Punjab-Haryana High Court
Inderdeep Singh And Others vs The Financial Commissioner ... on 3 May, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.14953 of 2010
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.14953 of 2010
Date of decision : May 03, 2013
Inderdeep Singh and others
.....Petitioners
VERSUS
The Financial Commissioner (Appeals-I), Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present : Mr. S.K. Singla, Advocate for the petitioners.
Mr. Suresh Singla, Addl. A.G. Punjab.
Mr. D.S. Brar, Advocate for respondent No.5.
Mr. P.S. Brar, Advocate for respondents No.6 to 8.
*****
RAMESHWAR SINGH MALIK, J.
1. The present writ petition is directed against the order dated 11.02.2010 (Annexure P-7) passed by the Financial Commissioner (Appeals-I), Punjab thereby allowing modification in the order of Assistance Collector Ist Grade, Faridkot to amend Naksha 'Zeem' by providing a passage along the Khal.
2. Facts first.
3. Respondent No.5 Avtar Singh filed an application for partition. When Naksha 'Be' was prepared, he filed only one objection dated 07.09.2006 (Annexure P-3), which reads as under:-
CWP No.14953 of 2010-2-
"That in Naqsha 'Be' no passage has been shown to go to the tak of the applicant comprising Khasra Nos.1273/1, 1272/1. Due to this there is no passage for the applicant to go from one tak to another, which needs be shown."
4. Since the sole objection raised by respondent No.5 was found to be factually incorrect and baseless, it was ignored and Naksha 'Be' was finalized vide order Annexure P-4, allotting separate parcels of land to all the concerned parties providing passage, watercourse etc. as per Annexure P-1. Dis-satisfied, respondent No.5 filed his appeal before the Collector which was dismissed vide order dated 16.09.2008 (Annexure P-5). The order passed by the Collector was also upheld in revision by the Commissioner, Faridkot Division vide his order dated 17.06.2009 (Annexure P-6), thereby dismissing the revision filed by respondent No.5 Avtar Singh. The matter was taken before the Financial Commissioner who, vide impugned order dated 11.02.2010 (Annexure P-7), accepted the revision filed by respondent No.5-Avtar Singh, thereby allowing the modification sought by him, directing Assistant Collector Ist Grade, Faridkot to amend Naksha 'Zeem', accordingly. Hence, this writ petition.
5. Learned counsel for the petitioner, while relying upon the site plan (Annexure P-2), submits that the site plan was prepared by the Kanungo. Land allotted to respondent No.5-Avtar Singh was shown in yellow colour whereas land allotted to the petitioner was shown in pink colour. The watercourse was shown in blue colour and the passage was shown in red colour which is a matter of record CWP No.14953 of 2010 -3- and not in dispute. He further submits that as per Annexure P-1, Khasra No.1273/1 and 1272/1 were allotted to the petitioner. This specific averment taken by the petitioner in para No.3 of the writ petition has been admitted by respondent No.5 in the corresponding paragraph No.3 of his written statement. He next contended that once these two Khasra Nos.1273/1 and 1272/1 have been allotted to the petitioner, the only objection raised by respondent No.5 in this regard vide Annexure P-3, was incorrect and also contrary to the fact situation obtaining at the site. He also submits that the Financial Commissioner has illegally interfered in the concurrent findings of facts recorded by Assistant Collector Ist Grade, Collector as well as Commissioner, in spite of the fact that there was no scope for interference at the hands of the Financial Commissioner. He further contended that the path shown in red colour has been provided to respondent No.5, just along the watercourse which makes the only objection of respondent No.5 as baseless. He prays for setting aside the impugned order by allowing the present writ petition.
6. On the other hand, learned counsel for respondent No.5 submits that although the passage has been provided in red colour, connecting his three parcels of land but the path ought to have been provided along the watercourse so as to avoid the wastage of the land. It would have been more convenient to both the parties. He also relies upon a Division Bench judgment of this Court in Ranbir Singh Vs. The Financial Commissioner, Haryana and others 2005(2) HRR 187. He finally prays for dismissing the writ petition. CWP No.14953 of 2010 -4-
7. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned order cannot be sustained and the writ petition deserves to be allowed for the following more than one reasons.
8. The sole objection raised by respondent No.5 to Naksha 'Be' vide Annexure P-3 and reproduced above, would show that the same was factually incorrect and baseless, for the reasons that both these Khasra Nos.1273/1 and 1272/1 had been allotted to the petitioner and not to respondent No.5. This fact is established from the bare reading of Annexure P1-Naksha 'Be' and at page 12 of the paper book. In this view of the matter, it is unhesitatingly held that the sole objection raised by respondent No.5 was mis- conceived which was rightly ignored by Assistant Collector Ist Grade.
9. Further, a combined reading of Annexures P-1 & P-2 would show that the path shown in red colour has been assigned two Khasra No., i.e., 3078/1239/2 (0-1), gair mumkin rasta and Khasra No.3080/1239/1 (0 - 1), gair mumkin rasta, as depicted at page No.12 of the paper book (Annexure P-1) and also so stated in the site plan (Annexure P-2). Similarly, the second passage shown in red colour towards the left side of above said passage, has also been provided two separate Khasra numbers which are Khasra No.3085/1274/3 & 3085/1274/2. On this very analogy, had their been a strip of land left between the passage shown in red colour CWP No.14953 of 2010 -5- and the watercourse shown in blue colour, as alleged by learned counsel for respondent No.5, in that eventuality the strip of land between the passage and watercourse would have also been allotted a separate Min Khasra number, which has not been done. The reason is obvious that the passage has been provided along the watercourse.
10. Further, it would be in the own interest of the petitioner also, that no strip of land is left in between the passage and watercourse, because he would not be in a position to put that small strip of land to any optimum use and it will go waste. However, since this factual aspect of the matter has not been properly appreciated by the Financial Commissioner, the impugned order Annexure P-7 cannot be sustained.
11. A combined reading of the orders passed by the Collector, Commissioner and the Financial Commissioner would show that the Collector and the Commissioner have rightly come to the conclusion that the only objection raised by respondent no.5 was mis-conceived. However, the Financial Commissioner fell in error of law while passing the impugned order. Thus, the order passed by the Collector and the Commissioner deserve to be restored.
12. During the course of arguments, learned counsel for respondent No.5 failed to point out any prejudice which might have been caused to respondent No.5. So far as the judgment relied upon by learned counsel for respondent No.5 is concerned, there is no dispute about the law laid down therein but the same is CWP No.14953 of 2010 -6- distinguishable on facts. The present case is based on entirely different set of facts. Since the Financial Commissioner has failed to give any cogent reason while passing the impugned order, the same cannot be sustained.
13. No other argument was raised.
14. Under the peculiar facts and circumstances of the case noted above, coupled with the reasons afore-mentioned, this Court is of the considered view that the impugned order dated 11.02.2010 passed by the Financial Commissioner (Appeals-I), Punjab is patently illegal and cannot be sustained. It is, therefore, ordered to be set aside and the order dated 16.09.2008 (Annexure P-5) passed by the Collector, Faridkot and the order dated 17.06.2009 (Annexure P-6) passed by the Commissioner, Faridkot, are ordered to be restored.
15. Resultantly, the instant writ petition stands allowed, however, with no order as to costs.
MAY 03, 2013 (RAMESHWAR SINGH MALIK) sunil JUDGE