Delhi High Court
Sh. Bhim Sen Kushwaha & Ors. vs Govt. Of Nct Of Delhi & Ors. on 13 March, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th March, 2012
+ LPA 200/2012
% SH. RANDHIR SINGH & ANR. .... Appellants
Through: Mr. B.S. Maan with Ms. Smita Maan
& Mr. Jitin Tewathia, Advs.
Versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advs.
AND
+ LPA 201/2012
% SH. BHIM SEN KUSHWAHA & ORS. .... Appellants
Through: Mr. B.S. Maan with Ms. Smita Maan
& Mr. Jitin Tewathia, Advs.
Versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advs.
AND
+ LPA 202/2012
% SH. SANJEEV KUMAR SAINI & ORS. .... Appellants
Through: Mr. B.S. Maan with Ms. Smita Maan
& Mr. Jitin Tewathia, Advs.
Versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advs.
Mr. Dhanesh Relan & Ms. Sweta,
Advs.
LPA Nos.200/2012, 201/2012 & 202/2012 Page 1 of 10
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. These intra-court appeals are preferred impugning the common order
dated 21.02.2012 of the learned Single Judge dismissing the W.P.(C)
Nos.6189/2011, 6354/2011 and 6191/2011 preferred by the appellants
respectively. The said three writ petitions were filed impugning the separate
but identical orders dated 11.08.2011 of the Financial Commissioner, Delhi
dismissing the revision petitions under Section 42 of the East Punjab
Holdings (Consolidation & Prevention of Fragmentation) Act, 1948
preferred by each set of appellants. The said revision petitions in turn were
preferred assailing the order / notice issued by Revenue Assistant /
Settlement Officer notifying the appellants to deliver possession of the land
in village Mundka in their possession.
2. The learned Single Judge has in the impugned order recorded that the
facts and the issue involved in all the matters are identical. These appeals
are also identically drafted and common arguments have been addressed by
the counsel for the appellants and are as such dealt with together.
3. All the appellants claim to have acquired rights in different plots of
land all in Khasras No.108/2, 108/3, 108/4/1, 4/2 of village Mundka, Delhi
on 15.07.1987, from Sh. Hari Singh and Sh. Ran Singh residents of the said
village, by delivery of possession in pursuance to Agreement to Sell,
General Power of Attorney, Will, etc.
4. It is recorded in the orders of the Financial Commissioner and is not
controverted, that the consolidation proceedings in village Mundka started
in the year 1974-75; that the private respondents, being the bhumidhars of
the village had filed applications for residential plots but were not made any
allotment in the draft Consolidation Scheme; that the private respondents
preferred objections and the process of amendment of the Scheme was
initiated; that though the name of the private respondents figured in the
proposed amended draft Consolidation Scheme published on 14.05.1979 but
the same was challenged by some other persons and could not be confirmed;
that another amended Consolidation Scheme was republished on 06.08.1980
but the same was also dropped by the Settlement Officer vide order dated
24.05.1982 on the ground that the area within the phirni was not enough and
the villagers were opposed to the amended scheme; that the private
respondents preferred revision petition to the Financial Commissioner who
set aside the order of the Settlement Officer and remanded the matter for
decision on merits; that the Settlement Officer again dropped the amended
draft Scheme vide order dated 04.04.1983; that the private respondents and
others again preferred revision petitions to the Financial Commissioner
which were dismissed vide order dated 25.11.1983; that the private
respondents approached this Court, which vide order dated 22.10.1986
allowed the writ petition and directed the consolidation authorities to amend
the Scheme in such a way that the demand for additional residential plots of
all the rightful claimants was met within the extended abadi area, though not
necessarily at the same place; in accordance with the order dated 22.10.1986
of this Court, the Consolidation Scheme was amended and an area
measuring 92 Bighas and 8 Biswas including the land in Khasras No.108/2,
108/3, 108/4/1, 4/2 belonging to Sh. Hari Singh and Sh. Ran Singh were
included within the extended abadi of the village; Sh. Hari Singh and Sh.
Ran Singh were given alternate land in lieu thereof; that in the said amended
Consolidation Scheme, the private respondents in these appeals were
allotted plots in erstwhile Khasras No. 108/2, 108/3, 108/4/1, 4/2; thereafter
another round of litigation commenced and finally the amended Scheme
stood confirmed after dismissal of writ petition No.348/1993 vide order
dated 02.07.2007. The private respondents thus could not be put into
possession of the plots so allotted to them under the amended consolidation
scheme till the order dated 02.07.2007 (supra) of this Court.
5. It is the case of the authorities as well as of the private respondents
that once the land aforesaid was put in the amended Consolidation Scheme
and Sh. Hari Singh and Sh. Ran Singh allotted land in lieu thereof, Sh. Hari
Singh and Sh. Ran Singh lost any right in the said land bearing Khasras No.
108/2, 108/3, 108/4/1, 4/2 and were thus not entitled to execute any
documents viz. Agreement to Sell, Power of Attorney, Will, etc. with
respect thereto, even if the said documents are believed to have been
executed by them. It is further the case of the private respondents as well as
of the authorities and again not controverted by the appellants that the
names of the appellants were at no time recorded in the record of rights with
respect to the said land.
6. Upon the finalization of the other disputes qua Consolidation
Proceedings as aforesaid on 02.07.2007, the private respondents applied for
being put into possession of the plots allotted to them and the Revenue
Assistant / Settlement Officer, Punjabi Bagh, Delhi vide order dated
24.03.2009 directed the Tehsildar, Punjabi Bagh to handover actual physical
possession of the plot allotted to the private respondents at spot and by
availing police assistance if became necessary.
7. It is in pursuance thereto that the Tehsildar, Punjabi Bagh called upon
the appellants to vacate the land in their respective possession.
8. The appellants claim to have learnt of the order dated 24.03.2009 of
the Settlement Officer only upon being so called to vacate the land in their
respective possession. They first filed objections before the Settlement
Officer but thereafter abandoned the same and preferred the revision
petitions aforesaid to the Financial Commissioner. It was the case of the
appellants in the said revision petition that the order dated 24.03.2009 of the
Settlement Officer was an ex parte order made without issuance of notice to
them and bad in law and thus sought setting aside of the same.
9. The Financial Commissioner vide orders dated 11.08.2011 found /
held:
(i) that the appellants neither produced any Sale Deeds nor copy of
any Khasra Girdawari and Khatoni establishing their title over
the land;
(ii) that in consolidation proceedings Khasras No.108/2, 108/3,
108/4/1, 4/2 belonging to Sh. Hari Singh and Sh. Ran Singh
were brought into the extended abadi and Sh. Hari Singh and
Sh. Ran Singh were allotted land in lieu thereof elsewhere;
(iii) thus, at the time when Sh. Hari Singh and Sh. Ran Singh are
claimed to have "sold" the land to the appellants, the land was
not theirs and over which they had no title;
(iv) that the sales claimed by the appellant in their favour were void
ab initio as no permission under Section 30 of the Act had been
taken from the Tehsildar;
(v) that even otherwise the land could not have been cut up into
plots and sold as claimed by the appellants. Such fragmentation
of holding hits at the very heart of the Scheme of
Consolidation;
(vi) that the proceeding sheets of the Settlement Officer showed
that the Settlement Officer before passing the order dated
24.03.2009 had issued notice of the application of the private
respondents to be put into possession of the land allotted to
them with a direction to affix the notice at some conspicuous
place;
(vii) thus principles of natural justice were followed and appellants
were given opportunity of being heard;
(viii) that the objections and the revision petitions had been filed by
the appellants to prolong the proceedings;
(ix) that the appellants not having any title over the land were
trespassers / interlopers; on the other hand the private
respondents were the recorded owners of the land to whom
possession pursuant to amended Consolidation Scheme could
not be given on account of litigation which stretched to almost
twenty years.
The Financial Commissioner accordingly dismissed the revision
petitions.
10. A perusal of the order of the learned Single Judge dismissing the writ
petitions preferred by the appellants shows that the appellants had raised
two fold argument. Firstly, that the order dated 24.03.2009 of the
Settlement Officer of directing private respondents to be put into possession
by dispossession of the appellants was in violation of Section 23 of the Act
and Rule 16 of the Delhi Holdings (Consolidation & Prevention of
Fragmentation) Rules, 1959 requiring service of a notice of application for
being put into physical possession of the holding to which the appellant
claims to be entitled to on the persons liable to ejectment. Secondly, it was
contended that the power of directing delivery of possession under Section
23 is to be exercised by the Consolidation Officer but in the present case
had been exercised by the Settlement Officer.
11. The learned Single Judge, with respect to the first of the aforesaid
contentions has held, that both the Settlement Officer in the order dated
24.03.2009 and the Financial Commissioner in the order dated 11.08.2011
held that service was effected by affixation; but the appellants had not
assailed the said concurrent finding of fact and had merely asserted violation
of Rule 16 without showing as to in what manner the Rule stood violated. It
was further held that the appellant had not even denied having been served
by affixation.
12. We may also notice that the argument of the appellant before the
Financial Commissioner was "that they are not claiming their bhumidhari
rights...... rather they are claiming that they be not dispossessed without
due process of law." The appellants have had ample hearing and
opportunity in the last over two years and cannot have the grievance of the
due process of law having not been followed.
13. Qua the second contention aforesaid of the appellants, the learned
Single Judge held that the exercise of power of delivery of possession by
Settlement Officer instead of Consolidation Officer was at the most an
irregularity which did not go to the root of the matter. It was further
observed that the Settlement Officer was higher to the Consolidation Officer
and the power to be exercised by the lower authority if exercised by the
higher authority could not be faulted.
14. The counsel for the appellants before us has urged that the exercise of
jurisdiction / power by an authority other than that designated, even if
higher, cannot be described as a mere irregularity. It is urged that once the
law has prescribed the power of delivery of possession to be exercised by
the Consolidation Officer, the exercise of such power by the Settlement
Officer has to be but a nullity.
15. We have enquired from the counsel for the appellant as to what
prejudice has been suffered by the appellants owing to the power under
Section 23 of the Act being exercised by the Settlement Officer instead of
by the Consolidation Officer. No answer is forthcoming. We even
otherwise fail to see as to how any prejudice can be suffered, by exercise of
powers under Section 23 of the Act, though prescribed to be exercised by
the Consolidation Officer, if exercised by the Settlement Officer. It is
worthwhile to mention that the power under Section 23 is not of
determination of any rights but the said power is executory in nature i.e. of
putting the person, who has already been allotted the plot, into possession of
the plot, so allotted to him. As aforesaid it is not in dispute that the plots
aforesaid, in the amended Consolidation Scheme have been allotted to the
private respondents. It does not matter whether the direction for delivery of
possession thereof to the private respondents is issued by the Settlement
Officer or by the Consolidation Officer. There is thus no merit in the said
contention of the appellants. We may also notice that the occasion for the
private respondents to seek delivery of possession arose long after the
allotment in their favour, i.e. only after the challenge to the amended
Consolidation Scheme was dismissed; since the consolidation proceedings
were under litigation for long, it is well nigh possible that the Consolidation
Officer may not have been in place and the applications to the Settlement
Officer were made for the said reason. The appellants have no right and
hence no locus to take any objection to the private respondents who have
already been deprived of possession of their entitlement, being so put into
possession. We may also notice that neither the Agreements to Sell nor the
Power of Attorney and the Will set up by the appellants are registered. The
appellants did not even get their possession recorded in the revenue records.
Their claims are even otherwise steeped in illegality i.e. violation of the
provisions of the Consolidation Act. Such persons cannot be said to be
having any right to come in the way of the rightful owners being put into
possession of their land.
16. The counsel for the appellants has also argued that the land in
possession of the appellants is part of the unauthorized colony of East
Mundka which had been issued provisional certificate of regularization. It
is further argued that the appellants themselves are poor persons who had
acquired land aforesaid in the unauthorized colony for their residence. The
said arguments, besides being without any basis cannot change the legal
position aforesaid. The appellants cannot be permitted to take advantage of
their own illegality / wrong and to the deprivation of legitimate title holders
of the land.
17. We therefore do not find any merit in these appeals and dismiss the
same. We refrain from imposing any cost on the appellants.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MARCH 13, 2012
„gsr‟
