Rajender Singh vs Govt. Of Nct Of Delhi & Ors.
2013 Latest Caselaw 219 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 39/2013 and CM No. 754/2013 (Stay) & 755/2013 (Exemption)

      RAJENDER SINGH                                          ..... Appellant

                            Through: Counsel for the appellant.

                   versus

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

                            Through: Mr V.K. Tandon, Adv for respondents 1 to 3

      CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN
                   ORDER

% 15.01.2013 The consolidation of land holdings of village Karala started in the year

1975-76. During consolidation proceedings, the appellant Rajender Singh and

respondents 8 to 20 were allotted land in lieu of their pre- consolidation holding,

including the land comprised in Khasra No. 168, measuring 11 biswas, in re-

partition under Section 21(1) of East Punjab Holdings (Consolidation and

Prevention Of Fragmentation) Act 1948 (hereinafter referred to as the "Act") and

they were put in physical possession of the said land. Respondents No. 4 to 7 in

this appeal, namely, Shri Tej Ram, Shri Satbir Singh, Shri Ranbir Singh and

Master Navin, filed an application under Section 43-A of the Act, before the

Consolidation Officer, seeking allotment of Khasra No. 168 (old Khasra No. 703)

in their favour, on the ground that their names appeared in Scheme Kabizan prior to

consolidation of holdings. The application was dismissed by the Consolidation

Officer vide order dated 11.05.1999 on the ground that he had no jurisdiction in the

matter. The order of the Consolidation Officer was challenged before the

Financial Commissioner, who vide order dated 17.08.2000, remanded the matter

back to him to decide the application under Section 43-A of the Act, afresh on

merits. During pendency of the matter before the Consolidation Officer, after

remand by the Financial Commissioner, respondent No. 2 in that matter Shri Baljit

Singh expired. An application was, therefore, filed by Tej Ram and others for

impleading his legal representatives. The said application was allowed vide order

dated 04.10.2004. Vide order dated 24.10.2004, the Consolidation Officer took

note of the certified copy of the Register proceedings dated 08.06.1976 in which

the father of Tej Ram and others had been shown as Scheme of Khasra No. 168

(old Khasra No. 703), measuring 11 biswas in revenue estate of village Karala.

The Halka Patwari was then called along with consolidation scheme of the village

and the said entry was found duly reflected in the scheme of consolidation holding

of the village. It also transpired that the predecessor-in-interest of the appellant

Rajender Singh and others had been mentioned as Bhoomidars of the said land.

Relying upon the decision of Supreme Court in Amar Singh, Jagram (Dead) by

Lrs. v. Chandgi (Dead) by Lrs. AIR 1989 SCC 413, the Consolidation Officer held

that Tej Ram and others were entitled to allotment/allocation as Scheme Kabizan.

He was of the view that it was incumbent upon the Consolidation Authority to

allot/allocate the equivalent value/area during the consolidation proceedings. It

was also noted by him that the aforesaid land had been allotted in the name of

respondents 3 to 7 before him, as the joint holding of the respondents, got

separated during consolidation and the encumbrances over the said land was

individually on the appellant Rajender Singh, who was respondent No. 2 before

him. The Halka Patwari was again called with revenue records and on the basis of

consolidation scheme of revenue records, the allotment of land measuring 11

biswas in Khasra No. 168 was made to Tej Ram and others.

2. Being aggrieved from the order passed by the Consolidation Officer on

24.12.2004, Rajender Singh and others filed a Revision Petition before the

Financial Commissioner. The Revision Petition was dismissed vide order dated

03.02.2009. Being still aggrieved, Shri Rajender Singh and others filed a writ

petition being WP(C) No. 7124/2009, challenging the order passed by the

Consolidation Officer and the Financial Commissioner. The writ petition having

been dismissed vide order dated 13.12.2012 and the review petition filed by the

writ petitioner having been dismissed vide order dated 18.12.2012, the appellant

Shri Rajender Singh is before us by way of this appeal.

3. The following three submissions are made by the learned counsel for the

appellant:-

i. the Consolidation Officer had no jurisdiction under Section 43-A to make

allotment after the consolidation proceedings in the village were over;

ii. the order dated 24.12.2004 was passed, without giving opportunity of

hearing to the appellant and the Legal Representatives of late Baljeet Singh since

they had no notice of the hearing after 04.10.2004;

iii. respondents 4 to 7 being trespassers, no allocation of land could have been

made to them.

4. The learned counsel for the appellant is correct in submitting that the

consolidation proceedings in village Karala had come to an end much before

application under Section 43-A of the Act was filed before the Consolidation

Officer. This was acknowledged by the learned Single Judge in his order dated

18.12.2012 when he noted that the consolidation proceedings had concluded in the

year 1976. The learned Single Judge, relying upon the decision of this Court in

Shri Leo Puri v. Consolidation Officer & Ors. LPA No. 1734/2006, held that non-

recognition of status of contesting respondents as Scheme Kabizan was indeed an

accidental omission, which could be corrected in exercise of the power under

Section 43-A of the Act. We also take note of the fact that at the time of disposal

of the writ petition vide order dated 13.12.2012, the learned counsel for Tej Ram

and others had also placed reliance upon Master Construction Co. (P) Ltd. v. State

of Orissa and Anr. AIR 1966 SC 1047, Jayalakshmi Coelho v. Oswald Joseph

Coelho, AIR 2001 SC 1084, Rishi Prakash & Ors. v. Financial Commissioner &

Ors. 2009 (110) DRF 14.

5. It is an admitted fact that at the time of remand of the matter to the Financial

Commissioner dated 17.08.2000, the appellant and other petitioners before the

Financial Commissioner had specifically stated that they had no objection to the

case being remanded back to the Consolidation Officer, for being decided on

merits. Having aggrieved to the Consolidation Officer deciding the matter on

merits, it is not open to the appellant to now say that the Consolidation Officer did

not have the jurisdiction to make allotment to Tej Ram and others in exercise of the

powers conferred upon him by Section 43-A of the Act. He is, therefore, estopped

from contending that the said order could not have been passed after the

consolidation proceedings in the village had concluded. We, therefore, need not go

into the question as to whether failure to make allocation/allotment to Tej Ram and

others was an error capable of being rectified under Section 43-A of the Act or not.

We, however, take note of the decision of this Court in Shri Leo Puri (supra),

where the order of the Consolidation Officer, withdrawing excess land from the

holder of the land, to whom excess land was allotted, was assailed inter alia on the

ground that the Consolidation Officer having become functus officio, could not

have passed such an order. Rejecting the contention, it was held that a mistake

having been committed by him by allotting excess land, such mistake was capable

of being rectified under Section 43A of the Act.

6. As regards the second contention that the order dated 24.12.2004 was

passed, without giving opportunity of hearing to the Legal Representatives of

Baljeet Singh, we take note of the proceedings dated 18.10.2004 recorded by the

Consolidation Officer. It was noted by him that the notice had been served upon

the LRs of Shri Baljit Singh, namely, Smt. Laxmi Devi, Smt. Sarla Devi and Smt.

Sarita, who had refused to accept the notice saying that they had nothing to do with

the case. After recording the service of notice upon the legal representatives of Shri

Baljit Singh, the Consolidation Officer adjourned the matter to 16.11.2004 on

which date, it was adjourned to 24.12.2004, when the order in question came to be

passed by the Consolidation Officer. The question as to whether the appellant had

notice of the hearings held after 04.10.2004 and whether the notice sent to the legal

representatives of Shri Baljit Singh was refused by them or not are questions of

fact which cannot be gone into either in the writ petition or in this appeal. A

perusal of the order passed by the Financial Commissioner on 03.02.2009 would

show that no argument alleging denial of hearing to the petitioners before the

Financial Commissioner was advanced at the time of hearing. Therefore, even if

the petitioners before the Financial Commissioner had taken the plea of denial of

hearing in the revision petition filed by them, it is quite obvious that the said plea

was not pressed by them during the course of arguments. Had that not been the

position, nothing prevented them from filing an application before the Financial

Commissioner, seeking review of the order dated 03.02.2009 on the ground that he

had not dealt with their submission alleging denial of hearing to them. We,

therefore, find no merit in the second contention raised by the learned counsel for

the appellant.

7. In supports of the last contention that no allotment could have been made to

a trespasser, the learned counsel for the appellant has relied upon in Mange Ram v.

Financial Commissioner and Ors. (2003) 2 SCC 1¸ where the Apex Court, inter

alia, held that the word "encumbrancer" has to be read in the sense of a legal

encumbrance like a lease or a mortgage and a mere trespasser cannot be elevated to

the position to an emcumbrancer in the context of the statue. It was also noted in

para 5 of the aforesaid decision that the appellant was claiming a piece of land

comprising an area of 250 square yards and such a small piece of land could hardly

be said to be the land meant for cultivation and, therefore, the case of the appellant

before the Supreme Court, seen from every angle, was without any merit.

However, in the case before us, there is no material before us to show that the

status of respondents 4 to 7 before the consolidation scheme was that of a

trespasser. Neither the Consolidation Officer nor the Financial Commissioner

held that the status of respondents 4 to 7 or their predecessor-in-interest was that of

a trespasser. The order passed by the Financial Commissioner does not indicate

any such contention having been raised before him, at the time of hearing. It was

noted by the Consolidation Officer as well as the Financial Commissioner that the

name of their father was recorded as a Scheme Kabizan of Khasra No. 169, which

was never challenged by anybody, including the appellant Rajender Singh and,

therefore, the said record had attained finality. It is not open to us to go into the

disputed questions of fact, while considering appeal against the order passed by the

learned Single Judge, in exercise of his powers under writ jurisdiction. We cannot

examine the status of respondents no.4 to 7 in these proceedings and cannot

proceed on the assumption that their status was that of a trespasser. We, however,

would like to say that it is not necessary to make allotment only to the Bhoomidars.

In Amar Singh, Jagram (supra), one Chandgi, respondent before the Supreme

Court had inducted two tenants who were in possession of two different parcels of

land in Village Bawana in Delhi. In the consolidation proceedings initiated under

the Consolidation Act, a scheme of repartition was framed and in lieu of the

aforesaid parcels of land he was allotted some land. Thus the lands originally

comprised in his holding were substituted by the lands comprised in the aforesaid

parcels which were allotted to him under the consolidation scheme. The tenants

were in actual possession and were actually tilling two parcels out of the original

holding prior to consolidation. However, after the allotment of the other parcels of

land in substitution of the original parcels of land the tenants in possession of the

corresponding parcels in the substituted lands. Thereupon they approached the

Consolidation Officer viz. the Naib Tehsildar at Delhi by initiating proceedings

under Section 21/26 of the Consolidation Act. Each of them made a separate

application on the premise that in lieu of the land which he was cultivating as a

non-occupancy tenant prior to consolidation the corresponding parcels should be

restored to him from out of the re-allotted lands substituted in lieu of original

holding under the Consolidation Scheme. The landowner, Chandgi, lodged an

objection. He raised the plea that Amar Singh and Jagram no doubt were tenants in

1950 but that they had voluntarily given up the possession thereof prior to the

consolidation and that the land-owner himself was in possession prior to

consolidation.

The Consolidation Officer upheld the claim of the tenants and passed an

order in their favour on 28th April, 1960 whereby he directed that the

corresponding parcels of land in the substituted killa numbers be allotted to the

tenants. Chandgi, thereafter instituted civil suits challenging the orders of the

Consolidation Officer. The challenge was repelled firstly by the Trial Court and

then by the first Appellate Court. The first Appellate Court returned a finding that

the tenants were in possession of the land prior to the consolidation proceedings.

The order passed by the Senior Civil Judge was set aside by the High Court. The

order passed by the High Court was challenged by the legal representatives before

the Apex Court.

Allowing the appeal filed by them, the Supreme Court noticing the

provisions contained in Section 26 of the Act held that the rights of the non-

occupancy tenants or mortgagee and other holders of encumbrances in respect of

pre-repartition of original holdings stood transferred from the original holdings to

the substituted holdings allotted to the land owners and the occupancy tenants

under the scheme and sub-section 3 of Section 26 confers the jurisdiction on the

Consolidation Officer to put in possession of substituted holding such a lessee or

mortgagee or holder of encumbrance of the original holding of the land owner (or

occupancy tenant) who has become the owner of the substituted land on

confirmation of the scheme and repartition made pursuant thereto. It was further

held that Section 26 creates a right in favour of an encumbrance holder, including a

non-occupancy tenant and jurisdiction has been conferred on the Consolidation

Officer to put the holder of the encumbrance in possession of the corresponding

part of the substituted holding allotted to the land owner in lieu of his original

holding, if he was in possession of the original holding. The Court was of the

view that what the Consolidation Officer does under Section 2 of the Act is to

define the portion of the land newly allotted under the scheme to which the right of

the holder of the encumbrance would be attached by operation of law by virtue of

Section 26, though the right already existed. Thus, the allotment to the non-

occupancy tenant made by the Consolidation Officer was upheld by the Apex

Court.

8. In the case before us, if the respondents No.4 to 7 were not rank trespassers

and held encumbrance of any nature whether as occupancy tenants or as non-

occupancy tenants, it was incumbent for the Consolidation Officer to make

allotment of land in question to them. Of course, no such allotment could be made

to a rank trespasser, but, then, there is no finding returned by the Consolidation

Officer or the Financial Commissioner holding respondents No.4 to 7 to be land

trespassers.

9. For the reasons stated hereinabove, we find no merit in the appeal and the

same is hereby dismissed. There shall be no order as to costs.

The pending applications also stand disposed of.

CHIEF JUSTICE

V.K. JAIN, J

JANUARY 15, 2013/BG