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2022 Supreme(HP) 819
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Roshan Lal and others - Appellants
Versus
State of Himachal Pradesh and others - Respondents
CWP No. 2645 of 2016
Decided on : 19-12-2022
Advocate Appeared:
For the Appellant :Mr. R.K.Gautam, Senior Advocate with Mr. Jai Ram, Advocate.
For the Respondents:Mr. Narender Thakur, Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate
Point of Law: Court while exercising jurisdiction under Article 226 of Constitution will not sit as a Court on appeal over orders passed by statutory authorities.
Headnote:
Constitution of India, 1950 - Article 226 - Himachal Pradesh Land Revenue Act - Section 123 – Partition – Power of High court to issue writs - Petitioners have approached this Court primarily with grievance that none of authorities right from Assistant Collector 1st Grade to Financial Commissioner (Appeals) had taken cognizance of their objections - It will not be equitable now to unsettle entire process especially when petitioners have not been able to show any specific violation of their legal right or prejudice caused to them (Para 15).
Findings of Court:
There is no dispute with proposition that the question of title once raised in partition proceedings has to be decided - It has been found that no such question was specifically raised - In absence of any specific pleadings raised before the Assistant Collector 1st Grade, he could not have assumed the existence of question of title - Court while exercising jurisdiction under Article 226 of Constitution will not sit as a Court on appeal over orders passed by statutory authorities - Such orders can be interfered with only in case those suffer from grave illegality or perversity or jurisdictional errors. The case of petitioners herein fails to satisfy any of above parameter, no interference is called for in present case.
Result: Petition disposed of.
JUDGMENT :
Satyen Vaidya, J
Petitioners have filed instant petition seeking following substantive relief: -
“(i) That the impugned orders Annexure P-1, P-3, P-4 and P-5 passed by Assistant Collector and order Annexure P-7 dated 9.6.2004, passed by Sub Divisional Officer, Annexure P-8, order date 20.3.2009, passed by Divisional Commissioner and order dated 30.8.2016, Annexure P-10, passed by Financial Commissioner, may kindly be quashed and set-aside, in the interest of justice and fair play.”
2. Brief facts necessary for adjudication of the petition are that the parties to the instant petition were co-owners of the land comprised in Khata/Khatauni No. 26/65 to 75, total measuring 0-71-55 hectares, situated in Tika and Mauza Bari, Tehsil Nurpur, District Kangra, H.P. as per jamabandi for the year 1991-92. In 1995, respondent No.5 herein, moved an application under Section 123 of the Himachal Pradesh Land Revenue Act for partition of above-mentioned joint land before the Assistant Collector 1st Grade, Nurpur. Vide order dated 2.6.1997 the mode of partition was proposed. Petitioners challenged the mode of partition dated 2.6.1997 by filing appeal before the learned Sub Divisional Collector, Nurpur, which was allowed vide order dated 25.10.2000 and the matter was remanded back to the Assistant Collector 1st Grade, Nurpur with following observations:
“I have heard the Ld. Counsels for both the parties and have also gone through the record of lower court very carefully. The perusal of the record shows that the mode of partition in the instant case was sanctioned by the A.C.1st Grade on 2.6.97. The Ld. A.C. 1st Grade has sanctioned the mode of partition without considering the objections of the appellants and the order already passed by his predecessor in this behalf.
Keeping in view the facts mentioned above, the order of A.C. 1st Grade, Nurpur dated 2.6.97 cannot be sustained. I, therefore, remand the case back to the Ld. A.C. 1st Grade, for fresh decision, keeping in view the observations made above and after giving proper opportunity of hearing to all the interested parties.”
3. On 03.07.2022, the Assistant Collector 1st Grade, Nurpur again proposed a mode of partition between the parties after hearing them. Petitioners again assailed the order dated 03.07.2002 passed by the Assistant Collector 1st Grade before the Sub Divisional Collector, Nurpur. The appeal of the petitioners was dismissed by learned Sub Divisional Collector, Nurpur vide order dated 09.06.2004. Petitioners assailed the order passed by the Sub-Divisional Collector before the Divisional Commissioner, Kangra at Dharamshala, who also dismissed the challenge of petitioners vide order dated 20.03.2009. Lastly, the petitioners approached the Financial Commissioner (Appeals), Himachal Pradesh by way of revision petition No. 152 of 2009, but again remained unsuccessful. Their revision was dismissed vide order dated 30.08.2016, hence the instant petition.
4. It is pertinent to notice that though the order dated 03.07.2002 passed by the Assistant Collector 1st Grade, had been assailed in appeal before the Sub Divisional Collector, Nurpur, but except for some time, there was no stay on the implementation of the order passed by the Assistant Collector 1st Grade. As a result, further proceedings continued before the Assistant Collector 1st Grade and finally, the mode of partition was accepted and instrument of partition was prepared. Another fact that cannot be ignored is the observation made by the learned Financial Commissioner in his order dated 30.08.2016, to the effect that the copy of “Roznamcha Wakiyati” dated 28.10.2009, placed on record of revision petition No. 152 of 2009 on behalf of the respondents clearly revealed that the partition had been effected between the parties and the possession also stood delivered to the parties on 28.10.2009 by the Field Kanungo.
5. The petitioners have approached this Court primarily with the grievance that none of the authorities right f
