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AMICUS AI
Citation Codes
Neutral Citations
2010 DHC 4658
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. R.P Bansal Sr. Advocate with Mr. Rakesh Mahajan, Mr. Amit Singh & Mr. Gautam Anand, Advocates.
  • Ms. S.S Dalal & Mr. D.P Singh, Advocates for R-2.
Judges
  • Rajiv Sahai Endlaw, J.
Acts
  • Section 85 of the Delhi Land Reforms Act, 1954
  • Delhi Land Reforms Act, 1954
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Cites
Cited by
Citation Codes
Neutral Citations
2010 DHC 4658
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. R.P Bansal Sr. Advocate with Mr. Rakesh Mahajan, Mr. Amit Singh & Mr. Gautam Anand, Advocates.
  • Ms. S.S Dalal & Mr. D.P Singh, Advocates for R-2.
Judges
  • Rajiv Sahai Endlaw, J.
Acts
  • Section 85 of the Delhi Land Reforms Act, 1954
  • Delhi Land Reforms Act, 1954
See more information ...
Smart Summary

Structured Summary of the Opinion (Rajiv Sahai Endlaw, J.), 20 September 2010

Factual and Procedural Background

The petitioner filed an application under Section 85 of the Delhi Land Reforms Act, 1954 seeking declaration as Bhoomidar of 36 bighas 17 biswas in Village Samaspur Khalsa, Delhi, alleging adverse possession of land belonging to respondent No. 2. Notice was issued; the process server reported respondent No. 2 refused to accept notice; respondent No. 2 was proceeded against ex parte and the SDM/Revenue Assistant, Najafgarh, declared the petitioner Bhoomidar by order dated 15 January 1985.

Respondent No. 2 applied on 12 October 1987 before the SDM/Revenue Assistant to set aside the ex parte order, contending he only learned of it on 27 September 1987 and that he was never served. The petitioner opposed on limitation grounds relying on a document dated 18 March 1985 said to bear respondent No. 2's thumb mark and the son’s signature, admitting knowledge of the ex parte order. The SDM/Revenue Assistant accepted that respondent No. 2 knew of the order by 18 March 1985 and dismissed the set-aside application as time-barred.

Respondent No. 2 preferred revision to the Financial Commissioner. The Financial Commissioner called for the original file that culminated in the ex parte order but found it missing, set aside the SDM's order dismissing the set-aside application as time-barred, set aside the ex parte order dated 15 January 1985, and remanded the matter to the SDM/Revenue Assistant to decide the Section 85 application afresh after hearing respondent No. 2. The petitioner challenged the Financial Commissioner’s order by way of the present writ petition, which remained pending for about 18 years.

Legal Issues Presented

  1. Whether this Court in exercise of writ jurisdiction should interfere with the Financial Commissioner’s order setting aside the SDM/Revenue Assistant’s decision and the ex parte order dated 15 January 1985.
  2. Whether the Financial Commissioner’s reasons for setting aside the ex parte order (missing file, suspicious circumstances, and lack of proper opportunity to respondent No. 2) are such as to justify interference by the High Court in writ jurisdiction.
  3. Whether the petitioner may rely, at this stage, on documents (Agreement to Sell, Registered Receipts, affidavit, Power of Attorney, and the document dated 18 March 1985) that are inconsistent with his original pleadings under Section 85 of the DLR Act.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner argued respondent No. 2 had sold the land to him and produced an Agreement to Sell (kept in a sealed cover before this Court) together with Registered Receipts, affidavits and a General Power of Attorney, all purportedly bearing the thumb impression of respondent No. 2.
  • The petitioner contended respondent No. 2 made no objection to the petitioner’s improvements (construction, tube-well, planting eucalyptus) and being resident of the same village must have been aware of the ex parte order.
  • The petitioner asserted respondent No. 2 did not challenge Girdawari entries in the petitioner’s name and relied on a presumption of correctness of SDM/Revenue Assistant proceedings.
  • Reliance was placed on Section 43 of the DLR Act (transfer with possession deemed sale) and Section 67(d) (extinguishment of rights) to contend respondent No. 2’s rights stood extinguished.
  • The petitioner argued the Financial Commissioner should not have set aside the ex parte order and, if he found the SDM’s decision on the set-aside application incorrect, should have directed a de novo decision rather than setting aside the ex parte order.

Respondent No. 2's Arguments

  • Respondent No. 2 contended he never sold or agreed to sell the land; the petitioner obtained the ex parte order as a device to dispossess respondent No. 2 and thereafter entered unauthorized possession.
  • It was argued the petitioner filed a false FIR against respondent No. 2 (in which respondent No. 2 was later acquitted) to further dispossess him.
  • Respondent No. 2 asserted that the Agreement to Sell and related documents were not part of proceedings before the SDM or Financial Commissioner and were first produced in the present petition; the Agreement to Sell was inconsistent with the petitioner’s original Section 85 claim.
  • Respondent No. 2 suggested the original file was made to go missing for reasons related to these competing claims.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192 Illustration of the limited scope of writ jurisdiction (writ court not to function as appellate court). Used to support the proposition that the High Court should not act as an appellate court over tribunals/authorities vested with quasi-judicial powers.
Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477 Same principle regarding limits on writ jurisdiction over quasi-judicial orders. Cited as part of the jurisprudence explaining restrained interference by writ courts.
Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 Further authority on supervisory and corrective, not appellate, role of writ courts. Reinforced the general principle that High Court interference is limited.
Ashok Kumar v. Sita Ram, (2001) 4 SCC 478 High Court should not set aside an order of a statutory/quasi-judicial authority unless there is serious illegality, manifest error or a view no reasonable person could take. Cited for the standard that writ intervention requires serious illegality; applied to assess whether Financial Commissioner’s order suffered such defects (court found it did not).
Punjab Roadways v. Punja Sahib Bus & Transport Co., (2010) 5 SCC 235 Reiteration that writ courts seldom interfere with orders of quasi-judicial authorities unless procedural illegality/irregularity or excess of jurisdiction is shown. Relied upon to underline the narrow circumstances in which interference is appropriate; court held Financial Commissioner’s order did not meet that threshold.
Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726 Appellate court should not reassess material to reach a different conclusion if the conclusion reached below was reasonably possible on the material; restraint in interfering with discretionary orders. Used to support the view that discretionary orders (such as setting aside ex parte) should not be lightly disturbed where they are not unreasonable.
Pavan Sachdeva v. S.M.S. Pharmaceuticals Ltd., (2008) 10 SCC 803 Authority concerning interference with orders setting aside ex parte decrees and appellate/high court revision limits. Cited as an example of the Supreme Court setting aside a High Court’s revisional interference with a trial court’s order setting aside an ex parte decree; used to demonstrate judicial caution in revisional interference.

Court's Reasoning and Analysis

The Court proceeded by first stating the settled principle that writ jurisdiction is supervisory and not appellate; it will interfere only where the tribunal or authority acted in excess of jurisdiction or failed to exercise jurisdiction, or where there is serious illegality or manifest error (supported by cited authorities).

Applying this framework, the Court examined the Financial Commissioner’s reasons for setting aside the SDM’s order and the ex parte order dated 15 January 1985. The Financial Commissioner had: (a) found the original file culminating in the ex parte order missing; (b) concluded the SDM/Revenue Assistant did not give proper opportunity to respondent No. 2 to meet the case based on the document dated 18 March 1985; (c) considered the execution of the document dated 18 March 1985 suspicious and inadequately explained by the petitioner; and (d) treated the missing original file as a suspicious circumstance sufficient to set aside the ex parte order and to remand the matter for fresh decision after hearing respondent No. 2.

The High Court examined those findings and found they were not beyond context or such as to "shock the conscience" of the Court. Specific reasoning by the High Court included:

  • The missing file (which contained the report of refusal of service) was a legitimate ground of suspicion. The file was missing shortly after the ex parte order and was missing even when the set-aside application was filed within about 2½ years; this short interval made ordinary loss or destruction less likely and raised questions of propriety.
  • The Financial Commissioner gave reasons for remanding and setting aside that were within the scope of legitimate discretion and did not represent an unreasonable view of the material.
  • The petitioner’s late attempts (during the writ petition) to rely on an Agreement to Sell and related documents contradicted his original Section 85 pleadings (which alleged adverse possession without title). The Court characterized such inconsistent pleadings as suspicious and held the petitioner could not be permitted to change his case at that stage.
  • On the SDM’s handling of the set-aside application, the Court found the SDM displayed undue haste by deciding the application on the same day it was listed for filing rejoinder, which supported the Financial Commissioner’s conclusion that respondent No. 2 had not been given appropriate opportunity to meet the petitioner’s reliance on the document dated 18 March 1985.
  • The Court observed substantial delay in the writ proceedings (about 18 years), the substitution of legal heirs for the deceased original parties, and the petitioner’s laxity in prosecuting the petition; nevertheless, these procedural timings did not justify interfering with the Financial Commissioner’s order.

On balance the Court concluded the Financial Commissioner’s decision was a permissible exercise of discretion rooted in rational findings and did not warrant interference under writ jurisdiction.

Holding and Implications

Holding: The writ petition is dismissed; the Court declined to interfere with the order of the Financial Commissioner setting aside the SDM/Revenue Assistant’s dismissal of the set-aside application and setting aside the ex parte order dated 15 January 1985. The petitioner was ordered to pay costs of Rs. 25,000/-.

Direct consequences and directions contained in the order:

  • The petitioner is held liable for costs of Rs. 25,000/- for having delayed the proceedings.
  • Both parties (or their legal representatives/heirs) were directed to appear before the SDM/Revenue Assistant on 20 October 2010.
  • The SDM/Revenue Assistant was directed to decide the petitioner’s application under Section 85 of the DLR Act within eight months of 20 October 2010.

Implications regarding precedent: The Court explicitly applied existing Supreme Court authorities to confirm the limited scope of writ intervention; the decision does not purport to create a new precedent but applies settled principles to the facts — namely, that the Financial Commissioner’s discretionary, reasoned order did not exhibit the kind of illegality or unreasonableness that would justify writ interference.

Judge: Rajiv Sahai Endlaw — Date of Judgment: 20 September 2010.

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    Sh. Satish Chand Kapoor (Deceased) Through Lr'S Petitioner v. The Financial Commissioner, Delhi & Anr. S

    RAJIV SAHAI ENDLAW, J.

    1. The petitioner by this writ petition impugns the order dated 28th February, 1992 of the Financial Commissioner, Delhi. For better appreciation, hereinafter the facts are set out in chronological order.

    2. The petitioner filed an application under Section 85 of the Delhi Land Reforms Act, 1954 for having himself declared as Bhoomidar of 36 bighas 17 biswas of land situated in the Revenue Estate of Village Samaspur Khalsa, Delhi. The respondent No. 2 herein was impleaded as a respondent in the said proceedings. It was the case of the petitioner in his application under Section 85 (supra) that he had been in adverse possession of the land belonging to the respondent No. 2 herein; that the respondent No. 2 had failed to initiate ejectment proceedings against the petitioner within the prescribed time and hence the petitioner had become entitled to Bhoomidari rights of the said land. Notice of the said proceeding under Section 85 is stated to have been issued to the respondent No. 2 herein. The process server is stated to have reported that the respondent No. 2 herein refused to accept the notice. The respondent No. 2 herein was proceeded against ex parte and the petitioner was declared as the Bhoomidar of the said land by the SDM/Revenue Assistant, Najafgarh, Delhi on 15 January, 1985.

    3. The respondent No. 2 herein on 12 October, 1987 applied before the SDM/Revenue Assistant for setting aside of the said ex parte order contending that he learnt of the order dated 15 January, 1985 only on 27 September, 1987 and that neither was he ever served with the summons of the proceeding under Section 85 of the DLR Act nor had he refused to receive the same.

    4. The petitioner herein opposed the said application and pleaded that the application was barred by time. The petitioner in this regard relied on a document dated 18 March, 1985 allegedly having the thumb mark of the respondent No. 2 and signature of the son of the respondent No. 2 and in which the respondent No. 2 had admitted knowledge of the order dated 15 January, 1985 declaring the petitioner as Bhoomidar.

    5. The SDM/Revenue Assistant accepted the plea of the petitioner of respondent No. 2 at least on 18 March, 1985 having knowledge of the ex parte order dated 15 January, 1985 and dismissed the application of the respondent No. 2 herein for setting aside of the ex parte order as being time barred.

    6. Aggrieved therefrom the respondent No. 2 herein preferred the Revision petition before the Financial Commissioner and from the order wherein the present writ petition has been filed.

    7. The Financial Commissioner in the order impugned before this Court has recorded that he had called for the file culminating in the ex parte order dated 15 January, 1985 declaring the petitioner as Bhoomidar; however the said file was found to be not available and was not available before the SDM/Revenue Assistant even when the application for setting aside of the ex parte was made. The Financial Commissioner set aside the order of the SDM/Revenue Assistant dismissing the application of the respondent No. 2 for setting aside of the ex parte order dated 15 January, 1985 and set aside the said ex parte order and remanded the matter to the SDM/Revenue Assistant for decision afresh on the application of the petitioner under Section 85 of the DLR Act, after hearing the respondent No. 2. The Financial Commissioner held that the SDM/Revenue Assistant had not given proper opportunity to the respondent No. 2 to meet the case set up by the petitioner on the basis of the document dated 18 March, 1985 and on the basis whereof only the application for setting aside of the ex parte was held to be time barred. The Financial Commissioner further held that the petitioner had failed to explain as to what prompted the parties to execute the said document. The Financial Commissioner also held the missing original case file to be a suspicious circumstance enough to set aside the order therein proceeding ex parte against the respondent No. 2.

    8. This Court in exercise of writ jurisdiction would interfere with the orders of the Tribunals/Authorities under its jurisdiction only if finding the order to be in excess of jurisdiction vested in such Tribunal or Authority or in failure to exercise jurisdiction. The writ jurisdiction is not intended to be the same as an appellate jurisdiction. (See Veerappa Pillai v. Raman & Raman Ltd. AIR 1952 SC 192, Syed Yakoob v. K.S Radhakrishnan AIR 1964 SC 477 & Sadhu Ram v. Delhi Transport Corporation AIR 1984 SC 1467). The legislature has deemed it appropriate not to provide any further challenge under the Delhi Land Reforms Act, 1954 to the orders of the Financial Commissioner. This Court in violation of the legislative intent cannot act as the Appellate Court. Ordinarily, an order of the Tribunal/Authority if within its power and if based on reasons would not be interfered merely because this Court may have formed a different opinion.

    9. The Supreme Court in Ashok Kumar v. Sita Ram (2001) 4 SCC 478 held “The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of the matter, there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction. In a matter like the present case where orders passed by the statutory authority vested with power to act quasi-judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction, the High Court is not expected to interfere with the final order passed by the statutory authority unless the order suffers from manifest error and if it is allowed to stand, it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another appellate court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case.”

    10. Recently in Punjab Roadways v. Punja Sahib Bus & Transport Co. (2010) 5 SCC 235 the Apex Court reiterated that a writ court seldom interferes with the orders passed by such authorities exercising quasi-judicial functions, unless there is serious procedural illegality or irregularity or they have acted in excess of their jurisdiction.

    11. In the present case there is no dispute that the Revision petition was maintainable before the Financial Commissioner. The Financial Commissioner has given reasons for setting aside of the order of the SDM/Revenue Assistant and for setting aside of the ex parte order dated 15 January, 1985. The reasons given are not such which are totally beyond the context or which may shock the conscience of this Court. The suspicion raised owing to the file containing the report of refusal of service by the respondent No. 2 having gone missing cannot be said to be unfounded. In fact this Court also in the last 18 years since when the petition has been pending before this Court made repeated efforts to call for the said file. The same is however not available. It may be noticed that the file was found missing even when the application for setting aside of the ex parte was moved before the SDM/Revenue Assistant within about 2 ½ years of the ex parte order. The said period of 2 ½ years was not such in which the file would ordinarily be destroyed or could be lost. The fact that the file was missing within a short time does raise questions of propriety.

    12. I am therefore of the opinion that the order of the Financial Commissioner is incapable of interference in writ jurisdiction.

    13. There is another aspect of the matter. The order of the nature of setting aside of the ex parte decision is essentially a discretionary order, though discretion has to be exercised within the established parameters. Once the discretion exercised is found to be not unreasonable, even an Appellate Court would refuse to interfere in the same. The Supreme Court in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 SCC 726 held that the appellate court may not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material - the appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. Recently in Pavan Sachdeva v. S.M.S Pharmaceuticals Ltd.(2008) 10 SCC 803 the Supreme Court set aside the order of the High Court in exercise of revisional powers setting aside the order of the Trial Court setting aside the ex parte decree.

    14. However since the notice of the writ petition was issued and the same has remained pending before this Court for the last 18 years, I refrain from dismissing the writ petition on the aforesaid grounds alone and proceed to deal with the arguments raised by the counsel for the petitioner. However before doing so I must record that it is the petitioner who has shown laxity in pursuing this petition. The petitioner was not willing to have the petition argued even now and was forced to have it argued only when the same was listed on day to day basis. In the interregnum, both the petitioner and the respondent No. 2 have died and their legal heirs have been substituted.

    15. The counsel for the petitioner has argued that the respondent No. 2 had in fact sold the land aforesaid. On being asked to show the sale deed, it was told that the sale was by way of Agreement to Sell, original whereof have been filed before this Court and kept in a sealed cover. The said sealed cover was called for and opened. The documents therein besides the Agreement to Sell also contain Registered Receipts. All documents purport to bear the thumb impression of the respondent No. 2. Besides the said Agreement to Sell, the documents also comprise of affidavit and General Power of Attorney. It is contended that the said documents were nowhere challenged by the respondent No. 2. It is further argued that the respondent No. 2 was a resident of the same village and after the ex parte order dated 15 January, 1985, the petitioner had made improvement on the said land by raising construction, installing tube-well and planting eucalyptus trees thereon and without any objection from the respondent No. 2 or any other person. It is urged that the respondent No. 2 being a resident of the same village was aware of the said activities and is thus deemed to have been aware of the ex parte order dated 15 January, 1985.

    16. On enquiry from the counsel for the petitioner whether the petitioner had any copy of the refusal report on the process sent to the petitioner, the counsel relies in negative.

    17. The counsel for the petitioner has further contended that the respondent No. 2 had not challenged the Girdawari entries in the name of the petitioner and it is also argued that there has to be presumption of correctness of the proceedings held by the SDM/Revenue Assistant. It is stated that the Financial Commissioner has wrongly held that the SDM/Revenue Assistant in the proceedings for setting aside of the ex parte order did not grant proper opportunity to the respondent No. 2 to meet the defence of the petitioner on the basis of the document dated 18 March, 1985 aforesaid as from the order sheets of those proceedings it is shown that the respondent No. 2 failed to file the rejoinder inspite of opportunity and also failed to appear before the SDM/Revenue Assistant. On enquiry as to the stand of the respondent No. 2 vis-à-vis the document dated 18 March, 1985, it is stated that the Revision petition preferred by the respondent No. 2 before the Financial Commissioner is not available. However from the reply of the respondent No. 2 to the present petition it is contended that the document has not been denied and there is no categorical denial of having not thumb marked the said document. It is urged that the respondent No. 2 after having sold the land to the petitioner had turned dishonest and was blackmailing the petitioner owing to the Sale Deed having not been executed and the document dated 18 March, 1985 was also executed for the said reason only. It is also urged that the son of the respondent No. 2 was employed by the petitioner as the chowkidar for the said land and the document dated 18 March, 1985 also bears the signatures of the son of the respondent No. 2. Reliance is placed on Section 43 of the DLR Act to contend that the transfer of the land with possession is deemed sale and the right of the respondent No. 2 stood extinguished under Section 67 (d) of the DLR Act. It is contended that no case for interference in Revision by the Financial Commissioner, with the well reasoned order of the SDM/Revenue Assistant dismissing the application for setting aside of the ex parte order was made out. Reliance is placed on an order of the same Financial Commissioner in another proceeding refusing to entertain the Revision against the order of dismissal of application for setting aside of the ex parte order. Lastly, it is urged that even if the Financial Commissioner was of the view that the application for setting aside of the ex parte order had not been correctly decided by the SDM/Revenue Assistant, the Financial Commissioner should have directed decision of that application de novo instead of setting aside of the ex parte order dated 15 January, 1985. On enquiry as to who is in possession of land, it is informed that the petitioner is in possession of land.

    18. The counsel for the respondent No. 2 on the contrary contends that the respondent No. 2 had never sold or agreed to sell the land to the petitioner. It is stated that the petitioner obtained the ex parte order dated 15 January, 1985 from the SDM/Revenue Assistant as a device to dispossess the respondent No. 2 from the land. It is stated that till the ex parte order dated 15 January, 1985 the petitioner was not in possession of the land and armed with the said order dispossessed the respondent No. 2 from the land and entered into unauthorized possession thereof. It is further argued that with this intent only the petitioner filed a false FIR against the respondent No. 2 of having trespassed on the said land and in prosecution whereunder the respondent No. 2 was acquitted. It is stated that since the present proceedings have been pending, there was no occasion for the respondent No. 2 to file any other proceedings for possession or otherwise against the petitioner. It is also argued that the case, of the respondent No. 2 having sold/agreed to sell the land to the petitioner has been set up for the first time in the present petition and was not the case of the petitioner at any earlier point of time. It is urged that in fact the case of Agreement to Sell is contrary to the case in the application under Section 85 of the DLR Act. It is stated that Section 85 of the DLR Act could not have been invoked if the petitioner was claiming title to the land under Agreement to Sell. It is stated that the Agreement to Sell was not produced before the SDM/Revenue Assistant or the Financial Commissioner also. It is stated that it is for this reason only that the file culminating in the ex parte order dated 15 January, 1985 has been got misplaced.

    19. The counsel for the petitioner has not been able to rebut the arguments aforesaid.

    20. None of the arguments of the counsel for the petitioner persuade me to interfere even if permissible with the order of the Financial Commissioner. The petitioner cannot now be permitted to rely on the Agreement to Sell and other documents. The proceedings from which this petition has arisen, arose from the application filed by the petitioner under Section 85 of the DLR Act. Such an application lies only from non-institution of the suit for ejectment of a person occupying land without title. The case of the petitioner in the said proceedings was that he had occupied the land of the respondent No. 2 without any title. The petitioner cannot at a subsequent stage in the same proceedings be heard with inconsistent pleadings. In fact such inconsistent pleadings in themselves constitute suspicious circumstances in addition to those noticed by the Financial Commissioner.

    21. On perusal of the order sheet of the SDM/Revenue Assistant in the proceedings for setting aside of the ex parte order, I also do not find any error in the reasoning of the Financial Commissioner of proper opportunity having not been given to the respondent No. 2 to meet the case set up by the petitioner on the basis of document dated 18 March, 1985. Though it is correct that the respondent No. 2 had failed to file the rejoinder by/on the date given therefor and had also failed to appear on that date but the SDM/Revenue Assistant showed undue haste in disposing of the application. The application was decided on the very same day when the same was listed next for filing of rejoinder. There is also merit in the reasoning of the Financial Commissioner of there being no occasion for execution of the document dated 18 March, 1985. If the version of the petitioner of being in unauthorized occupation of the land was correct, the petitioner after having got himself declared as the Bhoomidar had no occasion to approach the respondent No. 2 for executing the declaration document. Similarly, if the version now of the petitioner of being agreement purchaser of the land is correct, then also the document dated 18 March, 1985 does not give reference to the Agreement to Sell. The document dated 18 March, 1985 appears to have been produced only for decision of the application for setting aside of the ex parte order even in the absence of the file in which the respondent No. 2 was proceeded against ex parte and in which file only the report of refusal on the basis of which respondent No. 2 was proceeded against ex parte existed. Else in the absence of the file, the application for setting aside ex parte order was bound to be allowed.

    22. I do not find any merit in the contention of the petitioner of respondent No. 2 being not entitled to the relief of setting aside of ex parte order for the reason of having not challenged the documents relied on by the petitioner for the first time in the present proceedings. If the petitioner fails in establishing the case under Section 85 of the DLR Act, the respondent No. 2 would be entitled to his remedies.

    23. There is no merit in the petition. The petitioner having held up the proceedings in pursuance to the order of the Financial Commissioner is burdened with the costs of ‘25,000/-. The parties are directed to appear before the SDM/Revenue Assistant on 20 October, 2010. The SDM/Revenue Assistant is now directed to decide the application of the petitioner under Section 85 of the DLR Act within eight months of 20 October, 2010.

    RAJIV SAHAI ENDLAW

    (JUDGE)

    20 September, 2010

    pp..

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