“this Writ Petition Was Filed in the Year 2010 and Came Up for Vs. Commissioner Gurgaon Division and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1091518
CourtPunjab and Haryana High Court
Decided OnSep-10-2013
Appellant“this Writ Petition Was Filed in the Year 2010 and Came Up for
RespondentCommissioner Gurgaon Division and Others
Excerpt:
cms no.3580-81 of 2013 in/and lpa no.1403 of 2013 -1- in the high court of punjab and haryana at chandigarh ***** cms no.3580-81 of 2013 in/and lpa no.1403 of 2013 date of decision : 10.9.2013 bhola ram ........applicant-appellant versus commissioner, gurgaon division and others ......respondents coram: hon'ble mr.justice jasbir singh hon'ble mr.justice g.s.sandhawalia present:- mr.mukesh yadav, advocate, for the applicant-appellant --- jasbir singh, j. (oral) cms no.3580-81 of 2013 : after hearing counsel for the applicant-appellant, applications are allowed. delay of 98 days in re-filing and 52 days in filing the appeal stands condoned. lpa no.1403 of 2013 : this appeal has been filed against an order dated 6.12.2012, vide which cwp no.22679 of 2010 was dismissed for non-prosecution. order passed by the court reads thus :- “this writ petition was filed in the year 2010 and came up for hearing on 20.12.2010, when, none put in appearance on behalf of the petitioner and the case was adjourned in the interest of justice. thereafter, the case was adjourned on various dates. on 22.3.2012, counsel for the petitioner took time to confirm whether the entire land has been acquired or not. thereafter, the case has been adjourned from time to time and till date, no notice has been issued in this case. for the last three dates i.e.18.4.2012, 21.5.2012 and kumar ashwani 2013.09.24 16:52 i attest to the accuracy and integrity of this document cms no.3580-81 of 2013 in/and lpa no.1403 of 2013 -2- 14.9.2012, none has appeared for the petitioner. apparently, the petitioner is not interested in prosecuting the present petition. dismissed for non-prosecution.”. thereafter, the appellant filed an application for review of that order, which was also dismissed on 25.1.2013. it is contention of counsel for the appellant that the adjournments, as noticed by the learned single judge were not given at his instance. to support above said contention, interim orders passed in that writ petition, were not placed on record. be that as it may. we have heard counsel for the appellant on merits also. by filing cwp no.22679 of 2010, the appellant has laid challenge to an order dated 18.12.2006, vide which naksha bey was ordered to be prepared, to partition the land in three khewats. order passed by the collector on 10.9.2007, dismissing appeal filed by respondents no.13 and 14, was also challenged. it is necessary to mention here that order dated 18.12.2006 was never challenged by the appellant. against above order, other right holders went in appeal, which was dismissed vide order dated 30.4.2010. revision petition filed by the appellant was also dismissed on 8.9.2010. above orders were also under challenge in cwp no.22679 of 2010. vide order dated 18.12.2006 to partition a joint khewat, three khewats were ordered to be carved out. that order was not challenged by the appellant, as such qua him it has become final. order was challenged by respondents no.13 and 14. their appeal was dismissed by the kumar ashwani collector on 10.9.2007. relevant portion of the order reads thus :- 2013.09.24 16:52 i attest to the accuracy and integrity of this document cms no.3580-81 of 2013 in/and lpa no.1403 of 2013 -3- “after hearing counsel for both the parties and perused the record, i am agreed with the plea of the counsel for the respondents that the hon'ble high court in its order has ordered for three khewats as per the agreed mode of partition, if the acceptance is given for the separate khewat of the appellant then as per the 1989 plj page 180, the partition against mode of partition made illegal and there was no provision for his separate khewat in the agreed mode of partition. amended naksha 'be' prepared in accordance with the order dated 8.8.2000 for the separate khewat of the appellant has been set aside by the hon'ble high court. so appeal is dismissed by finding it forceless and baseless. both the parties are directed to appear before the subordinate court on 24.9.2000 for further proceedings.”. it is specifically stated that naksha bey has been ordered to be prepared vide order dated 18.12.2006, in terms of order passed by this court on 28.8.2006. copy of order passed in cwp no.14710 of 2002 was not placed on record. at the time of hearing, it was shown to us. photocopy of the same is taken on record. in that writ petition naksha bey prepared earlier, was challenged along with orders.passed by the authorities from time to time. after hearing bhana ram-petitioner in that case and others.it was observed as under :- “the petitioners have impugned the orders.annexures p3 to p6, by which the naksha be has been prepared and accepted. mr.sandhu, counsel for the petitioners contents that naksha be has not been prepared as per the agreed mode of partition, annexure p1. after hearing learned counsel for the petitioners.we dispose of this writ petition with a direction to the assistant collector ist grade, narnaul to prepare a fresh naksha be after taking into consideration the agreed mode of partition, annexure p1, as also all kumar ashwani 2013.09.24 16:52 i attest to the accuracy and integrity of this document cms no.3580-81 of 2013 in/and lpa no.1403 of 2013 -4- other relevant pleas raised by the petitioners.fresh naksha be so prepared be finalised within a period of two months from today. parties are directed to appear before the assistant collector ist grade, narnaul on 29.9.2006. respondents be also heard before passing any final order by the assistant collector ist grade, narnaul. accordingly, the impugned orders.annexures p3 to p6 are quashed.”. naksha bey was ordered to be prepared as per mode of partition, which was placed on record of that case. to show that it was not so prepared, mode of partition has not been placed on record. it appears that an attempt has been made only to delay the partition proceedings which are pending for the last more than 14 years.against order dated 18.12.2006, which was passed in tune with orders passed by this court on 28.8.2006 in cwp no.14710 of 2002, the petitioner has not filed any appeal. qua him that order has become final. mode of partition has not been placed on record, to show that the orders under challenge, were not passed in accordance with mode of partition. no case is made out for interference in the impugned orders.dismissed. (jasbir singh) judge (g.s.sandhawalia) judge 10.9.2013 ashwani kumar ashwani 2013.09.24 16:52 i attest to the accuracy and integrity of this document
Judgment:

CMs No.3580-81 of 2013 in/and LPA No.1403 of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CMs No.3580-81 of 2013 in/and LPA No.1403 of 2013 Date of decision : 10.9.2013 Bhola Ram ........Applicant-Appellant versus Commissioner, Gurgaon Division and others ......Respondents CORAM: Hon'ble Mr.Justice Jasbir Singh Hon'ble Mr.Justice G.S.Sandhawalia Present:- Mr.Mukesh Yadav, Advocate, for the applicant-appellant --- Jasbir Singh, J.

(Oral) CMs No.3580-81 of 2013 : After hearing counsel for the applicant-appellant, applications are allowed.

Delay of 98 days in re-filing and 52 days in filing the appeal stands condoned.

LPA No.1403 of 2013 : This appeal has been filed against an order dated 6.12.2012, vide which CWP No.22679 of 2010 was dismissed for non-prosecution.

Order passed by the Court reads thus :- “This writ petition was filed in the year 2010 and came up for hearing on 20.12.2010, when, none put in appearance on behalf of the petitioner and the case was adjourned in the interest of justice.

Thereafter, the case was adjourned on various dates.

On 22.3.2012, counsel for the petitioner took time to confirm whether the entire land has been acquired or not.

Thereafter, the case has been adjourned from time to time and till date, no notice has been issued in this case.

For the last three dates i.e.18.4.2012, 21.5.2012 and Kumar Ashwani 2013.09.24 16:52 I attest to the accuracy and integrity of this document CMs No.3580-81 of 2013 in/and LPA No.1403 of 2013 -2- 14.9.2012, none has appeared for the petitioner.

Apparently, the petitioner is not interested in prosecuting the present petition.

Dismissed for non-prosecution.”

.

Thereafter, the appellant filed an application for review of that order, which was also dismissed on 25.1.2013.

It is contention of counsel for the appellant that the adjournments, as noticed by the learned Single Judge were not given at his instance.

To support above said contention, interim orders passed in that writ petition, were not placed on record.

Be that as it may.

We have heard counsel for the appellant on merits also.

By filing CWP No.22679 of 2010, the appellant has laid challenge to an order dated 18.12.2006, vide which Naksha Bey was ordered to be prepared, to partition the land in three Khewats.

Order passed by the Collector on 10.9.2007, dismissing appeal filed by respondents No.13 and 14, was also challenged.

It is necessary to mention here that order dated 18.12.2006 was never challenged by the appellant.

Against above order, other right holders went in appeal, which was dismissed vide order dated 30.4.2010.

Revision petition filed by the appellant was also dismissed on 8.9.2010.

Above orders were also under challenge in CWP No.22679 of 2010.

Vide order dated 18.12.2006 to partition a joint Khewat, three Khewats were ordered to be carved out.

That order was not challenged by the appellant, as such qua him it has become final.

Order was challenged by respondents No.13 and 14.

Their appeal was dismissed by the Kumar Ashwani Collector on 10.9.2007.

Relevant portion of the order reads thus :- 2013.09.24 16:52 I attest to the accuracy and integrity of this document CMs No.3580-81 of 2013 in/and LPA No.1403 of 2013 -3- “After hearing counsel for both the parties and perused the record, I am agreed with the plea of the counsel for the respondents that the Hon'ble High Court in its order has ordered for three khewats as per the agreed mode of partition, if the acceptance is given for the separate khewat of the appellant then as per the 1989 PLJ Page 180, the partition against mode of partition made illegal and there was no provision for his separate khewat in the agreed mode of partition.

Amended naksha 'Be' prepared in accordance with the order dated 8.8.2000 for the separate khewat of the appellant has been set aside by the Hon'ble High Court.

So appeal is dismissed by finding it forceless and baseless.

Both the parties are directed to appear before the subordinate court on 24.9.2000 for further proceedings.”

.

It is specifically stated that Naksha Bey has been ordered to be prepared vide order dated 18.12.2006, in terms of order passed by this Court on 28.8.2006.

Copy of order passed in CWP No.14710 of 2002 was not placed on record.

At the time of hearing, it was shown to us.

Photocopy of the same is taken on record.

In that writ petition Naksha Bey prepared earlier, was challenged along with ordeRs.passed by the authorities from time to time.

After hearing Bhana Ram-petitioner in that case and otheRs.it was observed as under :- “The petitioners have impugned the ordeRs.Annexures P3 to P6, by which the Naksha Be has been prepared and accepted.

Mr.Sandhu, counsel for the petitioners contents that Naksha Be has not been prepared as per the agreed mode of partition, Annexure P1.

After hearing learned counsel for the petitioneRs.we dispose of this writ petition with a direction to the Assistant Collector Ist Grade, Narnaul to prepare a fresh Naksha Be after taking into consideration the agreed mode of partition, Annexure P1, as also all Kumar Ashwani 2013.09.24 16:52 I attest to the accuracy and integrity of this document CMs No.3580-81 of 2013 in/and LPA No.1403 of 2013 -4- other relevant pleas raised by the petitioneRs.Fresh Naksha Be so prepared be finalised within a period of two months from today.

Parties are directed to appear before the Assistant Collector Ist Grade, Narnaul on 29.9.2006.

Respondents be also heard before passing any final order by the Assistant Collector Ist Grade, Narnaul.

Accordingly, the impugned ordeRs.Annexures P3 to P6 are quashed.”

.

Naksha Bey was ordered to be prepared as per mode of partition, which was placed on record of that case.

To show that it was not so prepared, mode of partition has not been placed on record.

It appears that an attempt has been made only to delay the partition proceedings which are pending for the last more than 14 yeaRs.Against order dated 18.12.2006, which was passed in tune with orders passed by this Court on 28.8.2006 in CWP No.14710 of 2002, the petitioner has not filed any appeal.

Qua him that order has become final.

Mode of partition has not been placed on record, to show that the orders under challenge, were not passed in accordance with mode of partition.

No case is made out for interference in the impugned ordeRs.Dismissed.

(Jasbir Singh) Judge (G.S.Sandhawalia) Judge 10.9.2013 Ashwani Kumar Ashwani 2013.09.24 16:52 I attest to the accuracy and integrity of this document