Delhi High Court
Sh. Sukhbir vs Financial Commissioner & Ors. on 10 March, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th March, 2011
+ W.P.(C) 9033/2009
% SH. SUKHBIR .... Petitioner
Through: Mr. Davinder Verma, Advocate
Versus
FINANCIAL COMMISSIONER & ORS. ....Respondents
Through: Ms. Bandana Shukla, Advocate for
Ms. Ruchi Sindhwani, Advocate for
R-1 to R-5.
Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
AND
+ W.P.(C) 9430/2009
SH. HAWA SINGH ..... Petitioner
Through: Mr. Davinder Verma, Advocate
Versus
FINANCIAL COMMISSIONER & ORS. ..... Respondents
Through: Ms. Bandana Shukla, Advocate for
Ms. Ruchi Sindhwani, Advocate for
R-1 to R-5.
Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
AND
W.P.(C) Nos.9033/09, 9430/09, 9487/09, 9515/09, 11111/09, 11249/09 & 11314/09 Page 1 of 18
+ W.P.(C) 9487/2009
SUKHBIR ..... Petitioner
Through: Mr. Davinder Verma, Advocate
Versus
FINANCIAL COMMISSIONER & ORS. ..... Respondents
Through: Mr. Arun Kumar Sharma, Adv. for
R-1 to R-5.
Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
AND
+ W.P.(C) 9515/2009
HAWA SINGH ..... Petitioner
Through: Mr. Davinder Verma, Advocate
Versus
FINANCIAL COMMISSIONER & ORS. ..... Respondents
Through: Mr. Arun Kumar Sharma, Adv. for
R-1 to R-5.
Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
AND
+ W.P.(C) 11111/2009
PARTAP SINGH ..... Petitioner
Through: Mr. D.C. Sharma, Advocate
Versus
THE GOVT. OF N.C.T.D. & ORS. ..... Respondents
Through: Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
W.P.(C) Nos.9033/09, 9430/09, 9487/09, 9515/09, 11111/09, 11249/09 & 11314/09 Page 2 of 18
AND
+ W.P.(C) 11249/2009
HAWA SINGH ..... Petitioner
Through: Mr. Davinder Verma, Advocate
Versus
FINANCIAL COMMISSIONER & ORS. ..... Respondents
Through: Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
AND
+ W.P.(C) 11314/2009
PARTAP SINGH ..... Petitioner
Through: Mr. D.C. Sharma, Advocate
Versus
THE GOVT. OF N.C.T.D. & ORS. ..... Respondents
Through: Mr. R.P. Vats & Mr. P.K. Dhamija,
Advocates for the purchasers.
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?
W.P.(C) Nos.9033/09, 9430/09, 9487/09, 9515/09, 11111/09, 11249/09 & 11314/09 Page 3 of 18
RAJIV SAHAI ENDLAW, J.
1. These seven writ petitions have been filed against the common
order dated 29th January, 2009 of the Financial Commissioner
dismissing the eight Revision Petitions under Section 42 of the East
Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,
1948 (Consolidation Act) preferred before it.
2. On enquiry, as to why the order on the eight Revision Petitions
has resulted in filing of seven instead of eight writ petitions, the
counsel for the "purchasers" states that W.P.(C) No.11112/2009
against the eighth Revision Petition was also preferred by Partap Singh
but which was dismissed for non prosecution on 26th August, 2009.
The counsel for the petitioners states that he has no instructions with
respect thereto.
3. The counsel for the petitioners Hawa Singh and Sukhbir Singh
has contended that Hawa Singh, Sukhbir Singh and Partap Singh were
the bhumidhars having 1/12th share each in land ad-measuring 240
Bighas 12 Biswas in village Pooth Khurd, Delhi. It is stated that thus
each of them was the Bhumidhar of 20 Bighas 1 Biswa of land. It is
further informed that Notification for consolidation was issued with
respect to the said village and the Consolidation Scheme sanctioned on
23rd February, 1998. It is urged that under Section 8 & 9 of the
Consolidation Act, post notification for consolidation, no transfer or
partition could be effected with respect to the village land. Attention is
invited to the Khatauni dated 20th May, 2006 with respect to the said
land also containing a notation that no permission for sale / transfer of
the land subject matter of consolidation shall be granted.
4. It is further the case of the petitioners Hawa Singh & Sukhbir
Singh that without their knowledge, five Sale Deeds were registered at
Bombay on 10th June, 1998, of which three were purportedly on behalf
of Hawa Singh and two were purportedly on behalf of Sukhbir Singh
of different portions of their land aforesaid in favour of different
purchasers and after the said transfer, petitioners Hawa Singh &
Sukhbir Singh were left with only 4 Bighas and 19 Biswas of land
each. It is further informed that the Sale Deeds were shown to be
executed on their behalf by their purported attorneys and consideration
was shown to have been paid before the Sub-Registrar.
5. The counsel for the petitioners states that the case qua Partap
Singh is the same and three Sale Deeds with respect to land of the
share of Partap Singh were also executed on the same date in favour of
three different purchasers, save that Partap Singh was left with land ad-
measuring 1 Bigha 16 Biswas only.
6. It is further the case of the petitioners that on the basis of Sale
Deeds aforesaid, the purchasers applied for mutation to the Tehsildar
then also functioning as the Consolidation Officer who without notice
to any of them carried out the said mutation on 13 th July, 1998.
7. The petitioners claim that they learnt of the mutation and the
Sale Deeds in favour of the purchasers when in repartition pursuant to
the consolidation proceedings, no allotment was made in their favour
with respect to the land subject matter of the Sale Deeds and which
stood mutated in the name of the purchasers.
8. The petitioners Hawa Singh & Sukhbir Singh took dual
remedies against the aforesaid. They filed appeals before the Deputy
Commissioner under Sections 64 & 65 of the Delhi Land Revenue Act,
1954 (Revenue Act) against the order of mutation averring mutation by
Tehsildar to be in violation of Section 23 of the Revenue Act as well as
in violation of Section 33 of the Delhi Land Reforms Act, 1954. They
also filed Revision Petitions aforesaid under Section 42 of the
Consolidation Act before the Financial Commissioner against the
allotment in re-partition in favour of purchasers.
9. However, Partap Singh did not prefer any appeal against the
mutation and was satisfied by preferring revision petitions only to the
Financial Commissioner.
10. It is in this manner that the eight Revision Petitions mentioned in
the initial part of this order were filed before the Financial
Commissioner. The Financial Commissioner in the order impugned in
these writ petitions has held that the petitioners had not even filed an
affidavit to counter the allegations of the purchasers that the petitioners
had received the sale consideration under the Sale Deeds and deposited
the same in the State Bank of India (SBI), Pooth Khurd, Delhi. The
Financial Commissioner thus observed that the non denial by the
petitioners proved that the sale transaction was finalized between the
parties and the petitioners had received the sale consideration. With
respect to the argument of the petitioners of the mutation on the basis
of Sale Deeds registered in Bombay being in violation of orders /
circulars dated 29th August, 1990 & 3rd October, 1996 of the Deputy
Commissioner, the Financial Commissioner held the same to be not
permissible in view of the judgment of Single Judge of this Court in
Rajinder Singh Vs. Financial Commissioner 122 (2005) DLT 151.
The Financial Commissioner held the Sale Deeds to have been thus
rightly registered and acted upon by the consolidation authorities.
11. Upon enquiry as to the fate of the appeals preferred by Hawa
Singh & Sukhbir Singh against the mutation to the Deputy
Commissioner, it is informed that the same were allowed by the
Deputy Commissioner on 23rd September, 2009. It is further stated
that one of the purchasers namely Smt. Devki Devi who was the
respondent in one of the appeals preferred by Hawa Singh, filed an
affidavit before the Deputy Commissioner denying that she had made
any purchase of land from Hawa Singh as attributed to her.
12. Upon enquiry as to whether any second appeals have been
preferred against the order aforesaid of the Deputy Commissioner, it is
stated that though none of the purchasers have filed any second appeal
but one person claiming to be assignee of Smt. Devki Devi has filed a
second appeal before the Financial Commissioner and which second
appeal is stated to be still pending.
13. The Counsels for the petitioners contend:
(i) that the land of each of the petitioners being 20 Bighas 1 Biswa
i.e. less than 8 standard acres (equal to 48 Bighas), the sale of
different portions thereof to different purchasers leaving balance
as aforesaid with each of the petitioners was in violation of
Section 33 of the Reforms Act restricting such transfers;
(ii) once the sale was in violation of Section 33 of the Reforms Act,
the same was void under Section 45 of the Reforms Act;
(iii) that the Financial Commissioner has wrongly imputed admission
to the petitioners of receipt of sale consideration when none
existed;
(iv) without prejudice to the aforesaid contentions, it is urged that
even if the petitioners are held to have received the sale
consideration, the same would still not validate the sale in as
much as under Section 42 of the Reforms Act, the sale in
contravention of Section 33 of the Reforms Act, even though
vesting the land in the Gaon Sabha, does not prevent the
transferor from suing for the balance sale consideration;
(v) It is thus urged that the invalidity under Section 33 of the
Reforms Act is irrespective of receipt of sale consideration;
(vi) that the purported Sale Deeds during the pendency of the
consolidation proceedings even otherwise could not have
conveyed any title in as much as immediately upon
consolidation the entire land vested in the common pool and
there was no question of the petitioners being entitled to convey
any title or transferring possession thereof;
(vii) it is contended that though all the aforesaid arguments were
raised before the Financial Commissioner in the Revision
petitions aforesaid but the Financial Commissioner without
adjudicating upon the same has merely on an admission wrongly
attributed to the petitioners of receipt of sale consideration
dismissed the Revision Petitions;
(viii) that the Financial Commissioner in exercise of powers under
Section 42 of the Act was not empowered to look into the sale
transactions and was only concerned with the orders made in the
course of consolidation proceedings and has erred in dismissing
the Revision Petitions on the basis of finding regarding the Sale
Deeds;
14. Per contra, the counsel for the purchasers has contended:
(i) that the petitioners have not initiated any proceedings
challenging the Sale Deeds;
(ii) that the petitioners had not denied deposit of sale consideration
in their account with the State Bank of India. On enquiry as to
whether the admission attributed to the petitioners of receipt of
sale consideration is in writing, it is informed that the purchasers
in their reply to the Revision Petitions had taken the said plea
and no rejoinder thereto was filed by the petitioners. On further
enquiry as to whether any opportunity was given to the
petitioners to file the rejoinder, though the answer is in the
affirmative but there is nothing before this Court to demonstrate
so;
(iii) the statement of the counsel for the petitioners of the appeals
having been decided by the Deputy Commissioner is
controverted and it is stated that the appeals are still pending;
(iv) it is contended that the notification under Section 4 of the Land
Acquisition Act, 1894 was issued with respect to the said land
on 7th August, 2000; notification under Section 6 of the Act was
issued on 11th September, 2000; possession of the land was
taken on 4th October, 2000 and award with respect to the land
made on 7th September, 2002. It is stated that in accordance
with the award, the compensation for acquisition of the land was
received by the purchasers and it is the purchasers alone who
sought a reference with respect to the award for compensation
for acquisition and which reference has also since been decided.
It is contended that the petitioners herein did not prefer any
claims whatsoever with respect to acquisition or seek any
reference. On interjection by the counsel for the petitioners that
the petitioners could not have made any such claim since the
land did not stand in their name, it is contended that any person
claiming any interest in land is entitled to make a claim with
respect to acquisition thereof;
(v) attention is invited to Section 67(b) of the Reforms Act to
contend that the right as Bhumidhar extinguishes on acquisition
of the land;
(vi) reliance is placed on Pyare Vs. Financial Commissioner 94
(2001) DLT 348 (DB) where the Division Bench of this Court
held that the Revenue Court ceases to have jurisdiction on
acquisition of the land. It is thus contended that the argument of
the petitioners of the Sale Deeds being in contravention of the
Reforms Act could not in any case, have been considered by the
Financial Commissioner;
(vii) it is contended that the petitioners have not approached this
Court with clean hands; they have suppressed from the petition
the factum of acquisition; having preferred appeals to the Deputy
Commissioner and of having filed affidavits before the
Tehsildar-cum-Consolidation Officer confirming the same.
15. The counsels for the petitioners have of course controverted all
the arguments of the counsel for the purchasers and have contended
that the acquisition was of a very small part of the land and the
remaining land is still in possession of the purchasers. The counsel for
the purchasers however states that only one plot allotted in repartition
for commercial purposes survives on acquisition.
16. In my view the order of the Financial Commissioner cannot be
sustained merely on the ground that a vital conclusion of the petitioners
having received the sale consideration could not have been arrived at
for the reason of non denial alone. The counsel for the purchasers has
been unable to show any documents / pleadings in which the
petitioners may have admitted the receipt of the sale consideration.
Rather the impugned order itself notices that it was the case of the
petitioners that the purchasers had committed fraud and records "the
counsel for the petitioner submitted that the petitioner had not received
any consideration for the alleged sale". It was further noted that it was
the case of the petitioners that they had neither executed the Sale Deed
nor the GPA on the basis whereof the Sale Deeds were executed. In the
face of recording the said pleadings of the petitioners, the Financial
Commissioner could not have, even if had felt the question of receipt
of sale consideration was relevant, dismissed the Revision Petitions
without proof of deposit of sale consideration in the bank account of
the petitioners.
17. I have enquired from the counsel for the purchasers whether the
purchasers have produced any document before this Court viz. a
certificate from any of the banks of deposit of sale consideration by
cheque or by cash in the said bank accounts. The answer is in the
negative. It is however argued that the documents were filed before
the Financial Commissioner. Suffice it is to state that there is no
mention thereof in the impugned order and even if there were any
documents, the Financial Commissioner has not proceeded on the basis
thereof and has merely returned the finding of receipt of sale
consideration on assumed non-denial thereof by the petitioners.
18. I am also of the view that once the Deputy Commissioner was
seized of the challenge to the mutation and on the basis of which
mutation allotment on repartition was made in favour of the
purchasers, irrespective of whether the Deputy Commissioner has till
now decided the appeals or not, the Financial Commissioner ought not
to have shown haste in deciding the Revision Petitions. If the
contention of the petitioners of such appeals having been decided in
favour of the petitioners by the Deputy Commissioner and no second
appeal thereagainst having been preferred is to be correct, then in any
case the two orders i.e. one impugned in these petitions and that of the
Deputy Commissioner which are inconsistent to each other, cannot be
allowed to stand.
19. With respect to the various other contentions noted hereinabove,
need is not felt to return any finding in as much as it is felt that the
same may prejudice the proceedings before the Financial
Commissioner on remand. Moreover, it is not deemed expedient by
this Court to in the first instance decide all the said contentions without
the same having been dealt with by the Financial Commissioner.
20. The petitions therefore succeed. The order dated 29 th January,
2009 of the Financial Commissioner is set aside. The matter is
remanded to the Financial Commissioner for decision of the Revision
Petitions afresh after dealing with all the contentions raised by the
respective parties including those recorded hereinabove.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 10, 2011
„gsr‟
