Bhim Singh vs Tehsildar (Narela) and Others

Rajiv Sahai Endlaw, J.—The petitioner by this writ petition seeks quashing of the order dated 25th April, 2008 of the respondent No. 1, Tehsildar Narela on the application of the petitioner to the Deputy Commissioner (Revenue), Kanjhawala, Delhi u/s 26 of the Delhi Land Revenue Act, 1954 and seeks direction to the said Deputy Commissioner to fill up Form P-5 and enter the name of the petitioner in the said Form with respect to agricultural land bearing khasra No. 76/8/1/1 (1-08), 26(0-01) and 27(0-01) total 1 bigha 10 biswa, situated in the Revenue Estate of Vill. Khera Khurd, Delhi. It is the contention of the petitioner that though u/s 26 of the Act (supra) it is only the Deputy Commissioner who is empowered to correct any mistake or error in the Annual Register and for which purpose the application was made by the petitioner to the Deputy Commissioner, but the said application was wrongly considered by the Tehsildar and dismissed vide order dated 25th April, 2008.

On enquiry as to how this petition is maintainable since the remedy against such orders is provided in the Act itself, the counsel for the petitioner contends that the said remedies are not suitable since the order has been passed by an Authority not authorized to do so.

The counsel also informs that the name of the petitioner has been entered in the Khasra Girdawari for the subsequent years.

The counsel for the respondents is unable to controvert that the application made by the petitioner to the Deputy Commissioner was required to be considered by the Deputy Commissioner only and is unable to show the authority under which, the same has been decided by the Tehsildar Narela.

I am, however of the view that no directions to enter the name of the petitioner in pursuance to the said application can be issued by this Court. According to the petitioner also the application is required to be considered by the Deputy Commissioner and till the Deputy Commissioner has considered the same, the question of directing the Deputy Commissioner to enter the name does not arise.

The Supreme Court in Grindlays Bank Limited Vs. Income Tax Officer, Calcutta and Others, held that "ordinarily, where the High Court exercises certiorari jurisdiction it merely quashes the offending order and the consequential legal effect is that but for the offending order the remaining part of the proceedings stands automatically revived before the inferior Court or tribunal with the need for fresh consideration and disposal by a fresh order; the High Court does not substitute its own order for the order quashed by it. There are however other situations where the adjudication by the High Court establishes a complete want of jurisdiction in the Court or tribunal below to entertain or take the proceedings at all and in such cases where the High Court quashes the proceeding there is no revival at all. But even though in the former case the High Court does not substitute its own order after quashing the offending order, it has power to pass such further orders as the justice of the case requires. When passing such orders the High Court draws on its inherent powers to make all such orders as are necessary for doing complete justice between the parties. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it."

The Supreme Court in Surya Dev Rai Vs. Ram Chander Rai and Others, held that "in a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or Court but may not substitute its own findings or directions in lieu of the one given in the proceedings forming the subject matter of certiorari."

The petition therefore is disposed of quashing the order dated 25th April, 2008 of the Tehsildar, Narela on the application of the petitioner u/s 26 of the Act (Annexure P-3 of the writ petition) and further directing the Deputy Commissioner (Revenue), Kanjhawala, Delhi to dispose of the said application in accordance with law within two months of the date the petitioner appears with the copy of this order before the Deputy Commissioner.

No order as to costs.

Dasti to counsel for the parties.