Delhi High Court
Rajpal S/O Jage Ram & Ors. vs Gnct Of Delhi & Ors. on 9 December, 2014
Author: Suresh Kait
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on 9th December, 2014
+ W.P.(C) 7657/2009
RAJPAL S/O JAGE RAM & ORS. ..... Petitioners
Represented by: Mr. R.S. Rana, Advocate.
Versus
GNCT OF DELHI & ORS. ..... Respondents
Represented by: Mr.Yogesh Saini for Mr. V.K.
Tandon, Advocate for
Respondents No.1 and 2.
Ms.Geetika Sharma, Advocate
for Respondent No. 7.
Mr.D.V. Khatri, Advocate for
Respondent No.8.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (ORAL)
1. Vide the present petition, petitioners seek directions for setting aside
the impugned order dated 17.08.2007 passed by the Financial Commissioner
in Revision Petition No. 67/02-CA, under Section 42 of the East Punjab
Holdings (Consolidation and Prevention of Fragmentation) Act, 1948
(hereinafter to be referred as 'the Act'), titled as 'Ram Chander & Anr. Vs.
Dharam Singh & Ors.', whereby Gaon Sabha (village Khera Khurd) lands
meant for common purpose 'Chargah Maveshian' (Pasture) bearing Khasra
Nos. 51/22 min. South (1-13), 51/23 (4-08) & 78/20/1(1-03) allotted to
respondent No.8 and bearing Khasra No. 51/17 min. West (1-05) and 51/18
(5-0) allotted to respondent No.7 respectively situated in the Revenue Estate
of Village Khera Khurd. Further seek directions to withdraw the said land
from the aforesaid respondents and return to respondent No.5/Gaon Sabha.
2. Learned counsel for the petitioners submitted that respondent Nos.7
and 8 had no right to have the allotment of Gaon Sabha land which was
developed by respondent Nos.1 and 6 as Forest/Horticulture Plantation in
lieu of residential plot. The land in question was allotted based upon a false
pretext that the land was not available in the Lal Dora. The land allotted to
respondent Nos. 7 and 8 outside Lal Dora (extended) is more precious than
the land of Extended Lal Dora as per the market value. Vide impugned
award dated 17.08.2007, Gaon Sabha land bearing Khasra No. 51/22 min.
South (1-13), 51/23 (4- 8) and 78/20/1 (1-3) was allotted to respondent No.8
and Gaon Sabha land bearing Khasra Nos. 51/17 min. West (1-05) and
51/18 (5-00) was allotted to respondent No. 7 on the back of Gaon Sabha.
The aforesaid chunk of Gaon Sabha land meant for Charagah/Maveshian
Plantation was allotted to the respondent Nos. 7 and 8 in lieu of residential
plot bearing Khasra Nos.460/2 (0-7) and 460/1 (0-7). The proposal report
dated 25.08.2000 is contrary to the Consolidation Act, Rules and Scheme as
no agricultural land in lieu of Lal Dora (Extended) can be allotted to any
right holder in any manner whatsoever that too in the absence of another
Bhumidar (Gaon Sabha Village Khera Khurd). Thus, conversion of
community land into the individual use is contrary to the interest of village
community at large and the same is against the Consolidation Act, Rules
and Scheme. Accordingly, total land measuring13-05 biswas in lieu of 0-14
biswas smells extraneous reasons and considerations. Thus, the said
allotment is in violation of Consolidation Act, Rules and Scheme, is liable
to be set aside being illegal, unlawful as has no sanction of law.
3. Vide the impugned order, deficiency of 13 bighas 9 biswas had been
caused to the respondent No.5/Gaon Sabha and since the consolidation
proceedings have already been consigned to the record, in the absence of
direction of the learned Financial Commissioner with regard to deficiency
caused in the Khata of respondent No.5/Gaon Sabha, impugned order is
arbitrary, unlawful, illegal and not sustainable.
4. Learned counsel further submitted that Khasra No.88/24 being in
Gaon Sabha (Play Ground) has been left out from allotment to the
individuals being common use for public, but unfortunately, subject land
measuring 13 bighas 5 biswas meant for Chargah Maveshian (Pasture Land)
for the common use of villagers had been withdrawn and that too causing
deficiency to the respondent No.5/Gaon Sabha.
5. Learned counsel further submits that respondent Nos. 7 and 8 have
been illegally and unlawfully benefitted by the benefits of consolidation of
which they were not entitled to and that the benefit is more than twenty
times of 0-14 biswas land and the allotted land is more valuable than the Lal
Dora land.
6. However, the Financial Commissioner ignored the valuable rights of
the respondent No.5/Gaon Sabha and as per Section 42 of the Act; there was
no notification under Section 36 of the Act for the said land.
7. On the other hand, learned counsel appearing on behalf of the
respondent Nos. 7 and 8 submits that the Financial Commissioner passed
the order dated 17.08.2007 in favour of the respondents, under suo moto
proceedings under Section 42 of the Act. The learned Financial
Commissioner sought objections from all concerned and thereafter passed
the order. He submits that consolidation of Village Khera Khurd was held
in the year 1971 and the respondent Nos. 7 and 8 were offered land in
Khasra Nos. 460/1 and 460/2, i.e., 7 bighas each in the Extended Lal Dora.
Accordingly, vide order dated 24.10.1988, the Financial Commissioner
directed the Settlement Officer to do the needful for demarcation. Thus, the
Settlement Officer directed the Deputy Commissioner to do the needful.
Accordingly, vide order dated 17.06.1994, the Settlement Officer further
directed the concerned officer to do the needful and hand over the
possession to the respondent Nos. 7 and 8.
8. Vide report dated 25.08.2000, land in question was offered to
respondent Nos. 7 and 8, which was accepted as under:-
(I) Respondent No.8 was allotted land bearing Khasra Nos. 51/22 min. 1
bigha 13 biswas, 51/23 min. 4 bighas 8 biswas and 78/20/1 min. 1
bigha and 3 biswas, total measuring 7 bighas and 4 biswas.
(II) Respondent No.7 was allotted land bearing Khasra Nos. 51/17 min. 1
bigha 5 biswas and 51/18 min. 5 bighas, total measuring 6 bighas 5
biswas.
9. On acceptance of the aforesaid land, proposal was sent to the Deputy
Commissioner concerned to make reference under Section 42 of the Act for
the suo moto power of the Financial Commissioner and said proposal was
accepted and accordingly the land was allotted to respondent Nos. 7 and 8.
10. Moreover, learned counsel for the respondents argued that during
proceedings before the Financial Commissioner, numerous objections were
filed by the villagers and after considering all the objections, the Financial
Commissioner passed the order dated 17.08.2007 and subsequently, allotted
the land in favour of the respondent Nos. 7 and 8 and the possession of the
same was also handed over. Accordingly, till date, the said respondent Nos.
7 and 8 are in cultivation of the said land and it is recorded in Khasra
Girdawari in their favour since then. He submits that 45 years have been
passed on the aforesaid Khasra and numbers of other persons are also in
possession on the same land as was allotted to them also.
11. During proceedings, Halka Patwari Ashwani Kumar and Tehsildar
Raj Kumar of the concerned area were present, who confirmed this fact that
in the same Khasra which was allotted to respondent Nos. 7 and 8, other
persons are also in possession. The same are:-
1. Jai Dutt S/o Bhanu
2. Chand Ram S/o Ram Swaroop
3. Bal Kishan S/o Ram Swaroop
4. Ved Pal S/o Ram Swaroop
5. Jai Bhagwan S/o Sahi Ram
6. Satbir S/o Sahi Ram
7. Dilbag S/o Sahi Ram
8. Virender S/o Sahi Ram
9. Vijay S/o Sahi Ram
12. Learned counsel for the respondents has fairly conceded that though
proceedings before the Financial Commissioner were suo moto under the
powers vested therein; objections were invited before passing the order of
allotment of land and the said land was allotted in lieu of consolidation of
the land of the petitioners. The respondents had a legal right to receive and
accordingly they are in possession.
13. Learned counsel has drawn attention of this Court to annexure P-15 at
page No. 128 of the paper book, whereby a request made by the petitioners
raising objections which received on 11.04.2001. The said objections were
also considered and thereafter the land was allotted to the respondent Nos. 7
and 8. Moreover, vide report dated 25.08.2000, it was brought to the notice
of the Financial Commissioner that Khasra Nos. 460/1 and 460/2 have been
removed from the Field Book. Therefore, in lieu of the said land, the land
in question was offered to the respondent Nos. 7 and 8 on which they are in
possession.
14. Learned counsel for the petitioners has disputed this fact and
submitted that the report was taken in collusion and accordingly, the
respondent Nos. 7 and 8 got the land in question.
15. This fact has been verified by this Court from Halka Patwari Ashwani
Kumar and Tehsildar Raj Kumar, who were present in the Court. Both of
them have submitted that to ascertain the fact that the said Khasra Nos.
460/1 and 460/2 are available, the same has to be verified from the spot.
16. Learned counsel for the respondent Nos. 7 and 8, on instructions from
the said respondents, who were personally present in Court and
representative of respondent No.8, submitted that they are concerned about
the land as they are entitled for. Also submitted that if another land is
available, the respondent Nos. 7 and 8 have no objection if the same is
allotted in their favour. However, submitted that if suo moto proceedings
are initiated under Section 42 of the Act by the Financial Commissioner,
eventually, notification under Section 36 of the Act is not required.
17. To strengthen his arguments, learned counsel has relied upon Johri
Mal Vs. The Director of Consolidation of Holdings, Punjab and Anr. AIR
1967 SC 1568, wherein the Apex Court held as under:-
"On behalf of the appellant Mr. Bishen Narain put forward
the argument that the order of the Director of
Consideration dated March 8, 1957 was an order varying
para 7 of the confirmed scheme and no such variation
could be made without following the procedure laid down
under s. 36 of the Act. viz. the requirement with regard to
the publication and hearing of objections contemplated in
Sections 19 and 20 of the Act. To put it differently the
contention of the appellant was that the power of the State
Government under s. 42 was controlled by the procedure
prescribed under. 36 if it is involved a variation of the
confirmed scheme and the order of the Director dated
March 8, 1957 was ultra vires since the procedure
contemplated by s. 36 of the Act has not been followed. In
our opinion there is no justification for this argument.
Section 42 of the Act as amended by Act 27 of 1960
authorised the State Government to interfere with the
scheme of consolidation or repartition made under the Act.
What the amending Act has done is to substitute for the
words 'any order passed by any officer under this Act', the
words 'any order passed, scheme prepared or confirmed or
repartition made by any officer under this Act'. Section 36
of the Act on the other hand authorises the authority
confirming a scheme to alter or revoke it and in that case
the new scheme must be published, objections heard and
decided and the scheme has to be confirmed once again in
accordance with the procedure under Sections 19 and 20 of
the Act. In our opinion the power conferred on the State
Government under s. 42 is a separate power independent of
s. 36 of the Act which deal with the power of the authority
confirming the scheme. There is hence no force in the
contention that the scheme of consolidation cannot be
varied by the State Government under s. 42 of the Act
except in accordance with s. 36 of the Act. The reason for
the two different provisions in Sections 36 and 42 of the Act
is also clear for if a scheme is varied or revoked by the
authority confirming it, then the new scheme has to be
published so that interested parties may object and their
objection decided by competent authorities set up under the
Act, those decisions being finally appealable to the State
Government. But when a scheme is to be varied by the State
Government itself under s. 42 of the Act there is no
requirement of the statute that the varied scheme should be
published for the State Government is required to give
notice and to given an opportunity to the interested parties
to be heard before the variation is made. We are therefore
of the opinion that the power conferred on the State
Government by S. 42 is not controlled by s. 36 and the
procedure of publication and hearing objections
contemplated by Sections 19 and 20 of the Act is not
necessary. Section 36 and 42 envisage two different
situation and the intention of the Act is to give powers
respectively to the Confirming Authority and to the State
Government to act under these sections in their discretion
in any particular case. We accordingly hold that Mr.
Bishen Narain is unable to make good his argument on this
aspect of the case."
18. Also relied upon the case of Tek Chand Sharma & Ors. Vs. Lt.
Governor of Delhi & Ors., 33 (1987) DLT 164, wherein held that:-
"Held that functions and duties of Gaon Panchayats are
enumerated in S.156 of the Act and sub-clause (c) thereof
enjoins upon the Gaon Panchayat" the maintenance and
development of abadi sites and village communication".
So, obviously the extension of the village abadi can be
made by Gaon Sabha only from the land vesting in it and
pasture land cannot be an exception to this power of the
Gaon Panchayat and consequently the Gaon Sabha was
fully competent to allot the land in question as residential
sites for the extension of village abadi from the land vested
in it including the pasture land.
Held further that S.6(a)(iii) includes pasture land. So,
reading together S.3(13)(b) and S.74(1)(b) and S.6(a)(iii)
of the Act and the Amended Rule 178(2) of the Delhi
Panchayat Raj Rules set out above goes to show that the
Gaon Sabha had the right to allot housing sites from the
land in question to various persons as lessees (Asamis)
and the contention of the learned counsel for the
petitioners vehemently urging that there are only two
tenure-holders-Bhumidhar and Asami- created by the Act
and those who tenure-holders are meant for the cultivation
of the land only for agriculture purposes or purpose
subsidiary thereto and for no other purpose for which
reason the allotment of the land in question as housing
sites is barred by the Act, cannot be accepted."
19. Accordingly, Halka Patwari Ashwani Kumar and Tehsildar Raj
Kumar were directed to carry out the demarcation and find out whether
Khasra Nos. 460/1 and 460/2 are available at the spot or not. During
demarcation, both the parties were directed to remain personally present at
the spot.
20. Pursuant to order dated 16.09.2014 passed by this Court, the
respondent No.2 has filed the status report dated 31.10.2014, whereby stated
that Khasra Nos. 460/1 and 460/2 are not physically existing at site. As per
Sizra, Khasra Nos. 460/1 and 460/2 falls in the area of adjoining of Khasra
No. 461. However, as per measurement carried out at site Khasra Nos. 461
and 459 are available and Khasra Nos. 460/1 and 460/2 are not physically
found at site.
21. It is further stated that as per site inspection, Khasra Nos. 459 and 461
are built up and are in physical possession of the respective land owners. It
is also stated that Khasra Nos. 460/1 and 460/2 exist in Sizra and Field
Book, which was prepared at the time of consolidation of village Khera
Khurd. However, during the scrutiny of record, it is revealed that non-
existence of Khasra Nos. 460/1 and 460/2 was also found by the field staff
in demarcation proceedings conducted on 27.02.2012 in connection with
Khasra No. 461. Accordingly, the Revenue Assistant/Settlement Officer,
Narela, sent a reference to the Financial Commissioner, Delhi, through
Deputy Commissioner, North-West, on 07.03.2001 in this regard.
22. I note, the learned counsel for the respondent Nos. 7 and 8, on
instructions, have submitted before this Court that they are concerned about
the land as they are entitled for and if another land is available, the
respondent Nos. 7 and 8 have no objection if the same is allotted in their
favour.
23. Be that as it may, during proceedings, the Halka Patwari Ashwani
Kumar and Tehsildar Raj Kumar of the concerned area were present, who
confirmed that in the Khasra in question which was allotted to respondent
Nos. 7 and 8, the following persons are also in possession:
1. Jai Dutt S/o Bhanu
2. Chand Ram S/o Ram Swaroop
3. Bal Kishan S/o Ram Swaroop
4. Ved Pal S/o Ram Swaroop
5. Jai Bhagwan S/o Sahi Ram
6. Satbir S/o Sahi Ram
7. Dilbag S/o Sahi Ram
8. Virender S/o Sahi Ram
9. Vijay S/o Sahi Ram
24. Keeping in view the report filed in pursuance of the order dated
16.09.2014, Khasra Nos. 460/1 and 460/2 are not in existence and the facts
recorded above, I am not inclined to interfere with the decision taken by the
Financial Commissioner vide its order dated 17.08.2014 in Revision Petition
No.67/02- CA under Section 42 of the Act, titled as 'Shri Ram Chander &
Anr. Vs. Shri Dharam Singh & Ors.
25. Accordingly, the instant petition is dismissed with no order as to
costs.
SURESH KAIT
(JUDGE)
DECEMBER 09, 2014
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