S.B.Capoor, J. - (1.) THIS writ petition under Articles 226 and 227 of the Constitution of India involves determination of the question whether sub section (2) of section 15 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the Act), as amended by the Delhi Land Reforms (Amendment) Act (No. IV of 1959) which came into force on the 12th of March, 1959, will also affect the cases decided before that date. P. D. Sharma J. considered that the decision would be of general importance and deserved authoritative pronouncement by a larger Bench, and that is how the writ petition was placed before the Division Bench.
(2.) THE material facts are not in dispute and are as follows: The land in dispute measuring 50 Bighas 18 Biswas is situated in village Saboli (Delhi State) and was mortgaged by Udmi and Chhajjan by means of a registered deed, dated the 12th of July, 1959, in favour of Gyasa and Bahal. Sub -section (1) of section 15 of the Act provided that a mortgagee in possession of an estate or share therein shall cease to have any right in such estate or share if the proprietor -mortgagor deposited the mortgage money together with interest thereon in Government treasury and applied for redemption of the mortgage in the proper Court within a period of nine months from the commencement of this Act. The Act came into force on the 20th July, 1954, and within nine -months thereof the mortgagors applied for redemption of the mortgage and also deposited the mortgage money. In the meanwhile, they sold their rights in the property to Shrimati Shanti Devi and Shri Yashpal (the present petitioners), who also joined in the application for redemption of the mortgage. The respondents to that application were Gyasa (respondent No. 2), one of the original mortgagees, and Mst. Bharto, the widow and successor -in -interest of Bahal. The case was heard and decided on the 21st of September, 1957, by Shri Harphool Singh, Revenue Assistant, Delhi, and the decision was according to the provisions of subsection (2) of section 15 of the Act which are as follows: 15(2). If the proprietor mortgagor shall forthwith produce the treasury challan and a copy of the plaint before the Revenue Assistant, who shall, after giving the interested parties an opportunity of being heard direct that so much of the mortgaged area, as, have been the Sir or Khud Kasht of the mortgagor on the date of the mortgage was under the personal cultivation of the mortgagee on the date of application for redemption by the proprietor mortgagor under sub -section (1) be included in the proprietor mortgagees Bhumidari area. The two questions, therefore, which under this provision fail for decision were: 1. Was the land in the cultivation of the mortgagors at the time of the mortgage? 2. Was the land in the cultivation of the mortgagees on the date the application for redemption by the proprietor -mortgagor under subsection (1) of section 15 of the Act was made? and, accordingly, the issues as under were trained by the Revenue Assistant: 1. Was the land in the cultivation of the mortgagor at the time of the mortgage ? 2. Was the land in the cultivation of the mortgagees at the time the application was made? Relief? 3. On issue No. 2, he held on the basis of the Khasra Girdawari that the entire mortgaged land was in the cultivating possession of Gyasa as tenant -at -will at the time of the making of the application for redemption, and that Bahal had since died issueless. The second issue was therefore, decided in favour of the applicants, and on that there was no controversy at any stage. On issue No. 1, he held that in Rabi 1945 the land was in the cultivating possession of Bahal and not in the cultivation of the mortgagors. In the result, he concluded that the applicants, viz., the mortgagors, could not be declared Bhumidars of the land under mortgage, and he declared that the disputed land shall be included in the Bhumidari of Gyasa mortgagee. Against this order an appeal under the provisions of section 185 read with Schedule I of the Act was taken to the Collector, and the Additional Collector, by his order date 1 the 18th of February, 1959, dismissed the appeal with costs.
(3.) SECTION 187 of the Act gives a revisional power to the Chief Commissioner, Delhi, and is in the following terms: 187. Power of Chief Commissioner to call for cases. - The Chief Commissioner may call for the record of any suit or proceedings referred to in Schedule I decided by any subordinate Court in which no appeal lies, or where any appeal lies but has not been preferred, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of jurisdiction illegally or with material irregularity, the Chief Commissioner may pass such order in the case as he thinks fit.;