GORDHANI Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner challenges the order passed by the Financial Commissioner, Annexure P-4 dated 28.11.2002 primarily on the ground that the order passed by the Commissioner, Gurgaon on 8.2.2002 being wholly without jurisdiction ought to have been set aside by the Financial Commissioner. On 5.11.1997, respondent No. 5 had filed an application for partition of the agricultural land in the Court of Assistant Collector IInd Grade, Hathin, respondent No. 4. He and the petitioner are co-sharers of the land in question measuring 136 kanals 4 marlas situated in Village Manpur to the extent of 1/2 share each on the basis of Jamabandi for the year 1992-1993. On 28.4.1999, the petitioner had filed objections regarding the mode of partition. He had stated that Field Revenue Staff while preparing the partition papers had not taken into consideration the possession and quality of land. It was further stated that the papers had not been prepared as per the position prevailing at the spot. The petitioner had also filed objections in respect of Naksha "Kha" and "Ga". Learned counsel for the petitioner has submitted that inspite of the objections raised by the petitioner, respondent No. 4 has approved the partition proceedings between the parties by order dated 22.9.1999. Aggrieved against the aforesaid order, petitioner had filed an appeal before the Collector, Hathin-respondent No. 3 under Section 118(2) of the Punjab Land Revenue Act, 1887 (hereinafter referred to as the "Act"). By order dated 16.8.2000, Annexure P-2 to the writ petition, respondent No. 3 held that the Assistant Collector Grade II, even after inspecting the land in possession of both the parties has not given them the land as per their possession. Therefore, the matter was remanded back to respondent No. 4 with the directions that both the parties may be allotted maximum land which is in their respective possession; that the land may not be divided into more number of parcels/blocks while making partition of the land; that consolidation may be kept in view and that keeping in view the spot inspection report that 27.8.1999 request of the appellant may also be kept in view. Respondent No. 5 challenged the aforesaid order of respondent No. 3 by filing appeal under Section 13 of the Act before the Commissioner, Gurgaon Division, Gurgaon (respondent No. 2). He did not appear before the Assistant Collector as directed by respondent No. 4. By order dated 8.2.2002, respondent No. 2 set aside the order passed by respondent No. 3. This order of respondent No. 2 was challenged by way of ROR No. 202 of 2001-2002 before the Financial Commissioner, Haryana (respondent No. 1) by the petitioner. Before the Financial Commissioner, it was argued by the learned counsel for the petitioner that the land allotted to respondent No. 5 is Chahi or Nahri whereas the petitioner has been allotted some Narmot land also. It was further submitted that the appeal against the order of respondent No. 3 was accepted by respondent No. 2 on the ground that the Assistant Collector IInd Grade had inspected the spot and made enquiries from the neighbours. According to the learned counsel for the petitioner, this is not enough to base the partition proceedings on. Furthermore, even the plot of land in possession of the petitioner had been given to the respondents. On the other hand, it was argued by the learned counsel for the respondent No. 5 that both the parties had equal proportion of land with an assured availability of water. There was a private partition between the parties which was even admitted by the petitioner in his objection to the Commissioner. In fact, the private partition was admitted even in front of respondent No. 4 at the time of filing of objections by the petitioner. After considering the entire facts, circumstances, evidence on record and the submissions made by the learned counsel for the parties, the Financial Commissioner dismissed the revision petition by its order dated 28.11.2002.

(2.) LEARNED counsel for the petitioner has submitted that once the Collector had remanded the matter back to the Assistant Collector, respondent No. 5 could have either appeared before the Assistant Collector or withdrawn the application. There was no remedy of appeal available to respondent No. 5 against the order of the Collector. According to the learned counsel, the order of the Commissioner dated 8.2.2002 is contrary to Section 118(3) of the Act.

(3.) A perusal of Sub-section (1) of Section 118 of the Act shows that an order is to be passed by the Revenue Officer, after such enquiry as he deems necessary stating reasons for his decision on the question of partition. Sub-section (2) of Section 118 of the Act provides that an appeal may be preferred from an order under Sub-section (1) within 15 days from the date thereof, which shall be decided by a certified Revenue Officer. Further proceedings in the partition shall remain stayed during the pendency of the appeal. Sub-section (3) gives an option to the applicant for partition who is dis-satisfied with an original or appellate order passed under this Section to withdraw from the proceedings in so far as they relate to the partition of his shares. The permission shall be granted by the Revenue Officer on such terms as the Revenue Officer thinks fit. The applicant would have the option to either accept an order which is not to his satisfaction or to withdraw from the partition proceedings. This option is in addition to the right of the parties to appeal under Section 13 of the Act. It is not in derogation thereof. The aforesaid provision cannot be construed in such a way as to hold that respondent No. 5 was precluded from challenging the order of the Collector whereby the matter had been remanded back to the Assistant Collector IInd Grade, Hathin, District Faridabad by filing an appeal before the Commissioner. In our view, the Financial Commissioner has correctly dismissed the Revision Petition filed by the petitioner. It has to be noticed that the Financial Commissioner has considered the submissions made by the counsel for the parties. It has been noticed that the partition proceedings have been based on the inspection of the spot by the Assistant Collector IInd Grade himself. That being so, it cannot be held that the partition proceedings have violated any of the known principles for effecting partition. At this stage, Mrs. Daya Chaudhary has submitted that the spot inspection relied upon by the Commissioner was done in the absence of the petitioner. We are unable to accept the submission as the same was not even canvassed before the Financial Commissioner. Even the points with regard to the jurisdiction of the Commissioner and the Financial Commissioner were not raised before the authorities below. In such circumstances, we find no reason to interfere with the orders passed by the authorities below. In view of the above, this writ petition is dismissed. Petition dismissed.