Dayawanti and Others vs State of Himachal Pradesh and Others

Tarlok Singh Chauhan, J—By the medium of this writ petition, the petitioner has sought the following substantive reliefs:

"1. For issuing a writ of certiorari or any other appropriate writ for quashing order dated 2.9.2013 annexure P-10 passed by the Collector, Rajgarh, District Sirmaur;

For holding that appeal at annexure P-9 was not maintainable before the Collector, Rajgarh District Sirmaur as it amounts to hearing appeal against its own order.

For holding that in the facts and circumstances of the case, Sh. Jagat Ram respondent No. 31 could not have preferred appeal at annexure P-9 before the Collector, Rajgarh District Sirmour therefore, no order could be passed for giving him opportunity of hearing in appeal which was not even otherwise not maintainable in view of clause i) and ii) above."

Facts, in brief, may be noticed.

On 22.2.2001, petitioners moved an application for partition of land before Assistant Collector, 1st Grade, Tehsil Pachhad District Sirmaur, H.P. (hereinafter referred to as ''AC 1st Grade''). On 22.10.2001, the mode of partition was finalized and the same became final since no party preferred any appeal against the same. On 30.4.2003, AC 1st Grade passed orders carrying out partition as per the final mode of partition and partition proceedings were ordered to be closed.

On appeal having been preferred against the orders passed by the Collector 1st Grade on 30.4.2003, the Collector vide his orders dated 27.10.2005 remanded the case to the AC 1st Grade for carrying out the partition as per final mode of partition.

On 6.5.2010, AC 1st Grade removed all the objections of the aggrieved parties and passed an order carrying out partition as per final mode of partition and partition proceedings were ordered to be closed. On 9.6.2010, again an appeal was preferred before the Collector against the order dated 6.5.2010. This time the Collector himself visited the spot on 21.11.2011 and prepared a spot inspection report. All individual objections of the co-sharers were redressed and resolved and vide order dated 28.11.2011, Collector directed the AC 1st Grade to give effect to his order passed on 21.11.2011.

On 24.8.2012, AC 1st Grade, gave effect to the order passed by the Collector. However, against the same, again an appeal came to be preferred by respondents 3 to 47 on 20.9.2012. Petitioners contested the appeal and contended that the same was not maintainable since it was an appeal against the order of the Collector before the Collector himself which was not legally permissible. It was also contended that respondent No. 31 was never a party to the proceedings in the earlier three rounds of litigation ever since 2001 and moreover, his name neither figured in the list of owners nor in the column of owners in the jamabandi and, therefore had no right to be heard.

On 2.9.2013, Collector party allowed the appeal and directed the AC 1st Grade to afford an opportunity of hearing to the respondent No. 31. It is this order which has been assailed in the writ petition on the ground that the appeal was not maintainable before the learned Collector against his own order and resultantly the impugned order was without jurisdiction. It was also alleged that respondent No. 31 had no right or interest in the land sought to be partitioned as he had never moved an application either for impalement nor contested the partition proceedings at the three earlier stages when the matter had reached the Collector and since the partition proceedings against him had attained finality, therefore, the directions passed by the Collector were without jurisdiction apart from being illegal.

Though some of the respondents out of the respondents 3 to 47 have contested the petition by filing a reply, but the impugned order passed by the Collector only directs an opportunity of hearing to be afforded to the respondent No. 31 and qua other respondents there is no such direction.

Notably, insofar as the respondent No. 31 is concerned, he has not chosen to contest the petition and in such circumstances. I, therefore, need not refer to the reply filed on behalf of other respondents as they have no locus standi to contest this petition and have wrongly been arrayed as party respondents in this writ petition.

Adverting to the reply of the official respondents, it would be noticed that the only reason for justification for affording an opportunity of hearing to respondent No. 31 Sh. Jagat Ram has been set out in para 3 of the reply wherein it is stated as follows:

3(i) That the content of this para are wrong and hence denied because when it was brought to the notice of the respondent No. 2 by the co sharers by filing an appeal that one Sh. Jagat Ram co sharer remained unheard in this case, therefore, in order to save the interest of the said co sharer, the appeal was remanded back to the Assistant Collector 1st Grade, Pachhad by the Collector, Sub Division, Rajgarh.

(ii) That in reply to this sub para, it is submitted that pursuant to the order dated 28.11.2011 of the Collector, Sub Division, Rajgarh, the Assistant Collector 1st Grade, Pachhad decided the case on 24.08.2012. However, the respondent No. 2 accepted the appeal and decided it on 2.9.2013 on the ground that one Sh. Jagat Ram one of the co sharers of the suit land, remained unheard in this case.

(iii) That in reply to this sub para, it is submitted that Sh. Jagat Ram s/o. Sh. Mathu succeeded vide mutation No. 80 dated 17.8.1981 and his name was recorded in the jamabandi for the year 1981-82 but the name of Sh. Jagat Ram was let out at the time of preparation of jamabandi for the year 1996-97.

(iv) That in reply to this sub para, it is submitted that the name of Sh. Jagat Ram was incorporated in the jamabandi for the year 2000-2001 by way of ''Fard Badar'' and the entries have been incorporated in the jamabandi for the year 2005-06 and thereafter entry of his name has continued in the revenue record. Thus, Sh. Jagat Ram is considered as absolute owner in the suit property and accordingly, the Collector, Sub Division, Rajgarh decided the appeal on 2.9.2013.

(v) That in reply to this sub para, it is submitted that co sharers of the suit land carried this matter in litigation and time and again and due to this reason, orders passed by the Assistant Collector, 1st Grade, Pachhad as well as Collector, Sub Division, Rajgarh could not materialize till date. It is further submitted that name of Sh. Jagat Ram was let out during the preparation of jamabandi for the year 1996-97 and later on his name was incorporated in the jamabandi for the year 2000-2001 by way of ''Fard Badar'' and the entries have been incorporated in the jamabandi for the year 2005-06 and thereafter entries of his name have been continued in the revenue record. Therefore, keeping in view the interest of all the co sharers in the suit land, the Collector, Sub Division, Rajgarh decided the appeal.

(vi) That in reply to this sub para, it is submitted that Collector, Sub Division, Rajgarh accepted the appeal on the ground to save the interest of unheard co sharer Sh. Jagat Ram and therefore, case was remanded back to the Assistant Collector, 1st Grade, Pachhad.

The petitioners have filed rejoinder to the reply of the official respondents wherein it has been categorically stated that respondent No. 31, namely, Jagat Ram was not allotted any share in the suit land in the mode of partition which was prepared in the year 2001 and has attained finality. It was further averred that respondent No. 31, at whose instance and mainly for whose benefit the matter was remanded by the impugned decision, is not interested in pursuing the partition proceedings.

I have heard the learned counsel for the parties and have gone through the records of the case.

It is not in dispute that insofar as the mode of partition is concerned, the same has attained finality. The official respondents have claimed that respondent No. 31 had succeeded to the land vide mutation No. 80 dated 17.8.1981 as duly recorded in the jamabandi for the year 1981-82, but the same due to inadvertence, had been left out at the time of preparation of jamabandi for the year 1996-97 necessitating an opportunity of hearing to said Jagat Ram.

But, then said Sh. Jagat Ram has neither assailed the mode of partition or was ever a party aggrieved at any stage. Even before this Court, he (Jagat Ram) has not chosen to contest the lis which essentially means that the version given by the petitioners that he had not been allotted any share in the suit land in the mode of partition, appears to be correct. Even if there is any doubt qua the same, the conduct of respondent No. 31 in not pursuing the matter thereafter clearly establishes that he is not interested in pursuing the partition proceedings because he has no surviving interest.

That apart, the learned counsel for the petitioners, during the course of hearing, has specifically stated that in the event of respondent No. 31 being found entitled to any share in the land in dispute, they are ready to compensate him and this statement is accordingly taken on record.

In view of the aforesaid observations, I have no option but to set aside the order passed by learned Collector on 2.9.2013 and the same is accordingly set aside. However, it is made clear that since this court has not taken into consideration any of the defence set out by the respondents 3 to 47 herein, any observation contained in this order, shall not be binding on the respondents 3 to 47 and they shall be at liberty to avail of such remedy as may be available to them under the law.

The petition is disposed of in the aforesaid terms leaving the parties to bear the costs.