GAJJAN SINGH Vs. ADDITIONAL DIRECTOR

JUDGEMENT

(1.) A petition under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter preferred to as 'the Act') filed by the petitioner Gajjan Singh was accepted by the Additional Director, Consolidation of Holdings vide orders dated May 12, 1981. A copy of this order is on record at Annexure P.5. Santokh Singh etc., respondent Nos. 33 to 40 in the present petition moved a petition under section 42 of the Act contending that the order dated May 12, 1981 had been passed in their absence and without giving them any notice. Finding that the Pattidars of the Patti were not given any opportunity of being heard, the Additional Director accepted the petition and set aside the order dated May 12, 1981. He ordered the rehearing of the case. It was also directed that "all interested persons be informed by way of Mushtari Munadi in the village." This order was passed on December 14, 1988, which is at Annexure P.6 with the writ petition. Aggrieved by this order, the petitioners have approached this Court through the present writ petition. A few facts may be noticed.

(2.) The petitioners are the residents and right holders in the revenue estate of Dhanaula Kalan. Consolidation operations in this village were completed in the year 1960. The right-holders were settled on their respective holdings. It is averred that a Khata consisting of the Bachat area that belonged to the right-holders of the village was not brought under the repartition and was left as such under the proprietorship of Jamla Malkan. It is averred that a petition under Section 42 of the Act was moved by certain right-hold. The Bachat area was partitioned amongst the right-holders in proportion to their entitlement in pursuance to the directions given by the Consolidation Officer on April 25, 1972. As a result the petitioners in the said petition under Section 42 of the Act received Certain area of land. It has been further averred that a small area was still left out and was not allotted to anyone as its "Kaymi had not been fixed and it had no Khasra number." The petitioners on coming to know of this position filed a petition before the Additional Director praying that "the Kaymi of the aforesaid khasra number be fixed which wouldfurther involve changes effecting several right - holders." The petitioners aver that this petition was accepted and the case was remanded to the Consolidation Office by respondent No. 1 with the direction to "correct the Kaymi" after visiting the spot and hearing the concerned parties. A copy of the order passed on September 21, 1978 has been attached as Annexure P.1 with the writ petition. Vide order dated December 8, 1980, the Consolidation Officer fixed and Kaymi and Khasra No. 799/14 measuring 3 Kanals 3 Marlas was carved out and entered as Jumal Mushtarka Malkan in the revenue record. A copy of this order has been produced as Annexure P.2 Thereafter, the petitioners filed a petition under Section 42 of the Act contending that they had been given an area of 2 Kanals 17 Marlas out of the Bachat area at a far off place from their holdings and that they shouldbe allotted the area from the land adjoining their holdings. It was also prayed that a deficiency of 0-8 Standard Marlas in their holdings may also be made good. It was further pointed out and prayed that the Bachat area measuring 3 Kanals 3 Marlas adjoining the fields of the petitioners and that they may be adjusted in this area. In this petition Zora Singh, a former President of the Municipal Committee and certain other former Municipal Commissioners etc. were impleaded as respondents. A copy of the petition has been produced as Annexure P.3 with the writ petition. On May 12, 1981, only Sant Singh appeared to contest petition. The learned Additional Director who heard the matter, accepted the petition and, as observed above, allowed the claim of The petitioners. It is averred that no one was adversely affected by this order and a such no objection was raised thereto by anyone till November 11, 1988, when respondent Nos. 3 to 40 filed the petition under Section 42 of the Act. This petition having been accepted by the Additional Director vide his order of December 14, 1988 (Annexure P.6), the petitioner have filed this petition to challenge the order. This order has been challenged on various grounds.

(3.) A written statement has been filed on behalf of some of the private respondents. By way of preliminary objections it has been inter alia averred that by the impugned order (Annexure p.6) only an ex parte order had been set aside and no injustice whatsoever has been caused to the petitioners. It has been further averred that land of the petitioners does not adjoin the land in dispute and that the petition has been filed by suppressing material facts. On merits, it has been averred that the petitioners were satisfied with the allotment of land made to them and had never challenged the order of Consolidation Officer. It has also been pointed out that the area in dispute is on the road and was "kept separate for the construction of toilets in future". It has been admitted that Khasra No. 799/14 measuring 3 Kanals 3 marlas was carved out and was shown as Jumla Musktarka Malkan. No right-holder of the village even though affected by the order had agitated against it as the area had been left out for the common purpose of construction of toilets. It has been averred that the petition under Section 42 "was hopelessly time barred and the petitioners also failed to put any proof regarding and deficiency as alleged by them. Prior to this petition, Gajjan Singh had made a petition on the basis of which the orders, Annexures P.1 and P.2 were passed but in that petition the petitioners never agitated that any wrong 'allotment was made to them." It has been further averred that "the petitioners arrayed respondents only those persons who were their favourites. No right-holder of the Patti was arrayed as a respondent or impleaded as a party. Even the Administrator of the Municipal Committee was not impleaded as a party - and deliberately the Ex-President and Ex-Municipal Commissioner were made party and who deliberately failed to appear before respondent No. 1 "It has been specifically averred that the persons who had been impleaded as parties were not the right-holders in the land of Patti Bagher Jattan village Dhanaula. It has been further averred that the present respondents who are the real affected persons "were not intimated regarding the pendency of the proceedings." It has also been averred that when the case was taken up, on May 12,1981, Shri Sant Singh had appeared but he had no authority to appear on behalf of the Mushtarka Malkan of the Patti. He was not even a rightholder of the Patti to which the land in dispute belongs. It has been averred that the petitioners have done everything in the clandestine manner. In pursuance to the order dated May 12, 1981, they had taken the possession on October 10, 1988 and it is only then that the respondents came to know of the order passed by the Additional Director, a copy of which is at Annexure P.5. The petitioners have averred that on immediately coming to know of the order, they had filed a petition under Section 42 of the Act on November 11, 1988. It has been averred that the order at Annexure P.6 is absolutely legal and valid and the various grounds raised by the petitioners have been specifically controverted.