Lal Singh vs Additional Director, Consolidation of Holdings, Punjab

V.K. Jhanji, J.—For having an access to the land of respondents No. 3 to 5, the Assistant Consolidation Officer, vide order dated 29.11.1959 provided a passage through the land of the petitioner. This order was challenged by the petitioner in an application before the Additional Director, Consolidation of Holdings, Punjab, Chandigarh (for short the Additional Director) under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) who, vide his order dated July 31, 1980 (Annexure P1) set aside the order of the Assistant Consolidation Officer. Respondents No. 3 to 5 though were made respondents in the application under Section 42 of the Act, yet no notice was given to them. It was an ex parte order against them. Respondents No. 3 to 5, on coming to know of the order, made petition under Section 42 of the Act before the Additional Director wherein a grievance was made that order dated July 31, 1990 (Annexure P1) was passed at their back and, therefore, was bad. The Additional Director allowed their prayer and restored order of the Assistant Consolidation Officer. This order is being challenged here in this petition on the ground that the Additional Director was not competent to review his order.

I find no merit in the writ petition the matter is squarely covered by the decision of the Supreme Court in Chet Singh v. State of Punjab and others, Vol. LXXIX1977 PLR (SC) 490 wherein it was held thus :

"That the proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent did not have an opportunity of being heard due to his illness seems to us to amount to a finding that the provisions could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act. It could be ignored in "non est". Orders which are "Non est" can be ignored at any stage.

As already noticed, no notice was given to respondents No. 3 to 5 when order dated July 31, 1980 was passed. Such an order would be ''non est'' as held by the Supreme Court in Chet Singh''s case (supra). Subsequent order which was passed under Section 42 of the Act on an application by respondents No. 3 to 5, cannot be said to be an order passed on review as the previous order passed by the Additional District was not in consonance with the provision to Section 42 of the Act. Accordingly, the writ petition is dismissed with no costs.