Sarup Singh vs The Additional Director, Consolidation of Holdings Haryana Chandigarh and others

A.L. Bahri, J.—Sarup Singh challenges in this writ petition the order passed by the Additional Director dated September 13, 1983, copy Annexure P-3. Purporting to act u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, (hereinafter called ''the Act''). Earlier, Sarup Singh Petitioner filed an application u/s 42 of the Act for getting passage to his land. The Additional Director, Consolidation, vide his order dated August 16, 1981, accepted the application and allowed the passage. A copy of that order is Annexure P-1. This order was challenged in suit by Mit Singh son of Kali Ram, who was one of the co sharers. The suit was dismissed by Subordinate Judge 1st Class, Sonepat, on March 12, 1983, a copy of the judgment is Annexure P-2. Ram Kishan, another son of Kali Ram, on December 3, 1982, moved an application u/s 42 of the Act, on which the impugned order annexure P-3 was passed on September 13, 1983. It was alleged by Ram Kishan that no notice was given to him when the Additional Director passed the order on August 16, 1981. The Additional Director, vide the impugned order annexure P-3, noticed the decision of this Court in Biru and Anr. v. Suraj Bhan (1983) P.L.R. 17 and observed that since the application of Ram Kishan was already pending, the decision in Biru''s case will not apply. At this stage it may be noticed that the Full Bench in Biru''s case had held that adequate hearing given to one or some of the co-sharers is, in the eye of law, a hearing to all the body of co-sharers. The Additional Director, vide order Annexure P-3, allowed the application filed u/s 42 of the Act and held that the previous order dated September 16, 1981, is to be ignored and he decided to rehear the case. This approach of the Additional Director, Consolidation, is not correct as urged in the writ petition.

While opposing the writ petition, Ram Kishan took up the stand that one path was already with Sarup Singh and vide order dated August 16, 1981, Annexure P-1 another path was allowed to Sarup Singh. He further maintained that since he was not made a party when order Annexure P-1 was passed, he could certainly ask for the setting aside of the ex parte order and vide the impugned order annexure P-3, the matter is to be decided afresh.

After hearing the counsel for the parties I am of the view that the Additional Director had no jurisdiction to pass the impugned order annexure P-3. The approach of the Additional Director by ignoring the Full Bench decision of this Court in Biru''s case is not correct. The Full Bench has merely interpreted the scope of Section 42 of the Act. If one or more co-sharers were represented before the Additional Director in proceedings u/s 42 of the Act, they were representing all the co-sharers. The other co-sharers could not come up and challenge the order stating that they were not heard or they were not parties. It was on that basis that the civil Court dismissed the suit filed by Mit Singh, one of the sons of Kali Ram, copy of the judgment being Annexure P-2. The mere fact that this judgment was announced when application filed by Ram Kishan u/s 42 of the Act was pending is no ground to ignore the judgment. The matter was under consideration of the Full Bench in Deep Chand and Anr. v. Additional Director, Consolidation of Holdings, Punjab Jullundur (1964) P.L.R. 318 wherein it was held that the Additional Director had no power to recall or review his earlier erroneous and unjust order whenever it is discovered that the error was due to his own mistaken view of the merits of the controversy. The said decision still holds the field.

Learned Counsel for the Respondents relied upon a decision of the Supreme Court in Chet Singh v. State of Punjab etc. (1977) P.L.R. 490. Further, on going through the facts of the case it is noticed that none of the co-sharers was made a party when older u/s 42 of the Act was passed. It was held that such an order could be ignored as non est and the subsequent order passed u/s 42 of the Act could not have been called to have been passed in review. This judgment is not helpful in deciding the case in hand as already noticed above and as noticed in annexure P-1. Kali Ram appeared for himself as well as on behalf of his son. The other co-sharer Ram Sarup also appeared for himself as well as on behalf of his son. The joint estate was thus fully represented when order Annexure P1 was passed on the application of Sarup Singh.

The Additional Director also referred to the decision of this Court in Narinder Nath Sachdeva and Ors. v. Bhajan Lal and Ors. 1982 P.L.J. 243. However, the ratio of the decision is not applicable to the facts of the case in hand. In that case none of the co-sharers was impleaded as a party. Only general proclamation was effected in the village that any body interested could come and attend the hearing No individual notices were issued before the order u/s 42 of the Act was passed. It was held that the required procedure was not adopted and no effective opportunity of hearing was given and the order was quashed. In the present case, as already stated above, Kali Ram was impleaded as a party and he represented himself as well as his son.

Learned Counsel for the Respondents has referred to the Jamabandi of Khewat Nos. 70 and 71, copy Annexure R-2/7. Under the column of ownership, the names of Mir Singh, (Mit Singh) Ram Kishan sons of Kali Ram, 1/3rd share, Kali Ram, Ram Sarup Darya Singh, 1/3rd share, and Sukhbir 1/3rd share, is recorded with respect to Khewat No. 70. Similarly, in Khewat No. 71, under the column of ownership, Mir Singh, Ram Kishan sons of Kali Ram, 13 shares and 20 shares, Kali Ram, Ram Sarup, Daryao Singh 33 shares, is recorded. With respect to Khewat No. 70, under the column of cultivation, it is "self cultivation" whereas in Khewat No. 71, it is "Mir Singh Ram Kishan in equal shares". The cantention of learned Counsel for the Respondents that since Ram Kishan is mentioned to be in possession of one of the Khewats, he should have been impleaded as a party in his individual capacity when order Annexure P-1 passed. Since it was not done, he had a legitimate right to get the ex parte order set aside. While referring to Annexure P-1, learned Counsel for the Respondents has stated that Kali Ram Represented only one of his sons and not Ram Kishan. This contention is devoid of merit Kali Ram himself is also one of the co-sharers as recorded in the Jamabandi along with his sons. When he appeared before the Additional Director he represented the entire estate. The contention of the learned Counsel for the Respondents in this respect is therefore, repelled.

While making reference to a plan produced as Annexure R-2/6, it has been argued that one path already existed along the channel (Rajbaha), which fact was concealed by Sarup Sidgh when he filed application u/s 42 of the Act and obtained another path for his land, This is a matter defending upon the facts of the case and on that ground even review of the order u/s 42 of the Act was not permissible. Copy of the application filed by Ram Kishan u/s 42 of the Act has not been filed to show whether this point was taken by him before the Additional Director. Although the Additional Director in the order Annexure P-3 has mentioned the channel as a passage, this fact alleged to have not been disclosed before the Additional Director by Sarup Singh Stating incorrect facts or not stating correct facts cannot be a ground for review u/s 42 of the Act.

For the reasons recorded above, this writ petition is allowed leaving the parties to bear their own costs. Order of the Additional Director dated September 13, 1983, Annexure P-3, is quashed.