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2010 DIGILAW 204 (DEL)

KRISHAN KUMAR v. FINANCIAL COMMISSIONER, ETC.

2010-02-05

SANJIV KHANNA

body2010
ORDER 1. The petitioner has challenged order dated 29th October, 1992 passed by the Financial Commissioner under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as Act, for short) and has also prayed for restoration of allotment made by the Consolidation Officer in the order dated 24th July, 1981. 2. In 1975, consolidation proceedings were initiated in village Mundka, Delhi. A scheme of consolidation was drawn up inviting applications for residential plots in extended lal dora within 30 days from 1st April, 1976. The scheme was published and was confirmed by the Settlement Officer (Consolidation) on 27th July, 1976. 3. On 29th April, 1979 a resolution was passed by the village panchayat suggesting modification in the scheme. Thereafter on 8th May, 1979 Settlement Officer (Consolidation) passed an order accepting claims of some parties and observed that their claims should be included in the scheme. This required amendment to the consolidation scheme. A draft amended scheme was published on 6th August, 1980 but subsequently dropped by the Settlement Officer (Consolidation) on 22nd May, 1982 on the ground that no land was available for further allotment/demands in the lal dora and some of the right holders had opposed allotments. 4. There was litigation as to whether or not the consolidation scheme should be amended or not. Writ petitions were also filed before the High Court challenging the order passed by the Settlement Officer (Consolidation) dropping the proposal for amendment of the consolidation scheme with regard to inclusion of demands for plots within the lal dora. Orders were passed in some of the writ petitions. 5. The Consolidation Officer on 20th May, 1988 passed an order after obtaining report from Patwari with regard to availability of land within lal dora holding, inter alia, that it was not possible to meet additional demands, in terms of orders passed by the High Court in the writ petitions, within the existing lal dora area. He further noticed that there was already deficiency of lal dora area to meet existing demands of persons in the village and some right holders had filed writ petitions which were pending but were likely to succeed in view of the earlier orders passed by the High Court. Accordingly, he came to the conclusion that existing lal dora was required to be extended to meet the additional demand. Accordingly, he came to the conclusion that existing lal dora was required to be extended to meet the additional demand. By order dated 20th May, 1988, the Consolidation Officer directed that an area of 92 bigha and 8 biswa be included in the said lal dora by amending the consolidation scheme. In this order it was noticed that as per record the petitioner made a claim for deficiency of 4 bigha. 6. This order dated 20th May, 1988 was challenged in two revision petitions before the Financial Commissioner under Section 42 of the Act by Mr. Surjan Singh, Mr. Hari Singh and others. Financial Commissioner by his order dated 31st October, 1989 set aside the amended consolidation scheme with a direction that amendments could be carried out only after following the prescribed procedure specified under the Act. In these two revision petitions, Settlement Officer (Consolidation) and Consolidation Officer were impleaded as respondents, but other parties who were likely to be affected by the outcome of the decision were not impleaded. Some of the persons who were adversely affected by the order passed by the Financial Commissioner, filed writ petitions before the High Court. These writ petitions were disposed of vide Order dated 24th March, 1992 holding, inter alia, that the Financial Commissioner should have issued notices to the interested of parties before disposing of the revision petitions and there was violation of the principles of natural justice and the Act. The High Court, however, observed that it was not going into merits and directions were given to the Financial Commissioner to decide the revision petitions afresh after giving notices to all interested parties and a reasonable opportunity to represent their case. 7. Upon remand, the Financial Commissioner issued notices to the concerned parties and published public notices to enable all persons interested in the said subject matter to appear before him. By the impugned order dated 29th October, 1992, learned Financial Commissioner has held that the Consolidation Officer could not have amended the scheme for consolidation without following the procedure prescribed under the Act and therefore the Settlement Officer had erred in granting approval of the amended scheme. At the same time, the Financial Commissioner noticed that several right holders could not be allotted land within the lal dora as per the original scheme. At the same time, the Financial Commissioner noticed that several right holders could not be allotted land within the lal dora as per the original scheme. He directed allotment to these persons who were wrongly left out, in exercise of powers vested under Section 42 of the Act. In this connection, he referred to the public notices through press as well as proclamation in the village, issued about the proceedings pending before him to enable the affected persons to prefer objections and make their submissions. He further held that the amended consolidation rules reducing the maximum permitted holding in lal dora were not applicable as orders passed by him were an integral part and in continuity of the original scheme. 8. The aforesaid directions in the order dated 29th October, 1992 passed by the Financial Commissioner were challenged before this Court in Writ Petition (Civil) Nos. 348/1993 and 5815/2000 filed by Mr.Sujan Singh and others and Mr.Kishan Lal and others respectively. By judgment dated 2nd July, 2007, the challenge was rejected, inter alia, holding that the Financial Commissioner had power under Section 42 of the Act to issue the said directions and the amended rules were not applicable. 9. Mr. Krishan Kumar, the petitioner herein had represented and appeared before the Financial Commissioner before order dated 29th October, 1992 was passed. An objection was raised before the Financial Commissioner that Mr.Krishan Kumar-the petitioner herein had not filed any writ petition and therefore his claim for allotment should not be examined and was not justified. It was contended that Mr.Krishan Kumar did not have any recorded demand. Financial Commissioner dismissed the claim of Mr.Krishan Kumar observing as under:- 14. In reply, Shri C.S. Saroha, Advocate representing Shri Krishan Kumar frankly admitted that there was no demand of Shri Krishan Kumar. He, however, sought to plead that there are extenuating circumstances for accepting his demand and that this court has the jurisdiction to entertain his demand under section 43-A of the Act treating it as a clerical error or ommission. Shri Saroha did not contest the plea on facts. 15. There is no merit in the submission of Shri Saroha. The amendment is being restored to pursuant to the orders of the High Court. Undisputedly, Shri Krishan Kumar had not preferred any demand for the plot. Nor had he approached the High Court. Shri Saroha did not contest the plea on facts. 15. There is no merit in the submission of Shri Saroha. The amendment is being restored to pursuant to the orders of the High Court. Undisputedly, Shri Krishan Kumar had not preferred any demand for the plot. Nor had he approached the High Court. That being so, it is not practically possible to entertain his demand for the first time at this stage as it may open new fronts for other similarly placed right holders. I, therefore, disallow the request of Shri Saroha. Resultantly, it is held that the demand of Shri Krishan Kumar cannot be included in the amended scheme.” 10. The petitioner thereafter filed an application for deletion of the aforesaid paragraph nos. 14 and 15 along with an affidavit of the advocate who had appeared for the petitioner, to controvert the statement attributed to the said advocate. It was stated in the application that Mr.Hoshiar Singh-father of Mr. Krishan Kumar had preferred a demand within a period of 30 days from 1st April, 1976 and therefore paragraph nos. 14 and 15 in the order dated 29th October, 1992 should be recalled. This application was dismissed vide order dated 14th December, 1992 observing: “5. I have examined the case file. It is a fact that a copy of the application of the father of Krishan Kumar as well as a copy of the list of demands wherein the name of the father of Shri Krishan Kumar figures have been filed. From these documents, it is apparent that father of Shri Krishan Kumar had preferred the demand and not Krishan Kumar. At the same time, it is also a fact that the very basis for amendment of the scheme was to include the demands of those persons who had approached the High Court and whose demands had been approved by the High Court. That being so, entitlement of Krishan Kumar for allotment of plot through the amendment cannot be taken into consideration regardless the fact that his father had preferred the demand and the same was included in the list. 6. In view of the above, it is clarified that the admission of Shri C.S.Saroha that Krishan Kumar had not preferred any demand recorded in the earlier order shall be taken to imply that admittedly there was no demand of Krishan Kumar, but his father had preferred the demand. 6. In view of the above, it is clarified that the admission of Shri C.S.Saroha that Krishan Kumar had not preferred any demand recorded in the earlier order shall be taken to imply that admittedly there was no demand of Krishan Kumar, but his father had preferred the demand. But this fact also does not make the applicant, Krishan Kumar, entitled to a plot since the amendment was to include those persons only whose demand had been approved by the High Court and it is an admitted fact that Krishan Kumar had not filed any writ petition in the High Court. The present applicant stands disposed of accordingly.” 11. Learned counsel for the petitioner states that the Financial Commissioner does not have any power of review and therefore he did not have jurisdiction to re-examine the order dated 29th October, 1992 by way of the review application. However, he relies upon observations made in this order to the effect that Mr.Hoshiar Singh, father of the petitioner had filed an application and his name was included in the list of demands. It is also submitted that in the order dated 14th December, 1992, the Financial Commissioner has wrongly recorded that the earlier order dated 29th October, 1992 was only to include demand of those persons who had approached the High Court and where demands were approved by the High Court. 12. While examining the revision petition under Section 42 of the Act, the Financial Commissioner had taken a holistic and a broad view of the entire matter. He came to the conclusion that the amended consolidation scheme was invalid for failure to follow the procedure prescribed under the Act before it was settled, yet at the same time he was conscious that several persons whose demand for allotment of land within the lal dora was justified could not be allotted land as land within the lal dora was not available. In these circumstances he exercised his wide powers under Section 42 of the Act to extend the lal dora area so that persons who have been wrongly denied land within the lal dora could be accommodated. The said approach of the Financial Commissioner has been accepted as correct and upheld by the High Court in the case of Mr.Sujan Singh and Mr.Kishan Lal (supra) in the judgment dated 2nd July, 2007. The said approach of the Financial Commissioner has been accepted as correct and upheld by the High Court in the case of Mr.Sujan Singh and Mr.Kishan Lal (supra) in the judgment dated 2nd July, 2007. It has been held that Section 42 of the Act is of widest magnitude and keeping in view the nature of the order passed; the widespread participation in the proceedings before the Financial Commissioner; and the fact that no prejudice was caused though vaguely pleaded and urged to the contrary; the order of the Financial Commissioner was legal and valid. By the same reasoning in case the petitioner’s claim is correct and justified, the same should not be rejected on the ground that he had not filed any writ petition against the earlier order passed by the Financial Commissioner setting aside the amended consolidation scheme. While setting aside the order dated 31st October, 1989 passed by the Financial Commissioner in Writ Petition (Civil) No.3250/1989 in Gulshan Kumar and others (supra) learned single Judge in the judgment dated 4th March, 1992 had directed issue of notice to all interested parties who were also directed to be given an opportunity of being heard. Obviously, learned single Judge did not want to restrict the benefits and advantage of the judgment only to the writ petitioners. Further, what was the subject matter of challenge before the Financial Commissioner was the amended consolidation scheme prepared and approved on 20th /25th May, 1998 under which the petitioner’s demand with regard to deficiency was accepted. The amended scheme in which the claim of the petitioner was accepted was subject matter of challenge before the Financial Commissioner. 12A. In the counter affidavit filed before this Court by the respondent-GNCT of Delhi has been pleaded as under: “An application of Shri Hoshiar Singh, father of the petitioner is found attached with the record but it has not been entered in the demand register nor any residential plot was recommended for allotment at the time of confirmation of the scheme because the application was filed after the stipulated time. It was time barred application.” 13. Learned counsel for the petitioner has submitted that the petitioner had filed on record, certified copy of the demand register which establishes that Mr.Hoshiar Singh’s name appears against Entry No.50 which is the last entry in the said register. It was time barred application.” 13. Learned counsel for the petitioner has submitted that the petitioner had filed on record, certified copy of the demand register which establishes that Mr.Hoshiar Singh’s name appears against Entry No.50 which is the last entry in the said register. Learned counsel for the respondent-GNCT of Delhi however submits that interpolation while making the said entry is clearly visible as difference in hand-writing is apparent. She also relies upon subsequent certified copy which shows that the last entry was scored off/cancelled. Learned counsel for the petitioner however submits that the allegation is false for the reason that Mr.Hoshiar Singh expired within one year after making the said demand in 1977 and the petitioner at that time was only 14 years of age. Learned counsel for the respondent-GNCT of Delhi, however, submits that the amended scheme was prepared in the year 1988 and not in the year 1977. She in this connection relies upon the earlier statement by the learned counsel for the petitioner recorded in paragraph 14 of the order dated 29th October, 1992 by the Financial Commissioner. She states that the said statement should be read and understood in the said context. With regard to the subsequent order dated 14th December, 1992 it is stated that the said order proceeds on the basis of the certified copy of the list of demands, which was produced by the petitioner and there is no finding or observation given by the Financial Commissioner with regard to the authenticity and genuineness of the said demand. 14. With reluctance, as the matter has remained pending in this Court for some time, I am constrained to remand the matter back to the Financial Commissioner to examine the question of authenticity of entry 50 in the demand register and the question whether the petitioner’s father-Mr.Hoshiar Singh has made any application within 30 days from 1st April, 1976. This is a matter of fact which requires indepth examination of evidence and material. Petitioner will be entitled to allotment in case his father-Mr.Hoshiar Singh had made an application within 30 days from 1st April, 1976 and would not be entitled to benefit of any additional land in case no such application was made. 15. This is a matter of fact which requires indepth examination of evidence and material. Petitioner will be entitled to allotment in case his father-Mr.Hoshiar Singh had made an application within 30 days from 1st April, 1976 and would not be entitled to benefit of any additional land in case no such application was made. 15. Learned counsel for the petitioner has relied upon Section 21(2) of the Act and submitted that after amended scheme was prepared and approved in May 1988, the petitioner was allotted land and as the said allotment was not challenged and objected to, the same has become final. The said contention has no merit. The demarcation and allotment, if any, was under the amended scheme which was made subject matter of challenge in the proceedings under Section 42 of the Act before the Financial Commissioner. The said challenge has been upheld and the amended scheme has been set aside. Any allotment or demarcation under the amended scheme therefore must be treated as wrong and illegal and has to go As already stated above, allotments have now been made to the right holders pursuant to the directions issued by the Financial Commissioner under Section 42 of the Act and not under the amended scheme. Reliance on Section 21(2) of the Act is misconceived. 16. As the matter has remained pending for a very long time, the Financial Commissioner will try and dispose of the matter as early as possible. Parties will appear before the Financial Commissioner on 4th March, 2010 when further date of hearing will be given. It is clarified that the observations made in this Order will not be binding on any other party in CCP No. 230/1997 and Writ Petition (Civil) No.5137/1999. The said proceedings will be decided on merits. In the facts and circumstances of the case there will be no order as to costs.