Delhi High Court
Gurcharan Singh vs Govt. Of Nct Of Delhi And Ors on 2 July, 2012
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: May 17, 2012
Pronounced on: July 02, 2012
+ W.P.(C) 6612/2011
GURCHARAN SINGH ..... Petitioner
Through: Mr. V.P.Rana, Advocate
versus
GOVT. OF NCT OF DELHI AND ORS. ..... Respondents
Through: Mr. Dinesh Garg, and
Ms. Archna Agrawal, Advocates.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
%
ORDER
02.07.2012
1. The concurrent findings returned by the Collector and the
Financial Commissioner are that there was a clear dispute about transfer
of 20 bighas and 8 biswas of agricultural land situated in village
Ranhola, New Delhi, as detailed in the impugned order (Annexure P-11)
[hereinafter referred to as the 'subject land'] in favour of the petitioner
by respondent No.4- Shri Atma Ram on the strength of General Power of
Attorney purportedly executed by the recorded Bhumidar of the subject
land i.e. respondent No.2 - Smt. Saraswati and so, mutation of the
subject land in favour of the petitioner by the concerned Tehsildar is
contrary to the mandate of Section 23 of the Delhi Land Revenue Act,
1954 which requires reference of such disputes to the Revenue Assistant
concerned. Since the concerned Tehsildar vide order (Annexure P-4)
had mutated the subject land in favour of the petitioner in violation of
Section 23 of the Delhi Land Revenue Act, 1954, therefore, Tehsildar's
W.P. (C) No.6612/2011 Page 1
order (Annexure P-4) has been set aside by the Collector concerned,
which has been upheld by the Financial Commissioner vide impugned
order (Annexure P-11).
2. It stands noted in the impugned order that there is a strong
suspicion about the valid execution of the Power of Attorney by
respondent- Smt. Saraswati in favour of respondent- Shri Atma Ram, as
the execution of the aforesaid Power of Attorney on 28th August, 2000 is
at Cuttack, whereas the stamp paper on which it is purportedly executed,
was purchased at Delhi and its notarization was also done at Delhi and
on the strength of the aforesaid observations, the finding returned is that
there was no valid transfer of title in favour of the petitioner, as
respondent - Shri Atma Ram had lacked authority to execute valid
transfer of title in respect of the subject land on behalf of its recorded
owner i.e. respondent- Smt. Saraswati.
3. The aforesaid finding in the impugned order (Annexure P-11) is
assailed by petitioner's counsel by contending that the subject land was
validly mutated in favour of the petitioner on the strength of the Sale
Deed and upon it being disputed, the Collector ought to have referred the
dispute to the concerned Revenue Assistant by invoking Section 23 of
the Delhi Land Revenue Act, 1954, instead of setting aside the mutation
order (Annexure P-4). While relying upon the decision in 'Rajni Tandon
Vs. Dulal Ranjan Ghosh Dastidar & Anr.' 2009 VIII AD (SC) 673, it
was contended by petitioner's counsel that the registration of a Power of
Attorney is not a must and so the impugned order holding to the contrary
is bad in law. To urge that entries in the revenue record are for only
fiscal purpose and do not evidence ownership, reliance was placed upon
the decision in 'Suraj Bhan & Ors. Vs. Financial Commissioner & Ors.'
2007 SCC 186.
W.P. (C) No.6612/2011 Page 2
4. Attention of this Court was drawn by learned counsel for the
petitioner to the Collector's order (Annexure P-7) to highlight that it is
not in dispute that civil and criminal proceedings are pending as regards
the execution of the General Power of Attorney by respondent - Smt.
Saraswati in favour of respondent- Shri Atma Ram, who in turn had
executed the Sale Deed of the subject land in favour of the petitioner,
and so the mutation order (Annexure P-4) ought not to have been set
aside by returning categoric findings which would prejudice the
petitioner in the pending civil and criminal proceedings and thus, the
order of the Collector and the Financial Commissioner deserves to be set
aside.
5. To the contrary is the submission of learned counsel for the
respondents, who supports the impugned order while pointing out that
though the Tehsildar in the order (Annexure P-4) had noted about
respondent- Smt. Saraswati denying the execution of General Power of
Attorney in favour of respondent - Shri Atma Ram, but still had mutated
the subject land in favour of the petitioner by merely observing that the
execution of the Sale Deed remains undisputed, while ignoring that
respondent- Shri Atma Ram had executed the Sale Deed in respect of the
subject land on the strength of disputed General Power of Attorney
purportedly executed by respondent- Smt. Saraswati. Reliance was
placed upon decision in 'Narain Singh & Anr. Vs. Financial
Commissioner, Delhi' 2009 I AD (Delhi) 695 to remind that a writ Court
cannot examine the merits of a decision by the Financial Commissioner
as Appellate Court and the only jurisdiction of the writ Court is to see as
to whether there is any error in the decision making process by the
Financial Commissioner.
6. To contend that dispute regarding the proposed mutation takes out
W.P. (C) No.6612/2011 Page 3
the matter out of the jurisdiction of the Tehsildar concerned, learned
counsel for respondents had placed reliance upon decision in 'M.M.
Vashishth Vs. Financial Commissioner' 114 (2004) DLT 162 and so as
per respondent's counsel the mutation order had to be necessarily set
aside and thus, impugned suffers from no jurisdictional error or material
irregularity requiring any interference by this Court in writ proceedings.
7. Having considered the afore-noted submissions advanced in the
light of the decisions cited and upon perusal of the impugned order and
the material on record, I find no hesitation to conclude that the
jurisdiction to invoke section 23 of the Delhi Land Revenue Act, 1954,
has to be exercised by the concerned Tehsildar when dispute regarding
mutation is raised and the higher authorities have to necessarily set aside
the mutation order which ignores the dispute of title raised. So far as the
concurrent findings returned by the higher authorities negating the
mutation order (Annexure P-4), the same cannot be faulted with as the
mutation of the subject land has been done by the concerned Tehsildar
by ignoring that the authority of respondent- Shri Atma Ram was
disputed and so there was apparent violation of Section 23 of the Delhi
Land Revenue Act, 1954 by the concerned Tehsildar. However, the
Collector in its order (Annexure P-7) ought to have invoked Section 23
of the Delhi Land Revenue Act, 1954 uninfluenced by the pending civil
and criminal proceedings between the parties, as the aforesaid provision
of law mandates it.
8. Consequently, concurrent findings setting aside the mutation order
(Annexure P-4) on the premise that the disputed General Power of
Attorney on the strength of the which Sale Deed in respect of the subject
land has been executed, raises title dispute are endorsed with
modification that it warrants reference to the concerned Revenue
W.P. (C) No.6612/2011 Page 4
Assistant by invoking Section 23 of the Delhi Land Revenue Act, 1954.
Reference be accordingly made. It is made clear that any observation
made by the Collector or the Financial Commissioner, whose orders are
impugned herein, will not be taken to be an expression on merits in the
reference so made by resort to Section 23 of the Delhi Land Revenue
Act, 1954 or in the pending civil and criminal proceedings.
9. This petition is accordingly disposed of with aforesaid
modification, while leaving the parties to bearing their own costs.
(SUNIL GAUR)
JUDGE
July 02, 2012
rs
W.P. (C) No.6612/2011 Page 5
