Punjab-Haryana High Court
Ajaib Singh vs Financial Commissioner Appeals Punjab on 3 May, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2024:PHHC:061646
CWP-8687-2024 1
124 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-8687-2024
Reserved on: 22.04.2024
Decided on: 03.05.2024
Ajaib Singh and another .....Petitioners
versus
Financial Commissioner (Appeals) Punjab and others
..... Respondents
CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ
***
Present :- Mr. S.S. Salar, Advocate
for the petitioners.
Mr. Sherry K. Singla, Advocate
for the caveators/respondents No.5, 7 and 8.
***
RAJESH BHARDWAJ, J.
Petitioners have approached this Court praying for quashing
of orders dated 18.01.2024 and 12.06.2015 (Annexures P-12 & P-9) and
order dated 16.10.2017 (Annexure P-10) wherein mutation No.4072 dated
30.03.2006 (Annexure P-2) has been set aside.
2. It has been submitted by counsel for the petitioners that the
petitioners purchased 120 kanals 17 marlas of land from Chhota Singh
vide sale deed dated 03.05.1963 and accordingly, Mutation No.1835 was
sanctioned. He has submitted that petitioners purchased the specific
khasra numbers vide sale deed dated 03.05.1963. It has been submitted
that the mutation was entered and it was sanctioned on 30.03.2006 by
mentioning that all the co-sharers including the petitioners presented the
agreement admitting partition. However, the mutation sheet did not have
the signatures of the petitioners acknowledging their presence but the
signatures of the respondents were there. He has submitted that there
being no signatures on partition agreement, the same proves that fraud
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was committed by the respondents in connivance with the revenue
officials. He has further submitted that the appeal was filed before the
Collector against Mutation dated 30.03.2006. When the petitioners came
to know, they filed application for review of the Mutation on 04.03.2010.
Thereafter, the appeal was filed against the mutation order dated
30.03.2006, however, learned Sub Divisional Magistrate dismissed the
appeal holding the same to be time barred vide his order dated 07.04.2011.
Thereafter, the Deputy Commissioner ordered the review of the mutation
vide his order dated 15.05.2013. This order was never challenged by any
party and thus, became final. However, as no action was taken for review
of the order, the petitioners filed their representation on 04.11.2014.
However, learned Assistant Collector 2nd Grade in violation of the law
rejected the review and confirmed the mutation on the ground that the
petitioners had purchased the specific khasra vide his order dated
12.06.2015. The appeal filed by the petitioners was dismissed on
16.10.2017. Being aggrieved, the petitioners filed the revision petition
which was allowed vide order dated 28.12.2017. He contends that ROR
filed was allowed vide order dated 18.01.2024 for extraneous
considerations. It is submitted that learned Financial Commissioner
without adverting to the findings regarding there being no express consent
for partition and signatures of the petitioners has set aside the order on the
ground that Mutation No.4072 was already upheld in the appeal by the
Sub Divisional Magistrate on 07.04.2011 and therefore, attained finality.
He submits that the learned Financial Commissioner has failed to
appreciate that the Deputy Commissioner had already ordered for the
review of mutation. He further submits that once the mutation was illegal
its effect given in subsequent Jamabandi does not take away the
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jurisdiction of the revenue authorities to review the order when it was
entered as a result of fraud. It is submitted that the only exception is the
oral family partition. However, once there was written agreement, it could
not be relied upon unless entered in the revenue record. Hence, the
mutation entered was illegal and contrary to the public policy. He
vehemently contends that Mutation No.4072 was sanctioned on the basis
of family partition to which the petitioners were never the signatory. It is
submitted that the view taken by the learned Financial Commissioner is
against the judgment rendered by this Court in Bhartu Vs. Ram Sarup,
1981 PLJ 204 and the judgment of Hon'ble Supreme Court report in Jai
Singh Vs. Gurmej Singh, 2009(15)SCC 747. He has submitted that the
Commissioner had exceeded his jurisdiction as it was required to deal
with the permission to review the said Mutation No.4072. He has
submitted that the appeal was dismissed on 16.10.2017 which was under
consideration before the learned Commissioner. Hence, the matter
regarding review was not under consideration rather the mutation was
under consideration in pursuance to the order dated 15.05.2013 directing
the review of the mutation which remained unchallenged till date. He has
submitted that the observations made by learned Financial Commissioner
are conclusive in nature and shall bound the learned Commissioner while
re-deciding the case on remand. He has relied upon the judgments titled
as Jai Singh Vs. Gurmej Singh, 2009(15) SCC 747 and Mohinder Singh
Vs. State of Punjab and others, 2011(1) RCR(Civil) 107. He thus,
submits that the impugned orders being totally in violation of the statutory
provisions and the law settled, deserve to be set aside.
3. Per contra, learned counsel for the caveator/respondents
No.5, 7 and 8 has vehemently opposed the submissions made by counsel
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for the petitioners. He has submitted that the learned Financial
Commissioner vide his order dated 18.01.2024 has remanded the case to
the Court of Commissioner, Patiala Division, Patiala in accordance with
law and therefore, no prejudice has been caused to either of the parties as
the case would be decided afresh, after hearing both the sides. He has
submitted that the dispute pertains to Mutation No.4072 which was
entered and sanctioned vide order dated 30.03.2006. The petitioners
challenged this order by way of appeal before the learned Collector-cum-
Sub Divisional Magistrate, Nabha and the said appeal was dismissed vide
order dated 07.04.2011 and as this order passed by the Appellate Authority
was never challenged by the petitioners, it has attained finality. He
submits that during the pendency of the said appeal, the petitioners filed
the application dated 04.03.2010 for the review of Mutation No.4072
which was sanctioned vide order dated 30.03.2006. This appeal filed by
the petitioners was dismissed vide order dated 07.04.2011. Thereafter, the
application seeking review of the said order was also dismissed by the
Court of Assistant Collector IInd Grade vide order dated 12.06.2015. The
petitioners challenged this order by way of an appeal before the Collector
which was dismissed on 16.10.2017. He vehemently contends that the
petitioners never challenged the said orders dated 12.06.2015 and
16.10.2017 before the Court of learned Commissioner. It is submitted that
learned Commissioner had set aside the Mutation No.4072 which was
sanctioned vide order dated 30.03.2006 without even considering that the
said Mutation No.4072 was not even challenged by the petitioners by way
of revision. It is further submitted that the petitioners challenged the order
dated 12.06.2015 and 16.10.2017 seeking review of the order dated
30.03.2006 which was dismissed by the Court of Assistant Collector IInd
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Grade as well as by Sub Divisional Magistrate, Nabha. Thus, the
Commissioner had exceeded his jurisdiction and thus, the same has been
rightly set aside by the learned Financial Commissioner vide order dated
18.01.2024. He submits that the Mutation No.4072 was sanctioned on
30.03.2006 on the basis of the partition between the parties. Hereinafter
the petitioners purchased the suit land measuring 120 kanal 17 marla vide
sale deed dated 04.05.1963 and as per the record, the Mutation No.1835
had already been sanctioned in favour of the petitioners on the basis of
sale deed dated 04.05.1963 pertaining to the specific khasra numbers. He
has also submitted that the petitioners had obtained loan on the said land
measuring 120 kanal 17 marla which was allotted to him by virtue of
Mutation No.4072. It is submitted that the petitioners challenged the said
order dated 30.03.2006 by way of appeal in the year 2010 i.e. after a delay
of 04 years. This appeal has already been dismissed on 07.04.2011 which
has attained finality as it was not challenged further. He submits that by
virtue of the impugned order, learned Financial Commissioner has
remanded the case for a decision afresh and thus, there is no prejudice
whatsoever caused as contended by counsel for the petitioners. He
submits that the petition being devoid of any merits deserves to be
dismissed.
4. Heard. On hearing counsel for the parties and perusing the
record, it is apparent that the petitioners had approached this Court
impugning the orders dated 18.01.2024, 12.06.2015 and 16.10.2017. As
deciphered from the arguments raised by both the sides and the record
available, Mutation No.4072 was entered and sanctioned on 30.03.2006
and the appeal filed against the same was dismissed on 07.04.2011. This
order was not challenged further. However, the petitioners filed the
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application dated 04.03.2010 for the review of Mutation No.4072 which
was sanctioned vide order dated 30.03.2006. The application seeking
review was dismissed by the Assistant Collector IInd Grade on
12.06.2015. This order was further challenged by way of appeal and the
same was dismissed by the Collector on 16.10.2017. Thereafter, the
petitioners challenged the orders dated 12.06.2015 and 16.10.2017 before
the learned Financial Commissioner. Learned Financial Commissioner
had observed in the impugned order that the Mutation No.4072 was
entered and sanctioned by the Assistant Collector IInd Grade on the basis
of family sanctioned agreement which was duly consented by the
petitioners and was acted upon. It has been further observed that the
Commissioner had exceeded his jurisdiction while passing the impugned
order in respect of Mutation No.4072 as the same was never challenged
by way of the revision petition filed by the petitioners. Thus, having found
the Commissioner exceeded his jurisdiction, the case was remanded back
to the Commissioner to decide the revision afresh keeping in view the
provisions of Section 45 of the Punjab Land Revenue Act. Learned
counsel for the petitioners has primarily assailed this order that the learned
Financial Commissioner had rather given the directions to the
Commissioner to pass the order in the specific directions given which
would prejudice the petitioners. On hearing both the sides, it is apparent
that the material dispute raised by both the sides had not been properly
dealt by the Commissioner and thus, it requires a fresh decision on the
reconsideration of the contentions raised by both the sides.
5. Thus, this Court does not find any infirmity in the remand
order for a decision afresh keeping in view the provisions of Section 45 of
the Punjab Land Revenue Act. However, learned Commissioner would
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decide the case afresh on hearing both the sides in view of the
submissions made by them afresh. Learned Commissioner would proceed
with the case afresh on hearing both the sides and decide the same in
accordance with law without being influenced by any observation made
by the Financial Commissioner, however, the Commissioner would be at
liberty to consider all the points raised by the Financial Commissioner in
his order and decide the same independently. Learned Commissioner is
directed to issue notice to both the sides and hear the case afresh and
decide it expeditiously in accordance with law preferably, within three
months, from the date of receipt of copy of this order. Office is directed to
send copy of this order to the Commissioner forthwith who on receipt of the
same will issue notice for appearance to all the parties concerned and
proceed further in the matter.
Perusal of the file shows that the Commissioner, Patiala
Division Patiala has not been made a party in the present petition. He
being a necessary party, is impleaded as respondent No.13 in the present
petition.
Learned counsel for the petitioner is directed to file amended
memo of parties during the course of the day.
Disposed of in above terms.
03.05.2024 ( RAJESH BHARDWAJ )
m. sharma JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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