Mahesh And Ors vs Gnct Of Delhi And Ors
2013 Latest Caselaw 2267 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 15.05.2013

+      W.P.(C) 5250/2011

       MAHESH AND ORS                                            ..... Petitioners
                   Through: Mr V.P. Rana, Adv

                          versus

    GNCT OF DELHI AND ORS                           ..... Respondents
                  Through: Mr Sunil Chauhan, Adv for R-4
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

V.K.JAIN, J. (ORAL)

During consolidation proceedings in village Pooth Khurd, one residential

plot comprised in Khasra No. 154/170 measuring 2 bigha 2 biswa, three industrial

plots, bearing No. 156/175, 156/176 and 156/181, measuring 6 biswas each and

agriculture land measuring 4 bigha and 16 biswa comprised in Khasra No. 93/14

were allotted to the petitioners before this Court, all of whom were minors at that

time. A letter dated 17.07.2006 was written by Jagdish Prasad, respondent No. 4

in this petition to SDM, Narela, referring to his earlier letter dated 04.01.2006 and

informing that no action had been taken on his said application. He also

complained that possession of plots was being delivered to plot owners, while he

had not been given possession of any plot.

2. A letter dated 05.12.2006 was written by the petitioners to the Settlement

Officer, stating therein that plot No. 156/176 measuring 06 biswa allotted to them

during consolidation had also been allotted to Jagdish Prasad. It was further stated

in the said letter that plot No. 156/126 had been allotted to Raghubeer Singh, son of

Tohar and 156/107 had been allotted to Silak Ram, son of Siri Lal in excess of their

demand/without demand and they had more than one industrial plots industrial

plots in their accounts. The Settlement Officer was requested to cut excess plot

from the above-referred persons and allot one of the plots in place of plot No.

156/176 to the applicants Mahesh, Satpal and Rahul. It appears by that time

Mahesh had become major, whereas Satpal and Rahul were still minor.

3. The Settlement Officer, vide his order dated 04.12.2006, recorded that Smt.

Kamlesh, mother of the petitioners, was present before him on 02.12.2006 and had

stated that they had no objection against allotment of plot No. 154/176 to anyone.

He, therefore, withdrew plot No. 156/176 from the petitioners, who were allotted

another plot bearing No. 156/181, which had already been allotted to them and plot

No. 156/176 was allotted to respondent No. 4 Jagdish Prasad.

4. Being aggrieved from the order of the Settlement Officer, the petitioners

preferred a revision petition before the Financial Commissioner under Section 42

of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act.

The Financial Commissioner, vide impugned order dated 09.11.2000, noted that

three industrial plots had been allotted to the petitioners, whereas they jointly being

one unit were entitled to a plot not bigger than 6 biswas. He was also of the view

that even otherwise as per Rule 6(j)(iii), Delhi Holding Rules, 1959, a Bhoomidar

could not be allotted more than 2 bigha and 08 biswas of total area, whereas the

petitioners had been allotted three industrial plots measuring 6 biswas each and a

residential plot measuring 02 bigha and 2 biswa, as a result of which excess land

had been allotted to them. He accordingly directed that the concerned

Consolidation Officer shall take appropriate steps for deduction/recovery of the

excess land allotted to the petitioner. As regards plot No. 156/176, he found merit

in the contention that the statement of the petitioners had been wrongly construed

by the Settlement Officer. He, therefore, remitted the matter back to the

Consolidation Officer to decide whether or not the petitioners were not entitled for

allotment of plot No. 156/176.

5. It would thus be seen that two issues arise for consideration in this petition.

The first being as to whether the Financial Commissioner, while hearing a revision

petition filed under Section 42 of the Act, against the order dated 04.12.2006

passed by the Settlement Officer, could have directed the Consolidation Officer to

withdraw what he termed „excess land allotted to the petitioners‟ and the second

issue which arises for consideration in this petition is as to who has got preferential

right over plot No. 156/176 whether it should go to respondent No. 4 Jagdish

Prasad or to the petitioners Mahesh and others.

6. Section 42 of East Punjab Holdings (Consolidation and Prevention of

Fragmentation) Act reads as under:

"The [State] Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under Act call for and examine the record of any case pending before or disposed of by such officer and may pass order in reference thereto thinks fit: Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard [except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration]"

It would thus be seen that besides entertaining revision petition from an

aggrieved party, the State Government itself can call for the record of any order

passed by any officer under the said Act, examine the said record to satisfy itself as

to the legality or propriety of any such order and pass such order as it may deem

appropriate in the matter, but such an order cannot be passed to the disadvantage of

any person, without giving a notice and opportunity of hearing to him, unless the

case before the State Government was a case involving unlawful consideration.

The power of the State Government under Section 42 of the Act stands delegated to

the Financial Commissioner.

7. Admittedly, no notice was given by the Financial Commissioner to the

petitioners stating therein that excess land had been allotted to them by the

Consolidation Officer and calling them upon to show cause why such excess land

be not withdrawn from them. It appears from the order passed by the Financial

Commissioner that an opinion to the effect that excess land had been allotted to the

petitioner came to be formed by him only during the hearing of the revision

petition filed by the petitioners and no specific notice or opportunity, as envisaged

in the proviso to Section 42 of the Act was given to them. Therefore, the order

passed by the Financial Commissioner, to the extent he directed the Consolidation

Officer to withdraw what he termed "the excess land allotted to the petitioners",

cannot be sustained and is liable to be set aside.

8. Regarding allotment of plot No. 156/176, the main contention of the learned

counsel for the petitioners is that the Settlement Officer had no right to withdraw

the aforesaid plot from the petitioners since such a power could have been

exercised only by the Consolidation Officer and the Settlement Officer could have

considered such an issue only in the event of an appeal being preferred before him

against the order of the Consolidation Officer. On the other hand, the learned

counsel for the respondent No. 4 has submitted that since the scheme of

consolidation is required to be confirmed by the Settlement Officer in terms of

Section 20 of the Act and Section 36 of the Act enables the Authority who

confirms the scheme to vary or revoke the same at any time, the Settlement Officer

had the jurisdiction to withdraw the allotment of plot No. 156/176.

9. In my view, considering the fact that the Financial Commissioner has

already remitted the matter back to the Consolidation Officer to decide as to who

has got preferential right over plot No. 156/176 and also considering the fact that

the Settlement Officer, in his order dated 04.12.2006, wrongly construed the

statement made by the petitioners, it would be difficult to sustain the order which

the Settlement Officer had passed on 04.12.2006, and which, in any case, stands,

superseded by the order of the Financial Commissioner. It would also be pertinent

to note here that respondent No. 4 has not challenged the order passed by the

Financial Commissioner in this regard. Therefore, in my view, the Consolidation

Officer should now examine the claim of the petitioner as well as the claim of

respondent No. 4 with respect to plot No. 156/176 and pass an appropriate order

after taking into consideration all relevant facts, including the statements made by

the petitioners from time to time and the submissions which the parties may make

before him, including the contention of respondent No. 4 that in the absence of any

demand, the petitioners were not entitled to allotment of any industrial plot or

residential plot. The parties shall also be entitled to raise such other submissions

as they may deem appropriate with respect to their respective claim in respect of

the aforesaid plot. The Consolidation Officer, after considering the rival

submissions of the parties and taking into consideration all relevant material in this

regard, shall pass an appropriate order, within 08 weeks of the parties appearing

before him. The order passed by the Financial Commissioner as well as the order

passed by the Settlement Officer stand merged in this order.

The parties shall appear before the concerned Consolidation Officer at 11.00

AM on 27.05.2013.

The writ petition stands disposed of.

V.K. JAIN, J

MAY 15, 2013 BG