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2017 DIGILAW 295 (PNJ)

Bharthu v. State of Haryana

2017-02-02

AMIT RAWAL

body2017
JUDGMENT Mr. Amit Rawal, J. (Oral):- Notice of motion. 2. On asking of the Court, Mr. Rajbir Singh, Assistant Advocate General, Haryana accepts notice on behalf of the respondents-State. 3. The contention of learned counsel for the petitioners is that in partition proceedings, the objections with regard to preparation of naksha Bey were filed which were rejected on 29.07.2010 ordering for preparation of naksha. The order reads as under:- “Today the file put up. The counsel for the parties are present. The objection received on the Naksha Bey are being rejected and the naksha bey is being confirmed. Now the file be put up on 05.08.10 for Naksha Zeem.” 4. The aforementioned order was assailed by filing an appeal before the Collector, who vide order dated 22.04.2013, dismissed the same and relegated the parties for further proceedings. However, when the matter was being taken up in revision before the Commissioner, the Commissioner, vide order dated 22.05.2015 (Annexure P-7), accepted the revision petition, set aside the order and remanded back the matter. The other aggrieved party challenged the same by filing ROR bearing No.571/2014-15 before the Financial Commissioner. The order of the Assistant Collector extracted above has been found to be correct in view of the finding dated 22.04.2013. rendered by the Collector. 5. Mr. Vikram Singh, learned counsel appearing on behalf of the petitioners submits that the Financial Commissioner in paragraph 7 of the order dated 06.09.2016 rendered a finding that amended ‘naksha Bey’ was approved by AC 2nd Grade Dhand in its order dated 29.07.2010 strictly in compliance of the orders dated 18.07.2007 and 27.01.2009 passed by the Commissioner, Ambala Division, Ambala and Collector Kaithal, respectively. As per the aforementioned orders, the petitioner could not have filed the objections. 6. I have heard learned counsel for the petitioner, appraised the paper book, gone through the order and of the view that the order dated 29.07.2010 extracted above even does not deal with any of the objections (Annexure P-3). The objections read as under:- “Amar Singh etc. vs. Isham Singh etc. Objections on the prepared amended Naksha Bey Sir, The respondent no.6 submits the following objections:- 1. That the abovesaid partition application is pending for today for filing of objection on Naksha Bey. 2. That the prepared amended Naksha Bey is not as per the rules of mode of partition. vs. Isham Singh etc. Objections on the prepared amended Naksha Bey Sir, The respondent no.6 submits the following objections:- 1. That the abovesaid partition application is pending for today for filing of objection on Naksha Bey. 2. That the prepared amended Naksha Bey is not as per the rules of mode of partition. In this the possession of land, quality of land and the land has not been given as per the share of all the three parties. Although it has to be given in all the three takks. In the tukk of adjoining to the village the excess land more than share has been given to the applicants and this land is also not in their possession on the spot. The land adjoin to the village is very costly. In this way the field kanongo has provided the benefit to the applicants. Which is totally wrong. 3. That in the clause no.2 of the mode of partition it is clearly written that the separate kurras of applicants and respondents be carved out. But the separate kurra of the respondents has not been prepared. The respondent no.6 also got recorded clearly in his statement that the separate kurrs of the respondents be carved out. So you are requested that keeping in view the abovesaid objection that the fresh naksha bey be called after rejecting the present amended naksha bey. In which the separate kurrs of the respondents be carved out while keeping in view the above objections, in the interest of justice. Verification: Respondent no.6. It is certified that the above Bhartu son of Norang statement is correct as per r/o village Badrana Sub my knowledge and belief. Tehsil Dhand, Distt. Kaithal.” 7. Having not adverted to the aforementioned objections, the order dated 29.07.2010 cannot be said to be speaking one. The finding rendered by the Financial Commissioner by accepting the revision petition, vide order dated 22.05.2015 reads as under:- “5. I have heard the argument of counsel for the petitioners and perused the facts available on the file. This case was remanded vide order dated 18.07.2007 to the lower court with the direction that the case be decided on merits after getting prepared the amended naksha bey as per the sanctioned mode of partition and hearing both the parties. I have heard the argument of counsel for the petitioners and perused the facts available on the file. This case was remanded vide order dated 18.07.2007 to the lower court with the direction that the case be decided on merits after getting prepared the amended naksha bey as per the sanctioned mode of partition and hearing both the parties. After remand order Assistant Collector 2nd Grade vide order dated 29.07.2010 sanction the Naksha be after dismissing the objection received on Naksha Bey. The Assistant Collector 2nd Grade did not mention the objection filed on the Naksha Bey in his order. In this way the order passed by the Assistant Collector 2nd Grade is non speaking. Thereafter the appeal of the appellant has been dismissed by the collector without any basis while finding baseless. Although in compliance of the order dated 18.07.2007 passed by this court it was necessary for the Assistant Collector 2nd Grade to pass speaking order. In such situation the impugned orders cannot be considered legal. So the impugned orders are being set aside and the case be decided by Assistant Collector 2nd Grade in compliance of abovesaid remand after hearing both the parties again on the merits. In view of above the revision of the petitioners is being accepted.” 8. The order of the Financial Commissioner does not prescribe that the finding given by the Commissioner is erroneous, much less against the provisions of law. Satisfaction has to be recorded. In the absence of the same, I am of the view that the order under challenge is fallacious, much less, erroneous. Resultantly, the impugned order dated 06.09.2016 is hereby set aside and the matter is remitted back to the Financial Commissioner, Haryana to decide matter afresh in accordance with law and also as per the observation made hereinabove. 9. I am allowing this writ petition without issuing notice of motion to private respondents to defray the costs of litigation, much less to prevent unnecessarily delay in adjudication of the lis. 10. Accordingly, the writ petition stands allowed.