Kashmir Singh and Others vs State of Punjab and Others

Mehinder Singh Sullar, J.—The conspectus of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the present writ petition and emanating from the record, is that in the wake of application for partition filed by Petitioners Kashmir Singh and Ors. the Assistant Collector Ist Grade (for brevity "AC Ist Grade"), Phagwara (respondent No. 3), without affording further opportunity to the private Respondents to file the objections, accepted the partition map (Naksha B-Zeem), by virtue of order dated 17.11.2008 (Annexure P3).

Aggrieved by the said order, Davinder Kaur (respondent No. 4) filed the appeal, which was dismissed as well, by the Collector (respondent No. 2), by means of order dated 30.10.2009 (Annexure P2). Dissatisfied with the orders (Annexures P2 and P3), she filed the revision petition, which was accepted by the additional Commissioner (Appeals), Jalandhar Division, Jalandhar (respondent No. 1), by way of impugned order dated 27.8.2010 (Annexure P1).

The Petitioners did not feel satisfied with the impugned order and preferred the instant writ petition, invoking the provisions of Articles 226/227 of the Constitution of India.

Having heard the Learned Counsel for the Petitioners, having gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present writ petition.

Ex facie, the argument of Learned Counsel that since the private Respondents did not file the objections to the partition, despite availing many opportunities and the AC Ist Grade and Collector have rightly ignored their claim, so, the Addl.Commissioner has committed a legal mistake and set aside the orders (Annexures P2 and P3), vide impugned order (Annexure P1), sans merit.

As is evident from the record that the AC Ist Grade did not follow the well established procedure of partition. He neither afforded adequate opportunities to the private Respondents to file the objections, nor ever inspected the spot. So much so, the possession was disturbed and allotted the land abutting to the road to the Petitioners, which was in possession of the private Respondents, which is totally contrary to the mode of partition dated 9.6.2008. The Addl.Commissioner, after taking into consideration the legal violation, the facts that possession was disturbed and bulk of land abutting to the road was allotted to the Petitioners, only remanded the case for its fresh decision, in accordance with law, through the medium of impugned order (Annexure P1), which, in substance, is as under:

It is specifically provided in the confirmed mode of partition dated 09.06.2008 that partition shall be affected by keeping the possessions intact. The adjoining cultivator namely Shri Balwinder Singh has also confirmed the possession of the Petitioner over these khasra numbers. I further find that the Petitioner has been given land which is situated at the back of the other land and that too without any proper passage The entire land abutting the road has been given to the Respondents. The Petitioner has not been granted due and proper opportunity to file her objections against the partition papers which amounts to denial of principles of natural justice. The A.C. Ist Grade should have afforded an opportunity to the Petitioner to enable her to file her objections. As per Naksha all the khasra numbers alongwith the road, have been given to the Respondents, Kashmir Singh etc., which is against the settled principles that land abutting the road which is more valuable, should be distributed amongst the co-sharers in equal proportion. With these observations, I find the partition order passed by the A.C. Ist Grade suffering from illegalities and irregularities. Consequently, the present revision petition is accepted, impugned orders passed by both the lower courts are set aside and the case is remanded to the A.C. Ist Grade, Phagwara and parties are directed to appear before him on 30.09.2010 for further proceedings.

The Learned Counsel for the Petitioners did not point out any legal violation and material, much less cogent, to contend as to how and in what manner, the impugned order (Annexure P1) of the Addl. Commissioner is illegal and would invite any interference in this relevant behalf. Moreover, the Petitioners would be at liberty to prove their claim in the partition proceedings.

Meaning thereby, the Addl. Commissioner has recorded the cogent grounds in this relevant connection. Such order, containing valid reasons, cannot possibly be interfered with by this Court, while exercising the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, unless and until, the same is illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the Learned Counsel for the Petitioners, so, the impugned order (Annexure P1) deserves to be and is hereby maintained, in the obtaining circumstances of the case.

No other legal point, worth consideration, has either been urged or pressed by the counsel for the Petitioners.

In the light of aforementioned reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent partition proceedings, as there is no merit, therefore, the instant writ petition is hereby dismissed as such.

Needless to mention that nothing observed here-in-above would reflect, in any manner, on the merits of the case as the same has been so recorded for a limited purpose of deciding this writ petition.