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2018 DIGILAW 1454 (HP)

Thakur Dass v. State Of Himachal Pradesh

2018-08-03

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioners have prayed for the following reliefs: "(i) That the impugned order dated 27.10.1998 (Annexure P4), order dated 15.7.1999 (Annexue P6), order dated 28.6.2006 (Annexure P8) and order dated 16.10.2006 (Annexure P10) may kindly be quashed. (ii) That the respondents may be directed to repartition the land in dispute after taking into consideration the factual possession on the spot. (iii) That the respondents may be directed to produce the entire record pertaining to the case of the petitioners for the perusal of this Hon''ble Court. (iv) That the respondents may be burdened with cost of this writ petition throughout. (v) Any other order which this Hon''ble Court deems just and proper in the facts and circumstances of the case submitted hereinafter in favour of petitioners and against the respondents." 2. Facts necessary for adjudication of the present petition are as under: Petitioners filed an application on 13.08.1992 before the Assistant Collector, 1st Grade (Settlement) Nadaun for partition of land comprised in Khewat No. 166, Khatauni No. 184 and Khasra Nos. 71, 73 & 169, Kita3, area measuring 18 Kanals, situated in Village Kot, Tappa Kohla, Tehsil Nadaun, District Hamirpur, H.P. Assistant Collector, 1st Grade (Settlement), Nadaun devised mode of partition as per order dated 07.02.1997. After receipt of partition papers, he invited objections from the parties. Petitioners submitted their objections with regard to the partition carried out by the field agency. Thereafter, on the request of parties, Assistant Collector, 1st Grade visited the spot himself, which was done by him in the presence of the parties. He confirmed the partition as per his order dated 27.10.1998 after considering and rejecting the objections of the petitioners. This order was assailed by the petitioners by way of an appeal before the respondent No. 3. Vide order dated 15.07.1999, respondent No. 3 rejected the appeal on the ground that passage in issue was recorded as per the contents of mode of partition, i.e., Clause5 thereof. Said order was also assailed by the petitioners by way of a revision petition before respondent No. 2, who rejected the same vide order dated 28.06.2006 by reiterating that the passage in issue was in consonance with the mode of partition. Order passed by the respondent No. 2 was assailed by the petitioners before respondent No. 1, who rejected the revision petition vide order dated 16.10.2006. Order passed by the respondent No. 2 was assailed by the petitioners before respondent No. 1, who rejected the revision petition vide order dated 16.10.2006. These orders passed by various revenue authorities stand assailed by way of present petition. 3. Order dated 28.06.2006, passed by the Commissioner, Mandi Division is appended with the petition as Annexure P8, whereas order dated 16.10.2006, passed by the Financial Commissioner (Appeals), Himachal Pradesh is appended with the petition as Annexure P10. 4. I have heard the learned counsel for the parties and have also gone through the pleadings. 5. It is a matter of record that an application for partition of the land referred to above was filed by the present petitioners on 13.08.1992. It is also duly borne out from the records that after the field agencies submitted their report to the Assistant Collector, 1st Grade, he on the request of the parties visited the spot and approved the methodology adopted for effecting the devision of the land. This is evident from order dated 27.10.1998, which is appended with the petition as Annexure P4. During the course of arguments, the factum of said officer having visited the spot in the presence of parties has not been disputed. The order of the Assistant Collector was upheld in appeal by the Land Settlement Collector, Dharamshala vide order dated 15.07.1999. A perusal of the said order, which is appended with the petition as Annexure P6 demonstrates that the grievance of the petitioners therein was only with regard to the area of the path measuring 018 Marla, comprised in Khasra Nos. 71/9, 71/10 and 73/5, which as per the petitioners was excessive. Collector (Settlement) held that the path in issue was alloted to cosharers, which was shown as joint and thus, there was no need to modify the same, as the path was safe in joint possession of all cosharers. Against this order, a revision petition was filed before the Divisional Commissioner, Mandi, which was dismissed, as already mentioned above, vide order dated 28.06.2006 (Annexure P8). Against this order, a revision petition was filed before the Divisional Commissioner, Mandi, which was dismissed, as already mentioned above, vide order dated 28.06.2006 (Annexure P8). Now, a perusal of Annexure P8 also demonstrates that the said authority agreed with the partition effected by the Assistant Collector 1st Grade by holding that the grounds taken by the petitioners were frivolous and baseless, as one Khasra No., i.e., Khasra No. 71/1, which was being demanded by the petitioners was rightly not alloted to them by the Assistant Collector, as on the basis of his spot visit, he found said land to be under the possession of respondents since the time of their ancestors and thus, the same could not be allotted to the petitioners. This authority also held that the objection raised with regard to path of 18 Marlas by the petitioners was also frivolous, as Assistant Collector himself had held that it stood agreed by the parties at the time of mode of partition that the path on the spot will be kept in the joint possession of the parties. While dealing with the issue of 18 Marlas of land, which was kept in joint possession of the parties, as it was a path on the spot, it was also observed by this authority that the remaining land had been allotted amongst the respondents and that the petitioners were allotted Khasra No. 71/2, measuring 09 Kanal, Khasra No. 71/8, measuring 08 Kanal and Khasra No. 73/6, measuring 615 Kanal, total 712 Kanals. Revisional Authority thus held that there was no merit in the petition filed by the petitioners. This order was further assailed by way of a revision petition before the Financial Commissioner (Appeals), who also dismissed the revision petition of the present petitioners vide order dated 16.10.2006 (Annexure P10). While dismissing the revision petition, it was held by the learned Financial Commissioner that during the course of arguments, petitioners had reiterated their grievance that 17 marlas of land had been allotted to the petitioners in Khasra No. 71, which was less by 25 Marlas as per their share. While dismissing the revision petition, it was held by the learned Financial Commissioner that during the course of arguments, petitioners had reiterated their grievance that 17 marlas of land had been allotted to the petitioners in Khasra No. 71, which was less by 25 Marlas as per their share. Learned Financial Commissioner observed that petitioners had contended that against 3 Marlas of land kept as a public path in the said Khasra number as per old record, now 18 Marlas land had been kept as public path and the contention of the petitioners was that the public path should only be of 3 Marlas. Learned Financial Commissioner rejected the revision petition by holding that all these contentions had been taken care of by the orders passed by the Authorities below and in fact the partition had been done by the Assistant Collector, Grade 1 after personally visiting the spot and thus, no irregularity stood committed by him. On these basis, it was held by the learned Financial Commissioner that there was no reason to interfere with the order passed by the learned Divisional Commissioner, Mandi. 6. In my considered view, there is no infirmity with the orders so passed by the authorities below. As I have already held above, the factum of the Assistant Collector, 1st Grade himself visiting the spot alongwith parties and thereafter confirming the mode of partition is not in dispute. All the authorities below have held that the partition was correctly effected by the Assistant Collector, 1st Grade and there was no infirmity with the same. In my considered view, these findings of fact cannot be unsettled by this Court in exercise of its power of judicial review in the present proceedings. 7. In fact, this Court is not to act as an Appellate Forum over the orders passed by the authorities below, but has to see as to whether the procedure adopted by the authorities below was just and fair and there was no procedural lapse committed by them. Records demonstrate that all the authorities below passed the orders concerned after hearing the present petitioners, as also other parties. 8. In Bakshi Security and personal Services Private Limited Vs. Devkishan Computed Private Limited and others , (2016) 8 SCC 446 , the Hon''ble Supreme Court has held as under: "19. Records demonstrate that all the authorities below passed the orders concerned after hearing the present petitioners, as also other parties. 8. In Bakshi Security and personal Services Private Limited Vs. Devkishan Computed Private Limited and others , (2016) 8 SCC 446 , the Hon''ble Supreme Court has held as under: "19. It is also well to remember the admonition given by this Court in Michigan Rubber (India) Limited v. State of Karnataka and Others , (2012) 8 SCC 216 in cases like the present, as under: "21. In Jagdish Mandal v. State of Orissa , (2007) 14 SCC 517 , the following conclusion is relevant: "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made ''lawfully'' and not to check whether choice or decision is ''sound''. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: ''the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached''; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." 9. During the course of arguments learned counsel for the petitioners could not point out as to what procedural infirmity was committed by either of the authorities below while passing the impugned orders. Not only this, in my considered view, the orders passed by the Authorities below are just, reasoned and speaking orders. Further, the findings returned by the authorities below are also duly borne out from the records of the case and thus, it cannot be said that the findings are perverse. In this view of the matter, I see no reason to interfere with the orders passed by the Authorities below and, therefore, as there is no merit in the present petition, the same is accordingly dismissed. No order as to costs. Miscellaneous applications, if any, also stand disposed of.