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2012 DIGILAW 226 (DEL)

Niti Arya v. Govt. of NCT of Delhi

2012-01-20

SUNIL GAUR

body2012
JUDGMENT : Sunil Gaur, J. 1. The order impugned in the above captioned two writ petitions is of 26th June, 2009 and since the parties in these two petitions are the same and the grounds of challenge to the impugned order are also identical, therefore with the consent of learned counsel for the parties, both these petitions were heard together and are being disposed of by this common order. 2. To avoid any confusion, it is made clear at the outset that the order of the Financial Commissioner, Delhi, impugned in W.P.(C) No. 1147/2010 arises out of Civil Revision No. 253/2007 relating to plot of land bearing Mustatil/Khasra No. 43, Killa No. 15 min, Khatauni Khata No. 264 admeasuring about 4 bighas 15 biswas in Village Jhatikra, Najafgarh, Delhi, which was purchased vide registered Sale Deed on 4th September, 1996 by the petitioner from Roop Chand s/o Munshi Ram, bhumidar of the aforesaid land. 3. Whereas W.P.(C) No. 1149/2010 pertains to order in Civil Revision No. 254/2007 in respect of plot of land bearing Mustatil/Khasra No, 43, Killa No. 6, Khatauni Khata No. 259/15 admeasuring about 4 bighas 16 biswas in Village Jhatikra, Najafgarh, Delhi, which was purchased by the petitioner from Neki Ram s/p Har Narain vide registered Sale Deed on 4th September, 1996. 4. To establish the title of the predecessor-in-interest of the petitioner in the subject land, petitioner relies upon order of 9th March, 1990 of the concerned SDM vide which aforesaid Roop Chand was declared as the Bhumidar of 4 bighas and 15 biswas of land as noted hereinabove and also on Gram Panchayat Certificate of 9th September, 1981 vide which 4 bighas and 16 biswas of afore-noted land was allotted to the above referred Neki Ram in the capacity of being a 'Asami' for a period of five years on yearly fee (lagan) of Rs. 20/- only. 5. It becomes evident from the order of 9th March, 1990 of the concerned SDM passed under Section 74 (4) of Delhi Land Reforms Act, 1954 that the allotment of the subject land by the Gram Panchayat to the predecessor-in-interest of the petitioner was under the Welfare Programme of the Government in order to encourage the reclamation of the waste land. It becomes evident from the order of 9th March, 1990 of the concerned SDM passed under Section 74 (4) of Delhi Land Reforms Act, 1954 that the allotment of the subject land by the Gram Panchayat to the predecessor-in-interest of the petitioner was under the Welfare Programme of the Government in order to encourage the reclamation of the waste land. Petitioner maintains that the predecessor-in-interest of the petitioner had made monetary investment in the subject land and with their hard work had converted the waste land allotted to them into cultivable land within the period of five years and therefore, vide aforesaid order of 9th March, 1990, bhumidari rights were conferred upon aforesaid Roop Chand predecessor-in-interest of the petitioner in respect of land measuring 4 bighas and 15 biswas in the Village in question. 6. Though it is stated in W.P.(C) No. 1149/2010 that Bhumidari rights were conferred upon Shri Neki Ram predecessor-in-interest of the petitioner in plot of land bearing Mustatil No. 43, Killa No. 6, Khatauni Khata No. 259/15 admeasuring about 4 bighas 16 biswas in Village Jhatikra, Najafgarh, Delhi, vide order of 9th March, 1990 (Annexure P-3) but from the order (Annexure P-3) it stands revealed that it pertains to Roop Chanel and not to Neki Ram. Meaning thereby, Bhumidari rights were never conferred upon Neki Ram. However, Revenue Record i.e. Khasra Girdawari of 1996-97 (Annexure P-7) discloses the name of the tenure holder of the land in Khasra No. 43/6 as that of Neki Ram and in the remarks column, it stands noted that this land stands sold to the petitioner in the year 1996. 7. To claim that the subject land stood mutated in the name of the petitioner, reliance is placed upon application seeking mutation of the aforesaid land and the revenue record, i.e., Khasra Girdawaries of the years 1997-98 to 2000-2001, Khatauni of the year 2003-2004 and the subsequent Khasra Girdawaries of the years 2004-2005 to 2008-2009. Petitioner also relies upon a certificate of 3rd March, 1997 issued by the concerned Tehsildar to certify that the subject land stands mutated in the name of the petitioner and it is free from all encumbrances. 8. Petitioner also relies upon a certificate of 3rd March, 1997 issued by the concerned Tehsildar to certify that the subject land stands mutated in the name of the petitioner and it is free from all encumbrances. 8. Upon dissolution of the elected Panchayat of Gaon Sabha, Village Jhatikra, it stood revealed to the respondents in the year 1991 that without issuing notices to the respondents, Bhumidari rights were conferred upon nearly 27 persons including the predecessor-in-interest of the petitioner vide single performa order of 9th March, 1990 and thus, suo motu powers of the concerned authority were invoked by the respondents by means of a petition under Rule 30 of Appendix VI of the Delhi Land Reforms Rules, 1954 seeking annulment of order of 9th March, 1990 which was allowed by the concerned authority vide order of 29th March, 2007 while holding as under:- “In view of the position as detailed above, I am inclined to pass the following orders:- 1. Order in respect of case Nos. 17/9, 19/9, 35/9, 39/9, 24/97 and 38/97. Case No Name of petitioner Name of respondent 17/97 Gram Sabha, Village Jhatikra Bali Ram s/o Mam Chand 19/97 Gram Sabha, Village Jhatikra Om Prakash s/o Rattan 35/97 Gram Sabha, Village Jhatikra Saroop Singh s/o Khaki 36/97 Gram Sabha, Village Jhatikra Roop Chand s/o Munshi Ram 24/97 Gram Sabha, Village Jhatikra Neki Ram s/o Har Narain 38/97 Gram Sabha, Village Jhatikra Kamal Singh s/o Dhanpat As per the report filed by Halqa Patwari dated 12/3/2007, it is evident that the respondents have transferred the land in violation of the condition laid down in the orders of SDM/RA dated 3/9/1990, extract of which is as under:- “the allottee shall not dispose of the land and will use it for agriculture purpose as defined in the DLR Act. The suit land shall not be transferable. If it is brought to the notice of the undersigned that the violation is being done extinguished and it the land will be treated as if it has been reverted back to the Gaon Sabha. The above respondents have not only acted in violation of the condition laid down in the impugned order but also violated the provisions of law prohibiting such transfers. Hence, the impugned orders passed by SDM/RA are set aside with the direction that the land be vested in the Gaon Sabha. The above respondents have not only acted in violation of the condition laid down in the impugned order but also violated the provisions of law prohibiting such transfers. Hence, the impugned orders passed by SDM/RA are set aside with the direction that the land be vested in the Gaon Sabha. EDO (SW) is further directed to take possession of the said land.” 9. The Revisional Authority, i.e., Financial Commissioner, Delhi vide impugned order of 26th June, 2009 found no merit in the stand taken by the petitioner and had dismissed the Revision petition while observing as under:- “My attention was drawn to the High Court judgment in the case of Shri Pawan Kumar Shri Ganga Bishan Gupta v. Financial Commissioner, Delhi and others in Civil Writ Petition No. 15548, 1549, 1550,1555 and 1667 of 2000 (A. K. Sikri., J) wherein it was held that land in question was allotted to the applicants by way of a grant under 20 point programme -- consequence would follow automatically -- such a grant to the landless labourers was for the economic upliftment and the sale would not be permissible and also held that petitioner who was successor in interest in those applicants have no locus-standi to challenge this restriction imposed by the Revenue Assistant.” 10. Challenge to the impugned order, by learned senior counsel for the petitioner is on the ground that the cancellation of the Bhumidari rights by recourse to sub-section 2 of Section 75 of Delhi Land Reforms Act, 1954 can take place only after following the prescribed procedure, as contained in clause IV of rule 47 of Delhi Land Reforms Rules, 1954, which reads as under:- (iv) Any person may within six months of the date of the order granting the lease file objection, if any, before the Deputy Commissioner.” 11. It is contended by learned senior counsel for the petitioner that within the aforesaid prescribed time, no objections were filed by anyone in respect of the allotment of the subject land in favour of the predecessor-in-interest of the petitioner and therefore, recourse to Rule 30 in Part B of Appendix VI, of Delhi Land Reforms Rules, 1954 is unwarranted. 12. For facility of reference, afore-referred Rule 30 in Part B of Appendix VI, of Delhi Land Reforms Rules, 1954 is reproduced. It reads as under:- “30. 12. For facility of reference, afore-referred Rule 30 in Part B of Appendix VI, of Delhi Land Reforms Rules, 1954 is reproduced. It reads as under:- “30. Power of Deputy Commissioner etc, to call for records and proceedings and reference to the Chief Commissioner - The Deputy Commissioner, the Settlement Officer or the Record Officer may call for and examine the record of any case decided, or proceedings held by any officer subordinate to him for the purpose of satisfying himself as the legality or property of the order passed and as to the regularity of the proceedings; and, if he is of opinion that the proceedings taken or order passed by such subordinate officer should be varied, cancelled, or revised, he shall refer the case with his opinion thereon for the orders of the Chief Commissioner; and the Chief Commissioner shall thereupon pass such orders as he thinks fit. 13. The substance of the stand taken by learned senior counsel for the petitioner is that once a person is declared Bhumidar by Competent Authority and no appeal has been preferred by the Gaon Sabha within a period of six months from the date of the order of declaration dated 09.03.1990 as Bhoomidari then such bhoomidari becomes final and cannot be set aside on flimsy ground and without authority of law. 14. The contention advanced by learned senior counsel for the petitioner is that after the purchase of the subject land by the petitioner and upon petitioner's name being incorporated in the revenue record, though proceedings under Section 81 of the Delhi Land Reforms Act, 1954 were initiated against the petitioner in the year 1997 but they were dropped as there was no misuser of the subject land by the petitioner and so, it was incumbent upon the respondents to have put the petitioner to notice prior to the passing of the order of 29th March, 2007 cancelling the Bhumidari rights of the predecessor-in-interest of the petitioner in the subject land. Thus, violation of principles of natural justice is alleged as it is vehemently asserted by learned senior counsel for the petitioner that no one can be condemned without opportunity of being heard. 15. Thus, violation of principles of natural justice is alleged as it is vehemently asserted by learned senior counsel for the petitioner that no one can be condemned without opportunity of being heard. 15. Learned senior counsel for the petitioner concluded his submissions by fervently urging that since the petitioner is a recorded owner of the subject land, therefore, impugned order as well as order of 29th March, 2007 deserves to be set aside and this matter be remanded back to the concerned Deputy Commissioner for decision afresh after opportunity of hearing is provided to the petitioner. 16. On behalf of the respondents it was submitted by learned Additional Standing Counsel that the Bhumidars including the predecessor in-interest of the petitioner were represented by a counsel before the concerned Deputy Commissioner who in the order of 29th March, 2007 has noted the stand of the Bhumidars and so, it cannot be said that there is any violation of principles of natural justice as opportunity of hearing was not only provided but was also availed of. It was asserted on behalf of the respondents that no limitation is prescribed for invoking the suo motu power under Rule 30 in Part B of Appendix VI, of Delhi Land Reforms Rules, 1954 and since the impugned order follows the decision of this Court in Shri Pawan Kumar Shri Ganga Bishan Gupta v. Financial Commissioner, Delhi, 2003 IV AD (Delhi) 265: 2003 (107) DLT 726 , therefore there is no merit in these two petitions, which ought to be dismissed out rightly. 17. In rebuttal, learned senior counsel for the petitioner had sought to distinguish the decision in Pawan Kumar (Supra) by pointing out that in the aforesaid-decision the appeal of Gaon Sabha against the grant of Bhumidari rights was pending and so, the decision in Pawan Kumar (Supra) has no “application to the facts of this case. 17. In rebuttal, learned senior counsel for the petitioner had sought to distinguish the decision in Pawan Kumar (Supra) by pointing out that in the aforesaid-decision the appeal of Gaon Sabha against the grant of Bhumidari rights was pending and so, the decision in Pawan Kumar (Supra) has no “application to the facts of this case. Just to test the stand of the petitioner on merits, during the course of hearing, it was put to learned senior counsel for the petitioner as to possibly on what ground cancellation of Bhumidari rights granted in favour of the predecessor-in-interest of the petitioner could be resisted by the petitioner, it was said by learned senior counsel for the petitioner that respondents would be non-suited on the short ground of their petition being time barred and on merits, respondent's petition seeking cancellation of Bhumidari rights being hit by res-judicata. Lastly, it was urged that Bhumidari rights conferred under the Delhi Land Reforms Act, 1954 cannot be taken away by recourse to Welfare Scheme, i.e., Government's 20 Point Programme. 18. After having considered this matter in its entirety and upon perusal of the impugned order and the material on record, I find that the grievance of the petitioner is that there is blatant violation of the principles of natural justice as petitioner was not heard before suo moto cancellation of the bhumidari rights of the petitioner in the land in question. 19. Doctrine of natural justice mandates that no decision shall be given against the party without affording a reasonable opportunity of hearing. Petitioner claims that she was entitled to hearing before passing of the order of 29th March, 2007 by the concerned authority as she was the recorded owner of the land in question as her name appears in the revenue record i.e., the khatoni of the year 1990-91. 20. Aforesaid stand of the petitioner is noted in the impugned order of 26th June, 2009 but the same has not been dealt with by the Financial Commissioner, Delhi who has justified the order of 29th March, 2007 of Additional District Magistrate, South-West, Delhi on merits. 21. It is not in dispute that since the year 1990-91 name of the petitioner is there in the revenue record to indicate that petitioner is in possession of the land in question. 21. It is not in dispute that since the year 1990-91 name of the petitioner is there in the revenue record to indicate that petitioner is in possession of the land in question. Even Additional District Magistrate in its order of 29th March, 2007 had noted that the land in question has been transferred to third party i.e., the petitioner, but still the petitioner was not heard before cancellation of the rights of the petitioner in the land in question, though the name of the petitioner is there in the revenue record maintained by the respondents. 22. This Court is of the considered opinion that since the name of the petitioner was very much there in the revenue record, therefore, the petitioner ought to have been heard before vesting of the land in question in Gram Sabha of village Jhatikra. Such a view is being taken in view of the fact that neither it becomes evident from the order of 29th March, 2007 of the concerned Additional District Magistrate nor respondent's counsel could show that the predecessor in interest of the petitioner i.e., the original bhumidar was actually heard before passing of the aforesaid order. This aspect assumes importance in view of the fact that order of 29th March, 2007 remands the cases of other similarly placed bhumidars, whereas the case of the petitioner has been segregated because of violation of prohibition upon transfer of the land in question. 23. This Court is conscious of the circumstantial flexibility of the audi alteram partem rule but whatever standard of natural justice is adopted, what's essential is that the person affected should have a reasonable opportunity of being effectively heard. Every effort to salvage this cardinal rule must be made. In an endeavour to do so, this matter stands remanded to the Additional District Magistrate with a direction to provide an opportunity of hearing to the petitioner as the question of limitation raised by learned senior counsel for the petitioner goes to the root of the matter and because the plea of res-judicata raised by relying upon Apex Court's decision in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors., 1990(2) SCC 715 cannot be brushed aside lightly and is required to be gone into by the Additional District Magistrate while adjudicating upon the validity of the order of 9th March, 1990 afresh. Even on merits, the applicability of the decision in Pawan Kumar (Supra) is also required to be gone into by the Additional District Magistrate in the light of the submissions advanced on behalf of the petitioner. 24. In the light of the aforegoing narration impugned order of 26th June, 2009 as well as order of 29th March, 2007 pertaining to case No. 24/1997 and 36/1997 in respect of the land in question are accordingly set aside with the direction to the concerned Additional District Magistrate to decide this matter i.e., case No. 24/1997 and 36/1997 afresh after affording an opportunity of hearing to the petitioner. Let the parties through their counsel appear before the Additional District Magistrate on 15th February, 2012 for proceeding in accordance with the law. Needless to say, concerned Additional District Magistrate shall expeditiously decide this matter afresh. 25. With aforesaid directions, both the petitions are disposed of, while making it clear that any observation made in this order shall not be construed as opinion on the merits of the case. Pending applications are rendered infructuous and disposed of as such.