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2001 DIGILAW 253 (PNJ)

Jagat Singh v. Sat Pal

2001-02-22

V.K.JHANJI

body2001
ORDER V.K. Jhanji, J. - This shall dispose of Civil Writ Petitions No. 5820 and 5821 at 1997 as common question of law and facts is involved therein. For facility of reference, facts are taken from CWP No. 5821 of 1997. 2. In this writ petition filed under Article 226 of the Constitution of India, prayer made is for issuance of writ of Certiorari quashing order dated 12.9.1996 passed by the Collector, Gurgaon, and also order dated 6.2.1997 passed by the Commissioner, Gurgaon Division, Gurgaon. 3. In brief, the facts are that the petitioners along with respondents are recorded as co-sharers in the agricultural land measuring 24 bighas 18 Biswas situated in village Basai, Tehsil and District Gurgaon. Partition proceedings are pending between the petitioners and respondents since 1991. Vide order dated 2.3.1994. Financial Commissioner remanded the case to the Assistant Collector I Grade, Gurgaon, to proceed with the partition proceedings in accordance with the directions given in the order and on the basis of well established guidelines/principles recognised in this regard. On remand, petitioners as well as respondents appeared before the Assistant Collector I grade, Gurgaon. Vide order dated 6.6.1994 (Annexure P-2), Assistant Collector I grade proposed the mode of partition. On the same date, vide order, Annexure R-1/1, he directed that file be put up on 22.6.1994 for objections against the proposed mode of partition. On 11.12.1995, he directed that file be produced on 22.12.1995 for preparation of Naqsha Be in conformity with order dated 6.6.1994. Respondents feeling aggrieved of the proposed mode of partition decided on 6.6.1994 and 11.12.1995, filed revision petition before the Collector, Gurgaon. The District Collector, Gurgaon, after perusal of record came to the conclusion that while determining the proposed mode of partition dated 6.6.1994, Assistant Collector had not kept in view the directions given by the Financial Commissioner in his order dated 2.3.1994 and had also not kept in view the kind, cultivation and price of the land, which was possible only after making a detailed enquiry. He thus, set aside order dated 6.6.1994 and referred the case to the Commissioner with the recommendation that Assistant Collector I grade be directed to comply with the order of the Financial Commissioner and determine the mode of partition after taking into consideration the kind, cultivation and price of the land. The Commissioner after hearing the parties upheld the order of the Collector. The Commissioner after hearing the parties upheld the order of the Collector. Hence the present writ petition against the order of the Collector and the Commissioner. 4. In this writ petition, learned counsel appearing on behalf of petitioners has contended that order dated 6.6.1994 had become final as neither the petitioners nor respondents had filed appeal against the said order. He further contended that order of Assistant Collector dated 11.12.1995 was only a formal order to prepare Naqsha Be in accordance with the mode of partition decided on 6.6.1994 and was not appealable or revisable and so, the orders of the Collector and the Commissioner being without jurisdiction, deserve to be quashed. Against this, learned counsel appearing on behalf of respondents contended that order dated 6.4.1994 was not appealable inasmuch as earlier, the Assistant Collector I grade had been directed by the Financial Commissioner to proceed with the partition proceedings in accordance with the directions given by the Financial Commissioner, but the Assistant Collector had acted against the directions of the Financial Commissioner and therefore, revision petition was filed before the Collector, for a direction to the Assistant Collector to proceed with the partition proceedings in accordance with the directions of the Financial Commissioner. He further contended that some part of the land had been acquired but the Assistant Collector had not taken that into consideration. 5. After hearing the learned counsel and going through the record, I am of the view that writ petition is devoid of any merit. Partition proceedings between the parties are pending since long. The matter had earlier come in revision (ROR Nos. 184 and 185/1991-92) before the Financial Commissioner. Vide Order dated 2.3.1994, the Financial Commissioner did not agree with order dated 5.3.1992 of the Commissioner and remanded the case to the Assistant Collector I grade with certain directions to proceed with the partition proceedings. In pursuance of directions of the Financial Commissioner, Assistant Collector vide order dated 6.6.1994 proposed the mode of partition and adjourned the case of 22.6.1994 for filing of objections against the proposed mode of partition. Respondents filed objections (Annexure R-1/2) but the Assistant Collector without looking into the objections, vide order dated 6.12.1995 directed that the file be produced on 22.12.1995 for preparation of Naqsha Be in conformity with order dated 6.6.1994. Respondents filed objections (Annexure R-1/2) but the Assistant Collector without looking into the objections, vide order dated 6.12.1995 directed that the file be produced on 22.12.1995 for preparation of Naqsha Be in conformity with order dated 6.6.1994. It is this order of which respondents felt aggrieved because their objections had not been determined and Naqsha Be was ordered to be prepared in accordance with the mode of partition dated 6.6.1994 against which respondents had already filed objections. Since the Assistant Collector by the proposed mode of partition dated 6.6.1994 had not finally determined the rights between the parties and had kept the case for filing objections, respondents were not aggrieved and for that matter, they did not choose to file any appeal against the said order. It is only when order dated 11.12.1995 was passed that respondents filed revision petition before the Collector bringing to his notice that the Assistant Collector is not proceeding with the partition proceedings in accordance with the directions of the Financial Commissioner. Order dated 11.12.1995 was not appealable as it was only an interlocutory order, not determining the rights of the parties and therefore, the contention in this regard is without any merit. On merits too, I find that the Collector and the Commissioner have not committed any illegality in remanding the case to the Assistant Collector with a direction to proceed with the partition proceedings in accordance with the directions of the Financial Commissioner. It is worth noticing that during partition proceedings, land comprised in Khasra Nos. 539 and 561 was acquired by the State Government and award No. 15 dated 14.3.1991 was passed by the Land Acquisition Collector. Between the parties, there was a dispute regarding apportionment of compensation and the matter was referred to the District Judge, Gurgaon under Section 30 of the Land Acquisition Act for adjudication. The learned Additional District Judge vide judgment dated 30.3.1995 apportioned the amount of compensation in equal share i.e. 1/4th share each. Respondents have withdrawn their 3/4th share. Against judgment dated 30.3.1996, petitioners had filed R.F.A. No. 375 of 1996. At the hearing of the writ petition, learned counsel appearing on behalf of petitioner fairly conceded that the first appeal has since been dismissed and no further appeal was taken, meaning thereby that dispute regarding apportionment of compensation has become final between the parties. Against judgment dated 30.3.1996, petitioners had filed R.F.A. No. 375 of 1996. At the hearing of the writ petition, learned counsel appearing on behalf of petitioner fairly conceded that the first appeal has since been dismissed and no further appeal was taken, meaning thereby that dispute regarding apportionment of compensation has become final between the parties. In the mode of partition dated 6.6.1994, Assistant Collector had also included Khasra Nos. 539 and 561 in the holding for the purpose of partition but since these two khasra numbers ceased to be owned by the parties, the same could not from part of the joint holding of the parties. Only the land which remained joint between the parties could have been partitioned, but that was not done by the Assistant Collector and, therefore, the Commissioner and the Collector vide the impugned orders rightly directed the Assistant Collector to proceed with the partition proceedings in accordance with law. Consequently, the writ petitions, CWP Nos. 5820 and 5821 of 1997, being without any merit shall stand dismissed. Writ Petition dismissed.