Jarnail Singh vs Inder Singh

G.C. Mital, J.

On 11th July, 1968, order Annexure P.6 was passed by the Additional Director of Consolidation under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called ''the Act''), in which certain changes were made between the holdings of Charan Singh son of Mahan Singh, Jiwan Singh, Zora Singh, Inder Singh son of Ram Kishan and Mustarka Malkan on a petition filed by Charan Singh against Ram Kishan and others. At the time of hearing before the Additional Director, Charan Singh was present with his Advocate and besides him Inder Singh son of Ram Kishan, Jiwan Singh, Mehar Singh and Teja Singh were present. A reading of the order shows that the claim and proposal made by Charan Singh was seriously disputed by Inder Singh and Jiwan Singh, and on consideration of the entire matter the changes were ordered. The aforesaid order was impugned by Inder Singh in Civil Writ Petition, copy Exhibit D.1, which was dismissed in limine with one word ''Dismissed'' by this Court on 3rd September, 1968 (copy Exhibit D.3). Thereafter Inder Singh sought review of the order of Additional Director dated 11th July, 1968 on the ground that the changes in the holdings of the parties have been wrongly made because Ram Kishan (his father) had died, and, therefore no changes should have been made. Since Inder Singh himself was present during the proceedings under Section 42 of the Act and his objections had been taken into consideration, the review petition was rejected by order dated 22nd November, 1968, copy Exhibit D.2. On 26th November, 1968, Inder Singh filed the present suit for declaration that order of the Additional Director dated 11th July, 1968 (Exhibit P.6) is illegal, null and void and should be so declared because the petition under section 42 of the Act was filed against Ram Kishan, who was dead at that time, and, therefore, all proceedings against the dead person were nullity. Since during the pendency of the suit the order of the Additional Director was implemented and possession were changed, the suit was amended and the plaintiff was allowed to add the additional prayer for possession of the original holdings, which was occupied by him before the impugned order was passed by the Additional Director.

The suit was contested by Charan Singh who pleaded that Inder Singh had become the landowner on the death of his father, and was present before the Additional Director and since full opportunity was afforded to him the order was not null and void. It was further pleaded that in view of the dismissal of the writ petition, the matter could not be reopened by the Civil Court.

Both the Courts below held that in petition under Section 42 of the Act, Ram Kishan was impleaded as a party, who was dead at that time . On these facts aid was sought from Jahaz Khan and another v. The Additional Director Consolidation of Holdings, Haryana at Gurgaon and another, 1970 PLJ 349, and Jamadar Sheoji Ram v. Daulat Bai and others, 1970 PLJ 475, and the suit as prayed for was decreed. This is second appeal by the legal representatives of Charan Singh defendant.

After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed. The jurisdiction of the Civil Court to entertain a suit to challenge the orders passed under the Act is specifically barred by virtue of Section 44 of the Act. Still the Civil Court will have jurisdiction to entertain the suit, if it can be shown that the order was passed against the aggrieved party without hearing and without affording full opportunity to plead its case. In the present case, it is true that Ram Kishan was shown as one of the parties to the application under Section 42 of the Act but that notice was received by Inder Singh his son because Ram Kishan had died. In pursuance of the notice Inder singh appeared before the Additional Director and took part in the proceedings and placed his objections. After consideration of the entire matter the changes were ordered by the impugned order of the Additional Director. Inder Singh did not remain satisfied and sought to challenge that order by filing a writ petition in this Court under Article 226 of the Constitution but remained unsuccessful. Thereafter, he sought review of the order of the Additional Director on the ground on which the suit was filed. The Additional Director clearly found that Inder Singh was present in pursuance of the notice and raised all objections available to him and on consideration of the same, the order having been passed did not call for review. Even before the Civil Court in this suit, it is neither the plaintiff''s case that he did not appear in pursuance of the notice nor that he had not been able to place all objections before the Additional Director when the impugned order was passed. The sole grouse of the plaintiff is that the proceedings were taken against a dead person. Since Inder Singh was present throughout and took part in proceedings, it cannot be said that he was not given adequate opportunity to defend or place his view points before the Additional Director. Once that is so, the Civil Court will have no jurisdiction to entertain the suit.

Adverting to Jahaz Khan and another''s case and Jamadar Sheoji Ram''s case (supra) on a reading of the same, I find that they are on totally different facts. On certain aspects of the case these decisions stand overruled by a Full Bench of this Court in Biru and another v. Suraj Bhan and others, 1983 PLJ 216. The point before the Full Bench does not arise in this case but on the other hand both the decisions relied upon by the Courts below are clearly distinguishable from facts. Moreover, in the Full Bench it was ruled that there is no procedure like Civil Procedure Code which is applicable to consolidation proceedings and that what is enjoined under proviso to Section 42 of the Act is that the person against whom the petition is filed, should be afforded adequate opportunity of appearing and putting his case before the Director/Additional Director . While it is true that Ram Kishan''s name was shown as one of the residents but since he was dead the notice was received by his son Inder Singh who had become landowner and appeared before the Additional Director in pursuance of the notice and took part in proceedings by placing all his objections, which were duly considered and decided. Therefore, on these facts, it cannot be held that the order of Additional Director dated 11th July, 1968 suffers from jurisdiction or was passed in violation of the principles of natural justice or the proviso to Section 42 of the Act.

For the reasons recorded above, after reversing the decisions of the two Courts below, I hold that Inder Singh was the concerned person to be heard by the Additional Director, who was heard and was provided adequate opportunity to place his view points, which were duly considered by the Additional Director and after considering the same the impugned order was passed. In view of this, I also hold after reversing the decision of the two Courts below, that the Civil Court had no jurisdiction to entertain the suit.

In view of the above, the appeal is allowed, the judgments and decree of the two Courts below are set aside and the suit filed by Inder Singh dismissed with costs throughout.