V.K.JHANJI, J. - (1.) THIS shall dispose of Civil Writ Petitions No. 5820 and 5821 at 1997 as common question of law and facts is involved therein. For facility of reference, facts are taken from CWP No. 5821 of 1997.
(2.) IN this writ petition filed under Article 226 of the Constitution of India, prayer made is for issuance of writ of Certiorari quashing order dated 12.9.1996 passed by the Collector, Gurgaon, and also order dated 6.2.1997 passed by the Commissioner, Gurgaon Division, Gurgaon. In brief, the facts are that the petitioners along with respondents are recorded as co-sharers in the agricultural land measuring 24 bighas 18 Biswas situated in village Basai, Tehsil and District Gurgaon. Partition proceedings are pending between the petitioners and respondents since 1991. Vide order dated 2.3.1994. Financial Commissioner remanded the case to the Assistant Collector I Grade, Gurgaon, to proceed with the partition proceedings in accordance with the directions given in the order and on the basis of well established guidelines/principles recognised in this regard. On remand, petitioners as well as respondents appeared before the Assistant Collector I grade, Gurgaon. Vide order dated 6.6.1994 (Annexure P-2), Assistant Collector I grade proposed the mode of partition. On the same date, vide order, Annexure R-1/1, he directed that file be put up on 22.6.1994 for objections against the proposed mode of partition. On 11.12.1995, he directed that file be produced on 22.12.1995 for preparation of Naqsha Be in conformity with order dated 6.6.1994. Respondents feeling aggrieved of the proposed mode of partition decided on 6.6.1994 and 11.12.1995, filed revision petition before the Collector, Gurgaon. The District Collector, Gurgaon, after perusal of record came to the conclusion that while determining the proposed mode of partition dated 6.6.1994, Assistant Collector had not kept in view the directions given by the Financial Commissioner in his order dated 2.3.1994 and had also not kept in view the kind, cultivation and price of the land, which was possible only after making a detailed enquiry. He thus, set aside order dated 6.6.1994 and referred the case to the Commissioner with the recommendation that Assistant Collector I grade be directed to comply with the order of the Financial Commissioner and determine the mode of partition after taking into consideration the kind, cultivation and price of the land. The Commissioner after hearing the parties upheld the order of the Collector. Hence the present writ petition against the order of the Collector and the Commissioner.
(3.) IN this writ petition, learned counsel appearing on behalf of petitioners has contended that order dated 6.6.1994 had become final as neither the petitioners nor respondents had filed appeal against the said order. He further contended that order of Assistant Collector dated 11.12.1995 was only a formal order to prepare Naqsha Be in accordance with the mode of partition decided on 6.6.1994 and was not appealable or revisable and so, the orders of the Collector and the Commissioner being without jurisdiction, deserve to be quashed. Against this, learned counsel appearing on behalf of respondents contended that order dated 6.4.1994 was not appealable inasmuch as earlier, the Assistant Collector I grade had been directed by the Financial Commissioner to proceed with the partition proceedings in accordance with the directions given by the Financial Commissioner, but the Assistant Collector had acted against the directions of the Financial Commissioner and therefore, revision petition was filed before the Collector, for a direction to the Assistant Collector to proceed with the partition proceedings in accordance with the directions of the Financial Commissioner. He further contended that some part of the land had been acquired but the Assistant Collector had not taken that into consideration.;