Hira Singh Chandel Vs State of Hp and Others

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Civil Writ Petition No.1883 of 2024 Date of Decision: 03.01.2025

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Hira Singh Chandel ……...Petitioner Versus State of Himachal Pradesh and Others …....Respondents

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Coram

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes.

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For the Petitioner: Mr. Peeyush Verma, Senior Advocate, with Mr. Ajay Thakur, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General, for State. Mr. Nand Lal Chauhan and Mr. Shubham Thakur, Advocates, for respondents No.2, 3(i) to 3(iv), 5 & 7. Mr. Virender Singh Kanwar, Advocate, for respondents No.4 & 8.

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Sandeep Sharma, J. (Oral)

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Being aggrieved and dissatisfied with the order dated 24.01.2024 passed by learned Financial Commissioner (Appeals), Himachal Pradesh at Shimla, dismissing Petition No.371 of 2023, titled Hira Singh Chandel Vs. Amar Singh Chandel and Others, whereby revision petition field by the petitioner herein under Section 17 of Himachal Pradesh Land Revenue Act, 1954, laying therein challenge to order dated 13.07.2023, passed by learned Sub-Divisional Collector, Shimla (Rural), District Shimla, Himachal Pradesh, in case

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No.21-VIII/2016, upholding the order dated 18.02.2016 passed by Assistant Collector, 2^nd Grade, Dhami, District Shimla, in partition case No.04/2016, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein to set-aside afore orders passed by revenue authorities.

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Precisely, the facts of the case, as emerge from the record are that partition case No.4 of 2016, came to be instituted in the Court of learned Assistant Collector, 2^nd Grade, Dhami, District Shimla, Himachal Pradesh. Vide order dated 18.02.2016, learned Assistant Collector, 2^nd Grade, Dhami, District Shimla, disposed of the afore partition case and prepared mode of partition (Annexure P-5). After seven years of passing of afore order dated 18.02.2016 by learned Assistant Collector, 2^nd Grade, Dhami, District Shimla, petitioner herein, who had actually consented for the mode of partition, prepared by the competent authority, filed an appeal under Section 14 of the Act, in the Court of learned Sub-Divisional Collector (Rural), Shimla, District Shimla, on following grounds:

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“1. That the opportunity of being heard was not provided to the present appellant by the learned lower Court and he has wrongly been proceed ex parte in violation of principle of natural justice.

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2. That the appellant has not been summoned by the learned Assistant Collector before finalizing the partition proceedings which has seriously

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prejudiced the rights of the appellant since he has been condemned unheard without effecting any service upon him.

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3. That classification of land has not been considered while carrying out the partition of the land on the spot and major portion of land classified as Bakhal Awal and adjacent to the National Highway was allotted to the respondent No.1 which is against the settled principles of law.”

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Afore authority after having heard the parties and perused the record, proceeded to dismiss the appeal vide order dated 13.07.2023 (Annexure P-6). Being aggrieved and dissatisfied with aforesaid order passed in appeal, petitioner further approached learned Financial Commissioner (Appeals) by way of revision petition, as detailed hereinabove, which also came to be dismissed vide order dated 24.01.2024. In the afore background, petitioner has approached this Court in the instant proceedings praying therein to set-aside orders passed by revenue authorities, thereby upholding the partition.

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Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Peeyush Verma, learned Senior Counsel representing the petitioner, duly assisted by Mr. Ajay Thakur, Advocate, is that no opportunity of being heard was ever afforded to the petitioner by the Assistant Collector, 2^nd Grade and he was wrongly proceeded ex parte , which is violative of principles of natural justice. While making this Court peruse documents adduced on record, Mr. Peeyush Verma, learned Senior

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Counsel representing the petitioner vehemently argued that no summon was ever issued by learned Assistant Collector, 2^nd Grade, before deciding the partition proceedings, as a result thereof, serious prejudice has been caused to the petitioner, who has been admittedly allotted lesser land in comparison to other land-owners. He further submitted that bare perusal of mode of partition prepared by Assistant Collector, 2^nd Grade, reveals that classification of land was not considered while carrying out the partition of the land on the spot and major portion of land classified as Bakhal Awal and adjacent to the National Highway was allotted to respondent No.2, which is against the settled principles of law. Mr. Peeyush Verma, learned Senior Counsel further argued that since bare perusal of Annexure P-4 dated 22.07.2014 itself reveals that only five persons out of six signed the document, thereby agreeing for partition, there was no occasion, if any, for Assistant Collector, 2^nd Grade to prepare mode of partition. While seriously disputing the signatures of the petitioner on Annexure P-4 dated 22.07.2024, Mr. Verma, learned Senior Counsel argued that once it stood duly proved on record that on afore date, petitioner was never served, there is a presumption that signatures, if any, contained on Annexure P-4 dated 22.07.2014 are not of the petitioner. If it is so, mode of partition, approved by Assistant Collector, 2^nd Grade, vide order dated 18.02.2016 is not binding upon the petitioner. Mr. Verma

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further argued that service, if any, of the petitioner was not in consonance with Order V of the Code of Civil Procedure, because summons were received by Ms. Sneh Lata i.e. wife of brother of the petitioner, who admittedly resides separately. He submitted that procedure as laid under Section 125 of the Act has not been followed in letter and spirit, as a result thereof, great prejudice has been caused to the petitioner, in whose absence, parties have been able to persuade Assistant Collector, 2^nd Grade, to approve mode of partition, which is advantageous to them. He further submitted that land allotted to the petitioner comprises mainly of stone quarry comprised in Khasra Nos.904, 908 and 903. Besides this, land which has been allotted to the petitioner in Khasra No.903 and 913, though is recorded as Bagicha Doem Faldar , but on the spot, the same is in the form of nullah .

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To the contrary, Mr. Vishal Panwar, learned Additional Advocate General, Mr. Virender Singh Kanwar and Mr. Nand Lal Chauhan, Advocates, for respondents, while supporting the impugned order passed by the learned Financial Commissioner (Appeals), vehemently argued that once petitioner has agreed for the partition proceedings, carried out by the Filed Kanungo on 22.07.2014, he cannot be permitted to claim that he was not associated at the time of preparation of the mode of partition. Learned counsel representing the

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respondents further submitted that once petitioner has participated in proceedings before the revenue authority and he was duly served for the date fixed by the Assistant Collector, 2^nd Grade, no illegality can be said to have been committed by the Assistant Collector, 2^nd Grade, while passing order dated 18.02.2016.

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Having heard learned counsel for the parties and perused material available on record, vis-a-vis reasoning assigned in the impugned orders, this Court finds no illegality or infirmity in the same and as such, no interference is called for.

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Having perused the statement made by petitioner as well as other respondents before Field Kanungo on 22.07.2014 (Annexure

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P-4), it is apparent that petitioner had participated in the partition

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proceedings. At this stage, it would be apt to reproduce Sections 123 and 125 of the Act, as under:

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“123. Application for partition.- Any joint owner of land, or any joint tenant of a tenancy in which a right of occupancy subsists, may apply to a Revenue Officer for partition of his share in the land or tenancy, as the case may be, if-

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(a) at the date of the application the share is recorded under Chapter IV as belonging to him, or

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(b) his right to the share has been established by a decree which is still subsisting at that date, or

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(c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.

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125. Notice of application for partition.- The Revenue Officer, on receiving the application under section 123 shall, if it is in order and not open to objection on the face of it, fix a day for the hearing thereof, and –

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(a) cause notice of the application and of the day so fixed to be served on such of the recorded co-sharers as have not joined in the application, and, if the share of which partition is applied for is a share in a tenancy, on the land-lord also; and

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(b) issue a proclamation calling on any person who may have objections to the partition to appear before him either in person or by a duly authorised agent on a day fixed for the hearing of the application and to state them.”

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Though it came to be vehemently argued by learned

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Senior Counsel representing the petitioner that procedure as laid under Sections 123 and 125 of the Act never came to be complied with, but this Court is of the view that Sections 123 and 125 of the Act when read in conjunction, show that they are complimentary to each other. Section 123 provides that during process of partition, revenue officer has to ensure presence of all the parties and Section 125 of the Act provides that if a party has not been heard earlier, can be provided opportunity. In the case at hand, careful perusal of partition proceedings conducted by Filed Kanungo on 22.07.2014 clearly reveals that on afore date, petitioner was not only present, but he consented to the partition proceedings, as well as acquisition of shares, which ultimately came to be reflected in the mode of partition. Since it stands duly established on record that on 22.07.2014,

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petitioner had consented to the partition proceedings, he is estopped from claiming that he was not provided due opportunity to present his case before the authority concerned.

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Having perused the mode of partition in its entirety, this Court is not persuaded to agree with Mr. Peeyush Verma, learned Senior Counsel representing the petitioner that petitioner has been allotted less valuable land, because similar nature of land has been also allocated to other parties. Bare perusal of statement made by petitioner on 22.07.2014 before Field Kanungo clearly reveals that that he agreed for allotment of Khasra Nos.903, 904, 908, 913, 929/2 kita 5 measuring 00-46-52 hectare, in his share.

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Though an attempt came to be made by Mr. Peeyush Verma, learned Senior Counsel representing the petitioner that lesser land has been allotted to the petitioner in comparison to the other respondents, but he was unable to dispute that share of mother of the petitioner as well as other respondents has gone to respondent No.6Satya Pal, as a result thereof, larger chunk of land has been allotted to him. Besides above, it also emerges from the record that petitioner herein, apart from instituting proceedings before Financial Commissioner (Appeals), laying therein challenge to order passed by Collector, also filed a civil suit in the Court of learned Senior Civil Judge, Court No.1, Shimla, wherein he also filed an application under

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Order XXXIX Rules 1 & 2 CPC, praying therein for ad interim injunction, however, vide order dated 08.12.2013, Civil Court rejected his prayer for injunction observing in Para 17 as under:

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“…applicant had consented for the partition. He made a statement on 22.07.2014. It is clear from the record that he participated in the partition proceedings. ”

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Revenue authorities as well as learned Civil Court having taken note of pleadings as well as documents/evidence adduced on record rightly arrived at a conclusion that due opportunity of being heard was provided by the Assistant Collector, 2^nd Grade, before finalizing the mode of partition. Once petitioner himself made a statement on 22.07.2014, wherein he agreed for allotment of the land comprised in Khasra Nos.903, 904, 908, 913, 929/2 kita 5 measuring 00-46-52 hectare, no illegality can be said to have been committed by the authorities below while upholding the order dated 18.02.2016 passed by the Assistant Collector, 2^nd Grade, Dhami, District Shimla.

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Factum of having signed the partition proceedings carried out by Field Kanungo on 22.07.2014 is nowhere disputed in the pleadings adduced on record by petitioner, rather plea has been set-up by the petitioner that his signatures, obtained during the lifetime of his father, for obtaining some papers, have been misused by the respondents. Since no cogent and convincing evidence ever came to be

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adduced on record to prove aforesaid allegation, authorities below rightly ignored the same, which otherwise appears to have been taken to defeat the rightful claim of other parties, who have been eagerly waiting for partition proceedings to conclude. Leaving everything aside, all the authorities below have concurrently held in favour of the respondents and as such, there appears to be no justification for this Court to interfere with the well reasoned orders passed by the authorities below.

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Consequently, in view of the above, present petition is dismissed being devoid of merits and orders dated 18.02.2016, 13.07.2023 and 24.01.2024 passed by the revenue authorities are upheld.

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In the aforesaid terms, petition stands disposed of, along with pending applications, if any.

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January 03, 2025 Rajeev Raturi

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(Sandeep Sharma), Judge

Hira Singh Chandel v. State of Hp and Others

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Hira Singh Chandel v. State of Hp and Others

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