Dilraj Singh & Ors. v. Financial Commissioner Revenue, Punjab & Ors.

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Dilraj Singh, petitioner No. 1 in person Mr. B.B.S. Teji, Addl. A.G. Punjab Mr. P.S. Bhangu, Advocate for respondents No. 5 to 8 RANJIT SINGH, J. **** While adjourning the case on 4.7.2011, this Court had imposed costs of Rs. 25,000/- to be paid to the petitioner. At the very outset, the petitioner appearing in person points out that the costs still have not been paid. On this Mr. Bhangu, counsel for private respondents, says that respondents were ready to pay the costs on every date of hearing. That may not be so. Even a miscellaneous application was moved for waiving off the costs of Rs. 25,000/-, which was declined by this Court on 30.3.2012. Thereafter, the case has been adjourned on number of times. The costs have now been paid in Court today to the petitioner, who accepted the same. Petitioner No. 1 who is appearing in person has Civil Writ Petition No. 11645 of 2010 2 approached this Court to challenge the partition on a very limited ground that initial mode of partition made in the year 2003 was set aside by the Collector and the directions were issued for preparing a fresh mode of partition. The Assistant Collector thereafter without preparing a fresh mode of partition has directed the partition of this land after carrying out the spot inspection. The petitioner, accordingly, has impugned this mode adopted to partition the land, it being illegal and in violation of statutory provision. On the other hand counsel for the respondents, however, would justify the partition, which as per him, is prepared on the basis of actual possession which was checked by visiting the spot. The facts in brief are that petitioner moved an application for partition of land approximately measuring 51 bighas situated in village Isewal, Tehsil and District Ludhiana on 10.12.1991. Mode of partition was prepared by Assistant Collector. The petitioner filed an appeal against the spot inspection report of Tehsildar. The Collector while exercising the powers of revision interfered not only with the spot inspection report but against the mode of partition as well. The reasons which weighed with the Collector as noticed from the impugned order are that objections raised by the present petitioners were found correct. It was also noticed by the Collector that report of the Assistant Collector Ist Grade was not based on the facts. He accordingly found that the mode of partition prepared on the basis of possession was wrong. The Collector, accordingly struck down the spot inspection report dated 21.4.1993 and thereafter found it appropriate to remand the case back to the Assistant Collector to Civil Writ Petition No. 11645 of 2010 3 carry out the spot inspection in the presence of parties and then to partition the land afresh. The natural consequence of spot inspection was that the mode of partition which was prepared on 1993 on the basis of inspection was also not proper and suffered from same defect for which the spot inspection report sufferred. Accordingly, the Collector in my view was justified in setting aside the mode of partition and directing the partition of the land after preparing the mode of partition afresh. Learned counsel for the respondents, however, has raised an issue in regard to the jurisdiction of the Collector in interfering with the mode of partition on the basis of the application which was only against the spot inspection. The counsel, thus, would contend that the Collector exceeded his jurisdiction when he interfered with the mode of partition on the basis of this appeal. As per counsel, the Collector could have interfered with the spot inspection and in case there was any defect in the inspection obviously the mode could have been prepared afresh. I am not prepared to accept that the Collector had exceeded his jurisdiction in any manner. Once the Collector's finding was that the spot inspection submitted by the Assistant Collector was not right, the mode of partition prepared on the basis of such spot inspection was necessarily required to be interfered with. In any event, if the respondent was in any manner aggrieved against this part of the order whereby directions were issued for preparing a fresh mode of partition, he ought to have challenged that part of the order as is being challenged by him at this stage now. The petitioner Civil Writ Petition No. 11645 of 2010 4 submits before me that the respondents did not challenge the said finding so far as direction to prepare fresh mode of partition is concerned and has allowed this order to acquire finality. It is urged that finding fault with this order at this stage, obviously is not be permissible. Grievance of the petitioner appears justified. Unless a fresh mode of partition was prepared as was directed by the Collector the partition of the land could not have been done. Faced with this situation learned counsel for the respondent No. 2 has also pleaded that actually spot inspection was carried out and final partition order in the year 2007 has been done on the basis of possession found on the ground. It may be so but if after inspection a fresh mode of partition was prepared then the petitioners would have got a chance to raise objection to the mode and so also in regard to the possession which was to be protected. If the mode of partition had been prepared afresh, the petitioner could have been in a position to urge that the same is not in consonance with the possession of land as per spot inspection. The petitioners right to challenge the mode and to protect his possession, thus, was rendered meaningless once no fresh mode of partition was prepared. In view of this final instrument of partition can not be sustained. The same is set aside. The parties through their counsel are directed to appear before the Assistant Collector Ist Grade for considering the issue. The Assistant Collector Ist Grade now would first prepare mode of partition and for that purpose, if he is even required to inspect the Civil Writ Petition No. 11645 of 2010 5 spot he may do so again. The parties would be at liberty to thereafter take any appropriate proceedings in accordance with law. Let the parties appear before the Assistant Collector Ist Grade on

10.10.2012. The writ petition is, accordingly, disposed of. September 17, 2012 ( RANJIT SINGH ) JUDGE