* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No. 1734/2006 & CM No. 10649/2006
Reserved on : August 27th, 2008
Date of Decision : September 30th, 2008
SHRI LEO PURI ..... Appellant
Through: Mr. N.S.Vashisht, Advocate.
Versus
CONSOLIDATION OFFICER & ORS. ..... Respondents
Through: Mr. Amitabh Marwah,
Advocate for the Respondent No.1.
Mr. B.S. Maan, Advocate for
Respondent
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the
judgment? No
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
JUDGMENT
%
MANMOHAN, J.
1. The present appeal arises out of a judgment dated
31st July, 2006 whereby the learned Single Judge allowed
the Appellant‟s writ petition bearing No. 2844 of 2005
and set aside the order dated 5th February, 2005 passed
LPA NO.1734/2006 Page 1 of 23
by the Consolidation Officer and further directed the
matter to be remitted for re-consideration before the
Consolidation Officer who would hear the parties afresh
and thereafter render specific findings on the issues
indicated in paras 16 and 17 of the order dated 8th
September, 2004 in earlier writ petition (Civil) bearing
No. 267 of 2003.
2. The relevant paras 16 and 17 of the Order dated 8th
September, 2004 passed by another learned Single
Judge in earlier W.P. (C ) No. 267/2003 read as under:-
“16. At the stage when it was brought
to the notice of the Settlement Officer
and thereafter to the Financial
Commissioner that petitioner through
her predecessors in interest came into
settled possession of 8 bigha and 5
biswas of land comprised in Khasra
No. 171 (New) in my opinion since
application of Raghuvir Singh was
being entertained after over 20 years
and fresh adjudication was being
effected pertaining to his claim that at
the repartition he was allotted less
land, revenue authorities should have
looked into the revenue record as to
how in lieu of pre-consolidation
holding of 7 bigha and 15 biswas, post
consolidation allotment was of 8 bigha
and 5 biswas. Was it a case where
value of land was resulting in theLPA NO.1734/2006 Page 2 of 23
increased area or was it a case of
excess allotment? Further, effect of
the original bhumidar selling the land
to a person who could claim to be a
bonafide purchaser for value also
required to be considered.
17. To do complete justice between
the parties, in the facts and
circumstances of the case noted
above, it would be advisable to
remand the matter to the
Consolidation Officer to pass fresh
orders after hearing the petitioner.”
3. The brief facts of the case are as follows:-
(a) Shri K. Puri the late father of the
Appellant purchased an agricultural farm
house bearing old Khasra No. 2697/661/2,
2697/661/1 and 2699/662 measuring 7
bighas 15 biswas and after repartition
under the Consolidation proceedings the
new khasra number being 171 measuring
8 bighas 5 biswas in the revenue estate of
village Bijwasan in the National Capital
Territory of Delhi vide sale deed dated
06.04.1979 from the recorded owner one
Smt. Raksha Tandon.
(b) The aforesaid land was purchased by
LPA NO.1734/2006 Page 3 of 23
Shri K. Puri after the seller (Smt. RakshaTandon) had duly obtained the necessary
sale permission from the competent
authority under Section 30 of the East
Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 as
made applicable to Delhi (hereinafter
referred to as the „Act‟).
(c) The land was duly mutated in the name of
Shri K. Puri in the revenue records by the
Consolidation Officer. Shri K. Puri died on
30.10.1992.
(d) A notice in the name of Mr. K. Puri (since
deceased) was issued for demarcation on
10.01.2002 from the office of the
Consolidation Officer.
(e) On one of her visits the Appellant‟s
attorney received the said notice and after
receiving the said notice the Appellant
visited the Tehsil and the Consolidation
Office at Kapashera Court and it transpired
LPA NO.1734/2006 Page 4 of 23
from the records that some adverse ordershad already been passed against Shri K.
Puri, the deceased father of the Appellant.
(f) On making enquiries at the office of the
Consolidation Officer, the Appellant was
told that one Shri Raghubir Singh Sharma
(late father of Respondent Nos. 4-7 had
filed an Appeal bearing No. 43/2000 in the
Court of Shri H.P.S. Saran Collector (South-
West) Delhi against an order passed by the
Settlement Officer (C ) on 09.12.1980
wherein the Collector (South-West) vide
ordered dated 8th May, 2001 had set aside
the order dated 09.12.1980 passed by the
SO(C) and remanded the case back to
Consolidation Officer (Bijwasan) in respect
of land bearing Khasra No. 22/16/2(1-4)
with the direction that Petitioner be
allotted land after due process as suit land
has been allotted to third person during
consolidation.
LPA NO.1734/2006 Page 5 of 23
(g) In pursuance of the order dated
08.05.2001 passed by the Additional
Collector in appeal No. 43/2000, Shri Vinay
Kaushik, Consolidation Officer (Village
Bijwasan), Distt. South-West, Kapasehara,
Delhi passed an order dated 17.09.2001
whereby the Consolidation Officer held
that the Appellant‟s father late Shri K. Puri
held excess land to the extent of 14 biswas
which deserved to be withdrawn for the
purposes of allotment to Respondent Nos.
4-7.
(h) The Appellant‟s mother upon gaining
knowledge of the above facts immediately
moved an application before the
Settlement Officer (C)/SDM, Vasant Vihar,
New Delhi praying for declaration, nullity of
the proceedings initiated against Shri K.
Puri and also prayed that no further action,
including demarcation of the land, be
taken.
LPA NO.1734/2006 Page 6 of 23
(i) Thereafter aggrieved by the order dated
17.09.2001 passed by the Consolidation
Officer, Bijwasan, Distt. South-West, New
Delhi, the Appellant‟s mother filed an
appeal under section 21 sub section (3) of
the Act in the Court of the Settlement
Officer/SDM , Vasant Vihar, New Delhi
praying therein for setting aside the order
dated 17.09.2001 and for restoration of the
land admeasuring 14 biswas which was
alleged to be in excess to its original form
to the khata of the Appellant‟s late father.
(j) The SDM held that there was no illegality in
the order dated 17.09.2001 passed by the
Consolidation Officer.
(k)Aggrieved by the order dated 03.07.2002
passed by the Settlement Officer, the
Appellant preferred an appeal being case
No. 143/2002-CA before the Court of the
Financial Commissioner, Delhi. The
Financial Commissioner dismissed the
LPA NO.1734/2006 Page 7 of 23
appeal of the Petitioner.
(l) Aggrieved by the orders dated 27.12.2002,
03.07.2002, 17.09.2001 and 08.05.2001
respectively passed by the Financial
Commissioner, Settlement Officer/SDM,
Vasant Vihar and the Consolidation Officer
village Bijwasan and the Additional
Collector, (South-West), the Appellant filed
W.P. (C ) 267 of 2003 before this Hon‟ble
Court.
(m) The said writ petition was disposed of
vide order dated 08.09.2004 with the
following directions:
“…..18. Writ Petition is accordingly
disposed of quashing the order
dated 17.09.2001 passed by the
Consolidation Officer, order dated
03.07.2002 passed by the
Settlement Officer and order dated
27.12.2002 passed by the Financial
Commissioners.
19. The Consolidation Officer shall
proceed to issue notice for a date of
hearing to the petitioner as well as
to respondents 4 to 7 . Petitioner
would be heard. Consolidation
record would be considered. Fresh
decision would be taken in light ofLPA NO.1734/2006 Page 8 of 23
the observations made above….. ”
(n) The Consolidation Officer vide order
dated 05.02.2005 was pleased to hold that
excess allotment of 14 biswas including 4
biswas „Muzarai‟ in the Khata of the
Appellant deserves withdrawal from Khasra
171 from the khata of Shri Leo Puri
reducing the area from 8 bighas 5 biswas
to 7 bighas 11 biswas.
(o) The said order dated 05.02.2005 was
challenged by the appellant by way of Writ
Petition (C) No. 2844/2005.
(p) A Learned Single Judge vide his
judgment dated 31st July 2006 in WP (C)
No. 2844/2005, held as follows:
“7. I am of the opinion that the
Consolidation Officer while
seemingly complying with the
directions of the Court in the
previous writ proceedings had
strayed away from one of the main
issues. The order of this Court
indicated that the Consolidation
Officer had to record reasons, or
the rationale for allotment of
excess lands namely 8 bighas 5
biswas. The Court in fact indicatedLPA NO.1734/2006 Page 9 of 23
possible reasons which could have
resulted in such allotment i.e.
either excess allotment on account
of increased area or the effect of
the original bhumidar selling the
land to the person claiming to be a
bonafide owner. All these aspects,
however, have gone unnoticed.
The Impugned Order is, therefore,
set aside. The matter is remitted
for re-consideration of
Consolidation Officer who shall
hear the parties and render specific
findings on the issues indicated in
Paras 16 and 17 in the order of this
Court dated 8th September, 2004 in
W.P. (C ) No. 267/2003. The
Consolidation Officer is directed to
complete the process and issue a
reasoned order within 8 weeks
from today.”
(q) The present appeal was filed on 7th
August, 2006 challenging the validity
and legality of the order dated 31st July,
2006 passed by the learned Single
Judge.
4. In the meantime, the Consolidation Officer in
compliance with the impugned order heard the matter at
length and on 25th September, 2006 gave reasons for
withdrawal of excess land. The Consolidation Officer, by
LPA NO.1734/2006 Page 10 of 23
this order held that the withdrawal of the excess
allotment from the Khata of the Sh. K. Puri or his
successors-in-interest was fully warranted.
5. The learned counsel for the appellant Mr N.S.
Vashisht submitted that the Consolidation Officer who is
an authority under the Act had become Functus officio
as after the completion of the consolidation proceedings
resulting in repartition and entering into possession of
the holding by the predecessor of the Appellant,
repartition cannot be disturbed by the Consolidation
Officer suo motu and it is in this respect that the
Consolidation Officer is rendered Functus Officio after
the repartition is done by him as any withdrawal would
be altering the repartition which cannot be done when
no objection under section 21(2) of the Act is preferred
and/or filed by any of the aggrieved person. In this
connection he relied upon a judgment of the learned
Single Judge of this Court in “Ram Nath Vs. Finance
Commissioner Delhi”, reported in 25 (1984) DLT 20,
wherein it was held that in view of Sections 21 and 24 of
LPA NO.1734/2006 Page 11 of 23
the East Punjab Holdings (Consolidation and Prevention
of Fragmentation) Act, 1948, the Consolidation Officer
had no power or right after five years to take away
excess land given to an individual in re-partition and
allocate it to a third party. The learned Single Judge held
that possession of an individual could not be disturbed
and more so, in view of an earlier order of the Financial
Commissioner. Mr. Vashisht also relied upon a judgment
of the Hon‟ble Supreme Court in the case of “Roop
Chand vs. State of Punjab & Another” reported in
AIR 1963 SC 1503, wherein it was held that:-
“where the State Government has, under
section 41 (1) of the East Punjab
Holdings (Consolidation and Prevention
of Fragmentation) Act, 1948, delegated
its power given under section 21 (4) to
hear appeals to an officer, an order
passed by such officer is an order passed
by the State Government itself and not
an “order passed by any officer under
this Act” within the meaning of section
42. The order contemplated by section
42 is an order passed by an officer in his
own right and not as a delegate. TheLPA NO.1734/2006 Page 12 of 23
State Government, therefore, is not
entitled under section 42 to call for and
examine the record of the case disposed
of by the officer acting as delegate. An
order passed by the State Government
under section 42 in such a case is nullity
and deserves to be set aside under Art.
32 of the Constitution.”
6. The counsel for the appellant contended that even
if it is held that remand order dated 08.05.2001 was
under the Provision of the Act, then the same would be
struck by the vice of non-application of mind as the
Settlement Officer did not consider and apply his mind
as to change, alter or revoke the scheme as the said
issue was not before the Settlement Officer in Appeal
No. 43/2000. The remand order of 20.08.2007 also
cannot held to be one under section 21(3) of the Act as
the Settlement Officer was not hearing any appeal
against any order of Consolidation Officer under Section
21(2) of the Act. The Financial Commissioner failed to
appreciate that the order dated 17.09.2001 of the
Consolidation Officer disturbing the possession of the
LPA NO.1734/2006 Page 13 of 23
appellant was ultra vires the Act as none of the condition
as prescribed under the section 21 and/or 36 and or 42
of the Act was present. More over there was no legal
ground to disturb the possession of the Appellant after
30 long years.
7. The learned counsel for the Respondent No. 1 Mr.
Amitabh Marwah contended as under:-
(a) Ms. Raksha Tandon was the recorded
owner of the pre-consolidation Khasra Nos.
2697/661/2/(3-17), 2697/661/1(3-01) and
2699/662 (0-17) totaling to 7 Bihas 15 Biswas
of land in Village Bijwasan. Pursuant to the
Consolidation of Land Scheme dated
22.05.1975 of village Bijwasan, Hadbast No.
218, Tehsil Mehrauli District, Delhi,
consolidation process started in village
Bijwasan in the year 1974-75 . The aforesaid
Consolidation Scheme is still in force and has
not yet been closed. A salient feature of the
aforesaid Consolidation Scheme (page 200 of
the paper book is that wherever excess land
of the Gram Sabha or the Bhumidar is found,
the same can be withdrawn by the
Consolidation Officer) . Between 18.06.1975
to 11.07.1975, vide Resolution No. 18, Ms.
Raksha Tandon was allotted the whole of
Khasra No. 171, admeasuring 8 Bighas and 5
Biswas in Hakdar No. 349 against a demand
of 7 Bighas and 15 Biswas. As such, an
excess allotment of 10 Biswas was made.
Upon remand, as an excess allotment was
made to Ms. Raksha Tandon in 1975, the
Consolidation Officer, after enquiry, videLPA NO.1734/2006 Page 14 of 23
order dated 17.09.2001 withdrew 14 Biswas
from the allotment made to Ms. Raksha
Tandon, which land had been purchased by
the late Mr. K. Puri. 10 Biswas were
withdrawn on account of excess allotment
and 4 Biswas on account of Muzarai.
(b) The question of the Consolidation
Officer becoming Functus Officio cannot and
does not arise in the facts and circumstances
of the present case as the Consolidation
Officer was acting in compliance of the
directions passed by this Hon‟ble Court vide
order dated 31.07.2006 in exercise of its
powers under Article 226 of the Constitution.
The Appellate Authority has the power to call
for the proceedings of consolidation for
satisfying itself regarding the legality or
propriety of any order made or any repartition
done and pass such order as it may deem fit
upon it coming to the conclusion that there
has been some illegality. Upon remand by
this Hon‟ble Court, the Consolidation Officer
has passed the order dated 25.09.2006 under
Section 21 (2) of the Act after giving full
opportunity to the Appellant to present its
case. There is no allegation that full
opportunity was not given by the
Consolidation Officer to the Appellant. The
Appellant voluntarily participated in the
proceedings before the Consolidation Officer.
As such, the question of the Consolidation
Officer becoming functus officio cannot and
does not arise.
(c) This Hon‟ble Court in the matter of
Sahib Singh Versus Lt. Governor of Delhi &
Ors., reported in 137 (2007) DLT 111 (DB),
has held that the contention that after
publishing of the Scheme, the Consolidation
Officer becomes functus officio is without any
basis in view of the specific provisions ofLPA NO.1734/2006 Page 15 of 23
Sections 21(1) and 21(2) of the Act. Even in
the aforementioned case the Consolidation
Scheme was still in force when repartition
was effected after a previous repartition had
been effected. This is evident from the fact
that order is passed by the adjudicating
authority as Consolidation Officer, thereby
showing that the village was still under
consolidation and the scheme had not been
consigned. Mr. K. Puri and subsequently, the
Appellant are not the original Bhumidars at
the time when the excess allotment was
made. The excess allotment was made to Ms.
Raksha Tandon and not to the Appellant or
his late father who was merely a purchaser of
the land. Since, title in the land has changed
from the original Bhumidar Ms. Raksha
Tandon to the late Mr. K. Puri by way of sale
and to the Appellant, by way of succession
and the fact that the excess land has been
placed in the Gram Sabha Pool and the fact
that the consolidation process had still not
attained finality, the Consolidation Officer was
well within his rights to withdraw the excess
land.
8. The learned counsel for the Respondent No. 2 to 5
Mr. B.S. Maan and Mr. Jai Prakash contended as under:-
(a) The simple and pure controversy
involved in the present matter is as to
whether the consolidation authority has
power and jurisdiction during the pendency
of the consolidation proceedings to
withdraw the excess area from the right
holder to whom the excess allotment was
made over and above his/her actual
entitlement due to some clerical error and
whether the authorities can correct/rectify
the said error by withdrawing the excessLPA NO.1734/2006 Page 16 of 23
allotment.
(b) In the present case, the re-partition U/s.
21(1) of the Consolidation Act has been
made by the consolidation authority in
accordance with the scheme of
consolidation.
(c) As per the scheme of the consolidation
made and confirmed in respect of Village-
Bijwasan, which is on record specific
provisions have been made for withdrawal
of the excess land from the right holders.
It is further pertinent to point out that as
per section 43-A of the said act the
consolidation authority is fully competent
to correct any clerical error of an order
passed by any officer. The consolidation
officer in his order dated 25.09.2006 has
held that there no reasons apparent on the
records to allot the excess land in the
khata of the appellant. Therefore, it
appears to be a simple clerical error which
could be corrected and has been rightly
corrected.
(d) The contention raised by the appellant
to the effect that the consolidation officer
has become Functus officio is totally mis-
conceived and devoid of any merit in as
much as the consolidation proceedings are
still going on and the present case is not a
case of fresh re-partition, but it is a case of
correction of the error/withdrawal of the
excess allotment.
9. The main ground of challenge in the present
appeal as contended by the counsel for the appellant is
the fact that Consolidation Officer had become Functus
LPA NO.1734/2006 Page 17 of 23
officio after the repartition and entering into possession
of the holding by the predecessor of the Appellant.
According to the appellant the Consolidation Officer is
rendered Functus officio as any withdrawal would
amount to altering the re-partition which cannot be
done. However, in our view the above contention of the
appellant needs to be examined in the factual context
that Ms. Raksha Tandon was the recorded owner of the
pre-consolidation Khasra admeasuring 7 Bigha and 15
Biswas of land and the consolidation Scheme for village
Bijwasan, Mehrauli District, Delhi clearly stipulated that
wherever excess land of the Gram Sabha or the
Bhumidar is found, the same can be withdrawn by the
Consolidation Officer. The relevant portion of the
Consolidation Scheme reads as under:-
“The walls of the farm-houses, which are
existing at the spot and which have been
made Qayami and wherein excess land of
Gram Sabha or Bhumidar falls, the said
excess of land shall be withdrawn from the
side where the wall does not exist and if
pucca walls exists on all the four sides, in that
condition also, the land shall be withdrawn
from one side, as deemed appropriate. In
such a situation, the owner of the wall shall
have to remove his wall and no one will/shall
have any objection thereto”.
LPA NO.1734/2006 Page 18 of 23
10. After repartition in accordance with the
aforementioned Consolidation Scheme, Ms. Raksha
Tandon was allotted the whole of Khasra No. 171
admeasuring 8 Bighas and 5 Biswas against a demand of
7 Bighas and 15 Biswas. Since an excess allotment of
10 Biswas was made, the Consolidation Officer vide
order dated 17th September 2001 withdrew 10 Biswas
from the allotment made to Ms. Raksha Tandon, which
land had been purchased by the late Mr. K. Puri. An
excess of 4 Biswas was also withdrawn in lieu of Muzarai
as was done in the case of every land owner in village
Bijwasan, on the basis of a uniform formula of half a
biswa for 1 bigha of land for building up of Gram Sabha
land. In our view, the Consolidation Officer has acted in
a bonafide manner and in accordance with the
provisions of the Consolidation Scheme. The
Consolidation Officer after withdrawing the excess area
of land available with the Appellant has allotted it to the
Gram Sabha Pool. In the scheme of consolidation dated
25th May, 1975 specific provisions have been made for
LPA NO.1734/2006 Page 19 of 23
the withdrawal of the excess land available with the right
holders. It is also to be noted that the Consolidation
Officer in his order dated 25th September, 2006 has held
that there are no reasons apparent on the records to
allot excess land in the Khata of the appellant.
Therefore, in our view, it is not a case of fresh repartition
but it is a case of correction of a mistake which resulted
in excess allotment and thereby had to be rectified by
withdrawal. The statute under Section 43-A provides
that the Consolidation Officer is fully competent to
rectify a mistake in a Scheme at any time of an order
passed by an Officer. Section 43-A of the Act reads as
under:-
"43-A. Correction of clerical
errors:- Clerical or arithmetical
mistakes in a Scheme made or an
order passed by any office, 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.”
[emphasis supplied]
11. Consequently, the withdrawal of 10 biswas on
account of excess allotment was a clerical mistake, as
LPA NO.1734/2006 Page 20 of 23
against an allottee‟s demand of 7 bighas and 15 biswas,
8 bighas and 5 biswas was allotted! Even, the
withdrawal of 4 biswas was on account of a clerical or
arithmatical mistake as it arose on account of failure to
withdraw land in lieu of Muzarai, on the basis of a
uniform formula. Therefore, we are of the view that
both these mistakes were capable of
correction/rectification by the Consolidation Officer by
virtue of the power conferred under Section 43A of the
Statute.
12. In light of the above observations, the contention
raised by the appellant to the effect that the
consolidation officer has become Functus officio is
misconceived on facts and untenable in law. However,
as the village is still under consolidation and the Scheme
had not been consigned, the Consolidation Officer was
not functus officio and the power and jurisdiction to
withdraw the excess area from the holder of the land to
whom an excess allotment was made over and above his
actual entitlement due to some mistake which is also in
LPA NO.1734/2006 Page 21 of 23
accordance with the specific provision in the
Consolidation Scheme made in respect of village
Bijwasan.
13. The case of Roop Chand referred to by Mr.
Vashisht is not applicable to the present facts as no
issue of delegation of power has arisen in the present
case. Moreover, we find that in none of the two
judgments cited by Mr. Vashisht, an issue of rectification
of mistake or applicability of Section 43-A of the Act
arose.
14. The learned Single Judge by way of the impugned
judgment had directed the matter to be remitted to
Consolidation Officer to ascertain after hearing the
appellant, as indicated in the order dated 08.09.2004 in
paragraph 16 and 17, as to how in lieu of the pre-
consolidation holding of 7 Bigha and 15 biswas, post
consolidation allotment of 8 Bigha and 5 biswas was
made. The Consolidation Officer was directed to render
specific findings on the above mentioned issue. In our
LPA NO.1734/2006 Page 22 of 23
view, there is no infirmity with the judgment passed by
the learned Single Judge. It is interesting to note that
the subsequent order dated 25th September, 2006
passed by the Consolidation Officer, in pursuance to the
impugned order, has not been challenged by the
Appellant.
15. Accordingly, the appeal is dismissed, but with no
order as to costs.
MANMOHAN, J
MUKUL MUDGAL, J
SEPTEMBER 30th, 2008
LPA NO.1734/2006 Page 23 of 23