is not deemed expedient to disturb the same. The parties in the last

eight years are bound to have carried out considerable improvements over

their land. The fight between the petitioners and the respondents no.2

appears to be of ego rather than of any difference in value of the land.

17. There is yet another aspect of the matter. It is not as if the Financial

Commissioner has not given the reasons for his order. This Court in writ

jurisdiction does not interfere merely because it may have come to a

different conclusion. No fault can be found with the reasons given by the

Financial Commissioner. Moreover the finding of the Financial

Commissioner of the respondent no.2 having made improvements on the

land is a finding of fact incapable of interference. Similarly though Sh.

Dharambir Singh and the respondent no.2 had an equal preferential right in

the pre-consolidated holding but the fact remains that the mutation had not

been carried out in the name of the petitioners though they are admittedly

the sons of Sh. Dharambir Singh. It thus cannot be said that the order of the

Financial Commissioner is so perverse as to be quashed by this Court in writ

jurisdiction.

The petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th September, 2010 pp..