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PETITIONER: SHRI KANWAR PAL & ORS.

       Vs.

RESPONDENT: GAON SABHA KIRARI & ORS.

DATE OF JUDGMENT:       06/08/1996

BENCH: M.M.PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The  Gaon   Sabha,  Kirari  Suleman  Nagar,  a  village situated within  the  State  of  Delhi,  moved  the  Revenue Assistant/Sub-Divisional  Magistrate,   Delhi,   complaining conversion  of   some  lands   to  non-agricultural  use  in contravention of  the provisions  of Section 81 of the Delhi Land Reforms  Act, 1954.  The respondent arrayed therein was one Narender  Singh. It  seems that  the said respondent was directed vide  order dated  10.10.1985 to  convert the  said lands back  to agricultural use within three months, failing which he  would be ejected from the said land and his rights thus on  the land would get extinguished vesting the same in the Gaon  Sabha.  It  was  reported  to  the  Sub-Divisional Magistrate by  the Patwari  through the  Tehsildar that  the suit land  had not been converted to agricultural use by the respondent despite notice. This led to the action of vesting of the land in the Gaon Sabha.      The appellants  herein  claimed  to  be  in  individual possession of  the land involved in such vesting. They moved the  Financial   Commissioners   Delhi   Administration   in revision, not only on the merit of the matter, but otherwise complaining that  the Revenue  Assistant had  passed  orders dated 10.10.1985  in the  first instance and then finally on August 20,  1986 without giving them an opportunity of being heard. The Financial Commissioner vide order dated 19.1.1989 rejected the  revision petition  holding that  notice to one co-sharer was notice to all, leaving alone the matter on its merit. It  transpired that Narender Singh to whom the notice had been  issued  had  died  in  that  interregnum.  It  was concluded by  the Financial  Commissioner that the assertion of  the   appellants  that   they  could  not  know  of  the proceedings was  not believable  since those  had  continued since 1984  to 1985  and the assertion that the deceased did not  tell   them  about  the  pendency  of  proceedings  was unconvincing. The  High Court when approached in proceedings under Articles  226 and 227 of the Constitution, agreed with the Financial  Commissioner in  holding that notice on a co- sharer was  good service on the other co-sharers. This order of the High Court is the subject-matter of challenge in this appeal.

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    As an  abstract proposition, it cannot be disputed that a co-sharer  is in possession of land not only on his but on behalf of  the other  co-sharers too  and a notice served on him would be notice on other co-sharers. It seems to us that the said  proposition would not be applicable instantly when the case  of the  appellants is that they were in individual possession of  lands as reflective from the Khataunis of the relevant year.  As is  evident, drastic are the consequences if agricultural land is put to non-agricultural use. One co- sharer cannot  be permitted  to hold the other co-sharers to ransom by  misusing  the  portion  in  his  possession.  His interest obviously  would be hostile to the other co-sharers and  vice-versa.   Thus,  in   our  view,   the  proposition aforementioned as  employed by the Financial Commissioner as well as  the High  Court was  totally misplaced in the facts and circumstances.  A notice  was  essential  to  be  issued individually to  all the  appellants before  any action  was sought to  be taken  under the  aforementioned provisions of law.      Additionally, we  find from  the  orders  of  the  Sub- Divisional Magistrate  that notice  was issued  to  Narender Singh individually  and not as a representative of his other co-sharers.  His  ejectment  was  considered  enough  to  be ejectment of  all. That is not a correct way of looking into the matter  in the  case of individual user personal to each occupant.      We, therefore,  are of the view that injustice has been done to  the appellants.  We therefore  set  aside  all  the orders of  the authorities below as well as that of the High Court, leaving it open to the revenue authorities to take de novo proceedings against each and every co-sharer separately in possession, if cause for proceedings exits at the moment. The appeal is thus allowed in these terms. No costs.