Prompt Engineering Pvt. Ltd. vs Financial Commissioner, Govt. of Haryana, Department of Revenue and Others

Rameshwar Singh Malik, J.—The present writ petition is directed against the order dated 30.5.2011 (Annexure P-8) passed by the Financial Commissioner, Haryana, thereby setting aside the ex-parte orders passed in partition proceedings and remanding the case back to Assistant Collector, 1st Grade, Gurgaon, for fresh decision after granting due opportunity of being heard to both the parties. The brief facts of the case are that partition proceedings were initiated before Assistant Collector, 1st Grade, Gurgaon, which proceeded ex-parte against respondent no. 5, vide order dated 13.7.2007. Deed of partition was prepared vide Annexure P-1 (incomplete document attached). Having come to know, respondent No. 5 approached the Commissioner, Gurgaon Division, but his revision petition was dismissed, vide order dated 18.3.2009 (Annexure P-6). Thereafter, he approached the Financial Commissioner, Haryana, vide his revision (Annexure P-7), which was allowed vide impugned order dated 30.5.2011 (Annexure P-8). The orders passed by the Assistant Collector, 1st Grade and Commissioner, Gurgaon Division were set aside, the case was remanded back to Assistant Collector, 1st Grade for fresh decision after granting due opportunity of being heard to both the parties. Feeling aggrieved against this order dated 30.5.2011 (Annexure P-8) passed by Financial Commissioner, Haryana, petitioner has approached this court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing the impugned orders. That is how, this court is seized of the matter.

Learned counsel for the petitioner submits that respondent no. 5 was duly served in the partition proceedings, but he did not appear for the reasons best known to him. He further submits that if the partition proceedings are decided afresh in compliance of the impugned order, the petitioner will suffer irreparable loss. He next contended that no prejudice has been caused to respondent no. 5 by passing the impugned order. To buttress his arguments, learned counsel for the petitioner relies upon judgements of this court in Roop Ram (Deceased) through his LRs. Vs. Mai Sukh and Others, and Tarlok Singh Vs. Financial Commissioner Co-operation and Others, . Finally, he prays for setting aside the impugned order, allowing the present writ petition.

Having heard the learned counsel for the petitioner, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this court is of the considered opinion that present one is not a fit case warranting interference at the hands of this court, while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.

It has gone undisputed on the record that the order passed by the Assistant Collector, 1st Grade was ex-parte. The case set up by respondent no. 5 Ved Ram was that the land subject to partition was situated in village Begampur Khatola, in which he was owner/co-sharer, but simultaneously he was permanent resident of village Darbaripur instead of village Begampur Khatola. He was having the ration card and voter I.Card of village Darbaripur, whereas the summons/registered A.D. were issued to him on a fake address of village Badhshapur. He further pleaded that he was neither residing in village Badhshapur nor in village Begampur Khatola. That is how, he was got proceeded ex-parte by making a misleading statement before the court. He further pleaded that most valuable land was given to the other side, whereas totally useless land was allotted to him, thereby causing serious prejudice to his right. However, the Commissioner failed to appreciate all these issues raised by respondent no. 5 and dismissed his revision petition. During the course of arguments, when asked by the court as to how and in what manner, respondent no. 5 was served before Assistant Collector, 1st Grade, learned counsel for the petitioner had nothing to say and could not substantiate his argument in this regard.

In view of the above, the basic rule of audi alteram partem stands violated in the present case. The serious error of law committed by Assistant Collector, 1st Grade and the Commissioner, Gurgaon Division was rightly set right by the Financial Commissioner, while passing his impugned order. Having set aside the orders passed by the Assistant Collector, 1st Grade and the Commissioner, Gurgaon Division, the Financial Commissioner was left with no other option, but to remand the case to the Assistant Collector, 1st Grade for its fresh decision after granting due opportunity of being heard to both the parties. That is what has been done by him. Thus, no error of law has been committed by the Financial Commissioner. Having said that, this court feels no hesitation to conclude that the impugned order passed by the Financial Commissioner suffers from no illegality and the same deserves to be upheld.

Learned counsel for the petitioner submits that the impugned order passed by the Financial Commissioner was also ex-parte. Thus, the old saying has come true in the present case that "only the bearer knows where the shoe pinches". The petitioner is feeling aggrieved against the ex-parte order passed by the Financial Commissioner, but simultaneously, he has tried to justify the ex-parte order passed by Assistant Collector, 1st Grade, obviously because it suits the petitioner to say so. It goes without saying that if somebody comes to the court seeking equity, he must be ready to do equity to the other side, as well. Further, pursuant to the impugned remand order, all the parties including the petitioner as well as respondent no. 5 will get equal opportunity of being heard putting up their case and defending their respective rights. In this view of the matter, it is unhesitatingly held that no prejudice has been caused to the petitioner nor the learned counsel for the petitioner could point out that any prejudice which might have been caused to the petitioner by passing of the impugned remand order.

So far as the judgements relied upon by learned counsel for the petitioner are concerned, although there is no dispute about the law laid down therein, but both the judgements were decided on entirely different set of facts, because of which they are of no help to the petitioner, being distinguishable on facts. It is the settled proposition of law that nobody should be condemned unheard. Moreover, nobody should be forced to go back home with this impression that he was not granted due opportunity to defend himself or to put up his case. Endeavour should always be that the case is decided on merits after granting due opportunity of being heard to both the parties.

In the present case, it is an admitted fact that respondent no. 5 was proceeded ex-parte. There is no material available on the record to show, even prima facie, that respondent no. 5 was duly served before he was proceeded ex-parte. Once it is so, no fault can be found with the impugned order passed by the Financial Commissioner. Further, learned counsel for the petitioner failed to point out any patent illegality or perversity in the impugned order passed by the Financial Commissioner, which is sine quo non for interference at the hands of this court, while exercising its writ jurisdiction under Article 226 of the Constitution of India.

No other argument was raised.

Considering the peculiar facts and circumstances of the present case noted above, coupled with the reasons aforementioned, this court is of the considered view that the present writ petition is misconceived, bereft of any merit and without any substance, thus, it must fail. No case for interference has been made out. Resultantly, the instant writ petition stands dismissed.