Dismissed

Ram Gopal v. State of Haryana and Ors.

Punjab & Haryana HC25 Aug 2009CWP/10014/2009

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the partition of land. The court held that mere non-hearing without demonstrated prejudice does not invalidate proceedings. It directed the petitioner to approach the Financial Commissioner for revision under Section 16(1).

What did the court decide?

Petition dismissed; liberty granted to assail the order before the Financial Commissioner via revision.

Ram Gopal Vs State of Haryana and Ors. — Land Acquisition | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No. 10014 of 2009

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Date of decision : 25.8.2009

Ram Gopal

….. Petitioner

Versus

State of Haryana and Others

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….. Respondents

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Present : Mr. Sandeep Kotla, Advocate for the petitioner.

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S.S. SARON, J.

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This petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 8.4.2009 (Annexure P2) stated to have been passed by respondent No.1 i.e. the Financial Commissioner, (Revenue). In fact, the said order has been passed by the Collector Hisar.

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The petitioner Ram Gopal filed an appeal against an order dated 31.10.2008 inter alia stating that the non-official respondents had filed an application for partition of land measuring 339 kanals 16 marlas in the area of Adampur. In the said application, the petitioner was not impleaded as a party and the Court below had completed the proceedings of partition in a totally illegal manner. Besides, it had ignored that the petitioner was also a co-sharer. The respondents before the Collector Hisar on appearance stated that the petitioner had filed an application before the Court below for impleading him as a party and the said application was dismissed on 31.10.2008. In fact Naksha

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CWP No. 10014 of 2009

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[2]

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‘KA’ was prepared on 24.9.2008 after acceptance by all the parties. Thereafter, Naksha ‘KHA’ was prepared on 17.10.2008. It was followed by Naksha ‘G’ which was completed. Ultimately, the mode of partition was prepared on 17.10.2008 and the proceedings were completed. The learned Collector, Hisar in terms of his impugned order dated 8.4.2009 (Annexure P2) observed that in terms of order dated 24.9.2008 Naksha ‘KHA’ was prepared against which there were no objections. After finalization of Naksha ‘KHA’, Naksha ‘G’ was prepared and the Sanad Takseem was issued on 17.10.2008. The petitioner had filed an application on 31.10.2008 after partition proceedings had been completed. It was observed that the appeal of the petitioner was without any force because the learned lower Court had passed a correct order on 31.10.2008. The said order was passed after partition proceedings had been completed. A reference was made to Section 121 of the Punjab Land Revenue Act, 1887 (“Act” – for short) which provides that when a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein. Aggrieved against the said order, the petitioner has filed the present petition.

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Learned counsel for the petitioner has contended that the petitioner was not heard at the time of partition proceedings and therefore, the partition is liable to be undertaken afresh after impleading the petitioner as a party.

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After giving my thoughtful consideration to the matter, it may be noticed that the instrument of partition in terms of Section 121 of the Act has been prepared and the partition is complete. The partition proceedings is not shown to be improper or that it was not carried out as per law. The mere fact that the petitioner was not heard by itself cannot be such a circumstance so as to nullify the entire partition proceedings of land measuring 339 kanals 16 marlas. Learned counsel for the petitioner has not been able to show as to what is the share of the petitioner in the land that has been partitioned and as to how and in

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CWP No. 10014 of 2009

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[3]

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what manner he is aggrieved against the Sanad Takseem that was prepared on 17.10.2008 and has been issued on 31.10.2008 (Annexures P3 and P4). Besides, it is not shown by the petitioner as to how his rights are affected or as to what is the prejudice caused to him. A right of hearing and participation in the decision making process is indeed a facet of principles of natural justice. However, it would not be correct to say that for any and every violation of a facet of principles of natural justice or a rule incorporating such facet the order that has been passed is altogether void and ought to be set aside without further inquiry. The petitioner in order to seek the nullity of the partition proceedings on the allegation of violation of the principles of natural justice is liable to show as to what is the prejudice that has been caused to him. In case, it is found that the order that has been passed has prejudiced him, an appropriate remdial order in accordance with law can be passed. However, if no prejudice is shown or is established it is obvious that no interference is called for. Therefore, in the absence of prejudice this Court is not liable to interfere on the mere allegation that the petitioner was not heard. This is more so for the reason that the petitioner had filed an application for impleading himself as a party which was dismissed on 31.10.2008. In fact by then Naksha ‘KA’ had been prepared on 24.9.2008. Thereafter, Naksha ‘KHA’ was prepared on 17.10.2008. The Naksha ‘G’ was also completed and mode of partition was prepared.

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It may also be noticed that against an order of Sanad Takseem, no appeal is maintainable. However, in such a situation, the petitioner is not without remedy. A Division Bench of this Court in Resham Singh @ Dilbagh

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Singh v. Assistant Collector Ist Grade-cum-Tehsildar, Phillaur and Others

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CWP No. 19985 of 2005 decided on 15.5.2007 has held that the powers conferred by Section 16(1) of the Act, would take within their ambit a quasijudicial appraisal of the legality of the Sanad Takseem . An aggrieved person may, in exceptional circumstances, invoke the Financial Commissioner’s

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CWP No. 10014 of 2009

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[4]

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jurisdiction, under Section 16 (1) of the Act. Section 16 (1) of the Act confers suo motu revisional powers upon the Financial Commissioner to call for and examine the legality of any proceeding, pending before or decided by a revenue officer. It was observed that the petitioner in the first instance should have approached the Court of Financial Commissioner by way of revision. The dictum of the Division Bench in Resham Singh @ Dilbagh Singh’s case (Supra) was followed by this Court in the case of Puran Singh @ Sampuran Singh v. Financial Commissioner (Development), Punjab Chandigarh and Others, 2009 (2) RCR (Civil) 712 . It was held in the said case that it was true that the Act does not provide for an appeal against Sanad Takseem but an aggrieved person cannot be left without a forum to seek redress. It was observed further that finality attached to a Sanad Takseem can always be impugned by invoking the powers of the High Court under Article 226 of the Constitution of India, or suo motu powers conferred upon the Financial Commissioner. The case was remanded back to Financial Commissioner.

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In the present case, though the petitioner has not been heard, however, at the same time it has not been shown as to what prejudice has been caused to him against the order dated 31.10.2008 (Annexure P4). The said order in fact is not even assailed or under challenge in the present petition. Therefore, in the facts and circumstances, it would be just and expedient that in case the petitioner is aggrieved against the order dated 30.10.2008 (Annexure P4), whereby Sanad Takseem has been sanctioned, it would be proper that he assails the said order by way of a revision petition before the learned Financial Commissioner, Revenue in the first instance.

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CWP No. 10014 of 2009

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[5]

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Accordingly, the writ petition is dismissed. However, the petitioner would be at liberty to assail the orders dated 31.10.2008 (Annexures P3 and P4) before the learned Financial Commissioner, Revenue in accordance with law.

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(S.S. SARON) JUDGE

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August 25, 2009 amit

Ram Gopal v. State of Haryana and Ors.

Case brief

What is this about?

What did the court decide?

Ram Gopal v. State of Haryana and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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