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2022 DIGILAW 843 (HP)

Roshan Lal v. State of Himachal Pradesh

2022-12-19

SATYEN VAIDYA

body2022
JUDGMENT : Satyen Vaidya, J Petitioners have filed instant petition seeking following substantive relief: - “(i) That the impugned orders Annexure P-1, P-3, P-4 and P-5 passed by Assistant Collector and order Annexure P-7 dated 9.6.2004, passed by Sub Divisional Officer, Annexure P-8, order date 20.3.2009, passed by Divisional Commissioner and order dated 30.8.2016, Annexure P-10, passed by Financial Commissioner, may kindly be quashed and set-aside, in the interest of justice and fair play.” 2. Brief facts necessary for adjudication of the petition are that the parties to the instant petition were co-owners of the land comprised in Khata/Khatauni No. 26/65 to 75, total measuring 0-71-55 hectares, situated in Tika and Mauza Bari, Tehsil Nurpur, District Kangra, H.P. as per jamabandi for the year 1991-92. In 1995, respondent No.5 herein, moved an application under Section 123 of the Himachal Pradesh Land Revenue Act for partition of above-mentioned joint land before the Assistant Collector 1st Grade, Nurpur. Vide order dated 2.6.1997 the mode of partition was proposed. Petitioners challenged the mode of partition dated 2.6.1997 by filing appeal before the learned Sub Divisional Collector, Nurpur, which was allowed vide order dated 25.10.2000 and the matter was remanded back to the Assistant Collector 1st Grade, Nurpur with following observations: “I have heard the Ld. Counsels for both the parties and have also gone through the record of lower court very carefully. The perusal of the record shows that the mode of partition in the instant case was sanctioned by the A.C.1st Grade on 2.6.97. The Ld. A.C. 1st Grade has sanctioned the mode of partition without considering the objections of the appellants and the order already passed by his predecessor in this behalf. Keeping in view the facts mentioned above, the order of A.C. 1st Grade, Nurpur dated 2.6.97 cannot be sustained. I, therefore, remand the case back to the Ld. A.C. 1st Grade, for fresh decision, keeping in view the observations made above and after giving proper opportunity of hearing to all the interested parties.” 3. On 03.07.2022, the Assistant Collector 1st Grade, Nurpur again proposed a mode of partition between the parties after hearing them. Petitioners again assailed the order dated 03.07.2002 passed by the Assistant Collector 1st Grade before the Sub Divisional Collector, Nurpur. The appeal of the petitioners was dismissed by learned Sub Divisional Collector, Nurpur vide order dated 09.06.2004. On 03.07.2022, the Assistant Collector 1st Grade, Nurpur again proposed a mode of partition between the parties after hearing them. Petitioners again assailed the order dated 03.07.2002 passed by the Assistant Collector 1st Grade before the Sub Divisional Collector, Nurpur. The appeal of the petitioners was dismissed by learned Sub Divisional Collector, Nurpur vide order dated 09.06.2004. Petitioners assailed the order passed by the Sub-Divisional Collector before the Divisional Commissioner, Kangra at Dharamshala, who also dismissed the challenge of petitioners vide order dated 20.03.2009. Lastly, the petitioners approached the Financial Commissioner (Appeals), Himachal Pradesh by way of revision petition No. 152 of 2009, but again remained unsuccessful. Their revision was dismissed vide order dated 30.08.2016, hence the instant petition. 4. It is pertinent to notice that though the order dated 03.07.2002 passed by the Assistant Collector 1st Grade, had been assailed in appeal before the Sub Divisional Collector, Nurpur, but except for some time, there was no stay on the implementation of the order passed by the Assistant Collector 1st Grade. As a result, further proceedings continued before the Assistant Collector 1st Grade and finally, the mode of partition was accepted and instrument of partition was prepared. Another fact that cannot be ignored is the observation made by the learned Financial Commissioner in his order dated 30.08.2016, to the effect that the copy of “Roznamcha Wakiyati” dated 28.10.2009, placed on record of revision petition No. 152 of 2009 on behalf of the respondents clearly revealed that the partition had been effected between the parties and the possession also stood delivered to the parties on 28.10.2009 by the Field Kanungo. 5. The petitioners have approached this Court primarily with the grievance that none of the authorities right from the Assistant Collector 1st Grade to Financial Commissioner (Appeals) had taken cognizance of their objections. The Assistant Collector 1st Grade, passed the order dated 03.07.2002 without deciding the objections of petitioners and thereafter the Appellate and Revisional Courts either ignored the illegality committed by the Assistant Collector 1st Grade or condoned the same by observing that the parties were afforded opportunity by the Assistant Collector 1st Grade and after hearing them reasoned order had been passed. Petitioners alleged that they had specifically raised question of title before the Assistant Collector 1st Grade, which was neither considered nor decided by him while passing the order dated 03.07.2002. Petitioners alleged that they had specifically raised question of title before the Assistant Collector 1st Grade, which was neither considered nor decided by him while passing the order dated 03.07.2002. On the basis of aforesaid contention, petitioners have further alleged violation of principles of natural justice and fair play. 6. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 7. At the first instance, it is relevant to notice that prior to the filing of partition application by respondent No.5, another proceeding initiated on behalf of some of the petitioners for partition of same land stood decided by the Assistant Collector 1st Grade on 23.02.1994. It comes out from the record that the petitioners had withdrawn their application for partition at the fag end of the proceedings. It was thereafter that respondent No.5 had initiated the partition proceedings. 8. The order dated 03.07.2002 passed by the Assistant Collector 1st Grade, Nurpur reveals that the petitioners had not filed any written objections to the partition application. Petitioners had initially been proceeded against exparte on 16.01.1996. An application for setting aside exparte order was moved before the Assistant Collector 1st Grade on 29.06.1996, which was allowed. Thereafter, the parties were heard and the mode of partition was suggested vide order dated 02.06.1997. However, the said order was set-aside in appeal and the matter was remanded back, as already noticed above. The Assistant Collector 1st Grade further observed that though the petitioners did not file any written objections to the partition application, however, some objections were raised in their application seeking setting aside of exparte order. 9. The Assistant Collector 1st Grade had passed the order dated 03.07.2002 after hearing the learned counsel appearing for the parties. 10. It becomes evident from the grounds of appeal filed by the petitioners against the order dated 03.07.2002 passed by the Assistant Collector 1st Grade, Nurpur that one of the grievance raised by the petitioners was about the absence of original counsel for the petitioners before the Assistant Collector 1st Grade and the non-preparedness of his associate. It is not the case of the petitioners that the counsel originally representing them had some genuine reasons for non-appearance and a request for adjournment was made on that account. 11. It is not the case of the petitioners that the counsel originally representing them had some genuine reasons for non-appearance and a request for adjournment was made on that account. 11. The findings recorded by the Assistant Collector 1st Grade to the effect that the petitioners had not placed any written objections has remained unrebutted. Petitioners have not placed any material on record to suggest that they in fact had filed some written objections. It is also not their case that on the date of hearing, the objection with respect to the question of title was raised even orally by learned counsel representing them. The Assistant Collector 1st Grade, Nurpur vide order dated 03.07.2002 has specifically dealt with the objections raised on behalf of the petitioners regarding non-inclusion of whole original Khata No. 15 for the purposes of partition. In this view of the matter, it is clearly proved on record that the petitioners had not submitted any written objections and had also not raised such objections orally at the time of hearing. 12. Learned counsel for the petitioners has submitted that the order dated 02.06.1997 passed by the Assistant Collector 1st Grade, which was set-aside by the Sub Divisional Collector, reveals that the petitioners had raised some objections. He has also placed reliance on the above noted order passed by the Sub Divisional Collector, Nurpur in case No. 45/1997 on 25.10.2000 whereby it was clearly noticed that the Assistant Collector 1st Grade, had sanctioned the mode of partition without considering the objections of the petitioners (appellants therein). The contentions so raised on behalf of the petitioners does not in any manner improve their case. The order passed by the Assistant Collector 1st Grade on 02.06.1997 does not contradict the post remand order of the same authority passed on 03.07.2002. There is nothing in the order dated 02.06.1997 that the petitioners had filed any written objections. It appears from the contents of order dated 02.06.1997 that the Assistant Collector 1st Grade had dealt with the oral submissions/objections raised on behalf of the petitioners. 13. It was for the petitioners to have placed on record the material to show that they had raised specific objections before the Assistant Collector 1st Grade after remand of the case, but they have miserably failed to do so. 13. It was for the petitioners to have placed on record the material to show that they had raised specific objections before the Assistant Collector 1st Grade after remand of the case, but they have miserably failed to do so. In absence of such material, the grievance of the petitioners regarding non-consideration of objections is baseless and orders impugned in the present petition cannot be faulted on such ground. 14. Admittedly, after passing of the order dated 03.07.2002 and before disposal of appeal by the Sub Divisional Collector, Nurpur on 09.06.2004 the mode of partition had attained finality and instrument of partition had already been framed on 15.02.2003. There is no challenge to the final instrument of partition. It is also revealed from the order passed by learned Financial Commissioner (Appeals) that on 28.10.2009, the partition had been effected and possession was handed over to the parties by the Field Agency. A copy of “Roznamcha Wakiyati” referred to in the order of learned Financial Commissioner (Appeals) has been placed on record of this petition as Annexure R-5/1 and from its perusal the observations made by learned Financial Commissioner (Appeals), are found to be substantiated. 15. The partition proceedings started in the year 1995 and as per Annexure R-5/1, the copy of “Roznamcha Wakiyati”, the possession could be handed over to the parties in accordance with the partition order in the year 2009. It wil not be equitable now to unsettle the entire process especially when the petitioners have not been able to show any specific violation of their legal right or prejudice caused to them. 16. There is no dispute with the proposition that the question of title once raised in partition proceedings has to be decided. However, in the facts of the instant case, it has been found that no such question was specifically raised. In absence of any specific pleadings raised before the Assistant Collector 1st Grade, he could not have assumed the existence of the question of title. 17. This Court while exercising jurisdiction under Article 226 of the Constitution will not sit as a Court on appeal over the orders passed by statutory authorities. Such orders can be interfered with only in case those suffer from grave illegality or perversity or jurisdictional errors. The case of petitioners herein fails to satisfy any of above parameter, therefore, no interference is called for in the present case. 18. Such orders can be interfered with only in case those suffer from grave illegality or perversity or jurisdictional errors. The case of petitioners herein fails to satisfy any of above parameter, therefore, no interference is called for in the present case. 18. In light of above discussion, I have found no merit in the petition and the same is dismissed. 19. Petition is accordingly disposed of, so also the pending miscellaneous application(s), if any.