Tellu vs The State of Punjab and Others

V.K. Bali, J.—This order will dispose of two connected writ petition Nos. 2389 of 1987 and 2542 of 1987 as common questions of law and facts are involved therein. The facts, however, have been extracted from Civil Writ Petition No. 2389 of 1987, Tellu v. State of Punjab and Ors. Prayer in both the petitions is to quash the orders, Annexures P-2 and P-3, passed by the Director, Consolidation of Holdings as also Consolidation Officer, dated November 28,1985 and May 15, 1986 respectively.

The facts of the case reveal that the proceedings of consolidation of holdings were carried out and completed in village Ramgarh Chanan in the year 1952-53. The consolidation Officer carried out repartition proceedings u/s 21(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (here-in-after referred to as the Act of 1948) in accordance with the scheme. The possession were exchanged in the same year and thus the repartition became final. Records of rights were prepared u/s 22 of the Act. It is pleaded that there was no boundary wall dispute between village Leloda and Ramgarh Chhanan and all the right holders were given Kurras according to their entitlement without any objection either regarding wrong fixation of boundary or deficiency in area. Petitioner, who was in cultivating possession of land comprised in Khasra Nos. 220/2 and 221, total measuring 8 bighas as tenant of S. Baldev Singh, purchased this land from him vide registered sale deed dated June 20, 1968 and mutation No. 77 was sanctioned on September 23, 1968. He remained in cultivating possession of the land as owner since then and no objection regarding boundary line or otherwise was ever raised by either Gram Panchayat, Laloda or any other right holder of the villages. It is pleaded that the land purchased by petitioner was situated on the boundary of villages Laloda and Ramgarh Chhanan. Respondents No. 3 and 4 however, years and years thereafter in the year 1985 filed an application u/s 42 of the Act of 1948 before the Director, Consolidation of Holdings. It is specifically pleaded in para 6 of the petition that in the application aforesaid the Director did not issue any notice to petitioner and no opportunity of hearing was afforded to him. The Director Consolidation proceeded hastily and decided the application within three weeks without complying with the provisions of the Act of 1949. It is pleaded that even the Gram Panchayat of village Ramgarh Chhanan was not summoned and heard. The reason for proceedings in the matter in utmost haste is stated to be that respondent Nos. 3 and 4 were the real sister and nephew of the then Chief Minister, Punjab and the husband of respondent No. 3 was Chairman of Punjab School Education Board, Mohali. The Director, Consolidation decided the application, it is pleaded, under influence of the persons aforesaid and at the back of the right-holders and Gram panchayat of Ramgarh Chhanan who were affected parties. In pursuance of the orders passed by the Director, Consolidation, the Consolidation Officer proceeded with the matter and vide order, Annexure P-3, dated May 15, 1986 effected major changes not only in the boundaries of the right-holders but also in the possession that had ripened into ownership since long. It is these two orders as indicated above, that have been assailed in these writ petitions.

A short reply has been filed by respondent Nos. 3 and 4 and in paragraph 4 thereof it has been pleaded that petitioner Telu Ram was not summoned by the Director, Consolidation when he passed the order dated October 28, 1985. However, it is pleaded that the prayer in the application u/s 42 of the Act of 1948 was only for demarcation of the land allotted to the respondents. They had not asked for any change in the scheme nor were they asking for any change of Kurras not they were praying for repartition. It is further pleaded that under proviso to Section 42 of the Act of 1948 if any of the aforesaid three prayers had been made, only then notice was necessary. The proceedings conducted by the Consolidation Officer, however, have been admitted and Mr. Bakshi, learned counsel appearing for contesting respondents has been fair enough to admit that the Consolidation Officer has effected the changes which were not even asked for and only prayer was to carry out demarcation of the land.

After hearing the learned counsel for the parties and going through the records of the case, I am of the considered view that both orders, Annexures P-2 and P-3 deserve to be quashed, thus, allowing present writs. It is not disputed that petitioner was not made party in the application filed by respondents Nos. 3 and 4 u/s 42 of the Act of 1948. All that is pleaded and argued by the other side, however, is that it was not necessary to make him a party or to hear him as it was only a case of demarcation with regard to the land which was given to respondent Nos. 3 and 4 at the time of consolidation proceedings. I am unable to accept the contention raised by learned counsel for respondents Nos. 3 and 4. The perusal of order, Annexure P-2, passed by the Director Consolidation would clearly reveal that after ordering the Consolidation Officer to visit the spot personally and get the demarcation done in respect of the boundary between villages Ramgarh and Laloda so far as it was touching Khasra Nos. 279, 274 and 273 of village Ramgarh, it was further ordered that shortage of 13B-15B on account of correction of northern boundary by way of spot demarcation be made good and if the short-age was not made good at the spot by demarcation, respondent Nos. 3 and 4 were entitled to an additional area in any case within the revenue estate of village Ramgarh Chhanan. He further ordered that respondent Nos. 3 and 4 were also entitled to additional area of 0-16 Bighas being shortage on western side of their KURRA touching Khasra Nos. 256, 257, 258, 259 etc. The Consolidation Officer was further directed to re-check the record and if necessary, also hear Shri Amarjit Singh son of Salinder Singh and Harkirpal Singh son of Shivdev Singh and make good the total loss to the respondent Nos. 3 and 4 which comes to 14B-11B, if possible adjoining to the present Kurra of the said respondents, if enough area was not available, then the shortage should be made good from the Bachat area of the village after hearing the concerned parties including the Gram Panchayat of village Ramgarh Chhanan. He further directed that if no Bachat area was available, then the shortage should be made good from the land of the Gram Panchayat which might have vested in it for common purposes as a result of the consolidation proceedings.

The perusal of the directions, details of which have been given above, would reveal that it was not a case of simple demarcation so ordered to be done by the Consolidation Officer. The shortage in the area of respondent Nos. 3 and 4 was pre-supposed and order was passed to make good the deficiency from the persons referred in the order. This would have certainly affected the rights of the parties and such an order could not be passed without hearing those who were to be affected. The principle of audi-altrempartem was totally ignored while passing the order Annexure P-2.

For the reasons stated above, these petitions are allowed. Orders, Annexures P-2 and P-3, are quashed and a direction is issued to the Director, Consolidation to re-hear the application filed by respondent Nos. 3 and 4 u/s 42 of the Act of 1948 after hearing all the affected parties and dispose of the same in accordance with law. Since the matter has got delayed, a further direction is issued to the Director, Consolidation to dispose of the matter expeditiously preferable within three months from the date of receipt of this order. No order as to costs.