Sh. Sunil Dutt vs Govt Of Nct Of Delhi And Ors
2011 Latest Caselaw 2671 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 18th May, 2011
+                                  W.P.(C) 2957/2011

%        SH. SUNIL DUTT                                         ..... Petitioner
                       Through:           Mr. V.P. Rana, Adv.

                                   Versus

         GOVT OF NCT OF DELHI AND ORS           ..... Respondents
                      Through: Ms. Sangeeta Sondhi & Ms. Nitika
                               Agarwal, Advocates for R-1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    Yes

2.       To be referred to the reporter or not?             Yes

3.       Whether the judgment should be reported            Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the order dated 17th February, 2011 of the

Financial Commissioner.

2. The matter pertains to consolidation in Village-Bakoli, Delhi. The

Draft Scheme of consolidation was published on 8 th August, 1996. The

petitioner claims that his father, and whose successor the petitioner claims

to be, filed objections under Section 19 of the East Punjab Holdings

(Consolidation & Prevention of Fragmentation) Act, 1948 to the Draft

Scheme of consolidation i.e. for inclusion of his land in the extended Lal

Dora of the village as per the Draft Scheme. The counsel for the petitioner

has contended that though under Section 19 of the Act, the Consolidation

Officer was required to put up the objections so preferred by the father of

the petitioner along with his own comments before the Settlement Officer,

for the Settlement Officer to take a decision thereon under Section 20 of

the Act, but the objections preferred by the father of the petitioner were

never put up by the Consolidation Officer before the Settlement officer and

thus remained to be considered and the Scheme was finalized/confirmed

on 15th April, 1997.

3. The petitioner claims that his father and after his father he himself

continued to file reminders that their objections had not been considered

but to no avail. The petitioner in or about the year 2009 i.e. after 12 years

of the confirmation of the Scheme filed W.P.(C) No.10879/2009 in this

regard. On contention of the petitioner that the objections preferred by his

father were still pending consideration, the said writ petition was disposed

of on the very first day when it came up before this Court on 13th August,

2009 with a direction to the Consolidation Officer to dispose of the

objections of the petitioner within eight weeks thereof and with liberty to

the petitioner to seek appropriate remedies against the said order of the

Consolidation Officer.

4. In pursuance thereto the Consolidation Officer vide order dated 18th

November, 2009 held that he had no jurisdiction at that stage to entertain

the objections, after the Scheme had been finalized.

5. Aggrieved therefrom the petitioner preferred Revision Petition under

Section 42 of the Act to the Financial Commissioner and which has been

dismissed vide order dated 17th February, 2011 impugned in this writ

petition. The Financial Commissioner has held that the Consolidation

Authorities were entitled to include appropriate lands in the Lal Dora and

since the Consolidation Authorities had not found it appropriate to include

the land of the petitioner in the new Lal Dora, the petitioner had no right to

insist on the same. It was further held that the Scheme was prepared by the

Consolidation Authorities in consultation with the Mashavi Committee and

since the Consolidation Authorities did not find it fit to include the land of

the petitioner, the petitioner could not make any grievance with respect

thereto after 14 years.

6. The counsel for the petitioner has contended that the Consolidation

Officer in making the order dated 18th November, 2009 (which was

impugned before the Financial Commissioner) acted contrary to the law. It

is contended that the Consolidation Officer under Section 19 of the Act,

after inquiry as to whether the objections preferred by the petitioner/his

father to the Draft Scheme had been dealt with in accordance with law or

not, was only required to put up the same before the Settlement Officer

along with his own comments/report and it was for the Settlement Officer

to take a decision thereon under Section 20 of the Act. It is contended that

the Revision Petition to the Financial Commissioner was confined to the

said error in the procedure followed by the Consolidation Officer but the

Financial Commissioner instead of adjudicating on the said aspect has

himself decided the objections of the petitioner/his father and which he

was not entitled to and which jurisdiction is vested in the Settlement

Officer only.

7. I am unable to agree with the counsel for the petitioner. Even if it is

to be presumed that the objections preferred by the father of the petitioner

were not dealt with under Section 19 of the Act and were not considered

by the Consolidation Officer and not put up before the Settlement Officer,

the grievance if any in that regard was required to be made by the

petitioner/his father when the Consolidation Officer put up the Draft

Scheme before the Settlement Officer or latest when the Settlement officer

confirmed the Scheme on 15th April, 1997. The petitioner could not after a

long span of 12 years have agitated that his objections were not dealt with

in the manner required under Sections 19 & 20 of the Act. No error can be

found in the order dated 18th November, 2009 of the Consolidation Officer

stating that he was then i.e. after 12 years not left with any jurisdiction in

the matter. The Consolidation Officer under Section 19 was required to

follow the procedure of putting up the objections with his remarks to the

Settlement Officer only before confirmation of the Scheme and not after

the Scheme had been confirmed.

8. Faced with the aforesaid, the counsel for the petitioner invites

attention to Section 36 of the Act which uses the expression "at any time".

It is contended that the objections which remained unconsidered could be

considered at any time.

9. However, Section 36 is distinct from the procedure under Sections

19 & 20. Section 36 confers power on the authority which confirms the

Consolidation Scheme to inter alia vary the same at any time. The

petitioner had not approached for varying of the Scheme under Section 36

but had approached with the case of his/his father's objections having not

been considered and which plea as aforesaid was belated and incapable of

consideration.

10. The counsel for the petitioner has urged that in the absence of any

decision thereon, the objections preferred by his father are deemed to have

remained pending. I am unable to agree. The objections preferred to the

Draft Consolidation Scheme even if not adjudicated upon are deemed to

have been dismissed when the Draft Scheme is confirmed/finalized by the

Settlement Officer under Section 20 of the Act. Reference in this regard

may be made to the judgment of the Apex Court in Santa Sila Devi Vs.

Dhirendra Nath Sen AIR 1963 SC 1677, though in relation to arbitration

proceedings, holding that claims/counter claims not allowed by the

Arbitrator are deemed to have been dismissed/disallowed.

11. A perusal of Section 20 shows that the Settlement Officer, under

Sub-Section (2) is required to confirm the Scheme, if no objections have

been received to the Draft Scheme and under Sub Section (3) is required

to, either confirm the Draft Scheme, with or without modifications or

refuse to confirm it, "after taking the objections into consideration together

with the remarks thereon of the Consolidation Officer." Sub-Section (4) of

Section 20 requires the confirmed Consolidation Scheme to be published

and once the Consolidation Scheme is confirmed and published, any

objection(s) preferred to the Draft Scheme and in acceptance whereof the

Draft Scheme is not modified/refused are deemed to have been considered

/ rejected and the matter cannot be kept open indefinitely for a Bhumidhar

to agitate/re-open the matter after any length of time.

12. It is an instance where the silence, as to objection preferred, while

confirming the Scheme is a clear indication, having regard to the

finalization/confirmation being professedly complete and de praemissis,

i.e. of and concerning all matters in dispute of that the objection was not

upheld. The non-modification of the Scheme in accordance with the

objection preferred by the father of the petitioner is capable of only one

interpretation and that is that the objection stood rejected. This would not

render the Scheme so confirmed incomplete. The confirmation of the

Scheme is deemed to be after consideration of all objections preferred to

the Draft Scheme. There is a presumption that confirmation of the Scheme

is by considering all objections preferred thereto. The failure to consider

any objections has to be taken to have left the rights of the parties to be

determined by the law.

13. The Supreme Court in Gram Panchayat, Village Kanonda Vs.

Director, Consolidation of Holdings, Haryana AIR 1990 SC 763 also

noticed that the Settlement Officer in exercise of powers under Section 20

of the Act is not required to pass any order on the objections and is only

required to consider the objections raised to the Scheme and to either

confirm the Scheme or modify it or to return the same to the Consolidation

Officer. Thus, the petitioner/his father if aggrieved by the finalization of

the Scheme ought to have challenged the same immediately thereafter and

cannot be allowed the relief after 12 years.

14. The Financial Commissioner also appears to have dismissed the

Revision Petition of the petitioner for the same reasons, though has not

expressly stated so.

15. I have also considered whether the order dated 13 th August, 2009 in

the earlier writ petition conferred any rights on the petitioner. The counsel

for the respondent has pointed out that it was misrepresented to the Court

on that date that the Scheme has not been finalized and was being

finalized. The counsel for the petitioner controverts and contends that the

argument was that the Consolidation Scheme was being finalized and not

that the Draft Scheme was being finalized. I am however of the opinion

that when this Court disposed of the earlier writ petition on the very first

day on the representation/argument that the objection was still pending

consideration, merely by directing consideration of the objections of the

petitioner, the same does not amount to this Court holding that the

objections were entertainable at that stage and which as aforesaid have

been found to be by then not entertainable.

16. The counsel for the petitioner at this stage states that he be permitted

to apply under Section 36 of the Act for variation of the Scheme. On

enquiry, as to to which Authority the application under Section 36 is to be

made, the counsel with reference to Section 20 of the Act has stated that

the Scheme of the Consolidation is finalized by the Settlement Officer.

The matter in the present case has not been considered by the Settlement

Officer. In the circumstances, while dismissing the writ petition, liberty is

granted to the petitioner to apply for variation of the Scheme in accordance

with law. If is further clarified that the observations of the Financial

Commissioner in the order dated 17th February, 2011 being in the context

of the objections under Section 19 of the Act, will not come in the way of

consideration of the matter under Section 36 of the Act.

17. With the aforesaid liberty/clarification, the writ petition is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 18, 2011 bs (corrected and released on 1st June, 2011)