RAJENDER SINGHversusGOVT. OF N.C.T. OF DELHI & ORS.

                        [20 I 6] 2 S.C.R. 98 I



                       RAJENDER SINGH                                  A
                                  v.
              GOVT. OF N.C.T. OF DELHI & ORS.
                  (Civil Appeal No. 1427of2016)
                       FEBRUARY 16, 2016                               B
     . [SHIVA KffiTI SINGH AND R.K. AGRAWAL, JJ.]
       East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948 - s. 43A, 22 - Consolidation proceedings
under the Act commenced around 1975 and concluded in 1976 -
Afier lapse of 23 years application uls. 43A by respondents no. 4 to   c
7 seeking allotment of land - On the ground that during the
consolidation proceedings their father was found to be in possession
over the area of scheme Khasra - Possession allegedly reflected in
Scheme of Consolidation of the village - Dismissed by Consolidation
Officer, however, allowed by Financial Commissioner - On remand,
                                                                       D
Consolidation Officer allowed the claim of respondents - Said order
upheld in revision petition as also by the Single Judge and Division
Bench of the High Court - On appeal, held: Final order passed by
the Consolidation Officer was without opportunity or notice of
hearing to the appellant and proforma re~pondenls and the order
was passed by manipulating records -Revisional authority or the        E
High Court did not consider the same - Thus, the matter remitted
back to the Consolidation Officer for fresh hearing.
       Partly allowing the appeal, the Court
      HELD: 1.1 The final order passed by the Consolidation
Officer was without opportunity or notice of hearing to. the           F
appellant and proforma respondents subsequent to adjournment
of the matter without further dates. The order itself mentions
only the presence of TR and not the appellant or any one from
his side. The order does not name any advocate from either of
the sides and the observation that 'the counsel for the respondent
                                                                       G
has argued the case at length' may be a mistake or a casual
observation based upon inconclusive and ineffective hearing on
earlier dates. The revisional authority or the High Court did not
consider the same. The matter is remitted back to the
Consolidation Officer for fresh hearing and re-determination [Para
7] [985-H; 986-A-B]                                                    H
                                981
982             SUPREME COURT REPORTS                        [2016] 2 S.C.R.


A        1.2 The Consolidation Officer is expected to keep certain
   aspects in mind while deciding the matter afresh. The respondents
   had not prayed for mere correction in the new record of rights
   prepared at the instance of the Consolidation Officer n/s. 22 of
   the East Punjab Holdings (Consolidation and Prevention of
 B Fragmentation) Act, 1948 rather they had prayed for allotment
   which was granted by th.e Consolidation Officer who ordered for
   revising the record of rights as a sequel to such allotment.
   However, if even without the allotment or allocation made by the
   Consolidation Officer through his order, the contesting
   respondents could continue with possession over the land and
 C whether in fact they continued to enjoy such possession, needs
   to be enquired into. Lastly, the Consolidation Officer should keep
   in mind that although it has jurisdiction to look into the claim u/s.
   43A, such· jurisdiction can be exercised only to correct errors
   which are clerical or arithmetical in nature. The mere fact that
 D the appellant conceded to jurisdiction u/s. 43A leading to an order
   of remand will not have the effect of enlarging such jurisdiction
   beyond what is prescribed by- the law. (Para 10] [987-D-G]
              Mange Ram v. Financial Commissioner & Ors. (2003)
              2 SCC 1; Amar Singh, Jagram (Dead) by LRs. v. Chandgi
              (Dead) by LRs 1988 (3) Suppl. SCR 738:(1989) 1 SCC
 E            308 - referred to.
                               Case Law Reference
              (2003) 2 sec 1                referred to         Para5
              1988 (3) Suppl. SCR 738       referred to         Para6
 F            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1427 of
      2016.
            From the Judgment and Order dated 15.01.2013 in LPA No. 39/
      2013 by the High Court of Delhi at New Delhi.
              Gagan Gupta, V.P. Ra~a., Ad vs. for the Appellants.
 G
            R.K. Rathore;Ajay Kumar Singh, D.S. Mahra, Sanjay Sharawat,
      Ratish Kumar, Ravi Kumar Tomar, Ad vs. for the Respondents.
              The Judgment of the Court was delivered by
           SHIVA KIRTI SINGH, J. 1.. Heard the parties at some length.
 H    Leave granted.
   RAJENDER SINGH v. GOVT. OF N.C.T. OF DELHI & ORS.                     983
                [SHIVA KIRT! SINGH, J.]

      2. By the impugned order dated January 15, 2013 the High Court      A
ofDeihi has dismissed L.P.A. No.39 of2013 preferred by the appellant.
As a consequence the judgment and order passed by the learned Single
Judge dated 13.12.2012 passed in W.P.(C)No.7124/2009 as well as order
passed in review from that order, dated 18.12.2012 stand affirmed.
        3. The relevant facts leading to the aforesaid orders of the High B
Court need to be noticed only in brief. Consolidation proceedings under
The East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948 [hereinafter referred to as 'the 1948 Act']
commenced in Village Karala, Delhi around 1975 and concluded in 1976.
After about 23 years of closure of consolidation proceedings, on 16.4.1999
the contesting respondents no.4 to 7 filed an application under Section c
43A of the 1948 Act, seeking allotment ofland ofKhasra No.168 on the
ground that during the consolidation proceedings their father late Rajender
Singh wa~ found to be in possession over the area of 11 biswas of Scheme
Khasra No.168 (old Khasra No.703). Such possession was allegedly
reflected in the Scheme of'Consolidation of the village and described as D
- "Scheme Kabizan". The consequent Case No.2/C0/1999 was initially
dismissed by the Consolidation Officer by order dated 11.05.1999 on the ··
ground that consolidation proceedings had been completed Jong back
and hence the Consolidation Officer had become functus officio. That
order was however reversed by the Financial Commissioner before whom
the parties agreed that the Consolidation Officer still had jurisdiction in E
respect ofan application invoking powers under Section 43A of the 1948
Act. After remand, the Consolidation Officer commenced hearing of
the case but it was disrupted on account of a necessity to implead legal
representatives oflate Baljit Singh on whom notices were ordered to be
issued on 04.10.2004. The order pl!ssed on 04.10.2004 did not indicate F
any further date for hearing. The next order dated 18.10.2004 noted
service ofnotices on the concerned.legal representatives ofBaljit Singh.
It also recorded presence of the applicant Tej Ram along with his counsel.
Evid1;,nt!y the appellant or his counse!'were not present on that date or
on the nex! date which was fixed as 16.11.2004. On the next further
date, i.e., 24.12.2004, the Consolidation Officer allowed the claim after G
noticing presence of only Tej Ram. lnspite of the presence ofthe appellant
or his counsel not mentioned, at one place the order records that the
counsel for respondent had argued the case at length and had pressed
 for dismissal of the petition because father of the claimants did not claim
 during his lifetime and allegedly the claim was inappropriate at such late H
984            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A     stage. The order also records that as per revenue records the aforesaid
      land had been allotted in the name of respondents no.3 to 7 as joint
      holding of the respondents separated during consolidation proceedings.
      It was also noticed that the encumbrances on the said land were only
      against the appellant Rajender Singh son of Hoshiar Singh. As per order
      the revenue records were perused along with the consolidati;in scheme
 B
      leading to fresh allotment to Tej Ram and others of new Khasra No.168
      having area of 11 biswas on the basis of"Scheme Kabizan". In light of
      such allotment the Halka Patwari was directed to make corresponding
      entries in the revenue records.
             4. Against the order of Consolidation Officer allowing the claim
c     of respondents Tej Ram and others the appellant and the proforma
      respondents filed a Revision Petition in the court of Financial
      Commissioner, Delhi bearing Case No.47/2005-CA. The case of the
      appellant was that no opportunity of hearing was given by the Consolidation
      Officer and the order was passed by manipulating the records when in
 D    fact no notice of hearing was ever issued after the decision to issue
      notice to legal representatives oflate Baljit Singh. The plea of possession
      being with the appellant and the proforma respondents as also of inordinate
      delay of 23 years was also raised. ·However, the revision case was
      dismissed on 03.02.2009 only on the basis ofa record showing Scheme
      Kabiz which was allegedly never challenged by any body.
 E          5. That orderofthe Financial Commissioner was impugned through
      a writ petition first before the Single Judge and then also before the
      Division Bench through LP.A. as already noticed earlier. Since the
      appellant was unsuccessfu I throughout, he has preferred the present
      appeal to raise three-fold grievances. The first grievance is that in fact
 F    no opportunity of hearing was afforded by the Consolidation Officer and
      as a consequence the appellant could not place his case properly to
      show that there was no occasion to know of the entry of"Scheme Kabiz"
      or to challenge the same when it was never made known to affected
      persons by making allotment on its basis. According to appellant the
      land remained under their possession which was also reflected in the
 G    revised revenue records prepared pursuant to the finalization of
      consolidation proceedings. The second grievance is that no inquiry was
      made as to what was the nature of possession reflected as Scheme
      Kabiz. According to learned counsel for the appellant, ifthe possession
      was not through any method of encumbrance known to Jaw but only that
 H    of a rank trespasser, such possession could not have been made the
  RAJENDER SINGH v. GOVT. OF N.C.T. OF DELHI & ORS.                            985
               [SHIVA KIRT! SINGH, J.)

basis of allotment under Section 43A of the 1948 Act as has been done           A
by the order of the Consolidation Officer dated 24.12.2004. The last
grievance is that the Consolidation Officer as well as other authorities of
the High Court failed to appreciate that claim under Section 43A was
made after 23 years and such belated claim should not have been
entertained or allowed. In support of the second and third contentions
                                                                                B
noted above, learned counsel for the appellant has placed reliance upon
judgment of this Court in the case of Mange Ram v. Financial
Commissioner & Ors. (2003) 2 SCC I.
       6. Learned counsel for the contesting respondents has on the other
hand taken us through the Scheme of Consolidation as provided in the
1948 Act and has highlighted that the grievance of the applicants before        c
the Consolidation Officer under Section 43A was within the scope of
that Section and no objection can be raised on account of delay of 23
years because once Scheme Kabiz was recorded in favour of applicants,
Section 26 of the 1948 Act required such encumbrance by way of
possession to be transferred and attached to the holding or tenancy allotted    D
under the scheme to the land owner or the tenant who had suffered the
encumbrance. Learned counsel for the respondents made a further
submission that on account of encumbrance noted in the scheme, the
respondents/applicants had continued in possession and their grievance
was only in respect of mistake oromission in preparation ofnew record
of rights prepared under Section 22 of the 1948 Act and such mistake or         E
omission in the preparation of record of rights cannot have material effect
on the substantive rights of parties which they continued to enjoy and
once the mistake was realised by the authorities, the exercise of power
 under Section 43A for correction of clerical or arithmetical mistakes
 was appropriate and the High Court rightly did not interfere with such         F
 correction of clerical errors. He reiterated that from the wordings
 appearing in the order of the Consolidation Officer dated 24.12.2004 it is
 beyond any doubt that order was passed after hearing learned counsel
for the appellant. In support of his submissions based upon Section 26,
 learned counsel placed reliance upon judgment in the case of Amar
Singh, Jagram (Dead) by LRs. v. Chandgi (Dead) by LRs ( 1989) I                 G
sec 308.
      7. After hearing the parties and perusal of the relevant orders and
material on record, we are satisfied with the submission that the final
order passed by the Consolidation Officer on 24.12.2004 was without
opportunity or notice of hearing to the appellant and proforma respondents      H
986             SUPREME COURT REPORTS                           [2016] 2 S.C .R.


A  subsequent to adjournment of the matter without further dates on
   04.10.2004. The order itself mentions only the presence ofTej Ram and
   not the appellant or any one from his side. The order does not name any
   advocate from either of the sides and the observation that 'the counsel
   for the respondent has argued the case at length' may be a mistake or a
   casual observation based upon inconclusive and ineffective hearing on
B'
   earlier dates. On this ground alone which has not been properly
   considered either by the revisional authority or the High Court, the matter
   deserves to be remitted back to the Consolidation Officer for fresh hearing
   and re-determination in accordance with law.
             8. However, it is deemed proper to clarify some relevant aspects
c     of the case as well as legal issues that must be kept in mind by the
      Consolidation Officer for proper adjudication after remand. A perusal
      of the order passed by the Financial Commissioner discloses that he
      was of the view that the recording of "Scheme Kabiz" had attained
      finality as it was never challenged. Such conclusion should not have
D     been drawn without examining whether this entry was duly published
      inviting any objections or in the alternative whether such recording in a
      chart was further acted upon leading to allocation or allotment of the
      land with the corresponding encumbrances. So far as the case of Amar
      Singh (supra) is _concerned, it was not a case of exercise of power
      under Section 43A and the issue whether the defendants of that case
 E
      were tenants in respect of the lands in question was found to be beyond
      any cavil and concluded by concurrent finding of facts. In that case,
      since the power and jurisdiction of Consolidation Officer under Section
      26 was questioned, this Court held that the officer had jurisdiction to
      define the portion of the land newly allotted under the scheme and put
 F    the holder of the encumbrance in possession of the corresponding part
      of the substituted holding allotted to the land owner in lieu of his original
      holding.
            9. In the case of Mange Ram (supra) this Court found that the
      appellant had advanced claim of possession over a piece ofland measuring
 G    5 biswas on the basis that his prede_ce~sor had trespassed over that land
      and had carried out cultivation. The appellant had relied on a list of 1982
      showing his possession. The consolidation operation had been concluded
      and closed in the year 1982 whereas application for being put in
      possession was filed by the appellant after 11 years in 1993. In such
      circumstances this Court held that a mere trespasser could not be treated
H
  RAJENDER SINGH v. GOVT. OF N.C.T. OF DELHI & ORS.                             987
               [SHIVA KIRTI SINGH, J.]

as an encumbrancer as envisaged under the 1948 Act. The Court further           A
held that the appellant must fail on account oflong delay and !aches of
11 years in approaching the authorities for relief.
         I 0. From the materials on record we could not find anything
throwing light on the nature of possession claimed by the contesting
 respondents which is relevant for one of the propositions emerging from         B
 the judgment.in the case of Mange Ram (supra). In several of the
pleadings the appellant has claimed that they continued to enjoy allotment
 in their favour and possession has remained with them over the 11 biswas
 of land in the concerned Khasra. However, during arguments learned
 counsel for the contesting respondents has made a counter c"faim that
 possession has remained with the contesting respondents and therefore
                                                                                 c
 delay o( 23 years cannot be material. We expect the Consolidation
 Officer to keep these aspects in mind while deciding the matter afresh.
 From the prayer made on behalf of the contesting respondents before
 the Consolidation Officer it is evident that they had not prayed for mere
 correction in the new record of rights prepared at the instance of the          D
 Consolidation Officer under Section 22 of the 1948 Act, rather they had
 prayed for allotment or allocation which was the relief granted by the
 Consolidation Officer who ordered for revising the record of rights as a
 sequel to such allotment. However, if even without the allotment or
 allocation made by the Consolidation Officer through his order dated
 24.12.2004, the applicants/contesting respondents could continue with           E
 possession over the land in question and whether in fact they continued
 to enjoy such possession, needs to be enquired into because it will have
 an important bearing at least over the effect of delay of23 years. Lastly,
·the Consolidation Officer should keep in mind that although it has
 jurisdiction to look into the claim under Section 43A of the 1948 Act,          F
 such jurisdiction can be exercised only to correct errors which are clerical
 or arithmetical in nature. The mere fact that the appellant conceded to
 jurisdiction under Section 43A leading to an order of remand will not
 have the effect of enlarging such jurisdiction beyond what is prescribed
 by the law.
                                                                                 G
        11. The aforesaid clarifications are relevant in the facts of the
 case to ensure that no further unnecessary time is wasted in deciding
.the real controversy. Hence while setting aside the itripU'gned orders of
 the High Court and also the orders passed by the Consolidation authorities
 on or after 24.12.2004, we remand the matter to the Consolidation Officer
                                                                                 H
988                SUPREME COURT REPORTS                     (2016] 2 S.C.R.



A     for re-hearing the parties and fresh determination within six months, in
      accordance with Jaw keeping in mind the legal principles and other
      relevant observations recorded earlier in this order as guidelines. It is
      also made clear that we have not expressed any opinion on the merits of
      the case of either parties.
 B           I 2. The appeal is allowed to the aforesaid extent but without any
      order as to costs.
      Nidhi Jain                                           Appeal partly allowed