Girwar Vs. Financial Commissioner and ors. - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - on 31-7-1989, respondents 3 and 4 took more time to file objections and the case was adjourned to 16-8-1989. on 16-8-1989, on failure of respondents 3 and 4 to file objections, the assistant collector passed an order confirming naqsha-be. 3. learned counsel for the petitioner has contended that if respondents 3 and 4 were not satisfied with the partition of the land as proposed by the field staff, they should have raised objections before the assistant collector. 796. counsel also contended that even if the order of the commissioner was bad in law, the financial commissioner was not justified in interfering with the same in revisional jurisdiction. ' it is true that respondents 3 and 4 had failed to file objections to naqsha-be on the ground that it was not in accordance with the mode of partition but that by itself would not justify departure from the sanctioned mode of partition. in sohan lal's case (supra), it has not been held that remedy of appeal against the final partition is not available to a party who has failed to file objections to the preparation of naqsha-be.v.k. jhanhi, j.1. in this petition under article 226 of the constitution of india, challenge is to order dated 24-5-1994 passed by the financial commissioner, haryana, whereby he has set aside order dated 13-12-1991 passed by the commissioner, hisar division, hisar, and restored the order dated 29-11-1990 of collector, dadri, remanding the case to the assistant collector ii grade for drawing up naksha-be afresh.2. in brief, the facts are that respondents 3 and 4, namely, smt. shanti and geeta devi, widow and daughter respectively of ram kumar, filed an application for partition before the assistant collector ii grade. petitioner and his brother namely, ish-war, filed written statement to the same in which they stated that they are in cultivating possession of their share according to the mutual partition and in the alternative, they submitted that in case the court comes to the conclusion that partition is necessary, then the partition be effected in accordance with the possession of the parties as the petitioner and his brother had made the land cultivable by their hard labour and by spending money. vide order dated 16-6-1989, the assistant collector sanctioned the mode of partition. the criteria according to which the land between the share-holders had to be partitioned was as follows :- '(a) two kurhas be made, one of the applicant and other of respondents; (b) possession and nature of land be considered; (c) path-way be left mushtarqa; (d) trees be kept intact; (e) 2 marlas less or more will not be considered;(f) khatoni be partitioned at the spot and nishan dehi be given.'on the basis of mode of partition, the assistant collector directed the field staff to prepare naqsha-be. on receipt of naqsha-be on 27-7-1989, the case was adjourned to 31-7-1989 for filing objections. on 31-7-1989, respondents 3 and 4 took more time to file objections and the case was adjourned to 16-8-1989. on 16-8-1989, on failure of respondents 3 and 4 to file objections, the assistant collector passed an order confirming naqsha-be. respondents 3 and 4 filed an appeal before the collector who vide order dated 29-11-1990 accepted the appeal on finding that the land given to respondents 3 and 4 is barani, whereas the land given to the petitioner and his brother is nehri, which is against the mode of partition. he consequently remanded the case to the assistant collector ii grade for preparing naqsha-be in accordance with the mode of partition. petitioner having felt aggrieved against the order of the collector filed an appeal before the commissioner who vide order dated 13-12-1991 accepted the appeal solely on the ground that respondents 3 and 4 who did not file any objections to naqsha-be had no right to raise objections before the court of collector. in revision filed by respondents 3 and 4, financial commissioner has set aside the order of the commissioner, restoring the order of the commissioner, against which the present writ petition has been filed. 3. learned counsel for the petitioner has contended that if respondents 3 and 4 were not satisfied with the partition of the land as proposed by the field staff, they should have raised objections before the assistant collector. by not filing objections, they accepted the final partition and therefore, had no right to file an appeal. in support of his contention, he relied upon judgment of this court in sohan lal v. financial commissioner and ors., 1993 p.l.j. 796. counsel also contended that even if the order of the commissioner was bad in law, the financial commissioner was not justified in interfering with the same in revisional jurisdiction. in support of this, he cited a full bench judgment of this court in dhaunkal v. man kauri and another, (1970)72 p.l.r. 882 (f.b.). in answer to these submissions, learned counsel for respondents 3 and 4 has. contended that final partition was against the mode of partition and therefore, the financial commissioner rightly interfered with the order of the commissioner.4. after hearing the learned counsel for the parties, we are of the view that there is no merit in the writ petition. as per the finding of the collector and the financial commissioner, the land which had come to the share of respondents no.3 and 4 in final partition is barani, whereas the land given to the petitioner and his brother is nehri. in this regard, reference may be made to concluding paragraph of the order passed by financial commissioner :- '4-2. in the present case the mode of partition contained inter-alia the statement that partition was to proceed honouring the nature of possession and the nature and quality of land. it followed therefore that as far as practicable the irrigated and unirrigated land should have been shared by the petitioner and the respondents in proportionate to their rights. admittedly the petitioner has been given only barani land, no irrigated land has come to her share. the partition order, therefore, files in the face of the mode of partition and is inequitable, illegal and void ab initio. the qualifying statement by the learned counsel for the respondents that the land shown as barani in the jamabandi has since come under irrigation cannot help the respondents. unless this fact finds a mention in the subsequent jamabandi, or in the alternative, the assistant collector has testified to such a transformation after a spot inspecting the fact as recorded in the jamabandi has to be accepted. technically the commissioner is right in saying that the petitioner should have raised an objection at the time of naksha 'khal was being sanctioned. however, that kind of vigilance cannot be expected of our largely unlettered farmers. the petitioner's right in challenging the partition order cannot be abridged by this over-sight on her part during the partition proceedings. in the light of afore-going i accept this revision petition set aside the order of commissioner, hisar division dated 13-12-91 and restore the order of collector, dadri, dated 29-11-90. the matter would now go before the assistant collector, dadri, for drawing up naksha 'kha' afresh as advised earlier.'it is true that respondents 3 and 4 had failed to file objections to naqsha-be on the ground that it was not in accordance with the mode of partition but that by itself would not justify departure from the sanctioned mode of partition. once the mode of partition is sanctioned, the aggrieved person has the remedy to go in an appeal against the order of partition. in this case, the mode of partition sanctioned by the assistant collector ii grade was not challenged by any party and it became final between the parties to the case and therefore, the assistant collector had no option but to act and decide the partition case according to the sanctioned mode of partition. the orders of the assistant collector and also of the commissioner in this regard were totally against the mode of partition and thus, the same have rightly been set aside by the collector and the financial commissioner. in sohan lal's case (supra), it has not been held that remedy of appeal against the final partition is not available to a party who has failed to file objections to the preparation of naqsha-be. the order sanctioning the mode of partition, as also the order sanctioning the final partition are appealable orders. reference in this regard may be made to sections 118 and 13 of the punjab land revenue act, 1887 (in short the 1887 act). 5. as regards the contention of counsel for the petitioner that the financial commissioner was not justified in interfering with the order of the collector in revisional jurisdiction, suffice it to say, the powers of the financial commissioner to call for, examine and revise the proceedings of revenue officers under section 16 of 1887 act are very wide. the judgment in dhaunkal's case (supra) cited by petitioner's counsel is with regard to the revisional powers of the financial commissioner under the punjab tenancy act wherein the powers given to the financial commissioner are limited and akin to the powers of the high court under section 115 of the code of civil procedure. however, there is no such constraint in exercise of revisional powers of the financial commissioner provided for under section 16 of the 1887 act. in hari singh v. financial commissioner, revenue, haryana and ors., 1982 p.l.j. 320, a learned judge of this court has held that section 16 of the 1887 act confers plenary powers on the financial commissioner and while exercising such powers the financial commissioner is competent to go into question of fact and form his opinion on facts. thus, this contention is devoid of any merit. 6. before concluding, we would observe that in the present case, the orders passed in appeal by the commissioner and in revision by the financial commissioner are one of remand of the case to the assistant collector ii grade for fresh decision and therefore, by no stretch of imagination it can be said to be a case where it would cause any harm to either of the parties. since the collector has directed that naqsha be be got prepared again in accordance with the mode of partition, the parties shall be entitled to raise objections in case they find that naqsha-be is not according to it. 7. consequently there being no merit in the writ petition the same shall stand dismissed. there shall be no order as to costs.