Kesarwati and Others vs Financial Commissioner, Delhi and Others

Sunil Gaur

Since the impugned orders (Annexure-N and Annexure-P) in the above captioned two petitions are the same, therefore it was stated by learned counsel for the petitioners of the afore-noted two petitions that the submissions advanced would be identical and thus, both these petitions were heard together and are being disposed of by this common order. Petitioner- Mahender Singh while claiming to be the Bhumidhar of the subject land had executed General Power of Attorney of 23rd July, 1998 on behalf of the kumharan community in favour of petitioners - Smt. Kesarwati, etc. Petitioner - Mahender Singh is respondent No. 12 in the writ petition filed by petitioner - Smt. Kesarwati and he supports the case of the petitioner - Smt. Kesarwati & Ors. The order impugned herein is of 8th June, 2006 of the Financial Commissioner, Delhi, who vide aforesaid order has dismissed petitioners'' appeal u/s 64 and 65 of the Delhi Land Revenue Act, 1954, against Collector''s order of 20th March, 2006 declaring mutation of agricultural land measuring 7 Bighas and 3 Biswas in Khasra No. 82/23 (2-1) and 82/24 (5-2), situated in the revenue estate of Village Sultanpur Dabas (hereinafter referred to as subject land) in favour of petitioners as illegal and void.

Aforesaid impugned orders (Annexure-N and Annexure-P) are assailed by learned counsel for the petitioners urging that mutation order cannot be set aside merely because Gaon Sabha was not put to notice, as Gaon Sabha was aware that proceedings u/s 81 of the Delhi Land Reforms Act, 1954, against the petitioners were dropped vide order of 23rd March, 2000 and the appeal against the said order is pending. Thus, it is contended on behalf of the petitioners that there was no justification to condone the delay of about seven years in challenging mutation order of 17th December, 1998 and in any case, reversion of the subject land to Gaon Sabha in proceedings under the Delhi Land Revenue Act, 1954 is impermissible in law. To fortify this submission, reliance is placed by petitioners'' counsel upon decision in Master Mayank Vashishth Vs. Financial Commissioner,

At the hearing of this petition, there was no representation on behalf of the respondents. However, with the assistance of learned counsel for the petitioners, the impugned orders (Annexure-N and Annexure-P) as well as the material on record was perused. In the counter Affidavit filed by respondent - Gaon Sabha of this Village, the stand taken is that neither any individual''s name of community of kumharan nor their share is mentioned in the revenue record of the subject land and so, one member of kumharan committee cannot sell the subject land as claimed in the writ petition. It is categorically denied by respondent - Gaon Sabha that community of kumharans was declared Bhumidhar of the subject land.

Whether the kumharan community has consisted of just five members, i.e., petitioner - Mahender Singh and four others, or that bhumidari rights conferred upon the kumharan community could be transferred to third parties, cannot be subject matter of the proceedings Delhi Land Revenue Act, 1954 and therefore, submissions advanced on this aspect are not being adverted to and are left open to be considered in appropriate proceedings. In view of the dictum in Master Mayank (supra), concededly the question of status of the petitioners in the subject land is not required to be gone into, in proceedings under the Delhi Land Revenue Act, 1954 and the same can be examined as and when provisions of Delhi Land Reforms Act, 1954 are invoked.

In view of the aforesaid, finding returned in the impugned orders (Annexure-N and Annexure-P) of subject land being reserved for kumharan community by the Gaon Sabha, with a view to earn their livelihood by taking out earth from the subject land with the restriction not to sell or transfer it in any manner whatsoever by any individual member of the community, in proceedings under the Delhi Land Revenue Act, 1954 is unwarranted, rendering the impugned orders (Annexure-N and Annexure-P) unsustainable in law.

So far as the setting aside of the mutation order of 17th December, 1998 on account of Gaon Sabha of this Village being not put to notice is concerned, this concurrent finding in the impugned orders (Annexure-N and Annexure-P) cannot be upset merely because proceedings u/s 81 of the Delhi Land Reforms Act, 1954 against the petitioners were dropped way back in the year 2000. More so, when appeal against order of 23rd March, 2000 dropping proceedings u/s 81 of the Delhi Land Reforms Act, 1954 against the petitioners is stated to be pending.

Impugned orders (Annexure-N and Annexure-P) setting aside the mutation of 17th December, 1998, are upheld but, the direction contained therein to revert back the subject land to Gaon Sabha is quashed being without jurisdiction. Both these petitions are partly allowed to the extent indicated above, with no orders as to costs.