Narain Singh & Anr. vs Financial Commissioner & Ors.
2012 Latest Caselaw 6684 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 22nd November, 2012

+                              LPA No.591/2008

      NARAIN SINGH & ANR.                             ..... Petitioners
                   Through:          Mr. Anand Yadav, Adv.

                                  Versus

    FINANCIAL COMMISSIONER & ORS.              ..... Respondents

Through: Mr. N.S. Dalal & Mr. Devesh Pratap Singh, Advs. for R-2&3.

Mr. S.P. Sharma & Mr. Jitender Chaudhary, Advs. for R1&4.

CORAM :-

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

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the judgment dated 14.07.2008 of a

learned Single Judge of this Court dismissing the W.P.(C) No.670/1995

preferred by the appellants. The said writ petition was preferred impugning

the order dated 10.02.1995 of the Financial Commissioner, Delhi in a

proceeding preferred by the respondents No.2 and 3 i.e. Sh. Mohinder Singh

and Sh. Rajinder Singh and setting aside orders of mutation (in favour of

appellants) of land bearing Khasra No.6/19/2 admeasuring 4 Bighas 18

Biswas situated in the Revenue Estate of village Samai Pur, Delhi and

further ordering the land to be vested in the respondent No.4 Gaon Sabha

village Samai Pur Badli.

2. The facts, insofar as necessary for disposal of this appeal, may be set

out in seriatim as under:

(i) One Sh. Maman Singh was the bhumidhar of the aforesaid land

and who vide Sale Deeds both dated 04.05.1989 sold 2 Bighas

18 Biswas of the aforesaid land to the appellant No.1 Sh.

Narain Singh and the remaining 2 Bighas to the appellant No.2

Sh. Som Dutt and mutation of transfers were sanctioned by the

Tehsildar in their favour on 31.05.1989.

(ii) The respondents No.2&3 in or about November, 1989 filed a

petition under Section 85 of the Delhi Land Reforms Act, 1954

(Reforms Act) seeking declaration of bhumidhari rights in the

said land on the basis of their adverse possession over the said

land. The said petition however was dismissed by the Revenue

Assistant and after a chequered history, the second appeal

arising from the said proceeding was dismissed by the Financial

Commissioner on 10.02.1995 and which order is stated to have

attained finality.

(iii) The respondents No.2&3, besides the proceedings aforesaid

under Section 85 of the Reforms Act had also filed appeal

under provisions of the Delhi Land Revenue Act, 1954

(hereafter called the Revenue Act) to the Additional Collector

(Sh. M.P. Tyagi) Magistrate against the order of mutation of the

said land in favour of the appellants. The said appeal was

dismissed on 09.08.1991 and again after a long history, the

matter was decided by the order dated 10.02.1995 supra by the

Financial Commissioner. The Financial Commissioner inter

alia held that the transfer of land by Sh. Maman Singh in favour

of the appellants was in contravention of Section 33 of the

Reforms Act and thus the consequences as per Section 42 of the

Reforms Act i.e. of vesting of land in the Gaon Sabha had to

follow. Accordingly, the mutation order in favour of the

appellants was set aside and the land ordered to be vested in the

Gaon Sabha; and,

(iv) The appellants also filed a suit for permanent injunction to

restrain the respondents No.2 and 3 from disposing the

appellants from the said land. Though initially ad-interim

injunction was granted in the said suit but subsequently the

application of the appellants for interim relief dismissed.

Appeal preferred by the appellants against the order of

dismissal of their injunction application was also dismissed by

this Court. The appellants then preferred a Special Leave

Petition to the Supreme Court and in which the Supreme Court

directed the SHO of the Police Station concerned to be incharge

of the land and subsequently the respondents No.2 and 3 were

to put into possession of the land, as an interim arrangement,

without affecting the merits of the case in any manner

whatsoever.

3. The counsel for the appellants has raised three contentions before

us. Firstly, it is contended that the subject land is situated in the extended

abadi of the village and is not part of agricultural holding and thus not

governed by Section 33 of the Reforms Act and thus the transfer of the

said land by Sh. Maman Singh in favour of the appellants could not have

been held to be violative of Section 33 of the Reforms Act. Reliance in

this regard is placed on Raj Kishore Tyagi Vs. Radhey Shyam 149

(2008) DLT 754. Secondly, it is contended that the village in which the

land is situated was urbanized in the year 1982 and for this reason also,

the Reforms Act ceased to apply to the said land. It is contended that

though the learned Single Judge in the impugned judgment has held that

the Reforms Act would continue to apply notwithstanding the

urbanization of the land but a Division Bench of this Court subsequently

in Smt. Indu Khorana Vs. Gram Sabha MANU/DE/0969/2010 has held

that once a rural area is urbanized by issuance of Notification under

Section 507(a) of the Delhi Municipal Corporation Act, 1957, provisions

of the Reforms Act will cease to apply. It is argued that if the Reforms

Act did not apply to the land at the time of sale by Sh. Maman Singh in

the year 1989, the finding of the Financial Commissioner upheld by the

learned Single Judge, of the sale in favour of the appellants being bad for

the reason of being violative of the provisions of the Reforms Act, has to

be necessarily set aside. Thirdly and lastly, it is contended that the

challenge to the mutation of the subject land in favour of the appellants

was under the provisions of the Revenue Act and the Financial

Commissioner in the said proceedings under the Revenue Act could not

have vested the land in the Gaon Sabha, exercising the powers under

Sections 33 and 42 of the Reforms Act.

4. We have enquired from the counsel for the appellant that if his

second contention aforesaid, of the land, as far back as in the year 1982

i.e. since prior to the sale in favour of the appellants and commencement

of the proceedings aforesaid by the respondents No.2 and 3, having

ceased to be governed by the Reforms Act, will not, both the proceedings

aforesaid i.e. under Section 85 of the Reforms Act and of mutation, be

non est since their very inception in as much as, the proceedings before

the Revenue Authorities are maintainable only so long as the land is

governed by the Reforms Act. It was further enquired whether not in the

aforesaid scenario the disputes between the parties relating to title and

possession of the land, will have to be determined by the Civil Court.

5. The counsel for the appellants agrees.

6. The counsel for the respondents No.2 and 3 though also could not

controvert that as per the judgment of the Division bench in Smt. Indu

Khorana supra, upon a Notification for urbanization of the land having

been issued in the year 1982, the land would cease to be governed by the

Reforms Act and the proceedings aforesaid before the Revenue

Authorities would be non est, has contended that the judgment of the

Division bench in Smt. Indu Khorana is per incuriam. Reliance in this

regard is placed on Om Prakash Agarwal Vs. Batara Behera AIR 1999

SC 1093 where it was held that the Orrisa Land Reforms Act, 1960 being

aimed at agrarian reforms and being applicable to land being used or

capable of being used for agricultural purposes and not excluding land

merely because they were situated in an urban conglomerate, would apply

to land used or capable of being used for agricultural purpose,

irrespective of whether it is situated within a municipal area or in

villages. It is further stated that challenge to Smt. Indu Khorana is

pending before the Supreme Court.

7. It is not the case of the counsel for the respondents No.2 and 3 that

operation of the judgment of the Division Bench in Smt. Indu Khorana

has been stayed by the Supreme Court. Merely because a challenge

thereto is pending before the Supreme Court is no reason for this Bench

to not follow the earlier Division Bench judgment. We are also not able

to concur with the argument of the counsel for the respondents No.2 and

3 of the judgment of the Division Bench being contrary to the prior

judgment aforesaid of the Supreme Court though admittedly the said

judgment of the Supreme Court was not cited before or noticed by the

Division Bench. The reason which prevailed with the Supreme Court in

Om Prakash Agarwal supra was that there was no iota of material on

record in that case that the area in question has been reserved for

urbanization by Notification in the Official Gazette. On the contrary, the

Notification in the present case under Section 507(a) of the Delhi

Municipal Corporation (DMC) Act, 1957 expressly urbanizes the land

and brings the same within the ambit of the DMC Act. The DMC Act

nowhere deals with agricultural lands. Moreover, the very purport of a

Notification under Section 507(a) of the DMC Act is to convert the land

from agricultural to urban. We are thus not persuaded to refer the matter

to a larger Bench for reconsideration of the judgment in Smt. Indu

Khorana.

8. The counsel for the respondents No.2 and 3 has then invited our

attention to the orders of the Supreme Court in the proceedings aforesaid

where on the statement of the parties that proceedings under the Reforms

Act were pending, the Supreme Court had directed the Revenue Assistant

to conclude the proceedings and decide the matter on the basis of

evidence led therein and had directed delivery of possession to the

respondents No.2 and 3 subject to the finding in the said proceedings.

The counsel for the respondents No.2 and 3 contends that as per the order

of the Supreme Court, the proceedings before the Revenue Authorities

are maintainable. We are again unable to agree. The Supreme Court made

those observations on the statement of the parties, of the disputes between

the parties pending before the Revenue Court. The matter had reached

the Supreme Court from an application for interim relief in the suit for

injunction filed by the appellants. The said suit is stated to be still

pending. The orders of the Supreme Court remained interim orders during

the pendency of the suit. Since the suit was only for injunction and the

title disputes between the parties as to the land was stated to be pending

before the Revenue Court, the Supreme Court made the said interim

orders subject to the findings to be returned in the revenue proceedings.

The Supreme Court on its own did not return any findings as to the

maintainability of the proceedings before the Revenue Court /

Authorities. However now when the said proceedings are found to be not

maintainable, they cannot be said to be made maintainable by the order

aforesaid of the Supreme Court.

9. We therefore dispose of this appeal in aforesaid terms, observing

that the proceedings leading to the filing of this appeal were non est and

leaving the parties to agitate their claims / disputes before appropriate

fora and clarify that all pleas in law shall remain available to the parties

before the appropriate fora.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 22, 2012 'gsr'