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2016 DIGILAW 1378 (HP)

Vichiter Singh v. Jaipal Singh

2016-07-14

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J The present petition has been filed praying for the following reliefs:- “(i) Issue a writ of certiorari or direction in the nature of writ of certiorari quashing/setting aside order dated 22.1.2007 (Annexure p-10), passed by respondent No.16 and report dated 7.11.2009 (Annexure P-II); (ii) Issue a writ of Mandamus or direction in the nature of writ of Mandamus restraining respondents from proceeding further against the petitioners on the basis of order dated 22.1.2007 (Annexure P-10) and report dated 7.11.2009 (Annexure P-II).” 2. I have heard learned counsel for the parties and also gone through the records of the case. 3. Brief facts necessary for adjudication of the present case are that Gulzar Singh filed an application for partition of land subject matter of the petition which was allowed by Assistant Collector 1st Grade on 26.12.1992. Present petitioner Ratna challenged the said order by way of an appeal which was filed before Collector Sub Division, Paonta Sahib. Collector Sub Division, Paonta Sahib upheld the order of Assistant Collector 1st Grade and dismissed the appeal on 8.6.1993. This order was challenged by Ratna by way of revision petition before District Collector Sirmaur who vide order dated 24.2.1995 allowed the revision petition and remanded the case back to Assistant Collector 1st Grade, Paonta Sahib for fresh decision. 4. Assistant Collector again adjudicated upon the matter and passed an order of partition on 7.2.1997. This order was again challenged in appeal by Ratna Ram in the Court of Collector Paonta Sahib, Sub Division vide Rev. Appeal No. 7 of 2010 which was decided on 31.3.1998, vide which order the said appeal was dismissed by Collector Paonta Sahib, Sub Division. Order dated 3.3.1998 was thereafter challenged by way of revision petition before District Collector who vide order dated 17.7.1999 recommended the same to Financial Commissioner (Appeals) with observations that opportunity of being heard was not granted to the petitioner and that Naksha ‘A’ was incomplete and further that Farad Kabza had not been prepared and there were cuttings and overwriting in the field book prepared during the partition proceedings. 5. 5. Learned Financial Commissioner vide order dated 22.1.2007 has set aside the orders/recommendations made by Collector Sirmaur on the ground that the order passed by the said authority was without any jurisdiction because an order which had been passed by Collector Sub Division, Paonta Sahib while exercising the powers conferred upon him under the Land Revenue Act could have been challenged by way of an appeal or revision under Sections 14 and 17 of the Land Revenue Act only before Divisional Commissioner. On these bases the Learned Financial Commissioner held that serious illegality has been committed by the District Collector, Sirmaur in entertaining the revision petition and as the recommendation made by District Collector on 17.7.1999 was beyond jurisdiction (as he had no authority to entertain and adjudicate the appeal/revision against the order of Sub Divisional Collector who enjoyed parallel powers of Collector under HP Land Revenue Act), therefore, there was no occasion for the Learned Financial Commissioner to adjudicate upon the issues which were raised in the revision petition before the Collector or the recommendations made by District Collector on 17.7.1999. The learned Financial Commissioner thereafter went on to uphold the order of partition dated 26.12.1992 passed by Assistant Collector 1st Grade as well as the order passed in appeal by Collector Sub Division, Paonta Sahib dated 8.6.1993. 6. In my considered view, the findings which have been returned by the Learned Financial Commissioner with regard to the factum of Collector Sirmaur having acceded his jurisdiction in entertaining and adjudicating upon the appeal/revision which were filed before the said authorities against the order passed by Sub Divisional Collector, Paonta Sahib while exercising the powers of Collector under the Land Revenue Act cannot be said to be incorrect or perverse. The Learned Financial Commissioner has rightly held that Collector Sirmaur had no jurisdiction to entertain either an appeal or revision under the provisions of Section 14 or 17 of the HP Land Revenue Act against an order which was passed by an authority also exercising the powers of Collector under the Act. Therefore, there is no infirmity or perversity with the findings which have been so returned by the Collector. 7. Therefore, there is no infirmity or perversity with the findings which have been so returned by the Collector. 7. Though the Learned Financial Commissioner has rightly held that Collector Sirmaur had no jurisdiction to entertain and adjudicate either appeal or a revision against an order which was passed by an authority exercising the powers of Collector under the Land Revenue Act, however, the Learned Financial Commissioner has erred in thereafter upholding the order of partition dated 26.12.1992 passed by AC 1st Grade and the order passed in appeal against the said order by Sub Divisional Collector, Paonta Sahib on 8.6.1993. Once the Learned Financial Commissioner had come to the conclusion that the orders passed by Collector Sirmaur were beyond jurisdiction then the Learned Financial Commissioner should have had set aside the order so passed or recommendation so made by Collector Sirmaur without further venturing to either make any observation or pass any order on merit. In fact the appropriate course would have had been to grant liberty to the petitioner to assail the order passed by Collector, Sub Division Paonta Sahib before the appropriate authority in accordance with the provisions of Sections 14 and 17 of the HP Land Revenue Act rather than returning a finding to the effect that order of partition dated 26.12.1992 and subsequent order passed by Sub Divisional Collector dated 8.6.1993 were upheld. Therefore, in view of my findings returned above, the writ petition is disposed of by upholding the order passed by Learned Financial Commissioner to the extent it has set aside the order passed by Collector Sirmaur on the ground of want of jurisdiction but the subsequent part of the order, vide which the Learned Financial Commissioner has upheld order of partition dated 26.12.1992 as well as order passed by Sub Divisional Collector dated 8.6.1993 are set aside with liberty granted to the petitioner to assail the said orders before the appropriate authority under the provisions of Land Revenue Act. No order as to cost.