Partly allowed

Gurnam Singh etc. v. Addl. Director C/H Punjab etc.

Punjab & Haryana HC4 Aug 2008CWP/3113/1984

Case brief

AI extract

What is this about?

The High Court held that an order retrieving land from Jumla Mushtarka Malkan without notice to proprietors violated natural justice and the East Punjab Holdings Act. The order was quashed, and the authority was directed to adjudicate the application afresh with proper notice. Status quo was maintained.

What did the court decide?

Order dated 31.7.1981 (Annexure P-2) and subsequent orders (Annexures P-5 and P-8) set aside. Additional Director directed to adjudicate application Annexure P-1 afresh within three months after affor

Gurnam Singh etc. Vs Addl. Director C/H Punjab… — Property and Title | Punjab & Haryana HC (2008)

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CWP No.3113 of 1984

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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CWP No.3113 of 1984 Date of Decision: 13.8.2008

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Gurnam Singh and others

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.....Petitioners

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Vs.

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Additional Director, Consolidation of Holdings Punjab, Chandigarh and others

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....Respondents

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CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA

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Present : Mr. Rajesh Gupta, Advocate for legal representatives of petitioner no.1. Mr.Amarjit Markan and Mr.Jasdev Singh, Advocates for the petitioners. Mr.N.S. Pawar, Addl.A.G.Punjab. Mr.Ashok Singla, Advocate for respondent no.2. Mr.Arun Palli, Sr.Advocate with Mr. Jai Bhagwan, Advocate for respondent nos. 3 to 6.

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RAJIVE BHALLA, J (Oral)

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Prayer in this writ petition is,for issuance of a writ in the nature of Certiorari for quashing the orders dated 5.4.1984, 21.12.1983 and 31.7.1981 (Annexures P-8, P-5 and P-2) respectively, passed by respondent no.1, namely, the Additional Director, Consolidation of Holdings,Punjab, Chandigarh.

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Twenty five years after the conclusion of consolidation proceedings, respondent no.2, filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,

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CWP No.3113 of 1984

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1948 (hereinafter referred to as `the Act') praying that the deficiency in the land allotted to him be made good. Respondents no.3 to 6 were arrayed as respondents. Vide order dated 31.7.1981, the Additional Director, Consolidation of Holdings, Punjab, accepted the application and held that respondent no.2 was entitled to additional land of 4 std. kanals and 1 std. marla. Respondents no.3 to 6, though respondents in the application, were also held entitled to 3 std. kanals and 4 std. marlas. Consequently, Killa No.94/21 measuring 7 kanals 12 marlas and Killa No.97/1 measuring 1 kanals and 10 marlas was allotted to respondent no.2, whereas Killa No.97/1 measuring 6 kanals 2 marlas was allotted to Darbara Singh, Ujagar Singh and Kessar Singh etc. respondents no.3 to 6, from land reserved as “Jumla Malkan Wa Digar Haqdaran Deh”.

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The petitioners, who are proprietors of the village and therefore, co-sharers in the “Jumla Mushtarka Malkan” land, filed a petition under Section 42 of the Act, praying that the order dated 31.7.1981 be recalled, as it had been passed without service of any notice upon the body of proprietors that comprises the Jumla Mustarka Malkan land. The petitioners also urged that land could not be retrieved from the Jumla Mustarka Malkan. Despite service, respondents no.2 to 6 chose not to appear and were, therefore, proceeded against ex-parte. The Additional Director, Consolidation, vide order dated 5.11.1982, accepted the petition filed by the petitioners and set aside the order dated 31.7.1981. Respondents no.2 to 6 thereafter filed two applications on 20.7.1983 for setting aside this order. The Additional Director, Consolidation, accepted their prayer and set aside the ex-parte order dated 5.11.1982 and directed that the petition filed by the petitioners for setting aside the order dated

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CWP No.3113 of 1984

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31.7.1981 be heard afresh. The petitioners, thereafter, filed another application under Section 42 of the Act, praying that this order be set aside. The Additional Director, vide order dated 5.4.1984 dismissed this petition but while doing so, recorded an emphatic opinion that his order dated 31.7.1981 was correct.

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Counsel for the petitioners submits that challenge in this writ petition is primarily to the order dated 31.7.1981 (Annexure P-2). It is submitted that if there was any deficiency in the allotment to respondent no.2, the Additional Director before arriving at any conclusion in respect thereof was required to issue and serve notices upon the proprietors, who are co-sharers, in the Jumla Mushtarka Malkan land. The impugned order Annexure P-2, discloses that no notice, whatsoever, was served upon any of the proprietors, whether collectively or individually. It is also submitted that pursuant to the application Annexure P-1, respondent no.2 prayed for making good the deficiency, in his allotment. The Additional Director, Consolidation, however, allotted land to respondents no.3 to 6, who were arrayed as respondents in the application and had not prayed for allotment. Reliance for the argument that the petitioners were required to be heard and a notice should, therefore, have been issued is placed upon Bachan Singh

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and others V. The Director, Consolidation of Holdings, Punjab, Chandigarh, 1991 PLJ 275.

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It is further argued that the Additional Director, Consolidation, had no jurisdiction to recall the order dated 5.11.1982, as the Act does not confer any power of review. While dismissing the petitioners application, praying that the order dated 21.12.1983 be set aside, the Additional Director, Consolidation recorded an opinion with respect to the legality of

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CWP No.3113 of 1984

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the order dated 31.7.1981, challenge whereto is still under consideration.

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Counsel for the respondent no.2, on the other hand, submits that the Additional Director, Consolidation examined the allotment made to respondent no.2 after repartition as there was shortage in the land allotted to him, directed that the shortfall be made good from land described as Jumla Mushtarka Malkan i.e. Bachat land. As regards the petitioners assertion that no notice was issued to or served upon proprietors/co-sharers, counsel for respondent no.2 submits that respondents no.3 to 6 are members of the proprietary body and were, impleaded as such. It is further argued that vide order Annexure P-5, the Additional Director, Consolidation, has held that he would decide the application filed by the petitioners, challenging the order dated 31.7.1981. The instant writ petition is, therefore, pre-mature as the petitioners should have awaited the outcome of this adjudication.

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Counsel for respondents no.3 to 6, adopts the arguments raised by respondent no.2 but in addition asserts that there is no illegality in the order of Additional Director, Consolidation, directing allotment of land to respondents no.3 to 6. As there was a deficiency in the original allotment, rectification of this factual error was a legitimate exercise of jurisdiction, by the Additional Director, Consolidation.

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I have heard learned counsel for the parties and perused the impugned orders.

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A basic tenet of any judicial or quasi judicial determination, is the presence before the judicial or quasi judicial Tribunal of all persons, likely to be effected by the outcome of the pending lis. Section 42 of the Act recognises this principle as it places an obligation upon the presiding

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CWP No.3113 of 1984

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officer to ensure that all persons interested or likely to be effected by the exercise of power under Section 42 of the Act are heard before any order is passed. The presence of all persons interested, is therefore, a sine qua non for the exercise of jurisdiction under Section 42 of the Act.

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A perusal of the order Annexure P-2 discloses that the Additional Director, Consolidation, accepted respondent no.2's plea of deficiency in the land allotted to him and proceeded to retrieve land from the Jumla Mushtarka Malkan. The Additional Director, Consolidation, was bound, in law and in deference to the jurisdiction conferred, to issue notices to the proprietors, who constitute the body of co-sharers in the Jumla Mushtarka Malkan land. Admittedly, no notice, whatsoever, was issued to any proprietor much less the petitioners. Submission by counsel for respondent no.2 that respondents no.3 to 6, members of the proprietary body were arrayed as respondents and their presence would be deemed to represent the body of co-sharers in the Jumla Mushtarka Malkan, cannot be accepted as service on the Jumla Mushtarka Malkan, as would be apparent from their conduct referred to hereinafter .

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Respondents no.3 to 6 were arrayed as respondents. They did not file any petition for making good any deficiency in their allotment. The Additional Director, however, proceeded to allot land to them, out of the Jumla Mushtarka Malkan land. The reason for this allotment though not spelt out is not far to seek. Respondents no.3 to 6 were impleaded to defend the case set up by respondent no.2, but colluded with respondent no.2 to concede his claim and obtain extra land for themselves. It is, therefore, apparent that respondents no.3 to 6 did not represent the cosharers, who constitute the Jumla Mushtarka Malkan, but represent their

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CWP No.3113 of 1984

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own private interest.

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In view of what has been held herein before, I have no hesitation in holding that the order Annexure P-2 passed without issuing notice to the proprietors and the co-sharers, who constitute the body of owners of the Jumla Mushtarka Malkan, is illegal and void as it violates the principles of natural justice and was passed in blatant disregard to the jurisdiction conferred by Section 42 of the Act and is, therefore, set aside. As a necessary consequence, the orders Annexures P-5 and P-8 that were passed as a consequence of the order Annexure P-2 are also set aside. However, conscious of the fact that the petitioners claim, with respect to allotment may be genuine, the Additional Director, Consolidation, is directed to adjudicate the application Annexure P-1 afresh, within a period of three months from the receipt of a certified copy of this order, in accordance with law, after affording an opportunity to the petitioners and the entire body of co-sharers/proprietors, whether individually or in representative capacity The Additional Director, Consolidation, may also examine the delay in the filing of the petition under Section 42 of the Act .

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Parties are directed to appear before the Additional Director, Consolidation, Punjab, Jullunder, on 6.10.2008. In the meanwhile, parties would maintain status quo, with respect to possession, as also any entries in the revenue records.

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(RAJIVE BHALLA) JUDGE

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13.8.2008 GS

Gurnam Singh etc. v. Addl. Director C/H Punjab etc.

Case brief

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Gurnam Singh etc. v. Addl. Director C/H Punjab etc.

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