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2015 DIGILAW 1017 (HP)

Karan Singh v. Shakuntala Devi

2015-08-05

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, J. This Letters Patent Appeal is directed against the judgment dated 22nd June, 2007, passed by the learned Single Judge in CWP No. 807 of 2006, titled Smt. Shakuntala Devi versus Karan Singh and others others, whereby the order dated 20.06.2006, made by the Financial Commissioner (Appeals) in Revision Petition No. 27 of 2004 came to be set aside, for short ‘the impugned judgment’. Brief Facts: 2. By the medium of the writ petition, writ petitionerrespondent herein has questioned the order dated 20th June, 2006 made by the Financial Commissioner (Appeals), Himachal Pradesh, Shimla, in Revision Petition No. 27 of 2004, on the grounds taken in the memo of the writ petition. 3. The writ petition came to be allowed vide impugned judgment dated 22.06.2007. It is apt to reproduce the operative portion of the impugned judgment herein:- “It is evident from order dated 4.1.1999 that the partition was to be carried out in the manner prescribed therein. The order dated 23.3.2002 was not in conformity with order dated 4.1.1999. A specific ground had been taken before the Collector that vide order dated 23.3.2002 the partition was effected against the sanctioned mode of partition. The appellate authorities had over looked the order dated 4.1.1999 on the basis of which the partition was to be effected. The learned Divisional Commissioner had come to the just conclusion that while sanctioning the final partition, the learned Assistant Collector Ist Grade had prepared three khatas and also created a new path for the respondent through Khasra No. 1214/3 in violation of sanctioned mode of partition as well as against the report of the Local Commissioner was not agreed to. It was incumbent upon the Assistant Collector Ist Grade to seek necessary approval of the competent authority to review the mode of partition. The Financial Commissioner (Appeals) was required to look into the recommendations made by the Divisional Commissioner. The mode of partition sanctioned vide order dated 4.1.1999 could not be deviated by the Assistant Collector Ist Grade without seeking the approval for its review. The finding recorded by the Financial Commissioner (Appeals) that the plea of the petitioner was mere technicality is not based on any reasoning. The learned Financial Commissioner (Appeals) was required to go into the entire gamut of the matter instead of abruptly coming to the conclusion that litigation should come to an end. The finding recorded by the Financial Commissioner (Appeals) that the plea of the petitioner was mere technicality is not based on any reasoning. The learned Financial Commissioner (Appeals) was required to go into the entire gamut of the matter instead of abruptly coming to the conclusion that litigation should come to an end. Accordingly, the writ petition is allowed. The order dated 20.6.2006 is quashed and set aside. The order passed by the Divisional Commissioner recommending the case of the Financial Commissioner (Appeals) dated 18.3.12004 is upheld. It is further directed that the partition be carried out on the basis of the instrument of partition drawn on 4.1.1999 within a period of six weeks from today. There shall however, no order as to costs.” 4. The parties had initiated partition proceedings before the Revenue Courts. 5. The Divisional Commissioner, Kangra Division at Dharamshala passed order dated 18.3.2004 in Revision Petition No. 349 of 2003, titled Smt. Sudarshana Devi versus Shri Karan Singh and made recommendation to the Financial Commissioner (Appeals). It is apt to reproduce relevant portion of para 7 and para-8 of the order, supra, herein: “7.……….It was all the more important that total land of the parties should have been partitioned as applied for so as to avoid such occurrences in future. Therefore, the orders passed by both the courts below suffer from grave irregularity and manifest illegality which cannot stand in the eyes of law. Both the orders deserve to be set aside and the case remanded back to the Ld. A.C. Ist Grade, Dehra for de novo proceedings as per sanctioned Mode of Partition. 8. In view of the above discussions, the case is recommended to the Financial Commissioner (Appeals) Himachal Pradesh for passing such orders as he may deem fit. The file of this court alongwith the cord of the lower courts be also sent with this order.” 6. The Divisional Commissioner had made recommendations for setting aside the orders made by both the Courts, subordinate to it, and directed the learned Assistant Collector 1st Grade, Dehra to initiate fresh partition proceedings, as per the sanctioned Mode of Partition. 7. The Financial Commissioner (Appeals) passed order dated 20th June, 2006 in Revision Petition No. 27 of 2004, whereby the recommendations made by the Divisional Commissioner vide order dated 18.03.2004 were rejected and Revision Petition No. 30/2004 filed by appellant Shri Karan Singh was allowed. 8. 7. The Financial Commissioner (Appeals) passed order dated 20th June, 2006 in Revision Petition No. 27 of 2004, whereby the recommendations made by the Divisional Commissioner vide order dated 18.03.2004 were rejected and Revision Petition No. 30/2004 filed by appellant Shri Karan Singh was allowed. 8. Feeling aggrieved, the writ petitioner, by the medium of the writ petition, has questioned the order dated 20.06.2006, made by the Financial Commissioner (Appeals) in Revision Petition No. 27 of 2004 and sought the following reliefs: “It is therefore, respectfully prayed that this petition may kindly be allowed and the impugned order dated 20.6.2006 passed in Revision Petition No. 27/2004 by the learned Financial Commissioner (Appeals) Himachal Pradesh may kindly be quashed and set aside in the interest of justice.” 9. The writ petitioner has also sought for quashing the order passed by the Financial Commissioner (Appeals). At the best, the Writ Court, after quashing the order passed by the Financial Commissioner (Appeals), had to pass appropriate orders. 10. Having glance of the aforesaid discussion, we deem it proper to modify the impugned judgment and dispose of this appeal by directing the Financial Commissioner (Appeals) to consider the recommendations made by the Divisional Commissioner alongwith the grounds taken in the Revision Petition, hear the parties afresh and pass appropriate order, as warranted under law. Ordered accordingly. 11. The Financial Commissioner (Appeals) is directed to determine the said proceedings within eight weeks from today. The parties are directed to appear before the said Authority on 17 17th th August, 2015 2015. Till then, the parties are directed to maintain status quo. 12. Copy of this order be kept on the writ file and a copy of this order be sent to the Financial Commissioner (Appeals) for information and compliance.