Sarva Mitter Kataria vs Gaon Sabha, Burari
2012 Latest Caselaw 2843 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 30th April, 2012

+                                 LPA No.329/2012

         SARVA MITTER KATARIA                      ..... Appellant
                     Through: Mr. Rajesh Gupta & Mr. Harpreet
                              Singh, Advs.

                                      versus

         GAON SABHA, BURARI                                   ..... Respondent

Through: Mr. N. Waziri, Standing Counsel (Civil) Mr. Shoaib Haider, Adv.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE

1. Admit.

2. With the consent of the counsels for the parties, we have heard the matter finally at this stage.

3. The admitted facts are that the Revenue Assistant (RA) had initiated suo moto proceedings under Section 81(2) of the Delhi Land Reforms Act, 1954 on the ground that though the land in question, belonging to the appellant, was agricultural land, construction activity was going on therein which was not permissible. The appellant explained that the construction was only over 5% area of the land and 95% was still in use as agricultural land. The RA found himself satisfied with the aforesaid explanation and dropped the proceedings vide order dated 6th December, 2001.

4. The Gaon Sabha preferred an appeal thereagainst under Section 185 of the Act, to the Additional Collector (Appellate Authority). The said appeal was however dismissed vide order dated 27 th April, 2007 on the ground that once the proceedings were initiated by the RA under Section 81(2) of the Act, no appeal against the impugned order was maintainable at the instance of the Gaon Sabha. It was opined that the Gaon Sabha could file appeal only after it had filed the proceedings before the Revenue Assistant under Section 81(1) of the Act.

5. The Gaon Sabha approached the Financial Commissioner (FC) challenging the order of the Appellate Authority. The FC vide order dated 23rd July, 2010 upheld the order of the Appellate Authority holding that Gaon Sabha had no locus standi to file the appeal in case of suo moto proceedings initiated under Section 81(2) of the Act by the RA. However at the same time the FC even looked into the merits of the case and did not find any merit in the challenge by the Gaon Sabha and thus the appeal of Gaon Sabha was dismissed by the FC as not maintainable and even on merits.

6. The Gaon Sabha, in these circumstance, approached this Court by filing W.P.(C) No. 1819/2011, questioning the order of the FC. The learned Single Judge vide order dated 28th March, 2012 has held that the appeal by the Gaon Sabha is maintainable even when RA proceeds under Section 81(2) . For this purpose, the learned Single Judge has referred to Rule 21-B of the Delhi Land Reforms Rules, 1954 which is to the following effect:-

"21-B Disposal of reports by Revenue Assistant (Section 81) - The Revenue Assistant, on receipt of the report referred to in Rule 21-A or on receipt of information otherwise regarding user of land for non-agricultural

purposes shall issue notice to the parties in L.R. Form 48 and shall call upon them to show cause why action should not be taken against them under Section 81.

To every such suit or proceedings Gaon Sabha shall be made a party.

After hearing the parties and after making such further enquiries as he thinks fit, the Revenue Assistant shall pass suitable orders thereon."

7. Thus it is concluded by the learned Single judge that when even in suo moto proceedings under Section 81(2) of the Act by the RA, the Gaon Sabha is to be impleaded as a party and heard, no distinction remains between sub- sections (1) & (2) of Section 81 of the Act; obviously if any order is passed which is prejudicial to Gaon Sabha, Gaon Sabha shall have the right to file an appeal challenging that order.

8. To this extent, we do not find any infirmity in the order of the learned Single Judge.

9. However while deciding that the appeal by the Gaon Sabha was maintainable, the learned Single Judge has upset the order of the FC and remitted the case back to the Appellate Authority to decide the appeal of the Gaon Sabha on merits. While doing so what is ignored is that the order of the Appellate Authority was challenged before the FC and the FC had dismissed the appeal of the Gaon Sabha finding no merit therein. Therefore the order of the Appellate Authority had been merged with that of FC and the FC has decided the appeal even on merits, and this part of the order was also challenged by the Gaon Sabha in the writ petition. It was for the learned Single Judge to deal with this aspect and decide as to whether the order of the FC on merits is valid or not.

10. We accordingly set aside that part of the order of the learned Single Judge which remitted the case back to the Appellate Authority; instead we are of the opinion that the issue whether the order of the FC is right or not on merits, which is also the subject matter of the writ petition, should be decided by the learned Single Judge. The parties shall appear before the learned Single Judge on 30th July, 2012.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J

APRIL 30, 2012 „pp‟..