Punjab-Haryana High Court
M/S Capital Builders vs Financial Commissioner on 21 August, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
LPA No. 1480 of 2013 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
LPA No. 1480 of 2013 (O & M)
Date of decision : 21.8.2013
M/s Capital Builders, New Delhi ........Applicant-appellant
Vs.
Financial Commissioner, Haryana and others ....Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice G.S. Sandhawalia
Present:- Mr. Ashish Chopra, Advocate, for the applicant-appellant
---
Jasbir Singh, J. (Oral)
This Letters Patent Appeal has been filed against an order dated 22.7.2013 passed by a Single Bench of this Court, vide which CWP No. 15505 of 2013, filed by the petitioner was dismissed.
How a poor farmer can be dragged in litigation and duped by the high and mighty in connivance with the Government officials, the present case is a glaring example of the same.
Ballu Ram @ Ram Krishan-respondent No.6 is running from pillar to post to get his share in the joint land and who is opposing him, is the appellant, who purchased the land, from the joint khewat, only during pendency of revision petition, filed by Ballu Ram in the month of July 2011.
As per facts on record, respondent No.6 was a co-sharer in land measuring 32 kanals 7 marlas, along with Kendriya Sarkari Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -2- Karamchari Kalyan Avas Sangthan known as Central Government Employees Welfare Housing Organisation - respondent No.7 and Rhino Holdings Pvt. Ltd.-respondent No.8. Respondent No. 7 filed an application for partition of the joint land. Notice was issued to the co- sharers. When respondent No.6 failed to put in appearance, ex-parte proceedings were ordered against him on 12.12.2007. Mode of partition was confirmed and vide order dated 22.1.2008 Naksha Bey was approved and without waiting for the mandatory period of 30 days, Sanad Taksim was issued on 29.1.2008.
It is on record that poor farmer Ballu Ram was not aware regarding those proceedings. As ill advised, to lay challenge to the above said ex parte order, he filed a civil suit in the month of May 2010, seeking setting aside of ex parte partition proceedings and grant of permanent injunction. That suit was dismissed as withdrawn on 18.12.2012.
In the meantime, he filed an appeal against orders sanctioning partition of the joint land. That appeal was dismissed by the Appellate Authority on 14.3.2011, without looking into merits of the case and also without giving any finding, whether he was properly served or not, simply by stating that the land, in the meantime, stood acquired, as such, no fruitful purpose will be served by giving finding on merits.
Respondent No.6 went in revision, which was dismissed on 4.5.2011 in limine. Respondent No.6 approached the Financial Commissioner by filing revision petition in the year 2011. Upto that time, the appellant was not in sight. During pendency of revision petition, filed by respondent No.6, the appellant purchased land from respondent Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -3- No.7 in the month of July 2011. Even thereafter, no attempt was made by the appellant to become a party in the pending revision petition before the Financial Commissioner.
The Financial Commissioner noted that virtually a fraud had been committed with the system by the Assistant Collector 2nd Grade, when ordering partition of the land. Order was passed in a hasty manner, simply to give benefit to respondents No. 7 and 8.
It is also necessary to mention here that land was sold by respondent No.7 to the appellant, in violation of an order passed by the Financial Commissioner, for which contempt proceedings were initiated by the poor farmer, which are pending against the violators including the Sub-Registrar.
To decide lis between the parties, the Financial Commissioner framed three issues, which are as under :-
"1. Whether the provisions of Section 20 of Punjab Land Revenue Act, 1887 has been complied with by Assistant Collector 2nd Grade, Gurgaon?
2. Whether order dated 13.1.2008, 22.1.2008 and 29.1.2008 passed by Assistant Collector 2nd Grade, Gurgaon are in conformity with the provisions of Punjab Land Revenue Act, 1887?
3. Whether orders dated 4.5.2011 and 14.3.2011 passed by Commissioner, Gurgaon Division, Gurgaon, Sub Divisional Officer (Civil)-cum-Collector, Gurgaon respectively are in accordance with law"
The said officer proceeded ahead to look into compliance of the provisions of Section 20 of the Punjab Land Revenue Act, 1887 (in short 'the Act'). He further wanted to probe whether order passed by the Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -4- Assistant Collector 2nd Grade, Gurgaon on 13.1.2008 and 29.1.2008, were passed in conformity with the provisions of this Act and further whether orders were passed by the Appellate and the Revisional Authorities, as per law or not. It was noted that there was a complete violation so far as the provisions of this Act are concerned.
Regarding Issues No.1 and 2, the following finding was given by the Financial Commissioner :-
"Regarding first issue, it is clear from the perusal of Section 20(2) of the Punjab Land Revenue Act, 1887 that if service cannot be made or if acceptance of service is refused by issuing summon as per Section 20(1) of the Act, the summons may be served by posting a copy of the person to whom it is addressed, or if that person does not reside in the district in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that district, then by posting a copy of the summons on some conspicuous place in or near the estate wherein the land is situated. A specific order of the court has to be obtained in this regards. In this case, no such mode has been adopted. So far as issue of munadi is concerned, procedure regarding the same has been prescribed in Section 20(3) of the Punjab Land Revenue Act, 1887, which states as under :-
"If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue Officer so directs, be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested."
Hence, in this case as there are only two persons as respondents, the procedure of adopting munadi as a Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -5- substituted mode of service cannot be adopted. The issue is decided accordingly.
Regarding second issue, from the perusal of 'jimni' orders available in the file, AC 2nd Grade, Gurgaon vide its order dated 6.12.2007 has directed to summon the respondent No.1 i.e. petitioner for 12.12.2007, whereas on 12.12.2007, he has taken ex parte proceedings against him citing that he has not turned up in the court inspite of doing 'mushtri munadi'. Further, from the perusal of the file, it has been found that 'mustri munadi' has been issued on 13.12.2007 so as to appear on 17.12.2007 and the said 'mushtri munadi' was done on 15.12.2007. Hence, there is no similarity between these two proceedings. Furthermore, Naksha Be has been sanctioned on 22.1.2008 and Naksha Jeem on 25.1.2008. Naksha Be i.e. final partition has been approved on 22.1.2008, so in that eventuality, no separate Naksha Jeem is to be summoned from field Kanungo, as directed vide ibid order. In fact, Naksha Jeem is instrument of partition, as provided in Appendix to paragraph 18.17 of Haryana Land Record Manual as Form PTN-3 and the same is not to be sought from field Kanungo in any case. Hence, it is clear that Assistant Collector 2nd Grade, Gurgaon is not familiar with the rudimentary revenue law. Thereafter, 'Sanad Taqsim' has been issued on 29.1.2008, whereas statutory period of 30 days of filing appeal is required after approval of final partition before issuance of 'Sanad Taqsim'. Accordingly, 'Sanad Taqsim' dated 29.1.2008 suffers from legal infirmity. The issue is declared accordingly."
It was noted that in flagrant violation of the provisions of Section 20 of the Act, ex-parte proceedings were ordered against respondent No.6. Vide order dated 6.12.2007, the Assistant Collector 2nd Grade, summoned respondent No.6 for 12.12.2007, on which date he was Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -6- proceeded ex parte. The service was ordered to be effected through 'mustri munadi' without making any attempt to effect personal service, which was mandatory under the provisions of the Act.
There was only two share holders, who were to be served. As such, there was no necessity to serve respondent No.6 through proclamation as was done by the Assistant Collector 2nd Grade. Not only as above, after issuing order for service by proclamation on 12.12.2007, necessary docket was issued on 13.12.2007 for appearance on 17.12.2007. It is stated that proclamation was done on 15.12.2007 virtually giving no time to respondent No.6 to put in appearance. Naksha Bey was sanctioned on 22.1.2008, Naksha Jeem was sanctioned on 25.1.2008 and final partition was approved on 22.1.2008. Even formality of getting the revenue record completed from the field Kanungo, was not adhered to. 'Sanad Taksim' was issued on 29.1.2008 before the mandatory period of 30 days expired for filing the appeal.
Qua Issue No.3, it was rightly held that despite noting above said infirmities, the Collector and the Commissioner were not justified in dismissing appeal and revision filed by respondent No.6, on technical grounds.
It was also noted, as a matter of fact, that out of the joint land. 8 kanals and 2 marlas of land was not put under acquisition, falling in Khasra No. 55/2/2 and 55/3/1. This fact was totally ignored by the officers, referred to above. The appellant purchased land though interim directions were given by the Financial Commissioner, it made no attempt to become a party in the pending proceedings, when order was passed Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -7- against its predecessor in interest i.e. respondent No.7, by the Financial Commissioner on 15.5.2013. Instead, it filed CWP No. 15505 of 2013, which was dismissed on 22.7.2013. Hence, this appeal.
The Financial Commissioner took note of favour shown by the Assistant Collector 2nd Grade to respondents No.7 and 8 and directed that disciplinary proceedings, for major penalty under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 be initiated against the Assistant Collector 2nd Grade, Gurgaon, for committing illegalities and infirmities, in deciding case, contrary to the provisions of the law.
It is primary contention of counsel for the appellant that once respondent No. 6 has gone to the Civil Court, it was not open to him to file appeal against ex parte order.
We are not convinced with the argument raised. May be ill advised, the civil suit was filed. The Civil Court has no jurisdiction to interfere in the matters, which fall in the domain of Revenue officials, as per the provisions of the Act. The partition was effected by the Assistant Collector 2nd Grade and to get it set aside, the only remedy available with respondent No.6, was the form of appeal, which he availed subsequently thereafter and in the meantime, the suit was also got dismissed as withdrawn.
It is stated by counsel for the appellant that when appeal was filed by respondent No.6 against the ex parte partition proceedings, he did not disclose filing of civil suit and on account of concealment of that fact, relief should have been declined to him.
Kumar Ashwani2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -8-
This argument does not lie in the mouth of the appellant. The appellant is a law breaker. It had no concern with the land when partition proceedings were ordered. Land was purchased by the appellant during pendency of the revision petition, filed by respondent No.6, before the Financial Commissioner. Land was purchased and even directions were issued by the Financial Commissioner, for which contempt proceedings were initiated against the appellant and the Sub-Registrar. No attempt was made by the appellant to become a party before the Financial Commissioner.
Under above circumstances, the appellants' objection cannot be entertained at this stage. Otherwise also, the filing of the civil suit was not going to have any effect so far as partition of the land in dispute is concerned.
As per the provisions of Section 158 of the Act, there is a specific bar, restraining the Civil Courts to interfere in the matters, to be decided by the Revenue Authorities.
The learned Single Judge thoroughly discussed all the arguments raised by the appellant, by looking into the provisions of Section 20 of the Act. It was found, as a matter of fact, that the partition proceedings by the Assistant Collector 2nd Grade, were a fraud with the system. It was also noticed that the appellant was not a party to the partition proceedings and purchased the land against prohibitory orders issued by the Financial Commissioner on 21.9.2011.
Learned Single Judge rightly came to a conclusion that there was no justification with the Assistant Collector 2nd Grade, to issue notice Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document LPA No. 1480 of 2013 (O & M) -9- through proclamation, without making an attempt to serve the right holder personally, which was mandatory, as per the provisions of Section 20 of the Act.
In view of above, no case is made out to interfere in the judgment under challenge.
Accordingly, this appeal stands dismissed.
However, we issue directions to the Chief Secretary, State of Haryana, to strictly comply with directions issued by the Financial Commissioner, in order dated 15.5.2013, directing action to be taken against the Assistant Collector 2nd Grade, who dealt with the partition proceedings.
After issuance of notice for major penalty, the proceedings be concluded within six months and action taken report be put on the record of this case.
(Jasbir Singh) Judge (G.S. Sandhawalia) Judge 21.8.2013 Ashwani Kumar Ashwani 2013.09.03 10:29 I attest to the accuracy and integrity of this document