Punjab-Haryana High Court
M/S Chandra Auto Engineering vs State Of Haryana And Ors on 9 May, 2016
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CWP No.20448 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.20448 of 2013
Date of decision: 09.05.2016
M/s Chandra Auto Engineers Private Limited
....Petitioner
Versus
State of Haryana and others
....Respondents
CWP No.22145 of 2013
M/s D.D. Sales Corporation Private Limited
....Petitioner
Versus
State of Haryana and others
....Respondents
CWP No.22174 of 2013
M/s Chandra Auto Engineers Private Limited
....Petitioner
Versus
State of Haryana and others
....Respondents
CWP No.24091 of 2013
Sanjeev and others
....Petitioners
Versus
State of Haryana and others
....Respondents
CWP No.25226 of 2013
M/s Chandra Auto Engineers Private Limited
....Petitioner
Versus
State of Haryana and others
....Respondents
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CWP No.20448 of 2013
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH DHALIWAL
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Vikram Singh, Advocate, and
Mr. Gaurav Kathuria, Advocate, for the petitioner(s).
Mr. Rajneesh Chadwal, DAG, Haryana.
Mr. Govind Goel, Advocate,
Mr. Rajesh Sethi, Advocate and
Mr. Saurabh Goel, Advocate, for respondent No.5
in CWP No.25226 of 2013,
for respondents No.5 and 6 in CWP No.20448 of 2013,
for respondents No.5 to 7 in CWP No.22145 of 2013,
for respondent No.5 in CWP No.22174 of 2013 and
for respondent No.3 in CWP No.24091 of 2013.
PARAMJEET SINGH DHALIWAL, J.
This order shall dispose of CWP No.20448 of 2013 titled 'M/s Chandra Auto Engineers Private Limited v. State of Haryana and others'; CWP No.22145 of 2013 titled 'M/s D.D. Sales Corporation Private Limited v. State of Haryana and others'; CWP No.22174 of 2013 titled 'M/s Chandra Auto Engineers Private Limited v. State of Haryana and others'; CWP No.24091 of 2013 titled 'Sanjeev and others v. State of Haryana and others' and CWP No.25226 of 2013 titled 'M/s Chandra Auto Engineers Private Limited v. State of Haryana and others' filed under Articles 226/227 of the Constitution of India as in all these writ petitions preparation of sanad takseem has been challenged.
The orders under challenge in these writ petitions are dated 08.04.2013 (Annexure P-10 in CWP Nos.20448 & 22145 of 2013, Annexure P-11 in CWP No.22174 of 2013 and Annexure P-12 in CWP No.25226 of 2013), dated 09.07.2012 (Annexure P-9 in CWP Nos.20448 2 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -3- CWP No.20448 of 2013 & 22145 of 2013, Annexures P-10 & P-10/A in CWP No.22174 of 2013 and Annexure P-11 in CWP No.25226 of 2013), dated 15.05.2012 (Annexures P-7 and P-8 in CWP Nos.20448 & 22145 of 2013, Annexures P-8 & P-9 in CWP No.22174 of 2013 and Annexures P-9 & P-10 in CWP No.25226 of 2016), dated 04.07.2011 (Annexure P-6 in CWP No.20448 of 2013, Annexure P-5/A in CWP No.22145 of 2013, Annexure P-6 in CWP No.22174 of 2013 and Annexure P-8 in CWP No.25226 of 2013) and dated 03.08.2011 (Annexure P-5 in CWP No.20448 of 2013, Annexure P-6 in CWP No.22145, Annexure P-7 in CWP Nos.22174 and 25226 of 2013) passed by respondents No.1 to 4 whereby sanad takseem has been prepared. CWP No.24091 of 2013 has been filed for setting aside the order dated 29.07.2013 (Annexure P-6) passed by respondent No.1 - Financial Commissioner whereby revision petition filed by the petitioner has been dismissed and order dated 29.02.2012 (Annexure P-5) passed by respondent No.2 - Assistant Collector First Grade, Ballabgarh, District Faridabad, whereby sanad takseem has been prepared.
In CWP Nos.20448, 22145 and 22174 of 2013 applicant before the Assistant Collector First Grade, Ballabgarh, is M/s Minus Collection Private Limited through one O.P. Sagar, Manager/authorised representative, in CWP No.24091 of 2013 applicant before the Assistant Collector First Grade, Ballabgarh is M/s Teneriff Estates Property Limited through O.P. Sagar, authorised representative and in CWP No.25226 of 2013 applicant before the Assistant Collector First Grade is 3 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -4- CWP No.20448 of 2013 M/s Anushria Computech Private Ltd. The applications for partition were filed before the Assistant Collector Ist Grade on 04.04.2011 and notice was issued for 18.04.2011. On 18.04.2011 respondent No.8 (in application) appeared, however, service on respondents No.1 to 7 was not effected. Notice was issued for 26.04.2011 for effecting service by way of munadi. On 26.04.2011 respondent No.8 filed an application for dismissal of the partition application and the case was adjourned to 03.05.2011. On 03.05.2011 respondents No.1 to 7 were proceeded against ex parte and the case was adjourned to 10.05.2011. On 10.05.2011 respondent No.8 filed reply to the application and case was adjourned to 17.05.2011. On 17.05.2011 case was adjourned to 24.05.2011. On 24.05.2011, application filed by respondent No.8 for dismissal of the partition application was dismissed and naksha Alif was called for 30.05.2011. Case was taken up on 31.05.2011, naksha Alif was received and objections to naksha Alif were invited for 07.06.2011. No objection to naksha Alif was filed and Halqa Girdawar was directed to prepare naksha 'kha' and 'gha' after preparing the mode of partition and case was adjourned to 14.06.2011. On 14.06.2011 naksha 'kha' and 'gha' were received and objections invited for 21.06.2011. On 21.06.2011 again case was adjourned to 30.06.2011 for objections. Objections were not filed and on 30.06.2011 case was adjourned to 04.07.2011 for consideration. On 04.07.2011 considering the naksha 'kha and 'gha' mode of partition was sanctioned by the Assistant Collector Ist Grade, Ballabgarh and sanad takseem was issued on 4 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -5- CWP No.20448 of 2013 03.08.2011. Petitioners filed appeals against the order dated 04.07.2011, which were dismissed. Thereafter, petitioners filed revision petitions before the Commissioner and Financial Commissioner and the same were dismissed. Hence, these writ petitions.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner(s) vehemently contended that partition has been done in a hasty manner without effecting proper service upon the respondents in the application. All the applications have been filed through one O.P. Sagar, who is alleged to be authorised representative of the applicants before the Tehsildar.
On the other hand, learned counsel for respondent(s) No.5 in CWP Nos.20448, 22145, 22174 and 25226 of 2013 and No.3 in CWP No.24091 of 2013 defended the orders passed by the revenue authorities. Learned counsel for the respondents contended that partition has become final so it should not be disturbed.
I have considered the contentions raised by learned counsel for the parties.
While issuing notice of motion on 01.07.2014 in CWP No.25226 of 2013, this Court noticed that proceedings were conducted in a hasty manner by the Assistant Collector Ist Grade and this Court noted as under: -
"Perusal of zimni orders passed by A.C. Ist Grade, Ballabgarh, reveals that on 07.06.2011 case was adjourned to 5 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -6- CWP No.20448 of 2013 14.06.2011. In between there is no zimni order at this stage before this Court whereby mode of partition has been approved and the parties have been made aware of the mode of partition. Rather order dated 14.06.2011 clearly indicates that naksha 'kha' and 'ga' have been placed on record without any inkling to the mode of partition. It means that no mode of partition was approved in the presence of the parties nor their statements were recorded before approving the mode of partition. Naksha 'kha' and 'ga' brought on record by the field staff is not in consonance with the settled principles of partition. Furthermore the mode of partition, which is on record, does not bear the date on which it was approved in the presence of the parties. Zimni order dated 07.06.2011 clearly indicates that A.C. Ist Grade, Ballabgarh, has apparently left to the field staff to prepare the mode of partition instead of performing his onerous duty, which is the basic document on the basis of which the partition is to be effected rather vide this very zimni order called naksha 'kha' and 'ga'. In these circumstances, this Court is prima facie satisfied that since mode of partition does not find mention in the zimni order dated 14.06.2011 and calling of naksh 'kha' and 'ga' is not in accordance with law, the order appears to have been passed in hot haste. Parties are directed to maintain status quo with regard to possession as on today.
Respondent-caveator will be at liberty to file reply on or before the date fixed with advance copy to the counsel for the petitioner. Other respondents be served in due course. This Court taking notice of the orders passed by Assistant Collector Ist Grade, Ballabgarh, is prima facie of the view that notice be issued to respondent No.4 by name after getting information as to who was the officer at the relevant time, from the Collector, Faridabad and Assistant Collector Ist 6 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -7- CWP No.20448 of 2013 Grade, Ballabgarh (at the relevant time) is directed to file specific reply with regard to zimni orders passed from 02.05.2011 to 21.06.2011, which have been placed in this paper-book as Annexure P-5 (collectively) and the mode of partition approved."
Perusal of the original record shows that the partition has been done contrary to the provisions of the Punjab Land Revenue Act, 1887 specifically Chapter XVIII of the Punjab Land Records Manual. No proper opportunity was given with regard to framing of mode of partition. Neither statements of co-sharers for framing proposed mode of partition were recorded nor objections were invited for the mode of partition. Besides this, when the record was produced before this Court Naksha 'kha' was not available on the record nor proper opportunity to file objections to Naksha 'kha' was given to the affected co-sharers. All the proceedings appear to have been done in a hasty manner with ulterior motives. The procedure has not been followed. It is clear from the zimni order dated 07.06.2011 that in fact, Assistant Collector Ist Grade did not prepare the mode of partition rather he directed the Kanungo for preparation of Naksha 'kha' and 'gha' after preparing the mode of partition. Whereas, in fact, firstly proposed mode of partition is required to be framed and all the co-sharers are required to be given opportunity of filing objections to the proposed mode of partition. Thereafter mode of partition is approved by the Assistant Collector Ist Grade and not by the Halqa Girdawar.
In this case, the mode of partition was not prepared by the AC 7 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -8- CWP No.20448 of 2013 Ist Grade rather direction was issued to the Girdawar Kanungo to prepare mode of partition and submit Naksha 'kha and 'gha', whereas after calling Naksha kha, opportunity to the applicant as well as respondents is required to be given so that they may raise objections and thereafter after deciding the objections, Naksha 'kha' can be approved or disapproved. Once the Naksha 'kha' is approved thereafter Naksha 'gha' is called. In this case all the proceedings have been done in a manner unknown to the law specifically Chapter XVIII of the Punjab Land Records Manual.
In view of above, impugned orders are set aside. Case is remitted back to the Assistant Collector Ist Grade, Ballabgarh, with a direction to afford opportunity to the respondents in the partition application to file reply and thereafter proceed in accordance with law. If the Assistant Collector comes to the conclusion to proceed with the application then he will call Naksha 'Ka' in accordance with law and thereafter shall frame a proposed mode of partition and give opportunity to the parties to file objections. Once the mode of partition becomes final, Naksha 'kha' will be called and again opportunity shall be provided to the parties to file objections to the same and thereafter a speaking order will be passed on the objections filed to Naksha 'kha' before approving or disapproving the same. Thereafter Assistant Collector Ist Grade shall proceed in accordance with law inviting Naksha 'gha' and sanad takseem in accordance with law. It is made clear that nature and character of the land which is subject-matter of 8 of 9 ::: Downloaded on - 10-06-2016 21:42:13 ::: -9- CWP No.20448 of 2013 partition has to be taken as final as on the date of applications for partition and not on the date of decision. If any construction is raised on the land in question subsequently i.e. after the date of filing of applications for partition, same shall be ignored and land shall not be treated as gair mumkin due to construction. If it is permitted it would amount to depriving the shareholders of their valuable right of partition under the provisions of the Punjab Land Revenue Act. The Assistant Collector Ist Grade shall decide the matter with regard to proceed or not to proceed with application within a period of two months from the date of receipt of certified copy of this order. Parties, through their counsel, are directed to appear before the Assistant Collector Ist Grade, Ballabgarh, on 23.05.2016.
Disposed of.
(Paramjeet Singh Dhaliwal) Judge May 09, 2016 R.S. 9 of 9 ::: Downloaded on - 10-06-2016 21:42:13 :::