Jahaz Khan and another vs The Additional Director, Consolidation of Holdings Haryana and another

B.R. Tuli, J.—This appeal under Clause 10 of the Letters Patent is directed against the judgment of a learned Single Judge dated May 7, 1969, passed in C.W. 803(sic) of 1968.

The facts are that Nawab Khan, Respondent 2 made an application u/s 42 of the East Punjab Holdings (Consolidation and Prevention. of fragmentation Act, 1948 hereinafter called the Act), on December 2, l967 against the order of the Settlement Officer passed u/s 31(3) of the Act. It is admitted that Jahaz Khan and Shri Mohd Ishaq Appellants were not mad parties to that application and, therefore, no notice of that application was issued to them. However Shri Mohd. Ishaq Appellant, who is an Advocate practising at Nuh, was present at the time the hearing of that application took place before the Additional Director and his presence is also recorded. He is a co-Sharer with the other Appellant Jahaz Khan. The explanation of Shri Mohd Ishaq with regard to his presence before the Additional Director is that he had gone to attend to another case in which he was engaged professionally as a lawyer and he just attended the hearing of this application with a view to watch the proceedings. He had no paper or document with him nor did he take any part in the proceedings as he did not know the nature of the application u/s 42 of the Act. The learned Single Judge has not believed Shri Mohd. Ishaq on the ground that he is a lawyer and must have known the nature of the proceedings before the Additional Director. The learned Single Judge considered his presence before the Additional Director at the hearing of the application to be sufficient and, therefore, held that in spite of the fact that no notice was is made to the Appellants, the order passed by the Additional Director was proper and legal. It is this view of the learned Single Judge that is challenged before us as being contrary to the the mandatory provisions of the proviso to Section 42 of the Act.

Section 42 of the Act reads as under:-

"42 Power of State Government to call for proceedings. The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:

Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration.

The learned Single Judge has observed that the order passed by the Additional Director was admittedly against the interests of Jahaz Khan. On this finding of the learned Single Judge it becomes at once clear that Jahaz Khan had to be made a party to the application u/s 42 of the Act and had to be issued a notice of the proceedings and afforded an opportunity of being heard in opposition to that application. Shri Mohd, Ishaq is also a co-sharer with Jahaz Khan and, therefore, he had also to be made a party to the application and also to be given a notice thereof. There is nothing on the record to doubt the explanation by Shri Mod. Ishaq about his presence before the Additional Director and the learned Single Judge, in our opinion, was not correct in disbelieving him. A person who is not a party to any proceedings is not expected to be prepared with the facts of that case in order to argue his part of the case when he does not know that the case is coming up for hearing. A right holder, who is a lawyer, is no better position than any other person in this respect. In our opinion, there was a clear violation of the mandatory provisions of the prviso to Section 42 of the Act and the order of the Additional Director cannot be sustained. The argument that by that order no injustice was done to the Appellants cannot be accepted in view of the finding of the learned Judge that the order was admittedly made against the interests of Jahaz Khan Appellant. We wish to emphasise that the statutory mandate in the proviso to Section 42 of the Act is to give the parties interested notice to appear and opportunity to be heard. The issuance of a notice is, therefore, absolutely necessary and merely because a right-holder happens to be present does not relieve the Director or the Additional Director of the duty to issue notice to him if he is interested in the proceedings before him. Again, the opportunity to be heard which has to be afforded to the interested party must be a real opportunity and not an illusory one. The party must be given a sufficient number of days to prepare his case and engage a counsel, if he considers necessary, as the proceedings u/s 42 of the Act are judicial in character and affect the civil rights of the right holders. If a right holder, who has not been summoned by notice, attends the proceedings u/s 42 of the Act, without taking part therein, his mere presence cannot be equated with an opportunity of being heard having afforded to him after notice.

For the reasons given above, this appeal is accepted with costs and the order of the Additional Director dated December 2, 1967, as quashed. It will be open to to the Additional Director to redecide the application after notice to the Appellants and affording them an opportunity of being heard as observed above. Counsel''s fee Rs. 100.0.

Mehar Singh, C.J.

I agree