Sardar Singh vs Financial Commissioner Delhi & ...
2011 Latest Caselaw 780 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 9th February, 2011.

+                           W.P.(C) No.133/2008

SARDAR SINGH                                               ..... Petitioner
                            Through:      Mr. Anand Yadav & Ms. Anita
                                          Tomar, Advocates

                                     Versus

FINANCIAL COMMISSIONER DELHI & ORS.        ..... Respondents
                Through: Mr. Abhinav Tandon, Advocate for
                         Mr. V.K. Tandon, Advocate for R-1
                         to R-3.
                         Mr. Rajendra Dutt, Advocate for R-
                         4 to R-7.

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 petition impugns the order dated 13th December, 2007 of the

Financial Commissioner dismissing the revision petition filed by the

petitioner under Section 42 of the East Punjab Holdings (Consolidation

and Prevention of Fragmentation) Act, 1948. The petition came up before

this court first on 14th January, 2008 when the petitioner made a statement

that the petitioner, though in the writ petition has challenged but was not

challenging the order insofar as with respect to 12 Bighas 18 Biswas of

land which had vested in the Gaon Sabha. Notice of the petition was

issued on other aspects only and status quo in respect of Khasra

Nos.28/13(2-8) and 28/14(2-8) and post consolidation of Khasra

Nos.154/874(2-2) and 154/875 (2-2) directed to be maintained. The said

interim order has continued in force.

2. Pleadings have been completed. The counsel for the petitioner and

the counsel for the respondents 4 to 7 have been heard.

3. The respondents 1 to 3 though have filed a short affidavit dated 19 th

January, 2009 but inspite of the arguments having stretched from pre-lunch

to post-lunch, the counsel for the respondents 1 to 3 has chosen not to

argue.

4. The counsel for the petitioner contends that the grievance of the

petitioner is two fold - firstly of non allotment of any residential plot,

though required to be allotted under the Scheme of consolidation and the

Rules and secondly of the claim of the petitioner of the deficiency in post

consolidation allotment having not been made up. Connected to the first

contention aforesaid, if found tenable, is the claim of the petitioner for

allotment of residential plot in the pre consolidation holding of the

petitioner and of which now the respondents 4 to 7 claim to be owners.

The counsel for the petitioner however states that the petitioner is still in

possession of the same under the interim orders in this petition. The

counsel for the respondents 4 to 7 controverts and states that the

respondents 4 to 7 are in possession.

5. As far as the claim for residential plot is concerned, the impugned

order which deals mostly with 12 Bigha 18 Biswas of land aforesaid,

towards the end records that the prayer of the petitioner for allotment of

plot carved out of pre consolidation holding comprised in Khasra

Nos.28/13 & 28/14 has been held by the Consolidation Officer to be

belated since the proceedings under Section 21(2) of the Act already stood

completed well before the receipt of the objection. The Financial

Commissioner has thus confirmed the order of the Consolidation Officer of

the petitioner being not entitled to a residential plot out of pre

consolidation Khasra Nos.28/13 & 28/14 for the reason of objection with

respect thereto having been made belatedly.

6. The counsel for the petitioner at the outset has contended that the

Financial Commissioner has erred in not returning an independent finding

with respect to the claim of the petitioner for a residential plot out of his

pre consolidation holding. It is contended that even if the objection of the

petitioner in that regard before the Consolidation Officer was belated, the

Financial Commissioner was still required to decide the said claim on

merits. Reliance in this regard is placed on the order dated 3 rd February,

2003 of this Court in W.P.(C) No.877/2003 titled Rakes Dabas Vs.

Financial Commissioner, Delhi holding that action under Section 42 of

the Act can be taken both suo moto or at the instance of some interested

parties and the revision petition under Section 42 of the Act could not be

dismissed merely on the ground that the petitioner had not made

application to the Consolidation Officer. Reference is also made to

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

holding that merely because objection had been adjudicated and the order

had become final did not curtail or restrict the power of the Financial

Commissioner under Section 42 of the Act.

7. I have enquired from the counsel for the petitioner whether the

Financial Commissioner is not entitled to dismiss the claim made under

Section 42 of the Act as barred by laches and acquiescence. The counsel

for the petitioner has fairly stated that the Financial Commissioner is

entitled to dismiss a claim as barred by laches and acquiescence. He

however contends that the said question does not arise in the present case

in the facts below mentioned.

8. It is the case of the petitioner that the re-partition proceedings

pursuant to Notification of the year 1988 of consolidation took place

between 18th March, 1999 to 5th May, 1999; however vide order dated 24 th

April, 2000 in proceedings filed by some other persons, the Financial

Commissioner stayed handing over of possession in pursuance to

consolidation / re-partition; that though in re-partition residential plot in

Khasra No.154/531 had been allotted to the petitioner but the same was

withdrawn by the Consolidation Officer vide Resolution dated 23 rd March,

2001; that the order dated 24 th April, 2000 (supra) was vacated by the

Financial Commissioner on 15 th January, 2002 and the petitioner in 2002

itself applied to the Consolidation Officer for allotment of residential plot

since plot No.154/531 earlier allotted had been withdrawn; that the said

application / objection of the petitioner was dismissed by the Consolidation

Officer on 10th July, 2002 and on 28th October, 2002 the revision petition

(supra) was preferred before the Financial Commissioner.

9. The counsel for the petitioner has thus argued that the occasion for

applying for residential plot arose in 2002 owing to the residential plot in

Khasra No.154/531 earlier allotted having been withdrawn and thus the

provisions of Section 21(2) of the Act providing for a time of 15 days are

not strictly applicable inasmuch as in the Scheme and in re-partition

residential plot had earlier been allotted to the petitioner.

10. It is thus argued that the claim of the petitioner for residential plot

has not been considered by the Financial Commissioner who has merely

reiterated the order of the Consolidation Officer of the objection of the

petitioner being belated.

11. I have satisfied myself that the petitioner in the revision petition

before the Financial Commissioner, copy of which has been filed at pages

44 to 55 of the paper book, had in para 26 made a grievance with respect to

a residential plot and had in the prayer paragraph also sought a direction

for allotment of residential plot. Similarly, in the writ petition before this

Court also, grievance in that respect has been made in para 37 of the

petition.

12. The Consolidation Officer in the counter affidavit filed before this

Court has not dealt with the aspect of residential plot and has generally

dealt with the total demand of the petitioner and the deficiency in respect

thereof.

13. The counsel for the respondents 4 to 7 has stated that the said

respondents are not concerned with the claim of the petitioner for

residential plot, in so far as it is not for a residential plot in the land now

owned by the said respondents. He has otherwise argued that the petitioner

has concealed from this Court that the residential plot No.154/531

withdrawn from the petitioner was allotted to the son of the petitioner; that

the petitioner has produced before this Court only the Resolution with

respect to the withdrawal and not the order leading to the said withdrawal

and which would have shown reasons therefor; that if the said withdrawal

was with the consent of the petitioner, the petitioner cannot now make a

grievance with respect thereto; that the petitioner under Section 21(4) of

the Act is estopped from now making a claim.

14. Unfortunately none of the aforesaid arguments have been dealt with

in the order of the Financial Commissioner. The counsel for the

respondents 4 to 7 of course contends that the petitioner even if had raised

the pleas in the revision petition did not raise any arguments with respect

thereto and for which reason the same do not find mention in the order of

the Financial Commissioner. The counsel for the petitioner controverts.

15. Since the entire records are not before this Court and since in any

event no discussion in this respect is found in the impugned order, I am

inclined to remand the matter to the Financial Commissioner on this aspect

and therefore refrain from making any observations on the contentions of

the counsel. Suffice it is to state that prima facie the question of estoppel

under Section 21(4) of the Act does not appear to arise inasmuch as on re-

partition, the petitioner was admittedly allotted residential plot No.154/531

and which was subsequently withdrawn and soon whereafter an application

/ objection was preferred to the Consolidation Officer. In this regard, it

may also be noticed that it is also the contention of the counsel for the

respondents 4 to 7 that the application so preferred by the petitioner before

the Consolidation Officer did not lie and the petitioner if aggrieved with

the order of withdrawal of residential plot No.154/531 ought to have

preferred an appeal thereagainst to the Settlement Officer. The said aspect

also needs to be gone into by the Financial Commissioner.

16. Insofar as the claim of the petitioner for residential plot in the pre-

consolidation holding now owned by the respondents 4 to 7 is concerned,

the counsel for the respondents 4 to 7 has argued that the claim of the

petitioner for residential plot was towards East side only and thus the

question of the petitioner being now entitled to claim the residential plot in

the pre-consolidation holding does not arise. On the contrary, the counsel

for the petitioner with reference to page 69 of the paper book, being his

application dated 16 th September, 1996 for residential and industrial plot

shows that the claim for residential plot was towards "East or North" and

in the Khasra forming the pre-consolidation holding. The counsel for the

respondents 4 to 7 controverts. He on the contrary relies upon page

112/113 of the paper book being the demand made by the petitioner in the

year 1989 for residential plot in the East direction. All these questions are

also best left to be gone into before the Financial Commissioner.

17. As far as the claim of the petitioner for deficiency in land is

concerned, the petitioner relies upon the counter affidavit of the

Consolidation Officer where it is stated that the total deficiency of the

petitioner comes to 1 Bigha 11 Biswas and out of which 1 Bigha 8 Biswas

is to be deducted from the land of one Sh. Ram Singh and others who have

been allotted excess land.

18. The counsel for the respondents 4 to 7 has contended that the said

deficiency in the counter affidavit is with respect to the agricultural land

only and not in the residential land. The counsel for the petitioner

controverts and contends that the deficiency mentioned in the said counter

affidavit is with respect to both residential as well as agricultural land. In

the absence of any assistance from the counsel for the respondents 1 to 3,

no definite finding with respect thereto also can be given. The same is also

left open for decision for the Financial Commissioner on remand.

19. The writ petition is therefore disposed of with the remand to the

Financial Commissioner, to after hearing the petitioner and the respondents

4 to 7 and Sh. Ram Singh aforesaid and any other person found interested,

render a decision on the aforesaid and other related aspects.

20. The order impugned in this writ petition to the aforesaid extent is set

aside. In the circumstances, the parties are left to bear their own costs.

Though the petitioner and the respondents 4 to 7 have taken conflicting

stands as aforesaid with respect to possession but on the request of the

counsel for the petitioner, till the consideration of interim relief by the

Financial Commissioner, the said order to continue.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 09, 2011 „gsr‟