Mr. Rajendra Dutt, Advocate v. MADAN JHA, FIN. COMMR. & ORS.

1. Whether 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. HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioners praying inter alia for quashing the order dated 20.07.1989, passed by the Financial Commissioner, dismissing the revision petition preferred by the petitioners and respondent No. 3 collectively, whereunder, the order dated 18.05.1989 passed by the Additional Collector confirming the order of the learned SDM, 2009:DHC:2734 Punjabi Bagh, which held that the transfer of the land, subject matter of consideration in the present writ petition, situated in the revenue estate of village Dhansa, by respondent No. 3 in favour of the petitioners was violative of the provisions of Section 33 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as „the Act’).

2. In a nutshell, the facts of the case are that the respondent No. 3 (appellant No. 1 in the revision petition), was a Bhumidhar and in possession of land measuring 33 Bighas 12 Biswas situated within the revenue estate of village Dhansa, Delhi. He agreed to sell his entire holdings to his nephew, petitioner No.1 and his daughter, petitioner No.2. It is stated that prior to the respondent No. 3 applying to the competent authority under the Delhi Land (Restrictions on Transfer) Act,1972, for grant of a No Objection Certificate with regard to the land in question, part of the land comprising in Killas No. 100/12 and 100/19 was notified under Section 6 of the Land Acquisition Act vide notification dated 25.02.1981, issued by the respondent No. 1 on the ground that the said land was required for a public purpose, namely, extension of Najafgarh Drain. Insofar as the remaining parcel of land was concerned, respondent No. 3 obtained a No Objection Certificate from the competent authority and sold the entire land in favour of the petitioners by executing two separate sale deeds on the same date, i.e., on 07.05.1984.

3. On 25.07.1984, the SDM, Punjabi Bagh issued a notice under Section 33 of the Act in respect of the aforesaid land sold by the respondent No. 3 on 07.05.1984 by virtue of two separate sale deeds in favour of the petitioners. In the meantime, the notification dated 25.02.1981 under Section 6 of the Land Acquisition Act, in respect of the parcel of land stood lapsed in January 1987. Immediately thereafter, the respondent No. 3 applied for a No Objection Certificate from the competent authority and after receiving the same, executed a sale deed in respect of the remaining land in favour of the petitioner No. 2 by executing a sale deed dated 20.01.1987.

4. Vide order dated 5.01.1989, the learned SDM held that the said action of respondent No.3 in selling the land in 3 different installments, amounted to violation of Section 33 of the Act and thus the land in question was directed to be vested in favour of the respondent No. 2, Gaon Sabha. Aggrieved by the aforesaid order dated 5.01.1989 passed by the learned SDM, Punjabi Bagh, the petitioners preferred an appeal before the Additional Collector. The said appeal was dismissed vide order dated 18.05.1989 and the order of the SDM, Punjabi Bagh was upheld. Thereafter, the petitioners and the respondent No. 3 jointly preferred a revision petition before the Financial Commissioner, which was disposed of by the impugned order dated 20.07.1989. In the impugned order, the learned Financial Commissioner held that the appellant No. 1 (respondent No.3 herein) had not transferred his entire holding at one go through one transaction and failure to do so, attracted the bar of Section 33 of the Act. Thus, the revision petition was dismissed and the order of the SDM, Punjabi Bagh dated 05.01.1989 as well as the order of the learned Additional Collector dated 18.05.1989 were upheld. Aggrieved by the said order, the petitioners have filed the present writ petition.

5. Counsel for the petitioners submits that the aforesaid order suffers from a legal infirmity inasmuch as the Financial Commissioner failed to appreciate that upon execution of the sale deeds, there was no other land left with the respondent No. 3, which could have been made, subject to the provisions of the Act on the ground that he held less than 8 standard acres of land. He states that the learned Financial Commissioner erred in holding that the respondent No. 3 was left with the parcel of land involved in the notification for acquisition. He submits that after the execution of three sale deeds, the first two on 7.5.1984 and the third one on 20.1.1987, the entire land stood transferred in favour of the petitioners, who were members of the family of respondent No. 3 and hence, the restriction imposed by 33 of the Act did not apply to the facts of the present case. He further submits that in identical circumstances, when the sale deed was executed by one vendor in favour of different parties but on the same day, the respondent had not treated the said transaction as a violation of Section 33 of the Act, and hence any discrimination sought to be made in the case of the petitioners, was illegal and arbitrary.

6. In support of his submission that there is no restriction imposed on a Bhumidhar to transfer by sale, gift or otherwise, any land to a person where as a result of the transfer, the Bhumidhar would be left with less than 8 standard acres of land in the Union Territory of Delhi, counsel for the petitioner relies upon a judgment of the Division Bench of this Court in the case of Sardar Singh vs. ADM & Ors. 1995 (32) DRJ (DB) 211.

7. In this regard, reference to Section 33 of the Act is material, which is reproduced hereinbelow:

8. After considering the aforesaid provision in the case of Sardar Singh (supra), it was held by the Division Bench that Section 33 is not applicable when the entire holding of a Bhumidhar is sought to be transferred by virtue of an agreement to sell in favour of two purchasers. The Division Bench observed as below: