Devinder Singh And Anr. vs Govt.Ofn.C.T Of Delhi And Ors.
2018 Latest Caselaw 3732 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Reserved on:- 01.06.2018.
                                      Date of Decision:- 06.07.2018

+      W.P.(C) 9448/2017

       DEVINDER SINGH AND ANR.             ..... Petitioners
                    Through: Mr.Sudhir Kumar Sharma with
                             Mr.Aakash Varma, Advs.

                         versus

       GOVT. OF N.C.T. OF DELHI AND ORS. ..... Respondents
                       Through: Ms.Jyoti Taneja, Adv.

       CORAM:
       HON'BLE MS. JUSTICE REKHA PALLI

                              JUDGMENT

REKHA PALLI, J C.M. No. 13187/2018

1. The present Application seeks recalling of order dated 16.01.2018 passed by this Court in WP (C) No.9448/2017 whereby this Court had disposed of the writ petition as not pressed after recording the statement of learned counsel for the Petitioner that since an efficacious remedy of appeal was provided under Section 64 of the Delhi Land Revenue Act, 1954, he wished to withdraw the writ petition with liberty to approach the concerned authority to challenge the order dated 16.11.2015 passed

by the Tehsildar i.e. Respondent No.3. In view of the statement of learned counsel for the Petitioner, the learned counsel for the Respondent had fairly stated that in case the Petitioner files a statutory appeal within two weeks from that day, the Respondents would not take any objection regarding the same being barred by limitation.

2. After the W.P. (C) No.9448/2017 had been disposed of as not pressed, the present application has been filed by the Petitioner mainly on the ground that the order dated 16.11.2015 passed by Respondent No.3, which was impugned in the writ petition, is not an appealable order under Section 64 of the Delhi Land Revenue Act and therefore, the Petitioner is not entitled to file any appeal challenging the same. In these circumstances, it is contended by the learned counsel for the Petitioner that the writ petition is the only remedy available to the Petitioner to challenge the order dated 16.11.2015 passed by the Tehsildar.

3. In support of his contention that the remedy of Appeal is not available for challenging the impugned order, Mr.Sudhir Kr. Sharma, learned counsel for the Petitioner, places reliance on Section 64 of the Delhi Land Revenue Act, 1954 and Rule 415 of the Delhi Land Revenue Rules, 1962. He contends that the impugned order directing that the cultivatory possession of the land in question, be recorded in the name of Kuldeep Singh i.e. Respondent No.4 and his family including Respondent No.5, is merely an administrative/non-judicial order against which, no appeal is maintainable under Section 64 of the Delhi Land

Revenue Act. His contention, thus, being that an administrative order, like the order dated 16.11.2015 passed by the Tehsildar, can be challenged only by way of a writ petition.

4. To drive home his plea, that no appeal is maintainable against the impugned order passed by the Tehsildar, Mr.Sharma also places reliance on an order dated 31.05.2007 passed by Deputy Commissioner (North) in Appeal No.5/2004 titled Shri Baldev Raj & Ors. wherein it was held that an appeal under Section 64 of the Delhi Land Revenue Act was maintainable only against a judicial order and an order of the Tehsildar, simply confirming the entries made in Form P5, could not be treated as a judicial order and therefore, the statute did not contemplate any appeal against such an order. He thus, contends that even though the Petitioner had withdrawn WP (C) No.9448/2017 with liberty to file an appeal before the appropriate Revenue Authority, however, since it now transpires that an appeal would not be maintainable against the impugned order passed by the Tehsildar, he prays that the order dated 16.01.2018 passed by this Court be recalled and the writ petition be considered on merits.

5. On the other hand, Ms.Jyoti Taneja, who appears on advance notice on behalf of Respondent Nos.1 to 3, opposes the Application and submits that the Tehsildar has decided the dispute regarding the person found in cultivatory possession of the suit land after making local enquiries and has consequently directed that entries of cultivatory possession be recorded in the name of Respondent No.4 and his family.

She further submits that impugned order falls within the ambit of Section 27 of the Delhi Land Revenue Act and is, therefore, an appealable order under the Delhi Land Revenue Act. She thus, contends that the Petitioner's contention that, no Appeal is maintainable against the impugned order, is wholly without any basis.

6. Ms.Taneja further submits that the order dated 31.05.2007 passed by Deputy Commissioner in the case of Baldev Raj (supra), on which heavy reliance has been placed by the learned counsel for the Petitioner, has not yet attained finality and a Revision Petition No.14/2014 challenging the same under Section 72 of the Delhi Land Revenue Act, is pending adjudication before the Finance Commissioner and thus, contends that no reliance can be placed on the aforesaid order of the Finance Commissioner. She also places reliance on the decisions of this Court in Phoolwati & Ors. vs. Ram Dei & Ors., (2008) DLT 105, Shera & Ors. vs. Financial Commissioner & Ors., (2010) 170 DLT 193 and an unreported decision of the Division Bench in LPA No.30/2015 titled as Ravinder Singh & Anr. Vs. Govt. of NCT of Delhi & Ors. to contend that that in case, the Petitioner is not satisfied with the order passed by the Tehsildar directing recording of cultivatory possession of suit land in the names of the Respondent No.4 and his family, he has to file an Appeal before the competent Revenue Authority .

7. Before dealing with the rival contentions of the learned counsel for the parties, it would be appropriate to refer to the impugned order in its entirety to appreciate the nature of controversy decided by the Tehsildar.

The impugned order dated 16.11.2015 passed by the Tehsildar is reproduced hereinbelow:-

"This order shall dispose off an application moved by Sh. Kuldeep S/o S. Santosh R/o Gali No.9, Village- Jagatpur, Delhi-84 for recording of this possession of revenue record for filing P-5 for Khasra No.KH. No.133/11/1 (0-10) and 133/12/1(0-10) situated in the revenue estate of Village Burari, Sub Division Civil Lines, Delhi.

The Hon‟ble High Court order dated 3 July 2015 in WP(C) No.1662/2015 in the matter of Kuldeep & Anr. vs. Govt. of NCT & Anr. As per order dated 03/07.2015 Hon‟ble Judge Rajiv Khakdher has been directed to Respondent No.2 i.e. Tehsilar (Civil Lines) to carry out inspection and record as to who is in cultivator possession of the subject site.

At the time of judgment i.e. 03/07.2015, the Girdawari time has been over hence cultivator possession may be recorded in the month of „Girdwari month‟ September- October 2015 on the basis of field inspection by revenue officials.

As per order the undersigned was visited on the suit land alongwith field Kgo. Sh. Jagdeep Singh and Halka Patwari Sh. Vinod Pandey. The „Jawar& Dhancha‟ crops were standing at said Kh. No.133/11/1 and 133/12/1. Local enquiries have been made and it has been found that cultivation on said land is carried out by Sh. Kuldeep and his family. In this regard some photograph has been taken and statements of local residents have been taken.

He is also shown electricity connection No.CA No.60018201925 & CA No.60017120399 installed in the name of Sh. Pradeep Kumar who is son of Sh. Santosh. In this regard he has also submitted registered General Power of Attorney in the name of Sh.Kabool Singh which was registered on 30.10.2003. Sh.Kabool Singh was Grandfather of petitioner sh.Kuleep Singh. He has stated that possession right with them from that time.

In this regard it is also stated that the land in question i.e. Kh. bearing No.133/11/1 and 133/12/1 is recorded in revenue record in the name of Sh.Devinder Singh and Sh.Rambir Singh. The same was purchased by them vide sale deed No.4402 dated 17.05.2013 and further got mutated as per order of SDM/RA vide order o.M- 133/RA/CL/14/1650 dated 24.11.2014 in the name of Sh. Devinder Singh and Sh.Rambir Singh but their physical possession could not be established. Hence, the matter is under dispute.

However, an appeal has been filed by Sh. Kuldeep Singh &his family against the order of SDM/RA(CL) vide order No.M-13/RA/CL/14/1650 dated 24.11.2014 before the court of District Magistrate (Central).

In the view of above, on basis of High Court order and as per local enquiry report, the cultivatory possession may be recorded in the name of Sh.Kuldeep Singh and his family."

8. Having noted the nature of controversy decided vide the impugned order, it may now be appropriate to refer to relevant provisions of Delhi Land Revenue Act, 1954 and Delhi Land Revenue Rules, 1962 respectively, which reads as under:-

"Sections 27 and 64 of Delhi Land Revenue Act, 1954

27. Settlement of disputes as to entries in Annual Register.- (1) All disputes regarding entries in the Annual Register based on the question whether a particular area of land is held and occupied for a public purposes or a work of public utility shall be referred to the Deputy Commissioner, who shall direct the party concerned to obtain a declaration of the Chief Commissioner under Sub-section (4) of Section of 1 of the Delhi Land Reforms Act, 1954.

(2) All other disputes regarding entries in the Annual Register shall be decided by the Tehsildar on the basis of possession.

(3) If in the course of an inquiry into a dispute under Sub-section (2), the Tehsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the land, and shall put such person in possession.

(4) No order as to possession passed under this section shall debar and person from establishing his right to the land in any civil or revenue Court having jurisdiction.

Explanation - The term „possession‟ in this section means possession based on admission, succession, transfer or lease referred to in Section 22.

64. Courts to which appeals lie- (1) An appeal shall lie under this Act-

(a) To the Settlement Officer or the Record Officer from orders passed by any Assistant Settlement Officer or Assistant Record Officer, respectively;

(b) To the Deputy Commissioner or to the Additional Collector specially empowered in this behalf from orders passed by the Revenue Assistant, an Assistant Collector or Tehsildar:

(c) To the Chief Commissioner from orders passed by the Deputy Commissioner, Additional Collector, Settlement Officer or Record Officer.

(2) No appeal shall be allowed from a non-judicial order not connected with settlement passed by the Deputy Commissioner.

Rule 415 of Delhi Land Revenue Rules, 1962 Rule 415. Judicial and non-judicial matters-(1) Proceedings, orders, appeals, revisions and references in the following cases shall be deemed judicial for the purposes of the Act:-

(a) Mutation in cases of succession or transfer under sections 23 and 27;

(b) Settlement of boundary disputes under sections 28 & 36;

(c) other disputed cases relating to entries in the record of rights and annual registers under Sections 26, 27, 29 and 39.

(2)All cases, proceedings and other matters under the Act not covered by the proceeding sub-rule shall be deemed non-judicial.

(3) In cases of doubt, whether the matter is of a judicial or non-judicial nature a report shall be submitted to the Chief Commissioner for orders whose decision shall be final."

9. Having given my thoughtful consideration to the submissions of the learned counsel for the parties and examined aforesaid provisions of the Delhi Land Revenue Act and Rules, I find that vide the impugned order, the Tehsildar has, after examining the local enquiry report, given directions for making positive entries in favour of the Respondent No.4 and his family regarding cultivatory possession of the land in question. In my considered opinion, once an order, directing entries to be made in a particular manner, is passed by the Tehsildar, after conducting a proper enquiry, it cannot be urged that the said direction by the Tehsildar is not determining any rights of the parties or that the same is merely an administrative/non-judicial order under Rule 415 of the Delhi Land Revenue Rules.

10. I have also carefully considered the order dated 31.05.2007 passed by the Deputy Commissioner in the case of Baldev Raj (supra), on which reliance has been placed by learned counsel for the Petitioner, but I find that the same related to a situation where the Tehsildar had not determined any rights of the parties and had merely confirmed the entries made in Form P5 and therefore, the said order did not deal with determination of any rights of the parties, and is thus not applicable to the present fact situation. Even otherwise, the legality of the aforesaid order passed by the Deputy Commissioner, sought to be relied upon by the learned counsel for the Petitioner, is still being considered by the Financial Commissioner in Revision Petition No.14/2014 and, therefore, no reliance can be placed on the same at this stage. On the other hand,

having considered the decisions relied upon by Ms.Taneja, I find merit in her contention that in all such cases relating to directing of making entries regarding cultivatory possession in the revenue records, appeals have been filed and entertained by the concerned Revenue Authorities.

11. The plea of the learned counsel for the Petitioner that since the impugned order passed by the Tehsildar merely directs recording of entries in a particular manner, it cannot be treated as a judicial order, is likely to be rejected. I find absolutely no merit in the plea of the learned counsel for the Petitioner that the Petitioner is not entitled to avail any statutory appellate remedy under the Delhi Land Revenue Act.

12. For the aforesaid reasons, I find no reason to recall the order dated 16.01.2018 passed by this Court in WP(C) No.9448/2017. The application, being meritless, is dismissed with no orders as to costs. The petitioner is, however, granted further two weeks' time to prefer an appeal against the impugned order before the appropriate Revenue authority in accordance with the liberty granted by this Court vide order dated 16.01.2018.

(REKHA PALLI) JUDGE JULY 06, 2018/gm