Mahinder Singh v. Financial Commissioner & Ors.

1. The petitioner, Mr. Mahinder Singh states that he has half share in 3 bighas and 19 biswa of land in Khasra No.218, situated in the revenue estate of village Hirnaki, Delhi. It is the contention of the petitioner that he was not served in the proceedings initiated under Section 81 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the Act) and, therefore, the Revenue Assistant and the appellate authorities were wrong in rejecting his application under Appendix VI Rule 14 of the Act for setting aside the ex-parte order dated 27th February, 2001 passed under Section 81 of the Act. 2010:DHC:1167 W.P.(C) No. 8947/2006 Page 2

2. Proceedings under Section 81 of the Act were initiated against Mr. Rajender Singh, Mahender Singh both sons of Mr. Ranjit Singh, Devender, Virender, Surender, Dinesh, Naresh, Satish all sons of late Mr. Jagdev and Master Gaurav son of late Mr. Suresh Kumar and grandson of late Mr. Jagdev. Late Mr. Jagdev was brother of Mr. Rajender Singh and Mr. Mahender Singh.

3. Original file produced before me by the counsel for the respondent, GNCTD reveals that the respondents were served in the said proceedings and except the petitioner herein all had entered appearance before the Revenue Assistant. This is clear from the order sheets dated 27th July, 2000 and 21st September, 2000, when the conditional order under Section 81 of the Act was passed.

4. Notice under Section 81 of the Act was also issued for service of the petitioner, but as per the report of the Process Server, the petitioner had refused to accept the notice. The petitioner is therefore deemed to have been served.

5. It is not possible to accept the contention of the petitioner that he was not aware and did not have knowledge of the said proceedings or the date of hearings, specially, when his brother and nephews were appearing in the said proceedings. It is not a case of W.P.(C) No. 8947/2006 Page 3 the petitioner that he was residing at a different location and was not in touch with his brother or nephews. All other parties were duly served and had entered appearance to contest the proceedings before the Revenue Assistant.

6. Counsel for the petitioner referred to the report of the Halqa Patwari dated 17th January, 2001 and submitted that initiation of the proceedings under Section 81 of the Act itself was bad as there was no material to show misuse of agricultural land. The contention of the petitioner is incorrect as the proceedings under Section 81 of the Act were not initiated on the basis of the report of Halqa Patwari dated 17th January, 2001. The proceedings before the Revenue Assistant under Section 81 of the Act were initiated on the basis of earlier reports of Patwari; that bhumidars had constructed boundary walls and a godown on the agricultural land. Thereafter, notices were issued to the bhumidars including the petitioner under Section 81 of the Act read with Rule 21 B. In the notice, it was specifically stated that that a godown was constructed on the said agricultural land and, therefore, the bhumidars were asked to explain why action should not be taken against them. Vide order dated 17th August, 2000, the bhumidars, who were respondents in the proceedings under Section W.P.(C) No. 8947/2006 Page 4 81 of the Act, were directed to remove the boundary wall within a week. This was not done. Thereafter, on 21st September, 2000, a conditional order was passed with a direction to the bhumidars to remove boundary wall within three months and restore the usage of land in question to agricultural purposes, failing which the land shall vest in the Gaon Sabha. Thus, in accordance with the provisions of the Act, the bhumidars were given opportunity to bring the land back to agricultural usage after removing boundary walls and godown.

7. Order sheet reveals that thereafter the matter was taken up on 11th January, 2001, when again presence of counsel for the respondent bhumidars therein is recorded. Fresh report was called from the Halqa Patwari vide order dated 18th January, 2001. One of the respondent bhumidars was present in person on 18th January, 2001 and on 25th January, 2001. On 6th February, 2001, in the presence of the respondent bhumidars, the Revenue Assistant adjourned the case and recorded that the case was fixed for site inspection.

8. Thereafter, report of Halqa Patwari dated 17th January, 2001 was received. I have examined the said report. The said report records that boundary wall with height of about 7 feet was constructed W.P.(C) No. 8947/2006 Page 5 around the land in question. It is further stated in the said report that there was no roof on the boundary wall. Halqa Patwari had recorded statement of one of the bhumidars that they intended to use the land as a poultry farm. It is clear from the status report that boundary wall was still in existence and was at least 7 feet high. It is incorrect to state that as per the said report, the petitioner or other bhumidars had stated that there existed a poultry farm. The report merely records statement of one of the bhumidars that they want to in future carry out poultry farming activity from the land in question.

9. The conditional order passed by the Revenue Assistant was clear that the bhumidars should demolish the boundary wall as they were carrying on non-agricultural activities in the land in question. The bhumidars were required to demolish the godown. The bhumidars did not file any affidavit or document before the Revenue Assistant after the conditional order was passed on 21st September, 2000 to show and establish that godown constructed on the land had been demolished and was no longer in existence. Even the report of the Halqa Patwari does not state that the godown had been demolished. Admittedly, the bhumidars had appeared before the Revenue Assistant on 11th January, 2001, 18th January, 2001, 25th W.P.(C) No. 8947/2006 Page 6 January, 2001 and 6th Feb., 2001. They could have easily pointed out the said fact before the Revenue Assistant and submitted a written reply affirming and stating on oath that the godown had been demolished. This was not done. It is only in these circumstances that the Revenue Assistant vide order dated 27th February, 2001 directed vesting of land in Gaon Sabha.

10. Learned counsel for the petitioner has relied upon Khasra Girdawari for the year 1999-2000, in which it is stated that there was a boundary wall and the land in question was being used as a poultry farm. In the present case, proceedings under Section 81 of the Act were initiated in July, 2000 and the Khasari Girdawari relied upon by the petitioner is for the period 12th October, 1999 to 8th April, 2000. As stated above, the bhumidars, who had appeared in person before the Revenue Assistant did not question and challenge the existence of godown on the agricultural land.

11. After the order dated 27th February, 2001 was passed by the Revenue Assistant, the petitioner filed an application for setting aside of the ex-parte order on or about 17th May, 2001. It is clear that the petitioner was fully aware of the said proceedings, date of hearings fixed and deliberately and intentionally had not participated in the W.P.(C) No. 8947/2006 Page 7 same. The application for setting aside of the ex-parte order, therefore, has been rightly rejected by the Revenue Assistant.

12. Counsel for the petitioner has relied upon judgment of this Court in Het Ram and Another Vs. Shri Ram Singh and Another, 2006 II AD (DELHI) 531 and has submitted that procedural law should be liberally applied so that a party is not denied opportunity of participating in the process of dispensation of justice. However, in the present case, the petitioner deliberately and intentionally did not participate in the proceedings and only after the conditional and final order passed, moved an application for recalling of the said order and re-open the proceedings. The petitioner is in fact guilty of trying to misuse the procedural law and now trying to reopen the final order. In view of the above, I do not find any merit in the present writ petition and same is dismissed.

SANJIV KHANNA, J. FEBRUARY 25, 2010 NA