In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.14569 of 2009 ..... Date of decision:9.11.2009 Rohtas Singh and others .....Petitioners v. The Financial Commissioner, Haryana and others .....Respondents .... Present: Mr. Amit Jain, Advocate for the petitioners. ..... S.S. Saron, J. The writ petition has been filed by the petitioners seeking quashing of the order dated 23.11.2005 (Annexure-P.8) passed by the Commissioner, Rohtak Division, Rohtak (respondent No.2) and the order dated 28.5.2008 (Annexure-P.9) passed by the Financial Commissioner, Haryana (respondent No.1). Dara Singh (respondent No.5) on 28.8.2000 filed an application for partition of joint Khewat against the petitioners and respondents No.6 to 14. In the proceedings before the learned Assistant Collector Ist Grade (respondent No.4), the petitioners as also respondents No.9 and 10 were proceeded against ex-parte vide orders passed on 6.2.2001 (Annexure-P.1) and 28.3.2001 (Annexure-P.2) respectively. One of the respondents, namely, Mehboob (respondent No.8) was a minor. He filed an appeal before the Collector, Rohtak (respondent No.3), which was allowed vide C.W.P. No.14569 of 2009 [2] order dated 16.6.2003 (Annexure-P.3) and the case was remanded to the Assistant Collector Ist Grade (respondent No.4). It is alleged that after the remand the petitioners came to know about the partition proceedings and Rohtas (petitioner No.1), Suresh Singh (petitioner No.2), Hukam Singh alias Hukam Chand (petitioner No.6) and Amir Singh (petitioner No.7) submitted their respective applications on 8.10.2003 (Annexure-P.4) and 18.8.2003 (Annexure-P.5) before the Assistant Collector Ist Grade (respondent No.4) for setting aside the ex parte proceedings against them. It was pleaded that the said petitioners that the petitioners were never served and a false report of service was produced against them. Besides, they would suffer irreparable loss if partition was effected without hearing them. The Assistant Collector Ist Grade (respondent No.4) vide order dated 22.12.2003 (Annexure-P.6) set aside the ex parte proceedings against the petitioners as well as against Bhim Singh (respondent No.9) and Kartar Singh (respondent No.10). Aggrieved against the said order dated 22.12.2003 (Annexure-P.6), Dara Singh (respondent No.5) filed an appeal before the Collector (respondent No.3) alleging that as per order of remand dated 16.6.2003 (Annexure-P.3) ex parte proceedings qua Mehboob (respondent No.8) only were set aside. Therefore, the Assistant Collector Ist Grade (respondent No.4) had erred in law in setting aside the ex parte proceedings of other co- sharers also. The petitioners, however, submitted that there was no legal infirmity in the order dated 22.12.2003 (Annexure-P.6) passed by the Assistant Collector Ist Grade (respondent No.4) as in the case of partition any variance in the area of the co-sharers is bound to affect the rights and interest of the other co-sharers as well. Therefore, according to the C.W.P. No.14569 of 2009 [3] petitioners once the ex parte proceedings qua one of the respondents i.e. Mehboob (respondent No.8) had been set aside it was incumbent upon the Assistant Collector Ist Grade (respondent No.4) to grant an opportunity to all co-sharers irrespective of the fact that the case had been remanded at the instance of one of the co-sharers. The Collector (respondent No.3) vide order dated 25.5.2004 (Annexure-P.7) dismissed the appeal of Dara Singh (respondent No.5). Dara Singh (respondent No.5) feeling dissatisfied with the order dated 25.5.2004 (Annexure-P.7) passed by the Collector (respondent No.3) filed a revision petition before the Commissioner, Rohtak Division, Rohtak (respondent No.2) who vide order dated 23.11.2005 (Annexure-P.8) set aside the order dated 22.12.2003 (Annexure-P.6) passed by the Assistant Collector Ist Grade (respondent No.4) and directed that the earlier order of remand dated 16.6.2003 (Annexure-P.3) be complied with by giving opportunity of being heard to Mehboob (respondent No.8) only. The petitioners aggrieved against the order dated 23.11.2005 (Annexure- P.8) passed by the Commissioner (respondent No.2) filed a revision petition before the Financial Commissioner (respondent No.1) who has vide order dated 28.5.2008 (Annexure-P.9) set aside the impugned orders of the revenue authorities below and upheld the order dated 2.5.2002 vide which partition proceedings had been completed. It was held that after the preparation of `Sanad Takseem' the partition proceedings stand completed and the Revenue Officer has no jurisdiction to interfere in the matter. The right course in the present case, it was observed, would have been to advise Mehboob (respondent No.8) to seek relief from the civil Court having jurisdiction in the matter. Aggrieved against the said order dated 28.5.2008 C.W.P. No.14569 of 2009 [4] (Annexure-P.9) passed by the Financial Commissioner (respondent No.1) the petitioners have filed the present petition. Learned counsel appearing for the petitioners has contended that the Assistant Collector Ist Grade had vide order dated 22.12.2003 (Annexure-P.6) rightly set side the ex parte proceedings against the petitioners as well as respondents No.9 and 10 as proceedings qua Mehboob (respondent No.8) had been set aside by the Collector vide order dated 16.6.2003. Therefore, it was just and expedient that other co-sharers of the land which was sought to be got partitioned were also heard. However, the Financial Commissioner has gravely erred in passing the impugned order dated 25.5.2008 (Annexure-P.9) upholding the order of ex parte proceedings qua Mehboob (respondent No.8) as well. After giving my thoughtful consideration to the matter, it may be noticed that it is now well settled that once `Sanad Takseem' has been issued, the revenue authorities have no jurisdiction to entertain and re-open the matter. Therefore, the learned Financial Commissioner vide her order dated 28.5.2008 (Annexure-P.9) has rightly held that once `Sanad Takseem' (instrument of partition) had been issued and mutations of the respective lands had been sanctioned in favour of each party, the matter was not liable to be re-opened. It was also noticed that the lacuna left in respect of Mehboob (respondent No.8) minor could not be rectified by the revenue authorities at the said stage. The rights of other co-sharers would be affected if the case was re-opened to give relief to any individual share- holder. In the circumstances, it was held that the right course would have been to advise Mehboob (respondent No.8) to seek relief from the civil Court having jurisdiction in the matter. It may, however, be noticed that the C.W.P. No.14569 of 2009 [5] Financial Commissioner has suo motu powers in terms of Section 16(1) of the Punjab Land Revenue Act, 1887 (`Act' – for short) to pass orders in respect of partition proceedings by the revenue authorities below. The contention of the learned counsel for the petitioners is that the petitioners were not heard and they were liable to be heard in the partition proceedings. The proceedings, in fact had been remanded for hearing Mehboob (respondent No.8) as he was not represented. Therefore, if Mehboob (respondent No.8) was granted hearing who was not represented it does not automatically mean that the petitioners were also entitled for a fresh hearing at the stage after `Sanad Takseem' (instrument of partition) had been issued and mutations had also been sanctioned. With the issuance of `Sanad Takseem' partition proceedings are complete and the matter is not liable to be re-opened except by the Financial Commissioner in terms of Section 16 (1) of the Act and that too in exceptional circumstances where a failure of justice has been occasioned. Learned counsel for the petitioners has not been able to mention the area of land which is to be partitioned and as to what is the share of the petitioners in the said land. It is also not mentioned as to how the rights of the petitioners are affected and as to what prejudice has been caused to them in the partition of the land. All that is said is that the petitioners were not heard before the matter was finalized. It may be noticed that though right of hearing is an accepted facet of the principles of natural justice, however, it would not be correct to say that for any or every violation of a facet of natural justice or a rule incorporated in such facet the order passed is altogether void and to be set aside without further inquiry. C.W.P. No.14569 of 2009 [6] The approach and test to be adopted is whether there has been any prejudice to the petitioner who has approached the Court. It is to be ascertained whether the violation of the principles of natural justice has resulted in any prejudice and if it is found that the rights of the petitioners are materially affected which has resulted in prejudice appropriate remedial orders are liable to be passed to remedy the prejudice which may include even setting aside of the impugned order. However, if no prejudice is established or is shown to have been resulted therefrom it is obvious that no interference is called for. In any case, it may be noticed that once `Sanad Takseem' has been sanctioned the party aggrieved against the same may in exceptional circumstances approach the Financial Commissioner. A Division Bench of this Court in Resham Singh alias Dilbagh Singh v. Assistant Collector Ist Grade-cum-Tehsildar, Phillaur and others, (CWP No.19985 of 2005), decided on 15.5.2007, has held that Section 16 (1) of the Act confers suo motu revisional powers upon the Financial Commissioner to call for and examine the legality of any proceedings, pending before it or decided by a Revenue Officer. It was held that powers conferred under Section 16 (1) of the Act would take within its ambit a quasi-judicial appraisal of the legality of the `Sanad Takseem' and an aggrieved person may, in exceptional circumstances, invoke the Financial Commissioner's jurisdiction, under Section 16 (1) of the Act. This Court in the case of Puran Singh alias Sampuran Singh v. Financial Commissioner (Development), Punjab, Chandigarh and others, 2009 (2) RCR (Civil) 712 reiterated the position that the Punjab Land Revenue Act does not provide for an appeal against C.W.P. No.14569 of 2009 [7] `Sanad Takseem' but an aggrieved person cannot be left without a forum to seek redress. Finality attached to a `Sanad Takseem' can always be impugned by invoking the powers of the High Court under Article 226 of the Constitution of India, or suo motu powers conferred upon the Financial Commissioner. The dictum in Resham Singh alias Dilbagh Singh's case (supra) was followed and the case was remanded to the Financial Commissioner for fresh consideration. In the present case, it is not disputed that `Sanad Takseem' has been sanctioned. Besides, no ground has been made out for re-opening the issue of `Sanad Takseem' especially when nothing has been placed on record to show as to how and in what manner the petitioners are aggrieved against the partition proceedings even if it is taken that they were wrongly proceeded against ex parte. Learned counsel for the petitioners has not shown as to what prejudice has been caused to the petitioners in the sanction of `Sanad Takseem'. Therefore, merely because the petitioners were proceeded against ex parte during the partition proceedings it does not mean that the entire proceedings are to be nullified. The order if it is passed in violation of the principles of natural justice can be set aside if such violation has occasioned prejudice or a miscarriage of justice to an aggrieved person. In the circumstances, in case the petitioners are aggrieved against the partition proceedings which culminated in the sanction of `Sanad Takseem' they may, if so advised, invoke revisional jurisdiction of the Financial Commissioner under Section 16(1) of the Act. In the absence of material, it would be wholly inappropriate for this Court to interfere. Consequently, there is no merit in this petition and the same is C.W.P. No.14569 of 2009 [8] accordingly dismissed. However, the petitioners would be at liberty to invoke the jurisdiction of the Financial Commissioner in case they are aggrieved against the `Sanad Takseem' by placing material on record to show as to how their rights are affected. November 9, 2009. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No