Punjab-Haryana High Court
Lala Ram vs Financial Commissioner, Haryana And ... on 10 October, 1991
Equivalent citations: AIR1992P&H62, AIR 1992 PUNJAB AND HARYANA 62, 1991 HRR 595, (1992) 1 LANDLR 497, (1992) 1 RRR 231, 1992 PUNJ LJ 45
ORDER
1. This order will dispose of CWP 5990/1991 and CWI 6038/1991 as common questions, of law and facts are involved in both the cases.
2. Petitioner is aggrieved of orders dated 16th June, 1988; 18th January, 1990; 5th December, 1990 and 1st April, 1991 (Annexures P1 to P5) passed by Assistant Collector 1st Grade Gurgaon; Collector, Gurgaon; Commissioner Gurgaon Division and Financial Commissioner, Haryana, respectively.
3. Brief facts be first noticed. Petitioner, Lala Ram, son of Dillu, and one Khem Ram, his brother, put together were owners of 1/6th share of the total land measuring 46 Kanals 8 Marias, situate at village Kanhai, Tehsil and District Gurgaon. Admittedly, most of the remaining land or the entire remaining land is owned by Messers. Ansal Housing & Estates Pvt. Ltd. and M/s. Delhi Towers & Estates Pvt. Ltd., New Delhi, respondents. They moved an application before the Assistant Collector 1st Grade, Gurgaon, for partition of the joint land under S. 111 of the Punjab Land Revenue Act, 1887 (hereinafter called the Act) on 3rd November, 1986. Mode of partition was drawn on 5th October, 1987 and objections filed by the petitioner or Khem Ram, respondent No. 3, against the mode of partition drawn by the Assistant Collector were dismissed on 5th May, 1988. Formal order of drawing instrument of partition was passed on 16th June, 1988. Instrument of partition AnnexureR2/2 dated 16th June, 1988 would show that the case was taken up by the Assistant Collector on 5th May, 1988, for effecting the partition of the land and it was ordered that the land be partitioned. Further, a reading of instrument of partition shows that the period of limitation for filing the appeal had already expired and consequently, the Sanad Tagsim was to be prepared so that orders dated 5th May, 1988, passed by the Assistant Collector were complied with and the partition acted upon. It is an admitted position that neither the petitioner No. 3 filed any appeal against orders dated 5th October, 1987, vide which the mode of partition was drawn or the order dated 5th May, 1988, when the objections raised by the petitioner or respondent No. 3 with regard to the mode of partition were dismissed. However, an appeal against orders dated 16th June, 1988, vide which the instrument of partition was drawn was filed before the Collector who, vide orders dated 18th January, 1990, dismissed the same. Aggrieved, the petitioner filed revision before the Commissioner which too met with the same fate on 5th December, 1990. Still aggrieved before the Financial Commissioner, Haryana, which too was dismissed on 1st April, 1991. As mentioned above, the petitioner has challenged all these orders in the present writ petitions on the solitary ground that the appeal filed by the petitioner before the Collector was wrongly dismissed as time-barred.
4. These writ petitions have been hotly contested and by way of preliminary objection it is stated that the writ petitions are liable to be dismissed on the short ground that the petitioner has not approached this Court with clean hands. In fact, the petitions are styled to be mala fide with a view to show that there is no hoensty involved in this litigation, the respondents have pleaded that the answering respondents are engaged in the business of alleviating the housing problems for the general public by acquiring land, developing the same and then creating plots for allotment to prospective buyers for which purpose they have duly been given a licence by the Government of Haryana. The land is purchased at the market rate which is far in excess of the compensation amount awarded by the Government in case of compulsory acquisition. Internal development charges for developing the land are thereafter incurred by the respondent companies which are later recovered from allottees of plots for payment to the State of Haryana for carrying out the external development, like sector dividing roads, trunk sewars to the main drainage, water supply, etc. It is further pleaded that after the respondent company had purchased 5/6th share of the total land in dispute from the co-sharers, the petitioner in collusion with respondent No. 3 with a view to harass them, started filling frivolous suits against them. One such suit for injunction was dismissed as the petitioner failed to adduce any evidence in the matter. The respondent companies being sure that the petitioner and respondent No. 3 were after a pound of their flesh and were acting with a mala fide intention were constrained to move the revenue authorities for partition of the property. It is further pleaded that even though both the orders, i.e., the one for drawing up of the mode of partition and the other of rejecting the objections, were appealable no appeal was intentionally filed and it is only the consequential order vide which instrument of partition was drawn that was appealed against. It is further pleaded by the respondent companies that after the rights of the parties were determined -- when the mode of partition was drawn -- they had invested huge amount of money for developing the land in dispute. Plots were carved out and even sold to a number of people, and the land already stands allotted to a large number of plot purchasers. It has been pleaded in CWP 6038/1991 that a total number of 60 plots have been carved out of the land in dispute, the majority of which have already been allotted to prospective buyers who, in turn, have already paid the whole of the consideration money or a part thereof. The total expenditure incurred by the respondent company in respect of internal development works stated to be to the tune of 8.74 lacs. In addition to this, an amount of Rs. 18.30 lacs is stated to have already been paid by the respondent-company to the Haryana Government towards external development charges. Similar facts have been pleaded in CWP 5990/91. The writ petitions for non-agitating the orders which ultimately resulted into partition are alleged to be on account of an ulterior motive of the petitioner to extract as much money from the respondent companies as may be possible. There are other preliminary objections too taken in the written statement but suffice it to say that the said objections spring from the main allegation of the contesting respondents that the entire proceedings carried out by the petitioner inclusive of the present writ petitions are mala fide. On merits, it is contended by the contesting respondents that no appeal was competent against orders vide which the instrument of partition was drawn and the failure on the part of the petitioner to challenge orders of mode of partition and rejection of the objections would debar the petitioners from challenging the order of drawing of the instrument of partition.
5. After hearing learned counsel for the parties and perusing the record, I am of the considered view that these petitions have no merit and, thus, deserve to be dismissed. It shall be seen from the impugned orders that appeal against orders dated 16th June, 1988, vide which the instrument of partition was prepared was conceded by the petitioner to be a non-appealable order. Learned counsel for the petitioner, however, contends that this concession has been wrongly recorded and the petitioner or his counsel never conceded before the Collector that no appeal was competent against orders dated 16th June, 1988. It will be useful at this stage to see how this matter was dealt with by the Collector. The relevant part of the order passed by the Collector reads as follows:--
"In reply to this, drawing my attention to the order of the Assistant Collector I Grade dated 5-5-88, the counsel for the respondent stated that the partition had been accepted vide order dated 5-5-88 and hence, the appellants should have filed the appeal against the order dated 5-5-88 within 30 days but the appellants have filed this appeal against the order dated 16-6-88 vide which the instrument of partition was prepared and given to the respondent and the file was consigned to the Record Room. The learned counsel for the appellants accepted this contention of the learned counsel for the respondent as correct and submitted that the appellants may be allowed to move an application for condonation of delay. On this, the counsel for the respondent raised objection now when one and a half years have elapsed since the appeal was filed, the question of moving the application for the condonation of delay did not arise and the appeal may therefore be dismissed as barred by limitation."
A perusal of the order of the Collector quoted above would show that the issue as to whether an appeal against orders dated 16th June, 1988, is competent or not, was in fact, mooted before the Collector and it is under the weight of merits of the contentions raised by the contesting respondents that the issue was conceded. A perusal of the records of this case strengthens my observations made above. The learned counsel has not been able to point out either from the grounds of revision that was filed either before the Commissioner or the Financial Commissioner or even from the orders passed by the Commissioner and the Financial Commissioner that no such concession was made before the Collector. Further, the learned counsel has not even pointed out from the averments made in the petitions filed before this Court that no such concession was made before the Collector. Be that as it may, even if the matter is enquired by completely ignoring concession made by the counsel appearing for the petitioner before the Collector, I am of the view that no appeal was competent against orders dated 16th June, 1988.
6. Sections 110 to 126 contained in Chapter IX of the Act deal with partition. While S. 110 is with regard to the effect of partitions of estates and tenancies on joint liability for revenue and rent for purposes of the Land Revenue Act. S. 111 is with regard to rights of a joint owner of land or a joint tenant or a tenancy in which the right of occupancy subsists, to apply to a revenue officer for partition of his share in the land or tenancy, as the case may be. S. 112 is with regard to restriction and limitation on partition. It contains provisions giving power to the revenue officers to refuse partition pertaining to any embankment, water-course, well or tank, grazing ground or any land which is occupied as the site of a town or village and is assessed to land revenue. S. 113 contains provisions with regard to issuance of notices to interested parties and the rights of such parties to raise an objection to partition proceedings. S. 114 is with regard to addition of parties to the partition application. S. 115 of the Act vests power in the revenue officer to disallow partition if in his opinion there is good and sufficient cause to do so. S. 116 deals with procedure on admission of partition applications. Ss. 117 and 118 which contain a clue to the answer of the question under consideration need to be reproduced here:--
"117. Disposal of questions as to title in property to be divided.-- (1) Where there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court. (2) Where the revenue officer himself proceeds to determine the question, the following rules shall apply, namely:
(a) If the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as Revenue Court under the provisions of the Punjab Tenancy Act, 1887.
(b) If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein.
(c) An appeal shall lie from the decree of the Revenue Officer under Cl. (b) as though that decree were a decree of a Subordinate Judge in an original suit.
(d) Upon such an appeal being made, the District Court or High Court, as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal.
(e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force."
"118. Disposal of other questions.-- (1) Where there is a question as to property to be divided, or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.
(2) An appeal may be preferred from an order under sub-sec. (1) within fifteen days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the Revenue Officer by the authority to whom the appeal has been preferred the Revenue Officer shall stay proceedings pending the disposal of the appeal.
(3) If an applicant for partition is dissatisfied with an original or appellate order under this section, and applies for permission to withdraw from the proceedings in so far they relate to the partition of his shares, he shall be permitted to withdraw therefrom on such terms as the Revenue Officer thinks fit.
(4) When an applicant withdraws under the last foregoing sub-section, the Revenue Officer may, where the other applicants if any desire the continuance of the proceedings, continue them in so far they relate to the partition of the shares of those other applicants."
A perusal of the two sections that have been quoted above would show that it is under these sections that the questions of title and mode of making partition are determined. Once the aforesaid questions are determined, the partition proceedings, in so far as the rights of the parties are concerned, come to an end. S. 119 contains provisions about administration of property excluded from partition whereas S. 120 contains provisions with regard to distribution of revenue and rent after partition. In so far as S. 121 of the Act is concerned, it only says that when partition is completed the Revenue Officer will cause an instrument of partition to be prepared and the date on which the instrument of partition is to take effect would be recorded therein. S. 122 of the Act is only with regard to delivery of possession of property allotted on partition. S. 123 deals with affirmation of partition privately effected. Ss. 124 to 126 are only with regard to power to make rules as to costs of partitions, redistribution of land according to custom and details of officers who may be empowered to act under the chapter dealing with partition proceedings. A perusal of the schemes of partition contained in Chapter IX would manifest that after the mode of partition is determined, the partition proceedings come to an end, and in so far as the preparation of instrument of partition is concerned it is only an executory act. An appeal has been specifically provided against an order dealt with by S. 118, i.e., the mode of partition. In case such an appeal is filed within 15 days from the date of determination of the mode of partition and the institution of such an appeal has been certified to the Revenue Officer, it amounts to an automatic stay of proceedings pending disposal of the appeal. If the orders specifically dealt with in the Act against which an appeal is provided or which otherwise determine the rights of the parties, like an order refusing partition, order determining title of the parties, are not appealed against and the partition proceedings are permitted to go on till finalisation of his mode of partition then the consequential orders which only implement what has been determined earlier cannot be the subject-matter of appeals. Mr. Verma, however, on the strength of decision rendered by Himachal Pradesh High Court reported as Kham Dutt v. Palkia, 1982 Pun LJ 391: (AIR 1983 Him Pra 28) and decision rendered by Financial Commissioner, Punjab, reported as Kartar Singh v. Kapur Singh, 1971 Pun LJ 677, has endeavoured to persuade me to take a different view. A perusal of the aforesaid judgments, however, would show that the point under consideration was not at all involved in the aforesaid two cases. It was only held in the said cases that preparation of the instrument of partition is not a mere formality but it is a necessary document to make a partition decree effective and that it is the date given in the instrument of partition from which the partition is to take effect and also that the possession even if delivered to the parties before the partition was made effective would not extinguish the status of the parties as a co-sharer. It is, no doubt, true that the instrument of partition has necessarily to be prepared but the fact remains that the said instrument only records what has already been determined. It is a formal document that has to be prepared only to recognise the fact of partition. The very fact that it has to be necessarily drawn does not mean that it is appealable. A perusal of various sections that have been referred to above would manifest that the instrument of partition is a step in execution of partition which has already taken place. Once all the necessary steps in effecting partition have been taken then a party to proceedings cannot raise objections in drawing the instrument of partition. It is just like a decree which is to follow the judgment. It is only those orders which affect the rights of the parties that are appealable and the document, viz., the instrument of partition which is only a step towards execution of the order of partition shall not be appealable. Faced with this situation, Mr. Verma contends in alternative that the appeal filed by the petitioner against orders dated 16th June, 1988, should be treated to be an appeal against orders dated 5-10-1987 and 5-5-1988. He further contends that the delay in filing appeal against orders dated 5th October, 1987 and 5th May, 1988, should be condoned in the insterest of justice. This course is neither legally permissible nor equitable in view of the facts and circumstances of this case. The grounds to challenge orders dated 5th October, 1987 and 5th May, 1988 are of a different variety and some illegality, impropriety or failure of justice has necessarily to be pointed out. In the petitions filed in this Court not a word has been mentioned as to how and in what manner the proceedings conducted by the Revenue Officer were either illegal or improper or caused in any manner injustice to the petitioner. Mr. Verma, however, points out from the grounds of appeal taken before the Collector such illegalities or improprieties but even the perusal of the grounds taken before the Collector do not depict any specific point raised. These grounds are of general nature only and even in regard to such allegations nothing has been pointed out to this Court. In order to invoke the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India, the petitioner must, in order to entitle himself to any relief, show that manifest injustice has been caused to him as a result of the impugned orders. When nothing at all has been either stated or shown that any injustice, much less manifest injustice, has occurred to the petitioner no relief can be granted to him. It requires to be noticed here that the interest of numerous persons has intervened. The answering respondents have allotted plots to the people who, in turn, have paid huge amounts towards cost of land and internal and external development charges either to the respondents or the Government.
7. For the reasons stated above, these petitions fail and are, thus, dismissed. No order as to costs.
8. Petitions dismissed.