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2008 DIGILAW 810 (PNJ)

Vijay Kumar v. Ram Kanwar

2008-03-31

L.S.M.SALINS

body2008
ORDER This is a revision petition under section 16(1) of the Punjab Land Revenue Act 1887 against the order dated 18.8.2000 passed by the Assistant Collector I Grade; Matanhail; order dated 11.10.2001 passed by the Collector Jhajjar; and order dated 24.11.2005 passed by the Commissioner Rohtak; for acceptance of the petition by setting aside the impugned orders. 2. The petitioners claimed that the Collector had dismissed the appeal filed against the order of the Assistant Collector I Grade on the ground of limitation without deciding specifically the application filed for condonation of delay. That the Assistant Collector I Grade also dismissed the objections dated 18.8.2000 in a cursory manner without deciding on the objections and not passing speaking orders. It has been alleged that the Mode of Partition has been violated and possessions which were to be kept intact as per the Mode of Partition have been broken up and redistributed. ­ 3. Both sides were heard, written arguments were submitted by the counsel for the petitioners which are placed on record. 4. After hearing/reading the arguments and reserving the case for orders on 27.3.2008 it was observed that a clarification was needed regarding an admission/approval alleged to have been made by the petitioners Vijay Kumar and Kanwar Singh to the naksha ‘Be’ as argued by the counsel for respondents. As counsel for petitioners had not argued but had submitted only written arguments, it was felt this aspect needed a clarification. Hence the matter was again heard on 27.3.2008 and as the counsel for the petitioners requested for time to peruse his papers, the case was posted for hearing and orders for 31.3.2008. Today, 31.3.2008 both sides being present through their counsels, the matter was heard regarding the approval to naksha ‘Be’ allegedly given by Vijay Kumar and Kanwar Singh. 5. As far as the dismissal of the case on ground of limitation is concerned, the Collector was within his right to reject the case on ground of limitation. The Commissioner found nothing wrong in, Collector’s order. It has been argued by petitioner's counsel that the lower court i.e. Assistant Collector I Grade actually dismissed the objections on 15.9.2000 but the order on the file was shown as 18.8.2000. The appellants had appealed on 18.9.2000 in view of the actual date of dismissal and so it may be deemed as within limitation. It has been argued by petitioner's counsel that the lower court i.e. Assistant Collector I Grade actually dismissed the objections on 15.9.2000 but the order on the file was shown as 18.8.2000. The appellants had appealed on 18.9.2000 in view of the actual date of dismissal and so it may be deemed as within limitation. However, there is no evidence on the file that the order was actually announced on 15.9.2000 but shown as 18.8.2000. Hence this argument is not acceptable. Collector on his part did not agree to condonation of the delay and was within his right to do so. 6. Petitioner's counsel stated that possessions of the parties have been radically altered and in direct contravention of the Mode of Partition. I find that the concerned clause in the Mode of Partition claimed by petitioners’ counsel, while enjoining that possession of the parties be kept intact, nevertheless also envisages and permits redrawing the contours of each holding in order to facilitate a proper partition. Hence this objection of the-petitioners is not valid. 7. A plea was taken by the counsel for respondents that four co-sharers including the petitioners who filed objections against the Naksha ‘Be’ subsequently gave statements that they were satisfied with the partition proceedings. That is, after it was agreed that a separate kurra would be made, Mode of Partition was amended and naksha ‘Be’ redrawn accordingly as per the revised Mode of Partition. The naksha ‘Be’ thus drawn up was accurate and reflected the agreement/conceded terms of Mode of Partition. Hence the objections of the petitioners have no force it was argued. 2006(1) PLJ 364 & 1981 PLJ 204 were cited to state that once consent was given to naksha ‘Be’ the petitioners have no locus standi to challenge the same again. 8. Commissioner has agreed with this line of argument. The Collector gave no opinion having dismissed the case on ground of limitation. The petitioners’ counsel replied that the naksha ‘Be’ that was originally drawn up as agreed upon was revised subsequently. They have no objection, to the naksha ‘Be’ that was initially drawn up. The attention of the counsels of both sides was drawn to the absence of any order allowing or approving the amendment of Mode of Partition. The petitioners’ counsel replied that the naksha ‘Be’ that was originally drawn up as agreed upon was revised subsequently. They have no objection, to the naksha ‘Be’ that was initially drawn up. The attention of the counsels of both sides was drawn to the absence of any order allowing or approving the amendment of Mode of Partition. The Mode of Partition was amended by the Assistant Collector I Grade on the consent of the concerned parties but once having earlier drawn up the Mode of Partition he was not authorized to amend or review it without the Collector’s permission. Therefore the subsequent Mode of Partition and the naksha ‘Be’ drawn up thereafter was without sanction of the law and cannot be upheld. The Collector’s and Commissioner’s impugned orders are based on the amended Mode of Partition as is the impugned order of the Assistant Collector I Grade. Hence these being without the force of law are liable/to be set aside. 9. Perusal of the record and the impugned order of the Assistant Collector I Grade nowhere reveal that the Assistant Collector I Grade either visited the site or filed any inspection report. 10. The Assistant Collector-I Grade vide impugned order dated 18.8.2000 also appears to have summarily rejected the objections as being without merit. The petitioners’ argument that this order is cursory, cryptic and without assigning reasons has force. The Commissioner, in his impugned order, has pointed out in para 3 that “counsel for the contesting respondents stated that as per version of the petitioners, passage runs through the house of Shri Laxmi Narain (Lakshmi Narain respondent 26 in this petition) but no appeal has been made by him and the petitioner cannot have objection on behalf of Shri Laxmi Narain.” Regarding this, both counsels for the respondents pointed out that the path passes through the tube well area of Lakshmi Narain but not through the tube well (machinery) building. This, it was pointed out, was clear from Collector’s order. The petitioners cannot raise an objection on behalf of Lakshmi Narain, respondent. 11. However, the Commissioner’s order on the contrary mentions that the path passes through the house of Lakshmi Narain. Even though, as argued by the respondents’ counsels, Lakshmi Narain had not objected and petitioners are not affected, their objection nevertheless has to be taken cognizance of by the revenue authorities. 11. However, the Commissioner’s order on the contrary mentions that the path passes through the house of Lakshmi Narain. Even though, as argued by the respondents’ counsels, Lakshmi Narain had not objected and petitioners are not affected, their objection nevertheless has to be taken cognizance of by the revenue authorities. The Assistant Collector I Grade is responsible for making a proper partition and it is not in order for a path that is subservient to agriculture pass through a co sharer’s house. Though Collector records argument of respondents that it passes by the tube well area of Lakshmi Narain, Commissioner’s order states ‘house’. The Assistant Collector I Grade, not having visited the site, (or atleast it is not recorded as such) though counsel for respondents argued as much before Collector, ought to have resolved it. Indeed, if he really had visited the site he would have or ought to have made mention of it and so resolved the apparent contradiction. The two maps of the proposed partitioned land (naksha ‘Be’) does not indicate the tube well anywhere. It is objectionable on the part of the Revenue Officers to allow such a potential situation that can create future problem of access without fully satisfying themselves and justifying facts. It appears to be questionable as to how rasta can be drawn up and given through somebody’s house. Therefore, an aberration on the face of it has not been addressed by the Assistant Collector I Grade in disposing of the objections vide his impugned order. 12. While, as already mentioned above, the Revenue Officer ahs been given the authority to redraw the holding and change the possession if necessary the objections of parties have to be specifically addressed by the Assistant Collector-I Grade and decided either way without resorting to short cut by a broad sweep of the pen and saying the objections are without force without an iota of explanation. 13. In view thereof, the three impugned orders are set aside and the case remanded to Assistant Collector I Grade to seek approval for any amendment to the Mode of Partition and also address all the objections/concerns of all coshares especially the objections raised by petitioners on 11.8.2000 in a speaking order after visiting the site and drawing up an inspection report dealing with the objections in the light of status on the ground. Case to come up before Assistant Collector I Grade on 26th May 2008. The Assistant Collector I Grade is further directed to dispose of this case in three months w.e.f. 26.5.2008. Announced. ————————