Kailash Chand and Another vs The State of Haryana

A.L. Bahri, J.

1 Grave injustice has been done to the petitioners against whom ex parte order setting aside the sale made in their favour, was passed on February 27, 1984 Their application for setting aside the ex parte order was dismissed by the Assistant Collector. Against that order, revision petition was filed before the Commissioner who dismissed the same holding that neither any appeal nor any revision was competent against the order passed u/s 10-A of the Punjab Village Common Lands (Regulation) Act as applicable to Haryana. Thus, petitioners have approached this Court in this writ petition.

Gram Panchayat of village Gurgaon sold by auction land in dispute to the petitioners in 1981. The regular sale deed was executed and possession was delivered. Additional General Assistant attached to the Deputy Commissioner, Gurgaon moved an application u/s 10 A of the Act for setting aside the sale deed on the ground that the petitioners were not the residents of Gurgaon and were thus not entitled to purchase the land. Initially, order was passed in 1983 for setting aside the sale but on appeal, the same was set aside and the case was remanded. Parties were to appear before the Assistant Collector who was exercising the powers under the Act on January 30, 1984. The petitioners appeared on that date However, the file had not been received. Subsequently, the Assistant Collector received the file on February 6, 1984 and issued notices to the parties for February 27, 1984. As per the allegations, Process Server on visit to the house of the petitioners reported that whereabouts of the petitioners were not known and thus, he pasted a copy of the notice at the door. The petitioners were proceeded as ex parte and subsequently on April 1, 1984 order was passed setting aside the sale. Application for setting aside the aforesaid ex parte order was filed which was dismissed on April 1, 1986.

It has been argued on behalf of the respondents that against the impugned order of April 17, 1984, an appeal was maintainable which was not filed and the Commissioner who had no powers of revision thus, rightly rejected the same. Now, it is too late for the petitioners to challenge the order dated April 17, 1984. We are of the considered view that this contention cannot be accepted particularly in the peculiar facts and circumstances of the case. The principles of natural justice require that if any adverse order is to be passed against any person, opportunity of hearing must be given to him and giving of such opportunity is not farce, but in substance it is to be given. When the Process Server had reported that the whereabouts of the petitioner were not known, the Assistant Collector was to issue fresh notices after verifying the correct addresses of the petitioners, if necessary. Furthermore, assuming for the sake of arguments, that the copy of the notice was pasted on the door and service was complete, there was no sufficient time for the petitioners to approach the court on the following day, date fixed in the case. The Assistant Collector, in the circumstances stated above, was not at all justified in proceeding ex parte against the petitioners.

When application for setting aside the ex parte order was moved, the same was required to be decided on merits i.e. to consider the cause shown for non appearance on the date of hearing fixed in the case. The approach of the Assistant Collector in the order dated April 1, 1986 that by allowing the application for setting aside the ex parte order, he would review his previous order is erroneous in law. When any ex parte order is passed against any person, on sufficient cause being shown for non appearance, the order could be set aside. Even if there is no provision in the Act did not specifically providing for setting aside the ex parte order, general provision of the CPC for setting aside ex parte order would be applicable and the Assistant. Collector should have exercised the powers in deciding the application filed for setting aside the ex parte order. He failed to do so on erroneous assumption of law.

May be as is argued by the learned counsel for the respondents that revision was not maintainable against the order of the Assistant Collector aforesaid, u/s 10-A(7) of the Act, however, the Commissioner took the view that appeal was also not maintainable against such an order, which is against law. If he had not so held, the petitioners might have filed appeal before the appropriate Authority. Now, we do not consider it proper that the petitioners should be asked to approach the appellate authority against the order (Annexure P-5). We are of the opinion that we should direct the Assistant Collector to decide the case on merits and restore the position as it existed when the case was remanded to him for deciding the case afresh to find out as to whether the petitioners were not the residents of Gurgaon and thus, not entitled to purchase land.

For the reasons recorded above, this petition is allowed. Orders Annexures P- 4 and P-5 passed by the Assistant Collector are quashed. We also quash the order of the Commissioner (Annexure P-6). There will be no order as to costs. Parties, through their counsel are directed to appear before the Assistant Collector, Gurgaon on January 13, 1982 who will decide the matter as indicated above.