IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.634/2006 Reserved on:29.7.2008 Decided on:28.8.2008 Mehar Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents: Mr. Rajinder Dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. Mr. R.L. Sood,Senior Advocate with Mr. Vikas Rajput, Advocate for respondents No.2 to 5. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner instituted an application for partition of the suit land comprising Khasra No. 171 and 174 situated in Tikka Lahar Nauhangi, Tehsil Nadaun, District Hamirpur, H.P. before the Assistant Collector 1st Grade, Nadaun on 20th August 1991. The statements of the learned counsel appearing on behalf of the parties were recorded on 21.2.1992. The mode of partition was framed by the Assistant Collector Grade-I, Nadaun on 23.5.1992. The statements of the parties were recorded on 29.3.1993 and the partition papers were prepared on 30.3.1993. The 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 predecessor-in-interest of respondents No.2 to 4 and 5 filed objections against the partition on 22.5.1993 primarily on the ground that the partition has not been carried out on the spot as per mode of partition. According to the statements of the parties, the classification of the land has not been taken into consideration and the Kanungo and Patwari have not partitioned the land according to the respective shares on road head as well. The Assistant Collector 1st Grade has taken note of the objections as is evident from the order dated 22.7.1993. The partition was sanctioned by the Assistant Collector 1st Grade on 2.9.1993. The objections raised by the parties were rejected on the same date. The predecessor-in-interest of respondents No. 2 to 4 and respondent No.5 filed revision petition before the Additional District Magistrate exercising the powers of Collector, Hamirpur against the order dated 2.9.1993. The appeal was dismissed by the Additional District Magistrate exercising the powers of Collector, Hamirpur on 1.3.1995. The predecessor-in-interest of respondents No.2 to 4 Sh. Shambhu and respondent No.5 filed revision petition under section 17 of the Himachal Pradesh Land Revenue Act, 1953 before the Commissioner Mandi Division, Mandi on 6.5.1995. The same was dismissed by the Commissioner Mandi Division, Mandi on 22.8.1996. The predecessor-in-interest of respondents No. 2 to 5 preferred two separate revision petitions against the order of the Commissioner on 28.10.1996. The revision petition was accepted on 5.5.2006 by the Financial Commissioner (Appeals). Mr. G.D. Verma, Senior Advocate had strenuously argued that the order dated 5.5.2006 is not sustainable in the eyes of law. He also contended that the partition has taken place strictly as per mode of partition dated 23.5.1992. 3 Mr. R.L. Sood, Senior Advocate appearing on behalf of respondents No.2 to 5 had supported the order dated 5.5.2006. He also contended that the partition was not carried out as per the mode of partition drawn on 23.5.1992. His further contention was that the partition is to be carried out strictly as per the mode of partition dated 23.5.1992. Respondent-State was directed to produce the entire record during the course of hearing. The learned Additional Advocate General has produced the entire record for the perusal of the Court. I have heard the learned counsel for the parties and perused the record carefully. It is evident from the facts enumerated hereinabove that the application was preferred by the petitioner for partition on 20.8.1991. The mode of partition was drawn on 23.5.1992. It has been ordered by the Assistant Collector 1st Grade on 23.7.1993 that the partition will be carried out in conformity with the document drawn on 23.5.1992 and the partition will take place taking into consideration the classification of the land and proper care will be taken to allot the share on road head. The statements of the parties were recorded on 29.3.1993. The private respondents had not accepted the partition carried out by the Patwari. The Patwari in his report has observed that the partition was not acceptable to the parties. The objections were lodged against the partition on 22.5.1993 (page 91 of the record). The Assistant Collector 1st Grade has taken into consideration the objections filed by the parties in his order dated 22.7.1993. However, on 2.9.1993 at the time of sanctioning the partition, the Assistant Collector 1st Grade rejected the objections raised by the private respondents without assigning any reason. It is settled law by now that the order passed by the authorities exercising the statutory powers must be a speaking order. The Assistant Collector 1st Grade has failed to 4 assign any reason why he found the objections frivolous and not based on facts. Merely writing that he has found the objection frivolous will not meet the requirement of law. The assigning of reasons becomes essential since the orders are subject to judicial review by the higher authorities. Their Lordships of the Hon’ble Supreme Court have held in State of West Bengal v. Atul Krishna Shaw and another, AIR 1990 Supreme Court 2205, that unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority. Their Lordships have held as under:- “The appellate authority being final authority on facts is enjoined and incumbent upon it to appreciate the evidence; consider the reasoning of the primary authority and assign its own reasons as to why he disagrees with the reasons and findings of the primary authority. Unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority.” Their Lordships of the Hon’ble Supreme Court in “Narinder Mohan Arya versus United India Insurance Co. Ltd. and Others (2006) 4 SCC 713 have held that the order passed by the Appellate Authority should be reasoned order. Their Lordships have opined as under:- “The Appellate Authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule (2) of Rule 37 of the Rules. The judgment of the civil court being inter partes was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably come to a different conclusion having regard to the findings of the civil court. But, it did not apply its mind. It could 5 have for one reason or the other refused to take the subsequent event into consideration, but as he had a discretion in the matter, he was bound to consider the said question. He was required to show that he applied his mind to the relevant facts. He could not have without expressing his mind simply ignored the same. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction under Rule 37 of the Rules. In Apparel Export Promotion Council V. A.K. Chopra which has heavily been relied upon by Mr. Gupta, this Court stated: (SCC p. 770, para 16) "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities." (emphasis supplied) The Appellate Authority, therefore, could not ignore to exercise the said power. The order of the Appellate Authority demonstrates total non-application of mind. The Appellate Authority, when the Rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression “consider’ is of some significance. In the context of the Rules, the appellate Authority was required to see as to whether (i) the procedure laid down in the Rules was complied with; (ii) the enquiry officer was justified in arriving at the finding that the delinquent 6 officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive. In R.P. Bhatt V. Union of India this Court opined: (SCC p. 654, paras 4-5) "4. The word ‘consider’ in Rule 27(2) implies ‘due application of mind’. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non- compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. “5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such noncompliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside." 7 Their Lordships of the Hon’ble Supreme Court in latest pronouncement in Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao, 2008 (2) Scale 322, have held that though it is true that no detailed reasons are required to be given by the appellate authority, but some brief reasons should be indicated even in an order confirming the view of the lower forum. Their Lordships have held as under:- “It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interest of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given by the appellate authority, but some brief reasons should be indicated even in an order confirming the view of the lower forum.” In view of the definitive law laid down by the Hon’ble Supreme Court it is held that the objections preferred by the private respondents have not been dealt with by the Assistant Collector 1st Grade in accordance with law. The appeal was rejected by the Additional District Magistrate exercising the powers of Collector on 1.3.1995. The Collector, Hamirpur has recorded findings contrary to the record. He has observed that there was no objection by the parties with regard to possession of any piece of land. The private respondents had raised the objections on 22.5.1993. The sum and substance of the objections was that the partition has not taken place in accordance with the mode of partition drawn on 23.5.1992. The objections filed by the private respondents are at page 97 of the record. The Collector ought to have taken into consideration the 8 objections on the file, if any, while deciding the appeal. The Collector, Hamirpur had to take into consideration whether the land has been partitioned proportionally keeping in view the classification of land i.e. Nehri Doem and land abutting the road side. He has rejected the case of the private respondents for proportionate share and Nehri Doem land on the ground that they had been allotted whole of abadi land. The Commissioner in his order dated 22.8.1996 had observed that since the parties had not assailed the mode of partition, the order passed by the Collector is upheld. It may be true that mode of partition dated 23.5.1992 has not been assailed by the parties, however, the partition was to take place strictly as per mode of partition drawn on 23.5.1992. The partition cannot take place in deviation of mode of partition. The parties in fact, as noticed above, had objected in their statements recorded on 29.3.1993 and have objected to the manner in which the partition has taken place. The learned Financial Commissioner (Appeals) on the basis of the material brought on record as well as taking into consideration the written arguments filed by the parties came to a just conclusion that the irrigated land and the land abutting road side were to be partitioned equitably. Nehri Doem is a valuable piece of land and the value of the land abutting the road side is also higher. The endeavour has to be made by the revenue official/officers that every party gets proportionate share in the land. In view of the observations made hereinabove, there is no merit in the writ petition and the same is dismissed. The Assistant Collector 1st Grade is directed to carry out the partition strictly as per mode of partition drawn on 23.5.1992 within a period of 10 weeks. There shall be no order as to costs. 28.8.2008 (Rajiv Sharma ), J. *awasthi*