Amar Singh And Anr. vs Jai Parkash And Ors. on 28 February, 1991

0
92
Delhi High Court
Amar Singh And Anr. vs Jai Parkash And Ors. on 28 February, 1991
Equivalent citations: AIR 1997 Delhi 267, 44 (1991) DLT 198
Author: R Gupta
Bench: R Gupta


JUDGMENT

R.L. Gupta, J.

(1) This revision is directed against an order dated 11.5.87 of the learned Sub Judge, Delhi by which he decided a preliminary issue in favor of the plaintiff-respondents and against the defendant- petitioners.

(2) The Respondent-plaintiffs filed a suit against petitioner-defendants for a declaration that the order of the Consolidation Officer, New Courts, This Hazari, Delhi in case No. 2763/CO dated 14.10.83 between Afool Chand etc. v. Charon Singh and that of the Director of Consolidation/Financial Commissioner Delhi in case No. 380/83-CA decided on 3.7.86 under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act) is null and void, illegal and in-operative qua the rights of the plaintiffs in respect of ownership and possession of Sqare No. 30 Kila No. 10 (3-0), I/I (8-7), Sqare No. 31 Kila No. 5/2 (1-10), in all measuring standard 6 bighas and 17 biswas situated in the revenue Estate of Burari, Delhi with the consequential relief of permanent injunction restraining the defendants from interfering in respect of the aforesaid land in any manner whatsoever.

(3) Petitioners filed their written statement in which they also took up a preliminary objection that the suit was barred under Section 44 of the Act. The trial Court framed the following preliminary issue :    (1)Whether suit is barred by Section 44 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act ?  

(4) It came to the conclusion that the suit was not barred by Section 44 of the Act because serious allegations had been against the revenue authorities.   

(5) I have heard arguments advanced by learned counsel for the petitioners. None has appeared on behalf of the respondents in spite of the fact that the name of the counsel was correctly shown in the cause list.   

(6) .LEARNED counsel for the petitioners drew my attention to the allegations made in the plaint and on that basis argued that none of the allegations indicated if the revenue authorities had violated the procedure prescribed under the Act. In that situation, he argued, the jurisdiction of the Civil Court was ousted by Section 44 of the Act. It will be necessary to reproduce in brief the relevant allegations made in the plaint at this stage. In the second para of the plaint, it is merely stated that the Consolidation Officer allotted the area comprised in Square 30 and measuring standard 6 bighas and 8 biswas instead of standard 6 bighas and 9 biswas which actually should have been allotted to Charan Singh, father of the plaintiffs. It is then alleged in the same para that even after the aforesaid allottment, 0.4 standard bighas was still due to be allotted to him as a matter of right. Charan Singh being aggrived by the order of Consolidation Officer filed a revision against that order before the Director of Consolidation/Financial Commissioner. The Director of Consolidation, without going into the merits of the case, found that the impugned order of the Consolidation Officer was passed against a dead person and, therefore, he remanded the case to the Consolidation Officer. After remand the consolidation officer instead of deciding the matter between the parties accepted an application dated 16.8.82 of Jaswant Singh of village Burari vide order dated 14.1083. He was a stranger to the case and he further introduced another stranger Smt. Dropdi. By this order the Consolidation Officer withdrew the original Square 31 kila 5/2 measuring I bigha 10 biswas allotted to the plaintiffs in proceedings under Section 21(1) of the Act and also withdrew the area comprised in Square 30 kila no. 10 & 11/1 measuring 3 bighas and 2 bighas 7 biswas respectively which was allotted to the plaintiffs in order to make up the deficiency of the allotment. It is further alleged that the aforesaid allotment withdrawn from the plaintiffs was from their major portion which now stood deconsolidated by the impugned order against the provisions of the Act. This area, therefore, wrongly and illegally has been allotted to one Amar Singh who was a stranger to the remand proceedings and also that some area was allotted to Moola in Khata No. 853 illegally and without any justification simply to cause de-consolidation of the plaintiffs and shifting the plaintiffs to a far away area against the law and the Act. The plaintiffs then preferred revision before the Director of Consolidation/Financial Commissioner who vide order dated 5.7.85 confirmed the illegal order passed by the Consolidation Officer and, therefore, refused to exercise jurisdiction under Section 42 of the Act. After the aforesaid orders, defendant-petitioners were alleged to have taken steps to disposses the plaintiffs from the suit land. Hence the suit.

(7) Learned counsel for the petitioners contended that the allegations made in the plaint did not show at all if the revenue authorities competent to act under the aforesaid Act had in any manner exceeded their jurisdiction. It is also not alleged in the plaint that the revenue authorities were not competent to pass the orders under the Act. The only grievance of the respondents was that re-partition was illegally done by the Consolidation Officer on the basis of which the plaintiffs land was de-consolidated and they were allotted land far away. In the context of the aforesaid allegations, learned counsel for the petitioners submits that none of the aforesaid steps taken by the revenue authorities in repartitioning the land could be said to be either in excess of the jurisdiction vested in them under the Act or illegal in any manner. Therefore, the learned counsel further submits that the decision of the preliminary issue by the trial Court against the petitioners was contrary to law. He further submits that learned trial Court has not properly understood the law laid down in the case of Lal Beg v. Pohlu and others, (1968) 70 P.L.R. 163. I think the contention of learned counsel for the petitioners has great force. In the aforesaid authority, it was held, “IN the proviso to Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, it has been laid down that the power of varying or reversing an order, scheme or repartition, is to be exercised only after the fulfillment of the essential preliminary condition of giving notice to the parties interested to appear and also an opportunity of being heard. If ‘that condition precedent was not satisfied, the order of the State varying an order or scheme to the detriment of a party is totally without .jurisdiction, and the Civil Court has the necessary power to interfere and strike down the illegality.”

(8) I am in respectful agreement with the law laid down by the Punjab & Haryana High Court. In the present case there is no allegation in the plaint that the revenue authorities have either acted in excess of the jurisdiction vested in them or acted illegally in contravention of some mandatory provisions of the Act. Under the aforesaid Act the Revenue Authorities have the power to partition or re-partition the land in the course of consolidation proceedings. The jurisdiction of a Civil Court cannot be invoked simply on the ground that the Officer has wrongly exercised that jurisdiction. For that purpose the remedy would lie to the Hierarchy of officers mentioned in the aforesaid Act to rectify any mistake. For example as laid down in the aforesaid case of Lal Beg (supra), it is provided in Section 42 of the act that the order of the consolidation officer could be varied only after giving notice to an affected party. If an order of variation is passed without giving such notice, it would mean that the authority concerned has not acted according to the procedure prescribed by the Act. In such a case the civil Court can definitely interfere and declare that such an order of variation having been passed without giving notice to the affected party is bad in law. But in a case, where there is a power vested in the revenue authorities the jurisdiction of the Civil Court will not spring up simply on the allegations that exercise of such is not done in a particular manner.

(9) Learned counsel for the petitioner also drew my attention to the case of Achhar Singh and others v. Kartar Singh and others, (1970) 72 P.L.R. page 836. The dispute in that case was that during the consolidation proceedings, the consolidation officer had ordered the plaintiffs to pay a certain amount of compensation before they could get certain shares in a particular tubewell. Such a matter could be determined only by the said officer under Section 15 of the Act. Under the aforesaid Section the scheme to be prepared by a Consolidation Officer has necessarily to provide for payment of compensation to any owner who is allotted a holding of less market value than his original holding and for the recovery of compensation from any owner who is allotted holding of a greater market value than that of his original holding. Therefore, if a certain power vested in the Consolidation Officer, it was held that Section 44 of the Act barred the jurisdiction of a Civil Court from entertaining any suit to obtain a decision or order in respect of any matter which any officer is empowered by the Act to determine or to decide. The authority simply reiterates the same principle as enunciated in the case of Lal Beg (supra). .

(10) In the present case, to invoke the jurisdiction of the Civil Court, the plaintiffs only averred that the order of Consolidation Officer and Appellate order of the Director Consolidation/Financial Commissioner is illegal and beyond the powers conferred by the Act. It is not at all stated in the plaint as to beyond which powers vested in the aforesaid authorities they had acted. As already stated the order of the repartitioning of the property by the Consolidation Officer after remand of the case by the Director of the Consolidation/ Financial Commissioner is perfectly within the jurisdiction of the Consolidation Officer. In the process of repartition, it is implicit that the subject matter of repartition could also be allotted either to those parties or to somebody else also. Therefore, I am of the view that the concerned officer having jurisdiction under the aforesaid Act to act in a particular manner. Section 44 of the Act bars the jurisdiction of a Civil Court.

(11) I am, therefore, of the view that the trial Court has acted illegally in the exercise of its jurisdiction in the matter of deciding the preliminary issue against the petitioners. The jurisdiction of the Civil Court is clearly barred in matters which are covered by the aforesaid Act to be disposed off by the revenue authorities.

(12) The revision is, therefore, allowed and the order of the trial Court is set aside and it is held that the Civil Courts have no jurisdiction to entertain the present suit. Consequently the suit filed by the respondents shall stand dismissed. The interim injunction, if any, shall stand vacated. In the circumstances, however, the parties are left to bear their own costs.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *