Punjab-Haryana High Court
Date Of Decision:19.08.2013 vs Financial Commissioner on 19 August, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
Kumar Vinod
2013.08.24 12:12
I attest to the accuracy and
integrity of this document
Chandigarh
CWP Nos.17880, 17887 & 17943 of 2013 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) CWP No.17880 of 2013
Date of decision:19.08.2013
Smt. Santosh ...Petitioner
Versus
Financial Commissioner, Haryana and others ...Respondents
(2) CWP No.17887 of 2013
Date of decision:19.08.2013
Smt. Santosh ...Petitioners
Versus
Financial Commissioner, Haryana and others ...Respondents
(3) CWP No.17943 of 2013
Date of decision:19.08.2013
Smt. Santosh ...Petitioner
Versus
Financial Commissioner, Haryana and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Lokesh Sinhal, Advocate,
for the petitioner.
*****
RAKESH KUMAR JAIN, J.
This order shall dispose of three writ petitions bearing CWP Nos.17880, 17887 & 17943 of 2013 as the facts and issues involved therein are identical. However, the facts are extracted from CWP No.17880 of 2013..
Kumar Vinod2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [2]
***** As per the case set up by the petitioner, respondent nos.5 and 6 filed an application for partition on 06.02.2008 of the land comprised in Khewat No.299, Khata No.304, Rectangle No.17, Killa No.9/1/1(2-0), 9/2 (2-17), 10(3-0), total measuring 7 Kanals 17 Marlas, situated within the revenue state of village Ullawas, Tehsil Sohna, District Gurgaon. Two more applications for partition of Khewat Nos.212 and 213 were also filed by respondent nos.5 and 6, as the co-sharers in all these Khewats were same except in Khewat No.213.
According to the petitioner, the Assistant Collector 1st Grade proposed the mode of partition on 16.07.2008 which was accepted on the same day. Naksha-Be was received on 30.07.2008 and the case was fixed for 06.08.2008 for filing objections, but the objections could not be filed and the case was adjourned to 13.08.2008. On 13.08.2008, predecessors-in- interest of the petitioner changed its counsel and the case was fixed for 19.08.2008 for spot inspection and it was directed that the objections to Naksha-Be be also given at the spot. On that date, spot inspection was carried out by the Assistant Collector 1st Grade and the case was kept for 20.08.2008. The predecessor-in-interest of the petitioner filed objections and the case was adjourned to 27.08.2008 for consideration, on which date the Assistant Collector 1st Grade dismissed the objections and the case was fixed for preparation of Naksha `Zeem'.
Naksha `Zeem' was prepared and accepted on 01.10.2008 and the Sanad Taqsim was also issued on the said date. The predecessor-in- interest of the petitioner filed three appeals on 09.11.2009 against the order Kumar Vinod 2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [3] ***** dated 27.08.2008 along with application for condonation of delay. The appeals were allowed by the Collector on 08.11.2011 and remanded them back to the Assistant Collector 1st with a direction that the partition be done after clubbing all the three Khewats. Respondent nos.5 and 6 challenged the order dated 08.11.2011 before the Divisional Commissioner who set aside the order of the Collector vide order dated 07.06.2012.
The present petitioner came into picture after purchasing the share of M/s. Lala Sher Singh Memorial Trust after the order dated 08.11.2011 was passed by the Collector. The petitioner challenged the order of the Divisional Commissioner dated 07.06.2012 by way of revision which has been dismissed by the Financial Commissioner on 29.05.2013.
Counsel for the petitioner has vehemently argued that the partition proceedings are not in accordance with law inasmuch as the land given to the petitioner is in the shape of a strip which cannot be put to any use.
After hearing learned counsel for the petitioner and on perusal of the available record, I have found that the Financial Commissioner, while dismissing the revision petition filed by the petitioner, has passed the following order:-
"I have gone through the submissions put forth by the Counsels, orders dated 07.06.2012 and 08.11.2011 passed by Commissioner, Gurgaon Division, Gurgaon and Sub Divisional Officer (Civil)-cum-Collector, Gurgaon-South respectively, orders dated 27.08.2008 and 01.10.2008 passed by Assistant Collector, 2nd Grade, Sohna (Gurgaon), relevant provisions of Punjab Land Revenue Act, 1887 and various rulings in this regards. In this case, it is clear that Sub Kumar Vinod 2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [4] ***** Divisional Officer (Civil)-cum-Collector, Gurgaon-South has decided the appeal by treating the same as revision, knowing fully well that Collector is not competent to decide the revision and only after issuance of `Sanad Taqsim', Financial Commissioner is competent to decide the same as provided in Section 16(1) of the Punjab Land Revenue Act, 1887. Even, Commissioner is not competent to decide the revision after issuance of `Sanad Taqsim'. This has been clearly held in 2010(2) RCR (Civil) 263 (P&H), 2009(4) RCR (Civil) 353 (P&H) and 2009(2) RCR (Civil) 712 (P&H) that Section 16 (1) of the said Act confers suo moto revisional powers upon the Financial Commissioner to call for and examine the legality of proceedings pending before and decided by a revenue officer. It has been further upheld that finality attached to `Sanad Taqsim' can also be impugned by invoking the power of High Court under Article 226 of Constitution of India and suo moto powers conferred under Section 16(1) of the said Act concurrently. Hence, the Collector has gone beyond its jurisdiction and committed grave illegality in the matter. Further, he has also directed that all the three khewats be combined without examining whether share holders in all the three khewats are common as held by Financial Commissioner, Punjab in a case titled as Swarn Singh vs. Sukhdev Singh and others, decided on 31.10.1996, cited in 1997(1) PLJ 16. It has been clearly held by the Commissioner, Gurgaon Division, Gurgaon in his order dated 07.06.2012 that share holders in all the three khewats are different and the same cannot be combined in any of the eventualities. This aspect has also been ignored altogether by the Sub Divisional Officer (Civil)-
cum-Collector, Gurgaon-South. Accordingly, the said order of the Collector suffers from illegalities and infirmities.
In the light of above, there is no infirmity in the Kumar Vinod 2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [5] ***** order dated 07.06.2012 passed by the Commissioner, Gurgaon Division, Gurgaon and the same is based on legal footings. Hence, revisions are dismissed in limine, being devoid of merit. Financial Commissioner (Revenue), Haryana, Chandigarh is requested to take disciplinary action for major penalty under Rule-7 of Haryana Civil Services (Punishment and Appeal) Rules, 1987 against the concerned Sub Divisional (Civil)-cum- Collector, Gurgaon-South for the illegalities and infirmities enunciated above."
According to the aforesaid order, it is apparent that the Sub Divisional Officer (Civil)-cum-Collector has passed the order dated 08.11.2011 treating the appeal as revision because, admittedly, the appeal was time barred and it was filed by the predecessor-in-interest of the petitioner along with an application for condonation of delay. It was argued before the Collector that the application for condonation of delay is not supported by any affidavit and once the deed of partition has been issued, the appeal does not lie before the Collector, rather the remedy lies only before the Financial Commissioner or the High Court but despite that treating the appeal to be revision in which it is observed by the Collector that the question of limitation does not arise, the impugned order dated 08.11.2011 was passed. It is needless to mention that statutory remedy of appeal, review and revision cannot be assumed by any authority until and unless they are provided in the Act. Appeals are provided under Section 13 of the Act and limitation to file the appeal is provided under Section 14 of the Act. Revisions are also provided under Section 16 of the Act. Sections 13, 14 and 16 of the Act, relevant for the purpose of this case, are Kumar Vinod 2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [6] ***** reproduced herein-as-under:-
"13. Appeals.-- Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue-officer as follows, namely:-
(a) to the Collector when the order is made by a Assistant Collector of either grade;
(b) to the Commissioner when the order is made by a Collector;
(c) to the Financial Commissioner when the order is made by a Commissioner:
Provided that-
(i) when an original order is confirmed on first appeal, a further appeal shall not lie;
(ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final.
14. Limitation for Appeals.-- Save as otherwise provided by this Act, the period of limitation for an appeal under the last foregoing section shall run from the date of the order appealed against, and shall be as follows, that is to say--
(a) when the appeal lies to the Collector-thirty days;
(b) when the appeal lies to the Commissioner-sixty days;
(c) when the appeal lies to the Financial Commissioner-
ninety days.
xxx xxx xxx
xxx xxx xxx
16. Power to call for, examine and revise proceedings of Revenue officers.-- (1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue-officer subordinate to him.
(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue-officer under his control.
Kumar Vinod2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [7]
***** (3) If in any case in which a Collector has called for a record and he is of the opinion that the proceedings taken or order made should modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner whose decision shall be final.
(4) The Financial Commissioner under sub-section (1), or Commissioner under sub-section (2), in any case called for by himself, may pass such orders as he thinks fit:
Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate Revenue-officer and affecting any question of right between private persons without giving those persons an opportunity of being heard:
Provided further that the revisional cases pending before the commencement of the Punjab Land Revenue (Haryana Amendment) Act, 1996, shall be decided by the Financial Commissioner as heretobefore."
Since the order of the Assistant Collector 1st Grade was appealable under Section 13 which could have been filed within 30 days from the date of the order, the predecessor-in-interest of the petitioner had rightly filed the appeal before the Collector and since the limitation had already expired, an application for condonation of delay was also filed along with it, but it was not supported by an affidavit. Since the appeal was filed after the preparation of 'Sanad Taqsim' (document of partition), therefore, the respondents raised an objection before the Collector that the jurisdiction in this regard vests only with the Financial Commissioner in terms of Section 16(1) of the Act. In this regard, reference could be made to various judgments of this Court in the cases of Krishan v. State of Haryana and others, 2009(4) R.C.R. (Civil) 353, Balbir Chand v. Kumar Vinod 2013.08.24 12:12 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.17880, 17887 & 17943 of 2013 [8]
***** Financial Commissioner (Appeals II), Punjab and others, 2010(2) R.C.R. (Civil) 263, Puran Singh @ Sampuran Singh v. Financial Commissioner (Development), Punjab, Chandigarh and others, 2009(2) R.C.R. (Civil) 712 and Amar Khan and others v. State of Punjab and others, 2009(1) R.C.R. (Civil) 741, in which it has been held that no appeal against the preparation of Sanad Taqsim is maintainable and the aggrieved party can invoke jurisdiction of Financial Commissioner under Section 16 (1) of the Act against the said order. Since the power does not vest with the Collector who had first committed an error in converting the appeal into the revision on its own and secondly setting aside the order of the Assistant Collector 1st Grade who had passed the order of `Sanad Taqsim', the said order has been rightly set aside by the higher Courts and even the Financial Commissioner has requested the Financial Commissioner (Revenue), Haryana, to take disciplinary action against the concerned Sub Divisional Officer (Civil)-cum-Collector in this regard.
In view of the aforesaid discussion, I do not find any merit in the present petitions and hence, all these three writ petitions are hereby dismissed.
August 19, 2013 (RAKESH KUMAR JAIN) vinod* JUDGE