Balihar Singh vs Union of India and others

The petitioner has challenged the order dated 14.3.2017 passed

by the Financial Commissioner by which he has set aside the order passed

by the Assistant Collector 1st Grade, Morinda dated 28.7.2014.

In brief, on 26.5.2014, the petitioner filed an application for

partition of land measuring 422 kanal 13 marlas situated in village Kajauli,

Hadbast No.266, Tehsil Chamkaur Sahib, District Roopnagar. On 2.9.2014,

the Assistant Collector, 1st Grade sanctioned the partition which was

challenged by way of three revision petitions before the Financial

Commissioner. The case of the respondents was that the application for

partition was filed without impleading the legal heirs of Bachan Kaur. The

financial Commissioner has referred to the proceedings of each and every

date till the order dated 28.7.2014 was passed. In this regard para 3 of the

order of the Financial Commissioner needs to be reproduced to avoid

repetition, which is reproduced as under: -

"Accordingly, an opportunity was granted to

Balihar Singh respondent No.1, to present his case.

His counsel presented application dated

06.12.2016 at Annexure P-9 of the file. In reply,

the counsel for petitioner reiterated the grounds

taken in revision petition, and submitted that

petitioners along with the respondents No.1 to 12

are the joint owner in possession of land measuring

422 kanal 13 marlas. The Bachan Kaur daughter

of Maghi Singh was owner in possession of the

above said land to the extent of 39/1556 share. The

said Bachan Kaur was married to one Umrao

Singh son of Nagina Singh and had four sons and

two daughters from this marriage. Bachan Kaur

died on 30.7.1996 leaving behind her four sons

namely Govinder Singh, Sikandar Singh, Shermir

Singh, Devinder Singh and two daughters namely,

Surinder Kaur and Kamaljit Kaur. The respondent

No.1 filed an application for partition of the above

said joint Khata on 26.5.2014. That the respondent

No.1 filed this application for partition without

impleading the present petitioners, who were

otherwise necessary parties of being heard, being

the legal representatives of said Bachan Kaur. He

further submitted that thus the whole proceedings

of partition have been done by the respondent No.1

in an illegal and arbitrary manner in connivance

with the lower revenue officers. That a perusal of

the jimni orders shows that the case came up for

hearing on 26.5.2014 when summons were issued

to the respondents and the case was adjourned to

06.06.2014 awaiting service. And on dated

06.06.2014 when the case was fixed for service

Naksha Aliph was passed without calling any

objections and it was ordered to present "Tarika

Takseem" on the next date i.e. 20.06.2014 without

analysing the actual possession of the parties

before partition as no "Aks Sajra: Map showing

the possession of the parties before partition or

after proposed partition was produced by the

respondent No.1 along with the partition -

application which is in violation of Section 111 of

the Punjab Land Revenue Act, 1987. Further, as

per jimni order dated 20.06.2014, in the presence

of only respondent No.1, 3, 4, 5, 7 & 8 "Tarika

Takseem" was sanctioned without giving any

reason why respondent No.1 will get a separate tag

and all other co-sharers will get a joint un-

partitioned taq. He argued that it was also ordered

to present "Naksha Bey" and "Naksha Jeem"

jointly without calling for any objections on

"Naksha Bey" and the matter was adjourned to

04.07.2014. And on 28.07.2014 both "Naksha

Bey" and "Jeem" were presented and sanctioned

and the partition proceedings were completed and

the final order dated 28.07.2014 was also passed

on the same date. The petitioners came to know

about the above said partition when on 02.03.2016

they approached the Land Acquisition Collector-

cum-SDM Roopnagar for getting the compensation

as some of the land forming part of this land is

acquired by the National Highway Authority of

India for development of roads. The petitioners

were shocked that in the Assessment of

Compensation their names were not included due

to the illegal partition by respondent No.1. He

prayed that the order of A.C. 1st Grade may kindly

be set aside."

The Financial Commissioner allowed the revision petition

observing that "hence, I proceed to examine merits of the order of AC-I

impugned. The record shows that petitioners were proceeded ex-parte,

without due notice. Further, the proceedings were conducted without

regard to due process prescribed in the Punjab Land Record Manual,

paragraphs 18.10 to 18.17. The partition order itself is unfair and unjust.

Respondent No.1 has been given a taq abutting the main road (National

Highway) and others have been given a joint taq of less valuable land, in

violation of paragraph 11 of the Mode of partition. Given these serious

defects in the proceedings and in the partition order, I have no hesitation in

setting it aside. It is apparent from the record that the AC-I has been remiss

in this case and has committed certain acts of negligence and default.

Therefore, a copy of this order may be placed before the Financial

Commissioner Revenue to consider taking disciplinary action against AC-I

as per the rules. With this observation this petition is accepted."

Not only the Financial Commissioner vide his impugned order

dated 14.3.2017 set aside the order of the Assistant Collector 1st Grade being

unfair and unjust but also sent the copy of his order to the Financial

Commissioner, Revenue to take disciplinary action against AC 1st grade as

per rules.

Learned counsel for the petitioner has submitted that the

proceedings of partition were carried out by the Assistant Collector 1st

Grade, in accordance with law and the impugned order passed by the

Financial Commissioner deserves to be set aside.

On the other hand, learned counsel appearing on behalf of the

caveator has reiterated the proceedings, with the help of the zimini orders,

carried out by the Assistant Collector 1st Grade, in order to show that it was

held in an unholy haste much less without following due procedure and has

submitted that the order passed by the Financial Commissioner in this regard

does not require any interference.

I have heard leaned counsel for the parties and after examining

the available record especially the zimini orders from 26.5.2014 to

28.7.2014, which are deliberated upon by the Financial Commissioner in

para 3 of his order, am of the considered opinion that there is no scope for

interference in this petition as the Assistant Collector 1st Grade did not carry

out the partition proceedings in due course of law. Hence, the present

petition is found to be without any merit and thus the same is hereby

dismissed.