Baldev Singh vs The Financial Commissioner and Others

Satish Kumar Mittal, J.—Baldev Singh petitioner has filed the instant writ petition under Articles 226/227 of the Constitution of India for

quashing the orders dated 26.8.1997 (Annexure P-3) and 13.1.1999 (Annexure P4) passed by the Commissioner, Ambala Division, Ambala and

the Financial Commissioner, Haryana, respectively, vide which the matter in dispute which pertains to the partition of the agricultural land, was

remanded to the Assistant Collector 1st Grade, Guhla for making partition afresh by giving proportionate share to all the co-sharers from the

valuable land measuring 32 kanals which is situated on the south of Cheeka-Pehowa road.

In the instant case, the partition proceedings were initiated by the petitioner and proforma respondents by filing an application before the

Assistant Collector 1st Grade, Guhla for partition of the agricultural land measuring 633 kanals 17 marlas situated in Village Cheeka, Tehsil Guhla,

District Kaithal. In this land, the petitioner Baldev Singh is having 1/18th share. On the other hand, the contesting respondents are having 2/3rd

share. According to the sanctioned mode of partition, the aforesaid land is to be separated in total 4 parts, according to the value, nature and

possession of the land. When ''Naksha Be'' was submitted by the Patwari for actual partition of the land according to the sanctioned mode of

partition, the contesting respondents raised objections to the said proposed ''Naksha Be''. Their grouse was that it was prepared in connivance

with the petitioner while ignoring the sanctioned mode of partition. According to the said ''Naksha Be'', the land comprising in Killa No. 8/1, 7, 13,

14 and 17 which is on the metaled road and is of much value, and which was in possession of the contesting respondents, was wrongly given to the

petitioner. It was argued that in the mode of partition, it was mentioned that the land on the metaled road be given to the parties according to their

share along with the tubewell and while doing so, the nature and possession of the land shall be taken into consideration. But the learned Assistant

Collector, Ist Grade, without properly appreciating the contention raised by the contesting respondents, rejected their objections and confirmed the

aforesaid ''Naksha Be'' vide his order dated 26.2.1997 (Annexure P-1). Against that order, the contesting respondents filed an appeal before the

Collector, Guhla. The same was also dismissed by the Collector vide his order dated 21.5.1997 (Annexure P-2).

Against the said orders dated 26.2.1997 and 21.5.1997, the contesting respondents filed revision petition before the Commissioner, Ambala

Division, Ambala. Vide order dated 26.8.1997 (Annexure P-3), the learned Commissioner accepted the said revision petition and set aside the

aforesaid orders while holding that the land measuring 32 kanals comprising in the aforesaid killa numbers is situated on the south of the Cheeka-

Pehowa road and same is more valuable land; and the said entire land has been wrongly allotted to the petitioner and his brother totally in

contravention of the sanctioned mode of partition. It was further observed that the aforesaid valuable land should be equally distributed among all

the co-sharers. With these observations, the learned Commissioner set aside the orders passed by the Assistant Collector, 1st Grade as well as the

Collector and remanded (the matter to the Assistant Collector, 1st Grade, Guhla to make partition afresh according to the observations made by

him. The said order was confirmed by the Financial Commissioner, Haryana, vide order dated 13.1.1999 (Annexure P4), on the revision petition

filed by the petitioner. In the instant writ petition, the petitioner has impugned the aforesaid two orders dated 26.8.1997 and 13.1.1999.

Learned counsel for the petitioner has raised two contentions. Firstly, he submitted that the order dated 26.8.1997, passed by learned

Commissioner is without jurisdiction. In this regard, he submitted that under Sub-section (3) of Section 16 of the Punjab Land Revenue Act

(hereinafter referred to as ''the Act''), the Commissioner, while exercising his revisional jurisdiction, could not have himself set aside the orders

passed by the Assistant Collector 1st Grade as well as the Collector. Rather, he was required to refer the matter to the Financial Commissioner

with his opinion that the aforesaid two orders are liable to be set aside and only then the Financial Commissioner could have set aside those orders

under Sub-section (4). Learned counsel for the petitioner made the aforesaid submission, while referring to the original Section 16 of the Act,

which is reproduced hereunder :-

Power To Call For Examine And Revise Proceedings Of Revenue Officer:-

(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.

(3) If in any case in which a Commissioner or Collector has called for record he is of opinion that the proceedings taken or order made should be

modified or reversed; he shall report the case with his opinion thereon for the order of the Financial Commissioner.

(4) The Financial Commissioner may in any case called for by himself under Sub-section (1) or reported to him under Sub-section (3) pass such

order as he thinks fit;

Provided that he shall not under this section pass an order revising or modifying any proceeding on order of a subordinate Revenue Officer and

affecting any question of right between private persons without giving those persons an opportunity of being heard.

The aforesaid Section 16 has been amended by the State of Haryana vide Punjab Land Revenue (Haryana Amendment) Act, 1996. According

to the said amendment, for Sub-sections (3) and (4) of Section 16 of the Act, the following sub-sections shall be substituted namely :-

(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 be

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 heretofore"".

In view of the aforesaid amendment, now it is not necessary for the Commissioner to make recommendation to the Financial Commissioner for

acceptance of the revision petition filed before him and he can himself take the decision of the same without making any reference which was

earlier required to be made. In view of this position, the above contention raised by learned counsel for the petitioner is devoid of merit, and it

cannot be said that the order dated 26.8.1997 passed by the learned Commissioner is without jurisdiction.

Secondly, learned counsel for the petitioner submitted that during the pendency of the revision petition before the Commissioner, instrument of

partition was prepared. Therefore, at that stage, learned Commissioner should not have interfered into the orders passed by the Assistant Collector

as well as the Collector. He further argued that the objections of the contesting respondents regarding the proposed ''Naksha Be'' were rightly

rejected by the Assistant Collector after holding that the said proposed ''Naksha Be'' was in accordance with the sanctioned mode of partition.

Learned counsel for the petitioner submitted that the learned Commissioner has arbitrarily set aside the orders of the Assistant Collector as well as

the Collector, while observing that a piece of land measuring 32 kanals, which was allotted in the aforesaid proposed ''Naksha Be'' to the

petitioner was valuable land. According to the learned counsel for the petitioner, there was no material before the learned Commissioner to hold

that the aforesaid piece of land was Valuable land.

I have considered the aforesaid submission made by learned counsel for the petitioner. In my opinion, the said contention is also devoid of merit.

In the instant case, the sanctioned mode of partition provides that partition of the land is to be effected between the parties keeping in view the

value, kind and possession of land. Vide impugned orders, learned Commissioner 0s well as the Financial Commissioner have come to the

conclusion that the land has not been partitioned in accordance with the sanctioned mode of partition as the land allotted to the petitioner is mere

valuable land as the same is situated on the south of Cheeka-Pehowa road which is touching Village abadi. It is fundamental principle of partition

that every co-sharer should be given the land of equal value and having similar potential. In the instant case, 32 kanals of land which was allotted to

the petitioner in the proposed ''Naksha Be'' was admittedly not in his possession. If that is so, then the said piece of land should have been allotted,

among all the co-sharers in equal shares being the valuable land. This has exactly been done by the Commissioner in the impugned order. In my

opinion, there is no infirmity or illegality or any jurisdictional error in the impugned orders.

In view of the aforesaid discussion, there is no merit in the instant writ petition and the same is hereby dismissed with no order as to costs.