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2013 DIGILAW 888 (PNJ)

Capital Builders v. Financial Commissioner

2013-07-22

Rakesh Kumar Jain

body2013
JUDGMENT Mr. Rakesh Kumar Jain, J.:- The petitioner has assailed validity of order dated 15.05.2013 passed by the Financial Commissioner (Revenue), Haryana. 2. Brief facts of the case are that respondent no.7 filed an application for partition of land measuring 32 Kanals 07 Marlas, falling in the revenue estate of village Fazilpur Jharsa, Tehsil and District Gurgaon, under Section 111 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as the “Act”) before the Assistant Collector 2nd Grade, Gurgaon. Respondent no.6 was proceeded against ex-parte on 12.12.2007 and the mode of partition was confirmed on 13.01.2008 after rejecting the objections of respondent no.6. Naksha Be was prepared on 22.01.2008 and ‘Sanad Taqsim’ was issued on 29.01.2008. The appeal preferred by respondent no.6 was dismissed by the Collector on 14.03.2011 on the ground that since the entire land has been acquired, therefore, there was no justification in continuing with the partition and revision filed before the Divisional Commissioner was also dismissed on 04.05.2011. It is pertinent to mention that respondent no.6 also filed a Civil Suit but it was later on withdrawn. 3. The case set up by respondent no.6 was that the Assistant Collector 2nd Grade has acted illegally in not effecting personal service upon him in terms of Section 20 of the Act and proceeded against him ex-parte on the basis of proclamation (Mustri Munadi). It is also his case that though the Financial Commissioner, vide her order dated 21.09.2011, stayed alienation of the land in dispute till the finalization of the proceedings pending before her, yet respondent no.7 sold the land in dispute to the petitioner herein. 4. The Financial Commissioner framed following 3 questions while deciding the revision petition:- “1. Whether the provisions of Section 20 of Punjab Land Revenue Act, 1887 has been complied with by Assistant Collector 2nd Grade, Gurgaon? 2. Whether order dated 13.01.2008, 22.01.2008 and 29.01.2008 passed by Assistant Collector 2nd Grade, Gurgaon are in conformity with the provisions of Punjab Land Revenue Act, 1887? 3. Whether orders dated 04.05.2011 and 14.03.2011 passed by Commissioner, Gurgaon Division, Gurgaon, Sub Divisional Officer (Civil)-cum-Collector, Gurgaon respectively, are in accordance with law?” 5. As regards the first question, it has been categorically held that there has been no personal service upon respondent no.6, which is in violation of Section 20 of the Act. 3. Whether orders dated 04.05.2011 and 14.03.2011 passed by Commissioner, Gurgaon Division, Gurgaon, Sub Divisional Officer (Civil)-cum-Collector, Gurgaon respectively, are in accordance with law?” 5. As regards the first question, it has been categorically held that there has been no personal service upon respondent no.6, which is in violation of Section 20 of the Act. In respect of second question, it has been held that the order for proclamation was issued on 13.12.2007 to appear on 17.12.2007. The proclamation was done on 15.12.2007. The Naksha Be was sanctioned on 22.01.2008, Naksha Jeem on 25.01.2008 and it has been strongly observed that the Assistant Collector 2nd Grade was not familiar with the rudimentary revenue law because Sanad Taqsim was issued on 29.01.2008, whereas statutory period of 30 days of filing appeal was required after approval of final partition before issuance of Sanad Taqsim. As regards the third issue, it has been observed that on the one hand it is mentioned in the concluding para that as the entire land has been acquired, so there is no justification in partition and on the other hand the appeal against the same has been dismissed. In case the entire land is acquired, the sanctioning of partition should have been set aside. It has also been observed that as per award no.60 for the year 2009-10, land bearing Khasra No.55/2/2, 55/3/1, measuring 08 Kanals 02 Marlas has not been acquired. 6. Consequently, orders of the Courts below were set aside by the Financial Commissioner and the Deputy Commissioner, Gurgaon, was directed to take corrective measures and initiate disciplinary proceedings for major penalty under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 against the Assistant Collector 2nd Grade, Gurgaon, for the illegalities and infirmities committed by him. The Financial Commissioner also sought for the compliance report within a period of one month thereafter. 7. Opening his arguments, counsel for the petitioner has referred to page 84 of the writ petition indicating the land of respondent no.6, which is shown in pink colour, and the land of the petitioner, which is shown in green colour. It is submitted that the land which is now shown with dotted lines has already been acquired and constructed and, thus, there is no issue of partition left with regard to this land. It is submitted that the land which is now shown with dotted lines has already been acquired and constructed and, thus, there is no issue of partition left with regard to this land. He has further submitted that the land of respondent no.6 has already been acquired, therefore, by remanding the case to the Assistant Collector 2nd Grade for the purpose of partition, respondent no.6 is not going to get any benefit out of it. 8. On the other hand, counsel for the caveator has submitted that the petitioner was not a party to the partition proceedings rather it has purchased the share of respondent no.7 who had initiated the partition proceedings. It is further submitted that though the Financial Commissioner, vide order dated 21.09.2011, passed a prohibitory order of alienation of any portion of the land which is subject matter of partition till the finalization of the proceedings pending before it, yet respondent no.7 sold its share to the petitioner and for this willful disobedience, the contempt petition is also pending in this Court. 9. I have heard learned counsel for the parties, perused the record and in my view, there is no error in the order of the Financial Commissioner dated 15.05.2013. 10. The most important issue in this case is about the proceedings which have been carried out by the Assistant Collector 2nd Grade in the matter of service of notice upon respondent no.6, which were in clear violation of Section 20 of the Act, which is reproduced as under for the ready reference:- “20. Mode of service of summons: - (1) A summons issued by a Revenue-officer shall, if practicable, be served (a) personally on the person to whom it is addressed, or, failing him (b) his recognized agent or (c) an adult male member of his family usually residing with him. Mode of service of summons: - (1) A summons issued by a Revenue-officer shall, if practicable, be served (a) personally on the person to whom it is addressed, or, failing him (b) his recognized agent or (c) an adult male member of his family usually residing with him. (2) If service cannot be so made, or if acceptance of service so made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or if that person does not reside in the district in which the Revenueofficer is employed and the case to which the summons relates has reference to land in that district, then by posting a copy of the summons on some conspicuous place in or near the estate wherein the land is situate. (3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue-officer so directs, be served by delivery of a copy thereof to such of those persons as the Revenue-officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested. (4) A summons may, if the Revenue-officer so directs, be served on the person named therein, either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the person and registered under Part III of the Indian Post Office Act, 1866. (5) When a summons is so forwarded in a letter, and it is proved that the letter was properly addressed and duly posted and registered, the Revenue-officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course of post.” 11. According to the aforesaid provisions, the personal service upon respondent no.6 in the partition proceedings is a sine qua non and in case of refusal, the summons may be served by pasting a copy thereof on the outer door of the house of the person to whom it is addressed. According to the aforesaid provisions, the personal service upon respondent no.6 in the partition proceedings is a sine qua non and in case of refusal, the summons may be served by pasting a copy thereof on the outer door of the house of the person to whom it is addressed. Insofar as the question of proclamation is concerned, it is the last resort which is provided under Section 20(3) of the Act, but in the present case the procedure of proclamation, which is a substituted mode of service, has been adopted at first instance so that respondent no.6 may not be served and the partition proceedings may be carried out behind his back in a clandestine manner after proceeding against him ex-parte. 12. Counsel for the petitioner has failed to demolish the finding of the Financial Commissioner on the first issue which vitiates the entire partition proceedings. The question raised by the petitioner that the land has been acquired and constructed would make no difference because there is a complete violation of the mandatory provisions of law by the Assistant Collector 2nd Grade, Gurgaon, at the time when he dealt with the partition application in which the land of a villager (respondent no.6) is involved. 13. In view of the aforesaid discussion, I do not find any merit in the present writ petition and hence, the same is hereby dismissed. ---------0.B.S.0------------ ——————————