Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 574 (HP)

Pholo Ram v. Financial Commissioner

2014-05-14

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. Pertinent facts necessary for adjudication of this petition are that the petitioner applied for partition of the land measuring 9 bighas, comprised in Khasra Nos. 555, 392, 393, 395, 396, 398 and 402, Kita 7, Khata Khatauni No.164/249, situated in revenue Village Berthin, Pargana Sunhani, Tehsil Jhanduta, District Bilaspur, H.P., jointly owned by him, predecessor-in-interest of respondents No. 3 to 8, namely, Jindu Ram and predecessor-in-interest of proforma respondents No. 9 to 11, Sant Ram, before the Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur. It was registered as Misal No.24/09. The mode of partition was framed on 4.6.1992 vide Annexure P-1. Petitioner raised objections against the mode of partition before the Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur. 2. The Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur, allowed the objections on 18.3.1993. Predecessor-in-interest of respondents No. 3 to 8 preferred an appeal against the order dated 18.3.1993 before the Collector, Sub-Division Ghumarwin. The Collector, Sub-Division Ghumarwin dismissed the appeal on 13.12.1994. Predecessor in-interest of respondents No. 3 to 8 again preferred an appeal before the Divisional Commissioner, Mandi against the order dated 13.12.1994. The Divisional Commissioner, Mandi, made a reference to respondent No.1 Financial Commissioner (Appeals) vide reference dated 19.11.1999. It was registered as revision petition No.77/2000. Respondent No.1 vide order dated 5.9.2005 remanded back the matter to the Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur with a direction to provide an opportunity of being heard to all the concerned parties on the issue of allotment of land abutting the road side and if any amendment in the mode of partition dated 4.6.1992 was required, he could do so after following the due procedure under law. 3. The Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur confirmed the mode of partition of the land dated 4.6.1992 vide order dated 23.10.2006 instead of complying with the order dated 5.9.2005 passed by respondent No.1. The petitioner filed an appeal against the order dated 23.10.2006 before the Collector, Sub-Division Ghumarwin. He allowed the appeal on 5.5.2007. Predecessor-in-interest of respondents No.3 to 8 preferred an appeal before the Divisional Commissioner, Mandi against the order dated 5.5.2007. The Divisional Commissioner Mandi allowed the appeal vide order dated 9.10.2009. The petitioner preferred a revision petition against the order dated 9.10.2009 before respondent No.1. Respondent No.1 dismissed the revision petition on 29.10.2011. Hence, the petition. 4. Predecessor-in-interest of respondents No.3 to 8 preferred an appeal before the Divisional Commissioner, Mandi against the order dated 5.5.2007. The Divisional Commissioner Mandi allowed the appeal vide order dated 9.10.2009. The petitioner preferred a revision petition against the order dated 9.10.2009 before respondent No.1. Respondent No.1 dismissed the revision petition on 29.10.2011. Hence, the petition. 4. What emerges from the facts, enumerated here-in-above, is that the petitioner applied for partition of the land jointly owned by the parties. The mode of partition was framed on 4.6.1992. Petitioner raised objections against the mode of partition before the Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur. He allowed the objections on 18.3.1993. On the reference made by the Divisional Commissioner, Mandi, respondent No.1 Financial Commissioner (Appeals) remanded 1st back the matter to the Assistant Collector, Grade, Ghumarwin, District Bilaspur vide order dated 5.9.2005 by setting aside the orders dated 18.3.1993 and 13.12.1994. He directed the Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur to provide an opportunity of being heard to all the concerned parties on the issue of allotment of land abutting the roadside and if any amendment in the mode of partition dated 4.6.1992 was required, he could do so after following the due procedure under law. However, surprisingly enough, the Assistant Collector, 1st Grade, Ghumarwin, District Bilaspur instead of complying with the order dated 5.9.2005 passed by respondent No.1 re-confirmed the mode of partition of the land dated 4.6.1992 vide order dated 23.10.2006 on the ground that he had no jurisdiction to review the order passed by his predecessor. He has definitely misdirected himself. There is a detailed procedure prescribed to review the order passed by the Revenue Officer under Section 16 of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as the “Act” for the sake of convenience). According to Section 16 (a) of the Act, when a Commissioner or Collector thinks it necessary to review any order which he has not himself passed and when a Revenue Officer of class below that of Collector proposes to review any order whether passed by himself or by any of his predecessors in office, he has to first obtain the sanction of the Revenue Officer to whose control he is immediately subject. 5. Thereafter, an appeal preferred by the petitioner against the order dated 23.10.2006 was allowed by the Collector, Sub-Division Ghumarwin by passing a detailed order on 5.5.2007. 5. Thereafter, an appeal preferred by the petitioner against the order dated 23.10.2006 was allowed by the Collector, Sub-Division Ghumarwin by passing a detailed order on 5.5.2007. He had carried out the spot inspection on 28.4.2007 in the presence of the parties, their respective Advocates and local residents. According to spot inspection, Khasra Nos. 396, 398, 402 and 395 were situated along the side of the road passing through Berthin Bazaar-Community Hospital-Sargal. Khasra Nos.402, 396, 398/2 were covered under shops/houses of parties and only Khasra Nos.398/1 and 395 were vacant on the spot. Jindu Ram, predecessor-in-interest of respondents No. 3 to 8 was in possession of Khasra No.402 measuring 0-11 bighas and Khasra No.396/1 measuring 0-3 bigha, whereas Sant Ram, predecessor-in-interest of proforma respondents No. 9 to 11, was in possession of Khasra Nos.396/2 and 398/2. The petitioner was neither in possession nor he had raised any structure over any khasra number on road side, except two shops in Khasra No.401, which was not part of this khata number and was classified as ‘Abadi Deh’. The price of land by the side of the road was higher and Jindu Ram was already in possession of 0-14 bigha, out of his total share of 3-0 bigha. Accordingly, the Collector, Sub-Division Ghumarwin set aside the order dated 23.10.2006 and the appeal was converted into a review petition and the Assistant Collector, 1st Grade, Ghumarwin was allowed to review his order dated 16.6.1992 by modifying it and to include the clause for equitable allotment along the road side and subsequently implement the scheme of allotment already proposed upon amendment on 8.6.1993 by the field agency. 6. The Divisional Commissioner vide order dated 9.10.2009 has noticed the contention of Jindu Ram that family partition took place twenty years ago and since then the land allotted to him in the family partition was under his possession. However, so called family partition has not been placed on record. In case any partition had taken place as per stand of Jindu Ram, the same ought to have been reflected in the revenue record. Learned Divisional Commissioner has also omitted to take into consideration the specific order passed by respondent No.1 while remanding the case on 5.9.2005. However, so called family partition has not been placed on record. In case any partition had taken place as per stand of Jindu Ram, the same ought to have been reflected in the revenue record. Learned Divisional Commissioner has also omitted to take into consideration the specific order passed by respondent No.1 while remanding the case on 5.9.2005. Respondent No.1 had specifically directed the Assistant Collector, 1st Grade to pass orders after hearing all the parties on the issue of allotment of the land abutting the roadside and if any amendment in the mode of partition dated 4.6.1992 was required, he could do so after following the due procedure under law. The Assistant Collector, 1st Grade, has overlooked the order passed by respondent No.1 dated 5.9.2005. He has also not rightly construed Section 16 of the Act. This aspect of the matter has also been overlooked by the Divisional Commissioner, Mandi in his order dated 9.10.2009. The order was required to be passed by the Assistant Collector, 1st Grade, after remand, strictly as per the law. Respondent No.1 has also not appreciated the record correctly. He recorded that since the petitioner had sold a portion of the land, he was not entitled to possession of land abutting the road side. The land was sold by the petitioner from a separate khata. He has also come to the wrong conclusion that the parties had agreed to the mode of partition, since immediately after 4.6.1992 objections were filed by the petitioner, which were allowed by the Assistant Collector, 1st Grade. The Assistant Collector, 1st Grade, after remand, was required to look into the entire gamut of the case instead of confirming the earlier mode of partition on 4.6.1992. He was duty bound to ensure that all the parties got equitable possession of the land abutting the road side. The land butting the road side is valuable. Jindu Ram was also in possession of the land abutting the road side. It cannot be said that the appeal against the order dated 23.10.2006 was not maintainable since the Assistant Collector, 1st Grade, has totally misdirected himself by not referring to the plain language of Section 16 of the Act. 7. The land butting the road side is valuable. Jindu Ram was also in possession of the land abutting the road side. It cannot be said that the appeal against the order dated 23.10.2006 was not maintainable since the Assistant Collector, 1st Grade, has totally misdirected himself by not referring to the plain language of Section 16 of the Act. 7. Accordingly, in view of the discussion and analysis made hereinabove, the writ petition is allowed and order dated 9.10.2009 Annexure P-6, and order dated 29.10.2011 Annexure P-8 are quashed and set aside and order dated 5.5.2007 passed by the Collector, Sub-Division Ghumarwin is restored. Consequently, steps be taken within a period of eight weeks from today on the basis of order dated 5.5.2007, Annexure P-5. Pending application(s), if any, also stands disposed of. No order as to costs.