Rajender Singh & Ors. vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 7150 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                      Reserved on: December 04, 2012
                      Pronounced on: December 13, 2012

+                        W.P.(C) 7124/2009

      RAJENDER SINGH & ORS.             ..... Petitioners
                   Through: Mr. Ravi Gupta, Senior Advocate,
                            with Mr.V.P.Rana & Mr. Ravinder
                            Marwal, Advocates.

                         versus

      GOVT. OF NCT OF DELHI & ORS.        ..... Respondents

Through: Mr. V.K. Tandon, Advocate for respondents No. 1 & 3.

Mr. Hemant Malhtora, Advocate for respondents No. 4 to 7.

Mr. Virender Singh, Advocate for

CORAM:

      HON'BLE MR. JUSTICE SUNIL GAUR

      %                           JUDGMENT

1. The grievance of petitioners in this writ petition is that application under Section 43A of East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (henceforth referred to as Consolidation Act) preferred by respondents No. 4 to 7, i.e., the contesting respondents herein, has been allowed by Consolidation Officer vide order of 24 th December, 2004 without putting petitioners to notice, although they are in possession of Khasra No.703 (0-11), in Village Karala, Delhi, which upon repartition has been assigned new Khasra No.168 (0-11)

(hereinafter referred to as the subject land) in the consolidation proceedings of this Village.

2. Petitioners had assailed Consolidation Officer's order of 24th December, 2004 (Annexure P-8 Colly.) urging that Scheme file (Annexure P-7) of this Village showing father of contesting respondents as being scheme kabiz is a fabricated document and that after more than two decades, resort to Section 43A of Consolidation Act has been made to disturb substantive rights of petitioners to subject land which is unwarranted as Section 43A of Consolidation Act is meant only to correct clerical or arithmetical mistakes in the Consolidation Scheme. Financial Commissioner, Delhi vide impugned order of 3rd February, 2009 (Annexure P-15) dismissed petitioners' revision petition by holding that contesting respondents being scheme kabiz in subject land was never challenged and has attained finality and that petitioners had raised no objection to contesting respondents' application (i.e., of respondents No. 4 to 7 herein) under Section 43A of Consolidation Act being decided by the Consolidation Officer on remand. While recognizing right of scheme kabiz, by relying upon Apex Court decision in Amar Singh, Jagram (dead) by Lrs. vs. Chandgi, AIR 1989 SC 413, impugned order upholds Consolidation Officer's order (Annexure P-8 Colly), which is under challenge in this writ petition.

3. Learned senior counsel for petitioners had vehemently urged that the alleged list of scheme kabiz (Annexure P-7) is a fictitious document as its bare perusal would show that father's name of contesting respondents had been inserted in the said list later on as occupying subject land, whereas petitioners have been always in possession of the subject land.

4. According to learned senior counsel for petitioners, impugned order notes the respective contentions of the parties but does not deal with them and that remand order of 14th August, 2000 (Annexure P-6) has been misconstrued in the impugned order to justify invocation of Section 43A of Consolidation Act, which is unwarranted as petitioners had not conceded to maintainability of application under Section 43A of Consolidation Act moved by contesting respondents. Thus, quashing of impugned order and dismissal of application under Section 43A of Consolidation Act of contesting respondents is sought.

5. Learned counsel for contesting respondents draws attention of this Court to certified copy of list of scheme kabiz to show that there is no interpolation qua the name of contesting respondents in the said list and that impugned order rightly relies upon Apex Court decision in Amar Singh (supra) to maintain Consolidation Officer's order, which does not suffer from any non-application of mind or legal infirmity. Regarding possession of petitioners on the subject land, it was pointed out that after passing of impugned order, contesting respondents have been forcibly dispossessed from the subject land, in respect of which a criminal case is also pending. It was urged on behalf of contesting respondents that there is no limitation to invoke residuary power under Section 43A of Consolidation Act which is akin to the power under Section 152 of CPC. Reliance was placed upon decisions in Master Construction Co. (P) Ltd. vs. State of Orissa and another, AIR 1966 SC 1047; Jayalakshmi Coelho vs Oswald Joseph Coelho, AIR 2001 SC 1084; Rishi Prakash & others. vs. Financial Commissioner & others, 2009 (110) DRJ 14 to contend that the obvious instance of accidental omission is not to recognize contesting

respondent's right of scheme kabiz in subject land, which has been rightly corrected by legitimately invoking Section 43A of Consolidation Act and so this writ petition deserves dismissal.

6. In rebuttal, learned senior counsel for petitioners asserted that contesting respondents are trespassers who cannot be treated as encumbrancer and had relied upon decision in Mange Ram vs. Financial Commissioner & others, (2003) 2 SCC 1 to urge that contesting respondents are just trespassers, who cannot be treated as encumbrancer to have the benefit of being scheme kabiz, as envisaged in the Scheme of Consolidation Act.

7. The contentions advanced on behalf of both the sides, impugned order, the material on record and the decisions cited have been considered and thereupon it emerges that impugned order suffers from no jurisdictional error as it affirms Consolidation Officer's order by recording the name of contesting respondents in the karwai register on the basis of their being scheme kabiz in respect of the subject land while invoking Section 43A of the Consolidation Act. It is so said because a Division Bench of this Court in L.P.A. No.1734/2006, Shri Leo Puri vs. Consolidation Officer & ors., rendered on 30th September, 2008 has declared that Consolidation Officer is fully competent to rectify a mistake resulting in deficiency in holdings by resort to Section 43A of the Consolidation Act, provided the consolidation scheme is in operation.

8. In the instant matter, consolidation proceedings had commenced in the year 1981 and have concluded in the year 2005. It is so asserted by petitioner's counsel in paragraph No. 4 of the writ petition and in the corresponding paragraph of the counter affidavit, there is no denial of the

same by the contesting respondents. Therefore, resort to Section 43A of the Consolidation Act by the contesting respondents in the year 2000 was while the Consolidation Scheme was operational and even the Consolidation Officer's order is of the year 2004 i.e. prior to the year 2005 when the Consolidation Scheme had concluded. So, absence of concession to submit to jurisdiction of Consolidation Officer for fresh decision upon remand is of no consequence, as during the currency of the Scheme resort to Section 43A of the Consolidation Act can always be made. So, on this account the impugned order cannot be faulted.

9. So far as the question of not affording a hearing to petitioners upon remand is concerned, no meaningful argument could be addressed to dislodge concurrent finding of service of notice upon the concerned parties prior to fresh hearing on remand. The emphasis of learned senior counsel for petitioner during the course of hearing was upon the list of scheme kabiz (Annexure P-7) being a fictitious document.

10. To say the least, by merely relying upon copy of Scheme File (Annexure P-7) of the village in question, no conclusion of it being interpolated can be drawn, as contesting respondents No. 4 to 7 along with their counter affidavit have placed on record certified copy of Scheme File/ Register proceedings (Annexure- R-1) , which does not reveal any interpolation. Aforesaid certified copy of the Scheme File (Annexure-R-1) clearly records that contesting respondents are in possession of 11 Biswas of land in Khasra No. 168, whose old No. is

703. On the aspect of contesting being scheme kabiz, the finding in the impugned order remains unassailable, which is as under:-

'It is further an admitted fact that the aforesaid order

of declaring father of the respondents no. 1 to 4 as Scheme Kabiz was never challenged by the petitioners or the other respondents at any point of time and hence attains finality.'

11. In view of the aforesaid, reliance placed upon decision in Mange Ram (supra) by petitioner's counsel to stress that a trespasser cannot be given the benefit of scheme kabiz is of no avail, as its stands recorded in the Consolidation Officer's order of 24th December, 2004 that Halka Patwari was called alongwith Consolidation Scheme of the village in question and the fact of father of contesting respondents being recorded as scheme kabiz on the subject land was noted in the Consolidation scheme of the village in question and that predecessor-in-interest of contesting respondents had been mentioned as its Bhumidar. In any case, in consolidation proceedings, title of the parties to the land is not adjudicated and only the land holdings upon repartition in pursuance to consolidation proceedings are reflected therein.

12. In the light of the aforenoted factual and legal position, I find no palpable error in the impugned order. Hence this writ petition is dismissed while leaving the parties to bear their own costs.

(SUNIL GAUR) Judge DECEMBER 13, 2012 pkb/rs