Delhi High Court
Shri Suraj Bhan & Anr vs Govt. Of Nct Of Delhi Through The ... on 12 December, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th December, 2012
+ LPA No.804/2012
% SHRI SURAJ BHAN & ANR ....Appellants
Through: Ms. Geeta Mehrotra, Adv.
Versus
GOVT. OF NCT OF DELHI THROUGH THE
FINANCIAL COMMISSIONER & OTHERS ..... Respondents
Through: Mr. Mirza Amir Baig, Adv. for Mr.
Anjum Javed, Adv. for R-1.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The factual matrix of this appeal needs to be elucidated, for proper
appreciation, as under:
a) The appellants claim to have been in possession of land
admeasuring 10 Bigha 15 Biswas situated in the revenue estate of
village Narela, Delhi since prior to the year 1980-81.
b) They further claim that their cultivatory possession of the said land
was also being shown in the revenue records; however upon the
Delhi Government passing an order that Khasra Girdawai should
be recorded only in favour of the recorded owner, their cultivatory
possession of the said land was not being recorded.
c) The appellants on 15th February, 1996 applied under Section 85 of
the Delhi Land Reforms Act, 1954 (Reform Act) for being
declared as Bhumidars of the said land.
d) The respondents No. 2 to 6 herein, who claimed to have purchased
the said land from the recorded owner thereof, got themselves
impleaded in the said proceedings.
e) The appellants filed Writ Petition No. 3489/2001 in this Court
seeking a direction to the Revenue Authorities to record their
cultivatory possession with respect to the said land, in the revenue
records.
f) Notification under Section 4 of the Land Acquisition Act, 1894
(Acquisition Act) was issued inter alia with respect to the said
land on 2nd May, 2001. This was followed by Notification dated
23rd April, 2002 under Section 6 of the Acquisition Act.
g) WP(C) No. 3489/2001 aforesaid preferred by the appellants, and
to which the respondents No. 2 to 6 or their predecessors were not
a party, was disposed of vide order dated 13th February, 2003
(without noticing the factum of acquisition notification having
been issued with respect to the said land) with a direction to the
Revenue Authority to make necessary entries in the Revenue
Records on the basis of site inspection and after ascertaining as to
who is in possession and with a further direction for expeditious
disposal of the proceedings under Section 85 of the Reforms Act
within a period of six months from the said order.
h) It is the case of the appellants that in compliance of the aforesaid
order dated 13th February, 2003 entries in the Revenue Records of
their possession of the land were recorded vide order dated 28th
March, 2003 of the Tehsildar.
i) The respondents No. 2 to 6 applied for review of order dated 13th
February, 2003in WP(C) No. 3489/2001 (supra). It was their plea
that without site inspection, possession of the appellants of the
land had been recorded. This was of course controverted by the
appellants. However noticing that the respondents No. 2 to 6 had
also preferred a Revision Petition before the Financial
Commissioner against the order dated 28 th March, 2003 of the
Tehsildar, the said Review Application was disposed of vide order
dated 9th January, 2004 with the observations that it would be open
to the respondents No. 2 to 6 to before the Financial
Commissioner contend that the entries of possession of the
appellants made in the Revenue Records were incorrect and with a
direction to the Financial Commissioner to dispose of the Revision
Petition on its own merits.
j) However on 24th June,2004, possession of the land was taken
under the acquisition proceedings aforesaid.
k) Upon possession of the land being so taken, the proceedings under
Section 85 of the Reforms Act were disposed of vide order dated
24th November, 2004 as infructuous.
l) The Revision Petition aforesaid before the Financial
Commissioner was allowed vide order dated 4 th November, 2010
for the reasons -
i. that the order dated 28th March, 2003 of the Tehsildar was
an ex parte order, without hearing the respondents No. 2
to 6;
ii. that the order dated 28th March, 2003 of the Tehsildar was
also in violation of Rule 63(5) of the Delhi Land Revenue
Rules, 1962 prohibiting making of any entry after
Notification under Section 6 of the Acquisition Act had
been issued; and,
iii. that the entries of the Patwari, on the basis whereof the
order dated 28th March, 2003 of the Tehsildar had been
made, were of a date prior to 13th February, 2003 on
which date direction had been issued by the High Court.
The Financial Commissioner thus set aside the order dated 28th
March, 2003 of the Tehsildar recording possession of the appellants of the
said land but neither himself returned any finding qua possession nor
remanded the matter to the Tehsildar for a fresh order.
2. Feeling aggrieved from the order aforesaid of the Financial
Commissioner, the appellants preferred WP(C) No. 5921/2011 from which
this appeal arises and which has been dismissed by the learned Single Judge
holding that after issuance of the Notification under Section 6 of the
Acquisition Act on 23rd April, 2002, there was a legal bar under Rule 63
(supra) from recording revenue entries and thus the order dated 28 th March,
2003 of the Tehsildar was bad for this reason alone.
3. The appellants, in the Memorandum of Appeal admit that after the
possession of the land is taken in pursuance of the acquisition proceedings,
the Revenue Courts cease to have jurisdiction in respect of the acquired land
and only the Civil Court i.e., the Court of the Additional District Judge has
power to decide all disputes in respect of land acquired. They thus do not
dispute the order dated 24th November, 2004 of the Revenue Courts closing
the proceedings under Section 85 of the Reforms Act as infructuous. The
counsel for the appellants states that now the dispute is pending before the
Additional District Judge in reference proceedings under the Acquisition
Act, being LAC No. 58/2004.
4. The contention of the appellants before us is that just like the
proceedings under Section 85 of the Reforms Act had become infructuous
owing to acquisition being completed by taking over possession of the land
on 24th June, 2004, similarly the Revision Petition preferred by the
respondents No. 2 to 6 before the Financial Commissioner also was
thereafter not maintainable and ought to have been so dismissed.
5. In this regard it may be noticed that the Financial Commissioner had
vide earlier order dated 27th February, 2007 held the Revision Petition to be
maintainable since the same had been instituted prior to the completion of
the acquisition proceedings on 24th June, 2004 and reasoned that a change in
law subsequent to the institution of a proceeding does not deprive the Court
of jurisdiction.
6. We have inquired from the counsel for the appellants, that if the rights
of the appellants with respect to the land are in any case to be now
adjudicated by the Additional District Judge in the reference proceedings
aforesaid, what is the relevance of the recording the Tehsildar of the
possession of the appellants of the said land and which recording has been
set aside by the Financial Commissioner.
7. The counsel for the appellants contends that if the order dated 28 th
March, 2003 of the Tehsildar recording possession of the appellants of the
said land, were to stand, the same would be beneficial to the appellants in
the reference proceedings and also establish the possession of the appellants
of the subject land. She otherwise agrees that all rights with respect to the
land including the aspect of as to who was in possession are now to be
adjudicated in the reference proceedings before the Additional District
Judge.
8. The counsel for the appellants has however not been able to find fault
with the reasoning given by the Financial Commissioner in the order dated
27th February, 2007 holding the Revision Petition to be maintainable. The
Revision Petition was filed in 2003, i.e. prior to the date when the
possession of the land in pursuance to the acquisition proceedings was
taken. It is the case of the appellants themselves that the cut off date for
determining the maintainability of proceedings in the Revenue Courts is the
date of taking over of possession pursuance to acquisition. Rather the
counsel for the appellants has herself drawn our attention to the judgment of
the Division Bench of this Court in Government of NCT of Delhi Vs. Smt.
Poonam Gupta 125 (2005) DLT 423 laying down that the land under the
Acquisition Act can be said to be acquired only when possession is taken
and not before. However the reasoning given by the Financial
Commissioner, that jurisdiction is to be determined on the date of institution
of a proceeding and that subsequent change unless expressly oust
jurisdiction would not deprive the court/fora of jurisdiction is a well
accepted one. (see Mohannakumaran Nair Vs. Vijayakumaran Nair
(2007) 14 SCC 426 ). Thus the Revision Petition was clearly maintainable.
9. We next come to the aspect of correctness or otherwise of the order of
the Financial Commissioner. The Financial Commissioner as aforesaid has
given three reasons for setting aside the order of the Tehsildar. For our
purpose it is suffice to refer to Rule 63(5), supra which is as under:
"63. Name of tenure holder and or sub-tenure holder
Columns 4 and 5.
(1) ....
(2) ....
(3) ....
(4) ....
(5) Notwithstanding any thing contained in any law
for the time being in force, nothing contained in this rule
shall apply to any land-
(a) ....
(b) ....
(c) ....
(d) notified for acquisition under Section 6 of the
Land Acquisition Act, 1894 or notified as such
under any other law for the time being in
force;
(e) ....
(f) ....."
10. The Rule is clear. The entries under Rule 63 are not to be made with
respect to the land qua which Notification under Section 6 of the
Acquisition Act has been issued. The dates are not in dispute. The
Notification under Section 6 of the Acquisition Act was issued on 23 rd
April, 2002 and the entry recording possession of the appellants is of 28th
March, 2003. Such entry is clearly in the teeth of the Rule aforesaid.
11 We even otherwise, in exercise of power under Article 226 of the
Constitution of India do not deem it expedient to interfere with the order of
the Financial Commissioner. The Financial Commissioner, as aforesaid,
has merely set aside the order dated 28th March, 2003 and has otherwise not
rendered any finding as to whether the appellants were or were not in
possession of the said land as on 28th March, 2003. The Financial
Commissioner though set aside the order dated 28 th March, 2003, has not
remanded the matter, also for the same reason that the entries could not have
been made.
12. The disputes as to whether the appellants were in possession or not
and/or as to whether the appellants were entitled to be declared as Bhumidar
are now to be decided in the reference proceedings before the Additional
District Judge.
13. Even if we were to agree with the appellants and were to remand the
matter to the Financial Commissioner for adjudicating as to who is in
possession or to remand the matter to the Tehsildar/SDM, the same would
open additional fora to that of the Additional District Judge for determining
the respective rights. Once, as aforesaid, the proceedings under Section 85
of the Reforms Act have been disposed of as infructuous and the appellants
also do not have any objection with respect thereto, for the reason of the
said question being required to be now determined by the Additional
District Judge in the reference proceedings, we see no reason as to why the
appellants should have objection to the question of possession as on 28 th
March, 2003 being also left to be decided by the Additional District Judge.
If it were to be held that the Additional District Judge as well as the
Tehsildar/SDM are entitled to return finding as to possession, the same may
lead to conflicting findings and further lengthen the litigation.
14. For the aforesaid reasons, we do not find any merit in this appeal
which is dismissed. No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
DECEMBER 12, 2012
'M'
