Jagtar Singh vs Additional Director, Consolidation of Holdings, Punjab

S.S. Kang, J.

Jagtar Singh and 6 others have filed this writ petition under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari, quashing orders dated February 3, 1976, (a copy of the same is appended as Annexure P3, to the petition) and order dated September 22, 1977 of the Additional Director, Consolidation of Holdings, Punjab (a copy, Annexure P4, is appended to the petition).

Briefly stated the facts of the case are that the consolidation proceedings were carried out in the village of the petitioners in 1954. The repartition took place on May 12, 1954. The petitioners and respondents 2 to 11 were allotted their respective Kurrahs and the paths leading thereto were aligned at that time. None of the parties, challenged the alignment of path by appeal under section 21 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called `the Act''). The settlement record of the village was duly consigned. After 18 years of the partition on February 1, 1972, respondents 2 to 10 moved an application under section 42 of the Act for alignment of a path to their kurrahas. This application was rejected by the learned Additional Director, Consolidation of Holdings vide order dated December 30, 1977. It reads as under :

``This petition is against repartition proceedings carried out on 12.5.54. Petition was received on 1.2.1972. It is highly delayed petition and there is no satisfactory explanation of so much delay. Petition is filed as time barred''''.

Subsequently, one of the cosharers of respondents 2 to 10, Gurdial Singh son of Tara Singh, who was a petitioner in the previous petition under section 4 of the Act, filed a second petition under section 42 of the Act on April 21, 1975, asking for the same relief i.e. alignment of a path. In the prescribed proforma of petition under section 42 of the Act column (I) requires the applicant to state ``Whether any application was previously filed under section 42 of the Act, if so, with what result''''. Gurdial Singh in the second petition under section 42 of the Act put the word ``No'''' in column I, meaning thereby that no previous application under section 42 of the Act had been filed by him.

Shri J.S. Minhas, Additional Director of Consolidation of Holdings, allowed this petition vide orders dated February 3, 1976 ( A copy of the same is appended as Annexure P3). Gurdial Singh did not implead the petitioners except petitioner Gurdial Singh as parties to this petition under section 42 of the Act, though they were likely to be adversely affected by the decision of his application.

On coming to know about order, Annexure P3, the petitioners filed an application under section 42 of the Act for setting aside the exparte orders. This application was, however, dismissed by Shri N.S. Sahota, Additional Director, Consolidation of Holdings, Punjab. The Additional Director observed that the parties did not bring to the notice of Shri Minhas the order dated December 30, 1972, dismissing the application under section 42 of the Act. He opined that it was not fair that orders should have been passed again on the same issues between the same parties but since the orders had been passed under section 42 of the Act it was not within his jurisdiction to review the previous orders. He rejected the petition vide orders dated September 22, 1977 (a copy of the same is appended as Annexure P4 to the petition). Aggrieved, the petitioners have filed the present writ petition.

Shri Atma Singh Cheema, the learned counsel for the petitioners, has argued that the Additional Director had dismissed a petition under section 42 of the Act seeking alignment of a path to the kurrah of the present respondents vide orders dated December 30, 1972. So far as the Consolidation Authorities were concerned, the matter was finally decided. The second petition under section 42 of the Act on the same facts was not competent. The order on the second application amounted to a review of the previous order which was not permissible because the Act did not confer any power of review on the Director exercising the powers under section 42 of the Act. This order was wholly without jurisdiction.

It was also contended that the petitioners other than Guriqbal Singh, petitioner, were necessary parties to the second application. They were not impleaded or heard before passing the impugned orders though the same had adversely affected petitioners'' right.

Lastly it was contended by Mr. Cheema that six kanals and 2 marlas of land had been withdrawn from the petitioners and in lieu thereto they were allotted only 2 kanals 11 marlas. This amounted to acquisition of petitioner''s land without payment of compensation and the same was illegal.

On the other hand Shri Sarwan Singh, the learned counsel for the respondents, has argued that the private respondents were allotted a kurrah but inadvertently no path was delineated or provided for that. A path used to connect the kurrah of the petitioners from times immemorial. The answeringrespondents came to know that during consolidation proceedings this path had been illegally allotted to the petitioners and in fact no path had been provided to their kurrah. Since it was a mistake of the consolidation authorities the answeringrespondents filed a petition for rectification of the mistake. The Additional Director assumed that Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (for short `the Rules'') was applicable to the case and dismissed the petition only on the ground that it was barred by limitation. In fact no limitation is prescribed for rectification of the mistake committed in repartition. Limitation is prescribed only for challenging the orders. Since the order of the Additional Director dated December 30, 1972 was wholly void, a second petition was filed and it was competent. The order (Annexure P3) did not amount to review because the previous order was not passed on merits. In support of this contention he has relied upon a recent Full Bench judgment of this Court in Teja Singh v. The Union Territory of Chandigarh, 1982 PLR 160.

It is clear from a perusal of the application filed under section 42 of the Act and the orders dated December 30, 1972, that Gurdial Singh, respondent, and his cosharers filed a petition under section 42 of the Act on February 1, 1972, after 18 years of the repartition, claiming the provision of a path to their kurrah. This petition was dismissed on December 30, 1972 by the Additional Director. Thereafter a second petition under section 42 of the Act was filed on April 21, 1975, by Gurdial Singh, respondent seeking the same relief. Mr. Cheema has placed a certified copy of the second petition under section 42 of the Act and it is manifest therefrom that Gurdial Singh misrepresented facts and stated therein that no previous application under section 42 of the Act had been filed by him. He was a petitioner in the first petition under section 42 of the Act along with the present corespondent. His name figures at No. 5 in the array of the petitioners in Annexure P1. A previous petition had been dismissed by a competent authority who had jurisdiction to decide the matter. Even if the order was erroneous, or illegal, a second petition on the same facts seeking the same relief did not lie to the same authority. The order (Annexure P3) will clearly amount to a review of the previous order. It is wellsettled that the authorities exercising jurisdiction under the Act have no powers of review. This proposition has not been contested by Mr. Sarwan Singh. The decision in Teja Singh''s case (supra) is of no help to the private respondents. In that case, the Full Bench was considering inter alia the question that if a writ petition is dismissed on the ground of laches, or the availability of an alternate remedy or on a ground analogous thereto then any other proceedings will not be barred on principles of res judicata. That question was answered in the negative and it was held that such proceedings will not be barred. It is well recognised that the High Court exercise extraordinary jurisdiction under Article 226 of the Constitution. The Courts have laid down certain selfimposed restrictions on the exercise of this discretionary power. It was in this context, that the question was considered as to whether in cases where the High Court does not entertain a writ petition because it is filed after inordinate delay or that any other alternative remedy is available or on such other analogous grounds the remedy of the aggrieved party to seek relief in other forums is not barred. So, the considerations which apply to the entertainment of writ petitions cannot be brought to bear on the question of the maintainability of a second petition under section 42 of the Act. Even in Teja Singh''s case (supra), the Full Bench in conclusion No. 5 (paragraph 27) of the report has laid down that even in cases, where writ petition is dismissed on ground of alternative remedy or on ground analogous thereto a second petition on the same cause of action under Article 226 of the Constitution will be barred. Similarly, in conclusion No. 7, it has been held that even if the earlier writ petition had been disposed of by one word ``Dismissed'''', the second writ petition will not be competent, on the similar facts and in respect of the same cause of action by the same party.

In the present case, undoubtedly, in view of the decision of the Division Bench in Haqiqat v. The Additional Director Consolidation of Holdings, Punjab and others, 1981 PLJ 239, and a Full Bench decision in Civil Writ Petition No. 2343 of 1981, Jagtar Singh v. Additional Director and another, 1984 R.R.R. 31, decided on February 21, 1984, wherein it has been held that Rule 18 of the Rules does not apply to those petitions in which the legality or validity of a scheme prepared or confirmed or repartition made is challenged, the order of the Additional Director dated December 30, 1972 holding a petition challenging the provisions of the scheme as time barred was erroneous and unsustainable. But a second petition on the same facts by the same party cannot be filed. The order (Annexure P3) on the second petition was clearly without jurisdiction.

The argument of Mr. Cheema that the order (Annexure P3) is vitiated because notices were not issued to all the petitioners, cannot be accepted because Guriqbal Singh (petitioner No. 4) one of the cosharers, had been impleaded as respondent and he appeared before the Additional Director.

Mr. Sarwan Singh contended that Annexure P3 was an agreed order. Guriqbal Singh had appeared before the Additional Director and conceded justness of the claim of the answering respondents and had agreed to a path to the kurrah of Gurdial Singh, answeringrespondent. After suffering a consent order he should not be allowed to take a contrary stand in this writ petition. Mr. Cheema has countered by submitting that Guriqbal Singh was not aware of the decision dated December 30, 1972. The consent was given by him in ignorance of the true facts. If Guriqbal Singh had known that an earlier petition filed by Gurdial Singh and his cosharers had been dismissed in 1972, he would not have had given his consent. There is merit in the contention of Mr. Cheema. It is apparent that Gurdial Singh had misrepresented the facts. The petition under section 42 of the Act on his behalf and on behalf of his cosharers had been dismissed on December 30, 1972, without summoning the respondents in that petition i.e. the present petitioners. The present petitioners including Guriqbal Singh could not know about the result of that case. In the second petition it has been specifically stated by Gurdial Singh that there was no previous petition under section 42 of the Act. From these facts it is clear that the consent by Guriqbal Singh was given in ignorance of material facts. In such a situation his conduct should not estop him from reagitating his rights.

It is also not correct that no path has been provided to the kurrah of the answering respondents during repartition. A copy of the Aks Shajra (Annexure R1) produced by the answering respondents alongwith the written statements show that a path has been provided to their kurrah in between Khasra No. 93/25 and 93/21/1 and 21/a.

For the foregoing reasons, I allow this writ petition and quash the order dated February 3, 1976, (Annexure P3). The order dated September 22, 1977, (Annexure P4) is consequential to order (Annexure P3) and is also quashed. There shall be no order as to costs.