Late Smt.Jallo Devi (Since ... vs Financial Commissioner Delhi & ...
2022 Latest Caselaw 3522 Del

                                       NEUTRAL CITATION NO:2022/DHC/005816




                      *        IN THE HIGH COURT OF DELHI AT NEW DELHI
                      %
                                                   Pronounced on:         23rd December, 2022

                      +        W.P.(C) 6976/2022 & CM APPL. 21388/2022
                               LATE SMT.JALLO DEVI (SINCE DECEASED)
                               THROUGH LEGAL HEIRS AND ORS          ..... Petitioners
                                                 Through:    Mr. Awijit Paliwal, Advocate

                                                 versus

                               FINANCIAL COMMISSIONER DELHI & ORS..... Respondents
                                                 Through:    Mr. Anupam Srivastava, ASC for
                                                             GNCTD with Mr. Vasuki Misra,
                                                             Advocate for R-1 to 3
                                                             Ms. Smita Maan, Mr. Vishal Maan
                                                             and Mr. Aakash Sehrawat, Advocates
                                                             for R-4 (a) to (c)

                      CORAM:
                      HON'BLE MR. JUSTICE CHANDRA DHARI SINGH

                                                    JUDGMENT

CHANDRA DHARI SINGH, J.

1. The instant writ petition has been filed by the Petitioners under Article 226 of the Constitution of India seeking the following reliefs:

"A) Quash and Set aside the Impugned Order dated 07.04.2022 passed by the Respondent no.1 in the Proceedings bearing no.209A/2003 titled as "Smt Jallo Devi & Ors vs Pratap Singh & Ors" upholding the Orders dated 30.04.1998 passed by the Respondent no.2 in Proceedings bearing no.18/97-98 titled as "Smt.Jallo Devi & Ors vs Sh.Lal Chand & Ors".

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B) Call for the Records of Proceedings bearing no.209A/2003 titled as "Smt Jallo Devi & Ors vs Pratap Singh & Ors" adjudicated by the Respondent No.1 and the Records of proceedings bearing no. l8/97-98 titled as "Smt.Jallo Devi & Ors vs Sh.Lal Chand & Ors" adjudicated by the Respondent no.2."

FACTUAL MATRIX

2. The facts for the disposal of the present case are that proceedings pertaining to the consolidation of land holdings was initiated in Village Bijwasan, Delhi in the year 1975-76 and during the consolidation of holdings, land of Khasra No. 691/1 Min. admeasuring 11 Biswas was allotted to one Shri Sher Singh, being the predecessor-in-interest of the Petitioners herein. The said consolidation was made in accordance with the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred as the "Act"). After the allotment of Khasra No. 691/1 Min. admeasuring 11 Biswas in the year 1975-76, Late Sh. Sher Singh entered into possession of the said land.

3. In the year 1996, one Sh. Lal Chand i.e., predecessor-in-interest of Respondents No. 4(a)-(c), filed an application before the S.D.M/Tehsildar for demarcation of his plots bearing Khasra No. 685, Khasra No. 116 and centre of Way No. 105/22/2, 219, 220, 221, 685, 285/5, 116/8/2, 105/22 and 101/8/2 in village Bijwasan. Thereafter, the Consolidation Officer, i.e., Respondent No. 2 initiated proceedings on the said application for which, the report was called from Halqa Patwari and on the basis of the said report dated 26th May 1996, Respondent No. 2 passed the order dated 23rd

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December 1996, by way of which the said land of Khasra No. 691 was taken away from the Petitioners and allotted to the Respondents No. 4(a)-(c) by the Consolidation Officer, i.e., the Respondent No. 2 herein.

4. However, the said order came under challenge by the Petitioners through a revision petition u/s 42 of the Act before the Financial Commissioner, i.e., Respondent No. 1 herein, on the ground that the said order was passed against a dead person. The Financial Commissioner allowed the revision petition and remanded back the matter to the Respondent No. 2 vide order dated 12th August 1997. On being remanded back, Respondent No. 2 passed the orders dated 30th April 1998 wherein, the said piece of land was again allotted to the Respondents No. 4(a)-(c). The Respondent No. 2 acceded to the request made by the Respondents No. 4(a)-(c) who contended that there was sufficient deficiency in his khata which can rightly be made good by allotting 11 biswas out of the adjoining plot of land bearing Khasra No. 691/1 because any other allotment would be against the spirit of the principles of consolidation.

5. On being aggrieved of the said order dated 30th April 1998, the Petitioners further filed a civil suit against the order, which was held to be not maintainable. Thereafter, the Petitioners again challenged the said order dated 30th April 1998 by filing Revision petition before the Court of Financial Commissioner. The Financial Commissioner vide order dated 7 th April 2022 upheld the findings of the Consolidation Officer, i.e., Respondent No. 2 herein and accordingly, the Petition was dismissed.

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6. Aggrieved with the impugned order passed by the Financial Commissioner, the Petitioners have approached this Court by way of the instant petition.

SUBMISSIONS (On behalf of the petitioners)

7. In support of the instant writ petition, learned counsel for the Petitioners submitted that no objection, written or otherwise, under Section 21(2) of the Act was filed before Respondent No. 2 at any point of time till the filing of the present petition which confirms that the possession of the said land vested with the predecessor-in-interest of the Petitioners herein.

8. It was submitted that the Petitioners have been in uninterrupted possession of the said land since the year 1975-76, i.e., for more than 40 years from the date of allotment. It was further submitted that Petitioners have made improvement over the land time and again for their demarcation as well as peaceful and beneficial enjoyment. Learned counsel for the Petitioners further submitted that the predecessor-in-interest of the Petitioners/allottee of the said land, Shri Sher Singh died in 1995 and in the year 1996 one Shri Lal Chand i.e., predecessor-in-interest of Respondents No. 4 (a) -(c) filed an application before the SDM/Tehsildar for demarcation of his plots bearing Khasra No. 685, Khasra No. 116 and centre of Way No. 105/22/2, 219, 220, 221, 685, 285/5, 116/8/2, 105/22 and 101/8/2 in village Bijwasan.

9. Learned counsel for the Petitioners submitted that the impugned order dated 7th April 2022 passed by the Financial Commissioner, i.e., Respondent

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No. 1 suffers from serious infirmity on the ground that at the time of passing the order dated 30th April 1998, the Petitioners no. 3 & 4 before the Consolidation Officer, were minors and no legal guardian for them was appointed by the Consolidation Officer or any other judicial forum at that point of time. Thus, the minor Petitioners at that point of time suffered from lack of representation before the Consolidation Officer. The impugned order dated 7th April 2022 passed by the Financial Commissioner is also silent on the said aspect and therefore contravenes the principles of the natural justice. It is further submitted that the impugned order dated 7th April 2022 is not on actual facts of the present case but is based on surmises of the order dated 30th April 1998. It is also contended by the Petitioners that Respondent No. 1 has relied on the reply filed by Respondent No.2 while passing the impugned order, and the said reply was contrary to the orders dated 30th April 1998. Thus, the impugned order being an unreasoned order suffers from grave illegality.

10. Learned counsel for the Petitioners submitted that the entire consolidation proceedings are non est in the eyes of law regarding the Petitioners and Respondents No. 4(a) to (c) herein, since the land bearing Khasra No. 631/2 is already under possession of third parties which was allegedly allotted to the Petitioners in lieu of their original plot i.e., Khasra No. 691/1. It is also contended that Respondent No. 2 has exceeded its jurisdiction by allotting the land of Petitioners to the Respondents No. 4 (a)-

(c), which is a private piece of land and that there was no excess land available with the Petitioners as stated in the report of Halqa Patwari.

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11. It was further submitted that the alternative plot of land given to the Petitioners herein, is in possession of various third parties, and is also a Gaon Sabha land for which no permission had been taken from Gaon Sabha, i.e., Respondent No. 3, to allot the said land to the Petitioners herein. It is also contented by the Petitioners that the Respondents had stated before the Respondent No. 1 that Gaon Sabha has no grievance for the allotment of Khasra No. 631/2 to the Petitioners herein. The Petitioners have raised a concern that this contention of Respondents is without any basis and even if Respondent No. 2 is empowered to put the Petitioners in physical possession of Gaon Sabha land, it has never been done since the said land had admittedly been occupied by the third parties.

12. It is contended that in any event, since there is no formal written communication or proceeding before the Gaon Sabha nor was the Gaon Sabha ever given any opportunity to present their case before the Respondents No. 1 & 2 at any point of time, the entire consolidation proceedings with regard to the Petitioners' land have become invalid.

13. Learned counsel for the Petitioners has further submitted that Respondents No. 4(a)-(c) have at no point of time clarified as to when and how they came into alleged possession of Khasra No. 691/1 or how and when they constructed a boundary wall. It was further submitted that the Petitioners were never allotted any excess land as the case is made out by the Respondents and that the private Respondents are trying to gain illegally, the access to said plot of the land, by making false and frivolous averments.

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(On behalf of the respondents)

14. Per contra, learned Counsel for the Respondents No. 4(a)-(c) has submitted that in the year 1996 after the demarcation, it was found that there was 6 biswas of extra land allotted to the Petitioners. The predecessor-in- interest of Petitioners herein, was entitled to 11 biswas but he was allotted the land in Khasra No. 691 which was measured to be of 17 biswas. It is further submitted that the land bearing Khasra No. 685 which was allotted to Late Sh. Lal Chand, i.e., the predecessor-in-interest of the Respondents No. 4(a)-(c), had a deficiency of 13 biswas. Thereafter the Respondent No. 2 passed the Order dated 23rd December 1996 withdrawing the land bearing Khasra No. 691 min (0-11) from the khata of Late Sh. Sher Singh and to whom was allotted different land bearing Khasra No. 631 min (0-11). The Respondent No. 2 in order to make good the deficiency of land of Late Sh. Lal Chand allotted land bearing Khasra No. 691 min (0-11) to the predecessor-in-interest of the Respondents No. 4(a)-(c), namely Late Sh. Lal Chand, immediately thereafter they raised the boundaries over the said land. In view of the said facts, it cannot be said that the Petitioners have been in uninterrupted possession of the said land.

15. It is further submitted that in the previous revision petition No. 139/97-CA filed by the Petitioners before Respondent No. 1 against Order dated 23rd December 1996 passed by Respondent No. 2, the minor Petitioners were represented through their mother Smt. Jallo Devi who was their natural guardian at that point of time. The case was remanded back by Respondent No. 1 to Respondent No.2 and in the remanded proceedings, the cause title of the case remained the same and minor Petitioners were represented through their mother/ natural guardian Smt. Jallo Devi. In view

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of the said fact, the Petitioners cannot contend that no guardian ad-litum was appointed in the proceedings conducted by the Consolidation Officer. Admittedly, the notices were issued upon the said minor Petitioners through their mother/natural guardian Smt. Jallo Devi. It is submitted that before the Financial Commissioner, i.e., Respondent No. 1, the Petitioners have not raised the issue that some of the Petitioners were minor and no guardian ad- litum had been appointed for them.

16. It is further submitted that in previous revision petition bearing No.139/97-CA, all the legal heirs of Late Sh. Sher Singh were on record and they were fully aware regarding remand of the case before Respondent No. 2, hence it cannot be contended that they were not aware regarding the proceedings before the Respondent No. 2 and no notice was served upon them. It is submitted that after remanding back the case to the Respondent No. 2, the Respondent No. 2 issued notice to both the parties. On first two dates i.e., 8th October 1997 and 12th October 1997, no one appeared on behalf of the Petitioners, and thereafter, Sh. Vijay Kumar being one of the petitioners herein, appeared on behalf of all the Petitioners and on 15th April 1998, the Consolidation Officer conducted the hearing and during the course of hearing, the Petitioners contended that their allotment should be kept at place as it existed prior to the order dated 23rd December 1996 because most of their relatives have their allotments of plots in close vicinity.

17. Learned counsel has also argued that the Petitioners before the Respondent No. 1 filed an application under Order XXVI Rule 9, Code of Civil Procedure, 1908, for verifying the status of the Plot No. 631 and also to verify the distance between the Plot No. 631 and 691 and upon the said application, Respondent No.2 filed its report. The Respondent No. l in its

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order dated 7th April 2022 clearly stated that the consolidation proceedings in the Village Bijwasan are still going on. It is submitted that under the provisions of Section 23 and 42 of the Act, the consolidation officer has every power to exercise the powers of Revenue Officer under Delhi Land Revenue Act, 1954 and have power to deliver the possession vested to the Revenue Officers under the Land Revenue Act.

18. It is also argued that the Petitioners are only entitled for the land admeasuring 11 biswas but they were mistakenly allotted 6 biswas more, i.e., 17 biswas in Khasra No. 691. Thus, under the provision of Section 43A of the Act, Respondent No. 2 has every power and jurisdiction to correct the mistake and to withdraw the excess allotment of land and is also duty bound to make good the deficiency of the holdings. It is submitted that during the consolidation proceedings, only the Consolidation Officer has the jurisdiction over the holding of the entire revenue estate and also has the jurisdiction to withdraw excess land from the allottee and to allot the holdings to the person entitled having deficiency.

19. Learned counsel for the respondents has further submitted that the Gaon Sabha has no grievance and there was no necessity to take permission from the Gaon Sabha as alleged by the Petitioners. It is submitted that in the order dated 30th April 1998, Respondent No. 2 withdrew the land bearing Khasra No. 631 min. (0-11) from the khata of Gaon Sabha and allotted the same to Sh. Sher Singh, i.e., predecessor-in-interest of the Petitioners. It is further submitted that the Petitioners by mentioning the land of Khasra No. 631/2 are trying to create a confusion and mislead this Hon'ble Court. In fact, to the Petitioners the land of Khasra No. 631 min had been allotted. It is submitted that if the Petitioners have not got the

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possession of the Plot No. 631, then for the said grievances, they should have approached Respondent No. 2 who is fully competent to meet out the said grievances of the Petitioners.

20. Accordingly, it is submitted that the instant petition has no merit and is liable to be dismissed.

FINDINGS AND ANALYSIS

21. Heard learned counsel for the parties and perused the records. I have given careful consideration to the submissions made by both the parties.

22. It is an admitted fact by both the parties that consolidation proceedings are still continuing in the village Bijwasan under the Act, 1948. The question that has been arisen before this court is:

Whether the impugned orders relocating the Petitioners from their land of Khasra No. 691 to the alternative land of Khasra No. 631 suffers from any illegality or infirmity on the part of Respondent authorities.

23. The Petitioners were allotted the Land under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The relevant sections of the Act are reproduced herein as under:

"21. Repartition:

(2) Any person aggrieved by the repartition may file a written objection within fifteen days of the publication before the Consolidation Officer who shall after hearing the objector pass such orders as he considers proper confirming or modifying the repartition.

(3) Any person aggrieved by the order of the Consolidation Officer under sub-section (2) may within one

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month of that order file an appeal before the Settlement Officer (Consolidation) who shall after hearing the appellant pass such order as he considers proper.

(4) Any person aggrieved by the order of the Settlement Officer (Consolidation) under sub-section (3), whether made before or after the commencement of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validation Act, 1962, may within sixty days of that order, appeal to the Assistant Director of Consolidation.

23. Right to possession of new holdings. -

(1) If all the owners and tenants affected by the repartition as carried out under sub-section (1) of section 21 agree to enter into possession of the holdings, allotted to them thereunder, the Consolidation Officer may allow them to enter into such possession forthwith or from such date ass may be specified by him.

(2) If all the owners and tenants as aforesaid do not agree to enter into possession under sub-section (1), they shall be entitled to possession of the holdings and tenancies allotted to them from such date as may be determined by the Consolidation Officer and published in the prescribed manner in the estate or estates concerned, and the Consolidation Officer shall, if necessary, put them in physical possession of the holding to which they are so entitled including standing crops, if any, and for doing so may exercise the powers of a Revenue Officer under the Punjab Land Revenue Act, 1887.

24. Coming into force of scheme. -

(1) As soon as the persons entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them, the scheme shall be deemed to have come into force and the possession of the allottees affected by the scheme of consolidation, or as the case may be, by repartition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of sub-sections (2), (3) and (4) of section 21 or an order passed under section 36 or 42 of this Act.] (2) A Consolidation Officer shall be competent to exercise all or any of the powers of a Revenue Officer under the Punjab

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Land Revenue Act, 1887 (Act XVII of 1887), for purposes of compliance with the provisions of sub-section (1).

42. Power of State Government to call for proceedings: The State Government mal 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.

43. Appeal and Revision -

Expect as provided in this Act no appeal of revision shall lie from any order passed under this Act.

43A. Correction of clerical errors. -

Clerical or arithmetical mistake in a scheme made or an order passed by any officer, under this Act arising from any accidental slip or omission may at any time be corrected by the authority concerned either of its own motion or on the application of any of the parties."

24. The Petitioners have contended that the representation of minor Petitioners was not made before Respondent No. 2 and hence, the said order of the Consolidation Officer dated 30.04.1998 suffers from infirmity as no action was taken by the court of consolidation officer despite making an application for impleadment of minor children of late Sh. Sher Singh, ie, predecessor-in-interest of Petitioners herein. In the opinion of this Court, there occurs no infirmity on the part of the Consolidation Officer as the

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mother, Late Smt. Jallo Devi was the natural guardian representing her case as well as of the minor petitioners at that point of time before the court of Consolidation Officer as well as the Financial Commissioner. In this context, it is relevant to refer to some authoritative judicial pronouncements.

25. In the case of Biru And Anr. vs Suraj Bhan And Ors. 1983 SCC OnLine P&H 70, it was held as under:

"16. Now a reference to the aforesaid judgments would indicate that the issue was not adequately debated at all before the respective Benches. The principle on which the theory of effective representation by one co-sharer of the others was not even considered far from being the same elaborated. The observations in Jamadar Sheoji Ram's case (supra) were made in the peculiar context of the glaring inadvertence of a dead man being impleaded as a respondent. There observations appeared to be somewhat over-extended and without more have been followed in the later decisions. As discussed at some length earlier the Consolidation Act does not envisage any formal impleading of all the co-sharers under Section 21 and 42 of the Act. Therefore, to read the requirement of a co-sharer being first necessarily impleaded before he can be effectively represented by another, would be untenable and contrary to the prescription of the statute itself. This apart, if once it is accepted as a sound principle that a hearing to one of the co-sharers would be effective representation to all the body of co-sharers, then it seems to be futile to make the further distinction, namely; whether all the co-sharers must be impleaded as parties or not. The very idea and purpose of formally impleading the parties in a case is to serve all of them and afford them an opportunity of hearing. If one of the co-

sharers can effectively represent the whole body and an adequate hearing to him would bind the others, then the requirement of impleading each and every member of the body of co-sharers would obviously be an exercise in futility. Indeed any such concept of impleading all the co-sharers, first as

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parties to the proceedings, seems to run counter to the basic one co-sharers on behalf of the others. With the greatest respect, therefore, the observations on this specific point in Jamadar Sheoji Ram, Jahaz Khan, and; Het Ram's case (supra) are not tenable and the same are hereby overruled.

17. To conclude, the answer to the question posed at the very out-set is rendered in the negative and it is held that in proceedings under Sections 21 and 42 and of the Act, it is not necessary that all the co-sharers must first be impleaded and then served individually."

26. The predecessor-in-interest of the Petitioners was allotted a land admeasuring 11 biswas in Khasra No. 691 min in the village Bijwasan. The Consolidation Officer to fill the deficiency in the khata of Late Sh. Lal Chand, i.e. the predecessor-in-interest of the Respondents 4(a)-(c) herein, took away the land from the petitioners but at the same instance, relocated them to the land belonging to Gaon Sabha ie, Khasra No. 631 admeasuring 11 biswas to which the Petitioners are entitled to. The above-mentioned facts are uncontested and have been relied upon by both the parties. There is no dispute as to entitlement of the Petitioners to the alternative plot in Khasra No. 631. It has been advanced by the Petitioners that no notice was served under Section 21(2) of the Act till the date of filing of the present writ petition.

27. In the case of Jati Singh v. Additional Director, Consolidation of Holdings, 2004 SCC OnLine P&H 374, it was held as under:

"7. I do not find any force in either of the contentions raised by the counsel for the petitioners. As far as the period is concerned, the Director, Consolidation can make correction of clerical errors at any time. There is no limitation prescribed for correcting the mistake in the consolidation under Section

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43-A of the Act. Secondly, when the mistake in the revenue record is not disputed, then the question of adverse possession will not arise. Merely, because at earlier point of time, the parties were litigating in the Civil Court, does not debar the Director, Consolidation from correcting the mistake in the record of the consolidation when the mistake is apparent on the face of the record. Even otherwise, in the instant case, no injustice has been done to either parties. Killa No. 108//18/1 measuring 7 kanals 6 marlas has been taken away from the Khata of the petitioner and respondent Nos. 6 and 7 and in lieu thereof, they were given Killa No. 115//18 measuring 8 kanals 0 merla, which is more than the area taken from the petitioner and respondent Nos. 6 and 7."

28. In the case of Kanshi Ram Dutta through LR vs Consolidation officers and ors, 2012 SCC OnLine Del 360, it was held as under:

"Upon considering the submissions advanced and on perusal of the impugned orders, this Court finds that petitioner's counsel is not right in submitting that Consolidation Officer lacks jurisdiction to make up the deficiency in the land holdings during the currency of the Consolidation Scheme by invoking Section 43A of East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 as this submission runs counter to the decision of the Division Bench of this Court in L.P.A. No. 1734/2006, Shri Leo Puri v. Consolidation Officer, rendered on 30th September, 2008, declaring that the Consolidation Officer is fully competent to rectify a mistake resulting in deficiency in holdings when the scheme is in operation by resort to Section 43A of the aforesaid Act, as such mistakes are capable of correction by Consolidation Officer by virtue of the power conferred by the aforesaid provision."

29. The demarcation request was made by the deceased Sh. Lal Chand in the year of 1995 which was further taken into consideration by the Consolidation Officer on the basis of Halqa Patwari report dated 26th May

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1996. The Consolidation officer made a re-allotment under Section 43A of the Act. Since, the said recourse of allotment of alternative plot was made by Respondent No. 2 on the proven ground of clerical error in allotment of the land to the parties; the authorities under the provisions of the Act are entitled to take required steps on its own motion or by the application of the parties.

CONCLUSION

30. From the statements on record and annexures provided by both the parties, the following inferences have been made out:

I. Despite several intimations of the proceedings, the Gaon Sabha, i.e., Respondent No.3 chose to remain silent during all the proceedings since the very beginning. Several notices have also been sent to Gaon Sabha and despite its impleadment in the case before the Financial Commissioner, Gaon Sabha has filed no formal reply or objection.

II. As per the demarcation report of Halqa Patwari, the said land stands in the name of Late Sh. Lal Chand to make good the deficiency in the khata.

III. It is also an admitted fact in the order passed by the Court of financial Commissioner that the repartition proceedings are still continuing in the village Bijwasan.

IV. It is also admitted that Respondents have not disputed the allotment of the alternative plot admeasuring 11 biswas to the Petitioners herein.

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31. It is therefore observed that since the repartition has not been completed in the village Bijwasan till date, the Consolidation Officer has a right to re-allocate the plots in case of patent clerical or arithmetical errors. The respondent authorities have made good, the deficiencies of the private Respondents for 13 biswas as well as the Petitioners by relocating them to land in Khasra No. 631 for the same 11 biswas, Petitioners were entitled for.

32. In the light of above-stated facts and laws, this Court finds no force in the arguments of the Petitioners, as after perusing the records, this Court is satisfied that the Respondent Authorities have based their findings on a fair and proper view of the evidence on record and hence, the findings so arrived, cannot be faulted with by this Court.

33. In view of the aforesaid discussion on facts as well as law, this Court is not inclined to entertain the present writ petition. Accordingly, the instant writ petition being devoid of merits is hereby dismissed.

34. Pending applications, if any, also stand disposed of.

35. The judgment be uploaded on the website forthwith.

(CHANDRA DHARI SINGH) JUDGE DECEMBER 23, 2022 Dy/mg

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