* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No.777/2006
Reserved on: 5th August, 2008
th
Date of Decision : 11 September, 2008
RAKESH DABAS .....Appellant
Through Mr. Deepak Dhingra, Adv.
versus
FINANCIAL COMMISSIONER & ORS. .....Respondents
Through Mr. Jayant Bhushan, Sr. Adv. with
Mr. (appearance not given), Adv.
Mr. B.S. Mann and Mr. Jai Prakash, Advs.
for Respondents 4 to 7.
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? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
JUDGMENT
LPA No.777/2007 Page 1 of 13
: MUKUL MUDGAL,J.
1. This Letters Patent Appeal challenges the judgment dated 17th April 2006
passed by the learned Single Judge in Writ Petition(C) No.2615/2006. The
aforesaid judgment while quashing the impugned order dated 16th February 2006
rejected the appellant’s prayer for impleadment and held as follows:
“I have carefully considered the submissions made
by the Ld. Counsels. I find it is true that during the
hearing of the application for impleadment of Gaon
Sabha, it was contended on behalf of Gaon Sabha
that it would not be in a position to to give double
the agricultural land in case the petition of the
applicant was allowed and his land included in
Phirni. It is also true that on the request of Gaon
Sabha, the applicant had given an affidavit that he
would not claim double the agricultural land in lieu
of his land in case it was included in Phirni. In any
case, he has to be given residential and industrial
plot out of the suit land. The remaining land could
then be available for distribution to others only if he
is given double the value of agricultural land in lieu
thereof. However, if the Gaon Sabha is unable to
give him the requisite value of agricultural land as
was indicated during the impleadment application
of the Gaon Sabha, the entire suit land in Khasra
No.38/6 and 38/7 belonging to the applicant may
have to remain with him.”
2. The brief facts of the case are as follows:
LPA No.777/2007 Page 2 of 13
(a) The appellant (respondent no.3 in the writ petition) is a native of village
Kanjhawala, Delhi and family of the appellant owned various lands in Delhi and
said land was ancestral land from time immemorial.
(b) The consolidation proceedings were held in village Kanjhawala, Delhi in
year 1951/52 and again Notification dated 8th September, 1993 was issued by the
Government under Section 14 of East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 for Consolidation of holdings in Village
Kanjhawala.
(c) The draft scheme of Consolidation was announced by the Consolidation
Officer on 14th November, 1996 and same was confirmed on 24th April 1997 by
the Settlement Officer.
(d) The respondent no.3 was co-owner with his brother Sh. Ajit Singh and
they both executed the sale deed dated 22nd January 1998 in favour of their sons
namely Sh. Surinder Singh, Sh. Jitender Singh and Sh. Virender Singh sons of
Sh. Tarif Singh and Sh. Anil Kumar, Sh. Sunil Kumar sons of Sh. Ajit Singh and
Smt. Birmati w/o Sh. Ajit Singh and same were registered at Bombay. They
LPA No.777/2007 Page 3 of 13
filed an application dated 23rd January 1998 for mutation of the said land in their
favour and the said land was mutated in their favour on 5th March 1998.
(e) The Respondent no.3 along with some other persons filed WP(C)
No.3082/1998 and obtained the interim orders dated 10th July 1998 in respect of
land covered by the Consolidation Scheme against the Consolidation proceedings
in respect of the whole village.
(f) The said Writ Petition (C) No.3082/1998 was decided vide order dated 13th
September, 2002. Other similar petition WP(C) No.3081/1998 which was almost
identical and which was heard along with WP(C) No.3082/1998 and other writ
petitions were dismissed later.
(g) The respondent no.3, his brother and their sons filed objections under
Section 21(2). The said objections were decided by the Consolidation Officer
vide order dated 28th February 2000.
(h) However, the respondent no.3 filed a Revision Petition No.231/2002/CA
against the said order. The said Revision Petition was later given case
No.62/2003-CA and at present the case No. is 103/2004-CA. Similarly, his son
LPA No.777/2007 Page 4 of 13
Surinder Singh filed Revision Petition No.250/2000-CA and later on, the said
Revision Petition was given case No.63/2003-CA and thereafter, case
no.262/2004-CA. Both the said Revision Petitions are pending.
(i) In the said Revision petitions except the Consolidation Officer no other
person was impleaded as party. Initially, the said Revision petitions were
adjourned sine die in view of pendency of WP(C) No.3082/1998. Thereafter, the
Financial Commissioner allowed the Revision Petition filed by the Respondent
no.3 vide order dated 20th June 2003 passed in case No.72/2003-CA and directed
to allot plot no.142/194/15 and passed other directions. The Revision Petition
filed by his son was also allowed vide order dated 20th June 2003 passed in case
No.63/2003-CA and it was directed that Plot No.142/94/14 be allotted to Sh.
Surinder Singh.
(j) The plot No.142/94/15 was owned by Sh. Mahender Kumar Jain on record
who is also the respondent no.4 herein. Similarly, Plot No.142/94/14 was owned
by one Smt. Sumitra and Sh. K.R. Bagadia.
(k) Sh. Mahender Kumar Jain, the respondent no.4 herein filed WP(C)
LPA No.777/2007 Page 5 of 13
No.4473/2003 and this Court vide order dated 20th April 2004 disposed of the
said Writ Petition. The matter was remanded back to the Financial
Commissioner with a direction that respondent no.4 be heard.
(l) The Respondent no.4 was accordingly impleaded as a party before the
Financial Commissioner. In the remanded proceedings one Ratan son of Sh. Net
Ram sought impleadment. Vide order dated 5th April 2005, the Financial
Commissioner dismissed the application for impleadment filed by Ratan, for
being impleaded as a party. The said order dated 5th April 2005 was challenged
before this court by Writ Petition (C) No.8600/2005.
(m) When WP(C) No.8600/2005 was pending, Revision Petition No.43/2003-
CA filed by appellant was disposed of by the Financial Commissioner vide order
dated 5th August 2005.
(n) In his Revision petition, the appellant had sought inclusion of land
comprised in Khasra No.38/6 and 38/7 (pre-consolidation) within the extended
abadi. Vide Order dated 5th August 2005 the Financial Commissioner accepted
the request of the appellant and the aforesaid lands were included within the
LPA No.777/2007 Page 6 of 13
extended phirny.
(o) Writ Petition (C) No.8600/2005 was disposed of on 17th November, 2005
directing the Financial Commissioner to dispose of revision petition filed by the
respondent no.3 after taking note of the fact that additional land was available
within the extended abadi.
(p) In the said revision petition filed by the respondent no.3, the appellant
moved an application under Order 1 Rule 10 praying that he should be impleaded
as a party in the revision.
(q) The basis of his claim was that he was the recorded owner of the land
comprised in khasra no.38/6 and 38/7 and since the respondent no.3 claimed
allotment of a plot on said land, he ought to be impleaded as a party.
(r) The respondent no.3 opposed the said application by pleading that the land
comprised in khasra no.38/6 and 38/7 was in the pre consolidation holding of the
appellant. The aforesaid fact did not entitle him to be impleaded as a party for
the reason that after the inclusion of the land within the extended phirni it had to
be allotted to those whose claims remained unsatisfied for allotment of
LPA No.777/2007 Page 7 of 13
residential plots. The claim of the appellant for allotment of a residential plot
was fully satisfied when 3 bighas and 8 biswas of land comprised in khasra
no.142/94/6 (2-2), 143/241 (0-6), 142/311 min (0-4) and 142/210 min (0-16),
was allotted. The respondent no.3 stated that as per the scheme and the
Consolidation Rules, no person could be allotted more than 2 bighas and 8
biswas of land within the village abadi. He pointed out that the appellant had
already been alloted land in excess of that limit within the abadi by one bigha.
(s) By the order dated 16th February 2006, the Financial Commissioner
impleaded the appellant as a party.
3. The writ petitioner/respondent no.3 herein filed the Writ Petition (C)
No.2615/2006 against order dated 16th February 2006 passed by the Financial
Commissioner impleading the appellant. By his order dated 17th April 2006, the
learned Single Judge allowed the Writ Petition No.2615/2006 filed by the
respondent no.3 and dismissed the application filed by the appellant under Order
1 Rule 10 for impleadment in Revision Petition filed by the respondent no.3.
4. The learned Single Judge had rightly framed the question requiring
LPA No.777/2007 Page 8 of 13
consideration that as to whether after including pre consolidation holding
comprised in khasra no.38/6 and 38/7 within the extended abadi, merely because
said lands belonged to appellant, could he join the proceedings pending before
the Revenue Authorities, when the claim of the applicant before the Revenue
Authorities was that his claim for land within the extended abadi should be
satisfied.
5. The learned Single Judge inter alia held as follows:
(a) Under no circumstances, the respondent no.3 in the writ petition/appellant
herein, i.e., Mr. Rakesh Dabas could be given land more than 2 bighas and 8
biswas within the extended phirny as he had already got more than said share.
Consequently, the appellant could not be allotted the land in question.
(b) The order passed by the Revenue Authorities including the land in
question within the extended phirny, i.e., amendment of the scheme of
consolidation had attained finality.
(c) The appellant himself wanted the aforesaid land to be included within the
phirny and it was at that stage, that Gaon Sabha could have objected by pleadings
LPA No.777/2007 Page 9 of 13
that if the land in question was included within the phirny, to satisfy the
requirement of law and the claim of the appellant, twice the value of land outside
had to be allotted to the appellant and that so much land was not available. At
this stage, the matter would have been decided with a reference to availability of
land outside the phirny. But this had not happened.
(d) The inclusion of the said land within the extended phirny having attained
finality, and under no circumstances could the appellant get any further land
within the extended phirny. The above factors had been lost sight by the
Financial Commissioner. Under no circumstances could the appellant have had
any interest left in the writ land.
(e) The appellant was neither a necessary or a proper party in the revision
petition filed by the writ petitioner.
6. Consequent to the above findings, the order dated 16th February 2006 was
quashed and the application filed by the respondent no.3/appellant under Order 1
Rule 10 to be impleaded in the revision filed by the writ petitioner was
dismissed. The appellant has challenged the above order.
LPA No.777/2007 Page 10 of 13
7. The learned counsel for the appellant has placed reliance on Delhi
Holdings (Consolidation and Prevention of Fragmentation) Rules 1959, East
Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948.
The relevant Clause J of Rule 6 of the Rules reads as follows:
“(J)(i) Bhimidar whose land has been
included in the extension of the
village abadi may be given
agricultural land worth two times
the value of land surrendered.
(ii) Bhimidar who has applied for
allotment of plot in the extension of
the village abadi shall surrender in
exchange during consolidation two
times the size of agricultural land
subject to the size of plot and his
eligibility.
(iii) The maximum size a residential
plot to be provided in the extension
of the village abadi to a bonafide
resident of the village be two
bighas and eight biswas out of
which the “bhumidar” can take
industrial plot upto a maximum size
of six biswas. Allotment of such
plot shall be done through draw of
lots.”
(emphasis supplied)
8. The learned counsel for the appellant has stressed on sub clause (i) by
LPA No.777/2007 Page 11 of 13
highlighting the fact that since his land had been included in the extension of
village abadi, he had to be given agricultural land worth two times of the value of
the land surrendered. This not having been done, the appellant was said to be a
vitally interested party in the revision petition filed by the writ petitioner.
9. The learned counsel for the appellant contended that the land comprising
Khasra No.38/6 and 38/7 in the extended abadi belongs to him and since the
agricultural land two times of the value of the land surrendered was not given to
him, he was entitled to be heard in the proceedings preferred by the writ
petitioner.
10. In our view, the learned Single Judge has rightly held that the maximum
size provided in the extension of the village abadi to a bonafide resident of the
village shall be 2 bighas and 8 biswas, out of which the “bhumidar” can take an
industrial plot upto to maximum size of six bigha. The appellant has no interest
left in the proceedings preferred by the respondent. The learned Single Judge is
right in holding that the appellant having accepted 3 bighas and 8 biswas of land,
cannot lay any further claim to any other land in the extended abadi. In our view,
LPA No.777/2007 Page 12 of 13
the plea based on sub section (ii) is not relevant in view of the fact that the
maximum size of the residential plot to be provided to the appellant, i.e., 2 bighas
8 biswas has been shown to already been received by the appellant. In such a
situation, the reliance on the plea of two times of the value of the land
surrendered cannot come to the rescue of the appellant.
11. Accordingly, there is no merit in this appeal and the judgment of the
learned Single Judge does not warrant any interference. The appeal is
accordingly dismissed but with no orders as to costs.
MUKUL MUDGAL, J.
MANMOHAN, J.
September 11, 2008
dr
LPA No.777/2007 Page 13 of 13