IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13372 of 2009 Date of decision : 1.9.2009 Maru Ram and Others ….. Petitioners Versus Financial Commissioner Haryana and Others ….. Respondents Present: Mr. Rajneesh Chadwal, Advocate for the petitioners. Mr. J.P. Sharma, Advocate for the caveator/respondent No.4. **** S.S. SARON, J. This petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 30.7.2008 (Annexure P1) passed by the learned Financial Commissioner (Revenue), Haryana (respondent No.1) as also for setting aside the order dated 11.01.2008 (Annexure P-4) passed by the learned Commissioner, Gurgaon Range, Gurgaon (respondent No.2) and for restoring the order dated 30.03.2007 (Annexure P-3) passed by the learned Collector (City Magistrate). A further prayer has been made for directing the learned Financial Commissioner (respondent No.1) to decide the present case on merit. Lila Ram (respondent No.4) filed an application for partition of the land measuring 324 kanals 9 marlas situated in village Niyamatpur, Tehsil Narnaul, District Mahendergarh before the learned Assistant Collector Grade I, Nangal Choudhary. It is submitted that the land was to be partitioned according CWP No. 13372 of 2009 -2- to the kind of land, possession of land and keeping in view the provisions of law. The learned Assistant Collector Grade I, Nangal Choudhary, however, passed a non-speaking order dated 27.12.2005 (Annexure P2), which consists of only 3-4 lines; besides, he did not given any opportunity to file objections. The petitioners aggrieved against the said order filed an appeal before the Collector (City Magistrate), Narnaul who vide order dated 30.3.2007 (Annexure P3) accepted the appeal and set aside the order dated 27.12.2005 (Annexure P-2) of the Assistant Collector Ist Grade. The case was remanded back by the Collector with the direction that the division of the land be done afresh on the basis of the merits and demerits. It was contended on behalf of the appellants (now petitioners) before the Collector that they had engaged a counsel for their case and the Court had informed them that they need not attend the Court till the respondents were served and when the service was complete, they would be informed. In case only formal orders were to be passed then the counsel need not be present. On 21.12.2005, the Reader of the Court, it is submitted, informed the petitioners that service was complete and the case was listed for 27.01.2006 for reply. However, on 28.12.2005, Lila Ram (respondent No.4) it is alleged raised a noise in the village that he had got the appellants (now petitioners) proceeded against ex parte on 27.12.2005 and got the partition accepted. This was then got confirmed from the lower Court and the appeal was filed. It is submitted that the Reader of the Assistant Collector Ist Grade gave wrong information to the appellants (now petitioners). The Collector, Narnaul in his order dated 30.03.2007 (Annexure P-3) came to the conclusion that the Assistant Collector Ist Grade had shown the presence of the counsel for the appellants (now petitioners) on each date whereas the appellants (now petitioners) by submitting the petition had submitted that their counsel was not CWP No. 13372 of 2009 -3- present on these days and the entire proceedings had been undertaken behind their back. They were to file reply and objections to ‘naksha bey’ for which they had not been given necessary opportunity. Accordingly their appeal was accepted and the case was remanded back. Against the order dated 30.03.2007 (Annexure P-3) of the Collector Narnaul, Lila Ram (respondent No.4) filed an appeal before the Commissioner, Gurgaon Division, Gurgaon (respondent No.2). The various interim orders passed by the Assistant Collector Ist Grade were noticed by the Commissioner, Gurgaon Division (respondent No.2) and it was observed that on 19.07.2004, Shri Madan Lal Sharma (who was Advocate for the petitioners before the Assistant Collector Ist Grade) produced memo of presence for the respondents (now petitioners) and he was given dates for submitting power of attorney and reply. On 16.11.2004, the said counsel submitted reply application as was evident from the interim orders mentioned at pages 9 to 12 of the file of Assistant Collector Ist Grade. Besides, it was observed that the contention of the respondents (petitioners herein) that action of partition of land had been taken in their absence was not true because at pages 57-58 of the lower Court (Assistant Collector Ist Grade) file, it had been stated by Shri Madan Lal Sharma, counsel for the respondents (petitioners herein) that he had no objection to the partition of land and keeping in view the consolidation and possession, the land be partitioned. It was also seen from the said file that the Assistant Collector Ist Grade had ordered the partition of land on 25.10.2005 in the presence of both the parties. On that the counsel for the respondents (now petitioners) who was present in the Court of Assistant Collector Ist Grade did not raise any objection. Apart from this, the field staff had prepared the map in the presence of Maru Ram (petitioner No.1 herein). It was further held that had the field staff not prepared ‘naksha bey’ according to CWP No. 13372 of 2009 -4- partition of land then he (Maru Ram petitioner No.1) should have raised objections before the Assistant Collector Ist Grade as he had given many chances to them for submitting objections. Therefore, it was held as baseless to say that the petitioners herein were not given opportunity to file reply and objections on ‘naksha bey’. It was held that the Collector (City Magistrate), Narnaul had passed the order of remand on the basis of affidavit of Maru Ram (petitioner No.1 herein), which was not based on true facts but only on presumption. In the present case, the certificate of partition had been prepared. After preparation of certificate of partition, the revenue officers were not able to cancel it; besides, the lower Court (Assistant Collector Ist Grade) had not mentioned any new reason for a fresh partition of land. The reply application of respondents (petitioners herein) was available in the file of the lower Court (Assistant Collector Ist Grade) at pages 61 to 68 and mode of partition of land had been adopted by the Assistant Collector Ist Grade in the presence of Shri Madan Lal Sharma, counsel for the respondents (petitioners herein). So it was clear from the facts that the Collector (City Magistrate) had not seen the file of lower Court (Assistant Collector Ist Grade) properly. Apart from this to say that the respondents (petitioners herein) had appointed Shri. D.N. Gupta and Shri Roshan Lal as their counsel instead of Shri Madan Lal Sharma was wrong because no memo of presence or power of attorney had been produced by them in the lower Court (Assistant Collector Ist Grade). Besides, no written letter had been produced by the respondents (petitioners herein) before the Assistant Collector Ist Grade from which it could be proved that they had changed their counsel. In this manner, order of Collector was found by the Commissioner to be erroneous and was set aside by accepting the appeal. The order dated 27.12.2005 (Annexure P-2) of Assistant Collector Ist Grade was accordingly CWP No. 13372 of 2009 -5- restored. In this manner, the appeal of respondent No.4 Lila Ram was allowed and the order dated 30.3.2007 (Annexure P3) passed by the Collector, Narnaul was set aside. The petitioners aggrieved against the order of the Commissioner Gurgaon dated 11.01.2008 (Annexure P-4) filed a revision petition before the learned Financial Commissioner who has upheld the said order dated 11.1.2008 (Annexure P-4) passed by the Commissioner, Gurgaon Division, Gurgaon. The learned Financial Commissioner in his order dated 30.07.2008 (Annexure P-1) observed that he had gone through the facts of the case and in his view the order passed by the Commissioner, Gurgaon dated 11.08.2008 (Annexure P-4) was valid and no reason was seen to interfere with the same. Accordingly, the revision petition was dismissed in limine being devoid of merit. Aggrieved against the said order dated 30.07.2008 (Annexure P-1) of the Financial Commissioner, the petitioners have filed the present petition. Learned counsel for the petitioners has contended that the petitioners were not heard before sanctioning of the partition inasmuch as no notice was issued to the co-sharers. Besides, no spot inspection was done by the Assistant Collector Ist Grade. Moreover, question of title was involved which was pleaded by the petitioners which has not been decided. In response, learned counsel appearing for the caveator Lila Ram (respondent No.4) has submitted that the ‘Sanad Takseem’ of the land has been sanctioned in 2006 and against an order sanctioning ‘Sanad Takseem’, no appeal or revision is maintainable before the revenue authorities. It is also stated that the petitioners only want to delay the matter inasmuch as it is after more than a year of the passing of the order by the learned Financial Commissioner on 30.7.2008 (Annexure P1) that the present petition has been filed. CWP No. 13372 of 2009 -6- After giving my thoughtful consideration to the matter, it may be noticed that the grievances of the petitioners are that they were not heard and no notices were issued to all the co-sharers and that no spot inspection was done by the Assistant Collector Ist Grade. Besides, question of title was involved. The order of the Commissioner, Gurgaon Division dated 11.01.2008 (Annexure P-4) shows that the learned Commissioner had gone through the file of the Assistant Collector Ist Grade and reached the conclusion that the petitioners were given adequate opportunity to represent their case. It was held as a matter of fact that the partition proceedings were carried out in the presence of the petitioners herein. In fact Maru Ram (petitioner No.1) had signed the proceedings. Therefore, the findings of facts reached at by the Commissioner, Gurgaon Division in his order dated 11.01.2008 (Annexure P-4) has been upheld by the Financial Commissioner in his order dated 30.07.2008 (Annexure P-1). It is not shown as to how the said orders dated 11.01.2008 (Annexure P-4) and 30.07.2008 (Annexure P-1) are in any manner illegal or perverse which would warrant interference of this Court in exercise of its supervisory writ jurisdiction. It may also be noticed that the land which was sought to be got partitioned measured 324 kanals 9 marlas. The petitioners have not been able to show as to how and in what manner any prejudice has been caused to them or how their rights are in any manner affected in the preparation of the final instrument of partition i.e. the Sanad Takseem which has been issued in 2006. The learned counsel for the petitioners is unable to state as to what is the share of the petitioners in the land measuring 324 kanals 9 marlas. It is, however, accepted that Lila Ram (respondent No.4) is owner of half share of the land measuring 324 kanals 9 marlas and the other co-sharers are the owners of the remaining half share. However, learned counsel for the petitioners has not submitted as to CWP No. 13372 of 2009 -7- what is the share of the four petitioners who have filed the present petition and as to what is the share of the other 48 shareholders i.e. respondents No.6 to 54. In any case, the other 48 co-sharers are not shown to be aggrieved against the partition and only four petitioners are aggrieved. Besides, their actual grievance as regards the allotment of land by way of partition is not mentioned. In fact it is not shown as to what is their share in the land and also as to which khasra No. has been allotted to them and how their rights are affected by allotment of the same. In the present case, it has been held that on facts that the petitioners were given due and adequate opportunity to file their objections against ‘naksha bey’ and they were represented by their counsel; besides, Maru Ram (Petitioner No.1) had signed the partition proceedings. There was, therefore, no objection from the side of the petitioners. Maru Ram (Petitioner No.1) is the brother of petitioners No.2 and 3 and he represented the interest of all the petitioners. In Biru v. Suraj Bhan, AIR 1983 P&H 347 it was held by a Full Bench of this Court that an adequate hearing given to one or some co-sharers in the eye of law is a hearing of all the body of co-sharers in the absence of fraud or collusion or the failure of any fair play and real trial of the issue. The present is not a case of any fraud or collusion and neither any has been alleged. The Commissioner, Gurgaon Division in his order dated 11.01.2008 (Annexure P-4) held that due opportunity was given to the petitioners. Therefore, the principles of natural justice have been complied with in the present case. Even if it is to be taken that they were not complied with, it may be noticed that the principles of natural justice though enjoin that a party should not be condemned unheard and due notice should be given to the affected parties but it is not correct to say that for any and every violation of a facet of the principles of natural justice, an order that has been passed in violation thereof is altogether void and ought not to be CWP No. 13372 of 2009 -8- given effect to without further inquiry. There can be circumstances as in the case of no prejudice being caused that an order even if passed in violation of the principle of natural justice is not to be set aside in exercise of jurisdiction under Article 226 of the Constitution of India. The rule that breach of principles of natural justice was itself treated as a prejudice and no other de facto prejudice was required to be shown has since over the period of time been relaxed and in any case softened. Therefore, the petitioners even if their grievances regarding not being given an adequate hearing is to be accepted, they are in any case liable to show that some prejudice has been caused to them with the preparation of the ‘Sanad Takseem’. The approach and test adopted by the Court for the exercise of the jurisdiction under Articles 226/227 of the Constitution of India is that of prejudice being shown. As regards the spot inspection, it may be noticed that the petitioners have not been able to show as to how their rights are affected. Insofar as the question of title is concerned, learned counsel for the petitioners has not been able to show as to what question of title is involved. It is merely stated that because question of title was pleaded, the Assistant Collector Ist Grade should have gone into the same. However, what exactly is the question of title is not shown. Therefore, in case the Assistant Collector Ist Grade has not gone into the same, the rights of the petitioners are not shown to have been in any manner affected. In any case, it may be noticed that the ‘Sanad Takseem’ which is the final instrument of partition has been sanctioned. In case the petitioners are aggrieved against the sanctioning of the ‘Sanad Takseem’ and their rights are indeed affected they are not without remedy. A Division Bench of this Court in Resham Singh @ Dilbagh Singh v. Assistant Collector Ist Grade-cum- Tehsildar, Phillaur and Others CWP No. 19985 of 2005 decided on 15.5.2007 CWP No. 13372 of 2009 -9- has held that the powers conferred by Section 16(1) of the Punjab Land Revenue Act (‘Act’-for short) would take within their ambit a quasi-judicial appraisal of the legality of the ‘Sanad Takseem’. An aggrieved person, it was held, may in exceptional circumstances, invoke the Financial Commissioner’s jurisdiction, under Section 16 (1) of the Act. Section 16 (1) of the Act confers suo motu revisional powers upon the Financial Commissioner to call for and examine the legality of any proceeding, pending before or decided by a revenue officer. It was observed that the petitioners in the first instance should have approached the Court of Financial Commissioner by way of revision. The said view was followed in the case of Puran Singh @ Sampuran Singh v. Financial Commissioner (Development), Punjab Chandigarh and Others, 2009 (2) RCR (Civil) 712. It was held in the said case that the act does not provide for an appeal against ‘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 case was remanded back to Financial Commissioner. Therefore, in the circumstances, in case the petitioners are indeed aggrieved against the ‘Sanad Takseem’ they may show before the learned Financial Commissioner as to how their rights are affected and whether an exceptional case is made out. In the circumstances, they may in the first instance invoke the powers of the learned Financial Commissioner under Section 16(1) of the Act. However, no ground is made out for interference in exercise of the extra ordinary writ jurisdiction of this Court under Articles 226/227 of the Constitution of India. CWP No. 13372 of 2009 -10- Accordingly, the writ petition is dismissed. However, the petitioners would at liberty in case they are aggrieved against the ‘Sanad Takseem’ and their rights are affected to approach the learned Financial Commissioner under Section 16(1) of the Act. (S.S. SARON) JUDGE September 1, 2009 amit