Ashok & Ors v. The Financial Commissioner & O

SUNILGAUR,J.

¶1For Orders, see W.P.(C) No.492/2007. SUNIL GAUR) JUDGE October 31, 2011 pkb Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. a' * N THE HIGH COURT OF IDELHIAT NEW DELH! % Ord er Reserved on: October.19,2011 Order Pronounced on: October 31, 2011 + .R1(C)HNo.492t2007 BA1JETSINGH Petitioner Through: Mr.N.S.DaIaI, Advocate versus FINANCIAL COMMISSIONER & ORS. ......Respondents Through: Mr.Ravi Gupta, Senior Advocate with Mr.Kuldeep Baihara, Advocate for Respondent No. 3. + W.P.(C) No.693/2007 ASHOK & ORS. Petitioners Through: Mr.N.S.DaIaI, Advocate versus I I I LUI.i1I L1UJ II CY_1UJ - TIE1I: MIIIIII I F 7 J2 IL. GAUR, li

¶1On 8 Ih September, 1993, NotificatiOn under Section 14 of East Punjab Holding (Consolidation & Prevention of Fragmentation) Act, 1948 was issued for consolidation of holding in Village KanjhaWla, Delhi and on 6th July, 1996, petitioners herein had made an application to the Authorities concerned to make a demand for allocation of 2 bighas and 2 biswas of land towards North-East side of this Vii lag e.

¶2On 14th November, 1996, a scheme under the aforesaid Act was prepared and was announced in this Village and thereafter, on 8th September, 1998 an application was made. by the petitioners to the Consolidation Officer regarding . confirmation and clarification about their possessiOn. In the year 1999, petitioners had filed their objections under Section.21(2) of the East Purijab Holding (Consolidation & Prevention of Fragmentation) Act, 1948, thereby showing that hpw the allotment of Khasra No. 144/32 of this Vilage is wrong and as tOV how the petitioners are entitled to the allotment. therein as they had been using this land as Gher nd Gitwar since long.

3.. Proectiflg the factual position as narrated above, petitiOnS Ssert that on 25th February, 2000, without deciding the &ppUcat'iOlfl and objections of the petitioners and also with:ut looking at their proposal, their objections were dismissed: by the Consolidation Officer only on the ground that the plot in question has been allotted in another case to somebody else by his predecessor , and it cannot be reviewed. w:P.(c) No.492/2007 & 693/2007 . . Page 2 of.8 •- - .. t._ .._ .._ZZ • -_ . -- - ____ ME

¶4Aggrieved by the aforesaid order of 25th February, 2000 of the Consolidation Officer, petitioners herein had preferred statutory appeal under Section 21(3) of East Punjab Holding (Consol.idation & Prevention of Fragmentation) Act, 1948 which was allowed, holding as under:- It is admitted that the C.O. has not considered the objections of the appellant U/s 21(2) and was not given due opportunity of being heard and decided the matter by saying that "the claim of the appellant could not be finalised as the said Plot No.144132 has been decided in somebody else's favour by my, predecessor Sh.C.L.Gaur which the present P.O. cannot review, hence objections rejected". The Plot No.144132 has been allotted from the G.Sabha Land to Respondent No. 2 (Rohtas) whereas the appellant has been using the same for his Gher and Gitwar since long. According to scheme "if someone is in possession of G.Sabha Lana, he is entitled for allotment of the same" since the appellant was in possession in G.Sabha Land bearing Khasra No. 144132 (New), so the appellant is entitled for allotment of the same. Contrary to that the Respondent No. 2 (Rohtas) is not enitIed for allotment of Khasra No. 144132 not being in possession of the same. In the light of above observation / accept the appeal of the appellant and set-aside the order dated il 1~ 1 passed by the COnsolidation Officer. Further the Plot No.144132 is withdrawn from the Respondent No. 2 (RohtaS) and allotted to the appellant to the .extent of ½ share of Easter side. The C.O. is directed to make necessary changes in the revenue record."

¶5Dis-satiSfied with the AppeUate Order of 1st November, 2002, Respondent No.3 _RohtaS herein, had resorted to statutorY remedy Of preferring a revision petition under Section 42 of the East Punjab Holding (COflSOlidat01 & Prevention of .Fragmentatiofl) Act, 1948 and the learned Financial Commissioner vide impugned Order of 14th December, 2006, had accepted the revision petition while noting as under:- "It is an admitted fact that plots in the suit land were allotted during repartitiOn proceedings to the petitioner and that his possession was not disturbed in appeal decided by the Consolidation Officer through Order dt.25.2.2000. I find on record a clarificatOrY application submitted by Respondent No. 2 to the CO dated 18.9.98, which claim his posseSsiOfl on the suit land a/on gwith its direction but there is no application or demand letter from: Respondent No. Z on record which establishes his preferential claim over the suit plots. In the light of the above, I find that the impugned order is not a speaking order sir ce it has reached a conclusion regarding• possession of Respondent No. 2 W.P.(C) N0.492/2007 & 69/2007 _ :4-Page 4of8 without any documentation or evidence. / am therefore inclined to accept the revisiOn petition filed by the petitioner against the impugned Order.

¶6Since the petitioners i.e. Baljit Singh on one hand and Ashok etc., on the other hand, stake their claim in the land in question1 i.e., Khasra No. 144/32 to the extent of 50% each and the facts of the above titled two petitions being identical, submissions advanced in these two petitions were common ones and so, this order would govern the fate of both these petitions.

¶7It was strongly contended by Mr.N.S.Dalal, learned counsel for the petitioners that under Section 42 of East Punjab Holding (Consolidation & Prevention of Fragmentation) Act, 1948, learned Financial Commissioner has to do justice and has to look at the preferential right and has to look at the fact whether the allotment is as per the scheme or not. Since the allotment of Respondent No. 3 is contrary to the scheme and this fact has not been looked into by him and on no ground, the Respondent No. 3 is entitled for two plots and that too on the main road and he has already got the enrichment by having more land in lieu of iflC!US0fl of hts another land within the L& Dora and as such the order of the learned Financial Commissioner is wrong and there can be remand to the learned Financial 0mrn issionerthety directing him to decide the entire questions inciuding (i) his entitlement on various grounds so raised by him in the objections; (ii) his entitlement on the ground of scheme; (iii) his entitlement on the ground of ii - --- - - * I] ii preferential right;

(iv) his entitlement. on the ground of being smaller bhumidhar; and on the grounds which are inherent and anci'llary to that vIS-à-ViS. the claim of the Respondent No. 3 and 'if this is to be seen on this touhstone then the Respondent No 3 is not entitled for this plot No.144/32 rather he is entitled for the plot at some other place.

¶8Ultimately, with much vehemence, it was urged by petitioner's counsel that if the impugned order had found the appellate order to be non-speaking one, then in all fairness, the Financial Commissioner ought to have remanded this'matter to the Consolidation Officer who had illegally refused to exercise the jurisdiction vested in him. Reliance was placed by Mr.N.S.Dalal, learned counsel for the petitioners upon a decision in WP(C) No.133/2008 Sardar Sincih vs. Financial Commissioner, De/hIL rendered gth February, 2011 to assert that where contentiOnS urged are not dealt wIth, the appropriate course is to remand the matter back.

¶9To the contrary is the submission of Mr.Ravi Gupta, Senior 'Counsel for Respondent - Rohtas, who points out the futility of remanding this matter back, by drawing the attention of this Court to the objections of 24th june, 1998, (Annexure P-3) filed by the petitioners1 to highlight that what• is being urged now on merits, 'is not part of the objections raised by the petitioners to the re-distribution of the land in pursuance to the Consolidation Scheme in question. Thus, it was contened that these two petitions lack substance and so deserves dismissal. TTT:..•1:. • -- T::i.J.TI_ - -- _'J -- - r j i l io Upon having considered this matter, in its entirety, it transpires that it is beyond disp.yte that it is the mandate of the ConsolidatiOn.Scheme that ifsornone is in possession • of Gaon Sabha land, he is entitled for allotment of the • same'. Appellate AuthoritY has found that the petitionerS to be in possession of the Khasra No. 144/32 in . questiOfl s • they had been using the same for their her an'd Gitwr since long. This finding of the Appellate. Authority was questioned by the Revisionl Authority on two cQçintS. O n the first coun€, impugned order 'finds fault with the ground of it being non-pakiflg and Appellate Order on the on the second count, it finds that the petitipflerS are unable to substantiate their poseS5iOfl over the land in question:. ii. Learned counsel for the petitioners is right in his submission that if a statutory authority finds the order questioned before it, to be non-speaking then, • appropriately the matter needs to be remanded. But., this is not the end of it. On the second count, impugned order fir4s that the petitioners do not have any e\(idence to indcte their possession on the land in question. It wa on the second count, teamed counsel for the petitioners could flIt ati this Cou a to how the. finding in the impuned OtrdriSdinLW.

¶12Up heh1iL so onfrobted, it was then urged by petitioflerS cinse1 that the obj?ctioflS of the petiti9flerS ought toi have;bfl dealt with at any stage on merits and the petitioners nnot be non-suited in the manner they' have been ddne by theConsOlidation Officer and the; Revisional Authority and an inspection of Khasra No. 144/32 • W.P.(C) No.492/2007 & 693/2907 . . Page 701 8

¶1..........'.. OF-T ot conducted to açertaip petitioners' possession over it, Faced with such a situation, at the hearing, it was put to petitioners' counsel that to do substantial justice, a spot inspection can be got done at this stage'to ascertain as to who is in actual physical possession of the land in question and this was acceptable to Respondent's counsel but the petitioners' counsel had avoided it, by urging the merits of petitioners' claim. . It is no longer res-integra that in exercise of the writ jurisdiction, this Court is not to e'nter into merits and demerits of the claims raised. in the 'proceedings like the instant one, and has to just satisfy itself as to whether there is any error apparent on the face of the record. Upon having tested the impugned order, 'in the light of the objections raised by the petitioners, this Court realises the futility of remanding this matter for decision afresh on the petitioners' objections, as they are conspicuously 'silent upon their being in physical possession of the land in question, i.e., Khasra N. 144/32, Village. Kanjhawla, Delhi. Thus, the decision in Sardar Singh (supra) does not come to th.ie'scue of the petitioners. ' 15'. 'As a sequel to the above narration, finding no error 'apiparent on the face of the impugned order, these two petitions are dismissed while leaving the parties to bear thefr own costs. JUDGE October 31, 2011 pkb Page 8bf8

~ 0) * IN THE HIGH COURT OF DELHI AT NEW DELHI % Order Reserved on: October 19, 2011 Order Pronounced on: October31, 2011 + W.P.(C) No.693/2007 ASHOK & ORS. Petitioners Through: Mr.N.S.DaIaI, Advocate versus FINANCIAL COMMISSIONER & ORS. .....Respondents Through: Mr.Ravi Gupta, Senior Advocate with Mr.Kuldeep Balhara, Advocate for Respondent No. 3. CORAM: HON'BLE MR. JUSTICE SUNIL GAUR Whether the Reporters of Iocafl' papers may be allowed to see the judgment? L To be referred to Reporter or No. not? Whether the judgment should be reported in the Digest?