BACHAN SINGH Vs. SANTOKH SINGH

JUDGEMENT

(1.) THIS petitioner under Article 226 of the Constitution of India seeks issuance of writ in the nature of certiorari, mandamus or any other writ, order or direction quashing the order passed by respondent No. 1 dated 30.8.1982, Annexure P6.

(2.) THE petitioner is a land-owner of village Chohla Sahib, Tehsil Tarn Taran, District Amritsar. The respondents are also land-owners and the parties have a joint khewat. Besides respondents No. 2 to 11, there are numerous other co-sharers. They have, however, never agitated the matter in any proceedings. The consolidation proceedings in the village started in 1953-54 under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called "the Act"). Repartition under Section 21(1) of the Act was carried out on 30.3.1954. According to the provisions of the scheme, it was provided that the land of the right holders on the circular road shall be allotted to them and it shall not be disturbed during the consolidation proceedings. The land was originally in possession of the father of the petitioner. After the death of the petitioner's father, the land continued to be in possession of the petitioner. In 1974, the petitioner cane to know that the land had been allotted to the respondents and other co-sharers against the provisions of the scheme. He, therefore, filed a petition under Section 42 of the Act before the Additional Director, Consolidation of Holdings on 29.3.1974. Notice of the petition was issued to the respondents and after hearing the parties, order dated 27.11.1974 was passed. During the proceedings, Hari Singh one of the respondents had made a statement, which was duly recorded. The matter was in fact decided by way of compromise. In the petition under Section 42 of the Act, it was the claim of the petitioner that he should be restored his previous old khasra Nos. 2265 and 2266, which were situated within the Circular Road and had been allotted to Hari Singh and others, who have been impleaded as respondents. It was Hari Singh, who made the statement that he had no objection if the request of the petitioner is accepted. In fact, both the parties had given a statement in writing, which had been placed on the file. On 24.9.1976, some of the respondents moved an application for setting aside the aforesaid order on the ground that the same had been passed ex parte and without affording an opportunity of hearing to them. By order dated 7.6.1978, the Additional Director, Consolidation allowed the application and set aside the order dated 27.11.1974 and directed the petitioner to amend the petition to include all the necessary persons as party so that the case can be decided on merits after hearing both the parties. The hearing of the case was fixed for 8.3.1978. In accordance with the aforesaid order, the petitioner impleaded all the affected persons. Thereafter, the Additional Director, Consolidation passed order on 5.11.1980. The aforesaid order was again challenged by some other villagers on the ground that they were not heard. Even the order dated 5.11.1980 has been set aside by the Additional Director, Consolidation by order dated 30.8.1982.

(3.) MR . Mehta submits that no written statement having been filed, the respondents cannot be permitted to orally controvert the pleadings in the petition. Therefore, the petition has to be decided on the basis of the facts as pleaded by the petitioners. I find merit in the submission made by the counsel for the pettitioners. A perusal of the record shows that in this cases, notice of motion was issued on 6.2.1984. Further proceedings before the revenue authorities had been stayed. On 13.3.1984, no one appeared on behalf of respondents No. 9 and 11 inspite of service. Fresh notices were issued to the unserved respondents. On 17.4.1984, again fresh notices were issued. On 29.5.1984, it was noticed that no representation was entered on behalf of respondents No. 1 to 5 and 8 to 11 inspite of service. In the meantime, respondent No. 7 seems to have expired as time was sought for filing an application to bring on record the LRs of respondent No. 7. Ultimately, the petition was adjourned to 27.8.1984. Interim order was directed to be continued. Inspite of service, none of the respondents have cared to file written statement controverting the factual pleas, which have been raised in the writ petition. Therefore, the pleadings have to be accepted as correct. That being so, the irresistible conclusion would be that the orders dated 27.11.1974 and 5.11.1980 have not been passed ex parte. Therefore, the impugned order deserves to be quashed and set aside on the sole ground that it has been passed on a non-existing ground. Mr. Mehta has then argued that in any way, the impugned order is wholly without jurisdiction as the Additional Director, Consolidation had no jurisdiction to review his earlier order. In support of the aforesaid proposition, the learned counsel for the petitioner has relied on a Full Bench decision of this Court in the cases of Deep Chand and another v. Additional Director, Consolidation of Holdings, Punjab, Jullundur and another, 1964 P.L.R. 318. He has also relied on another decision of the Full Bench in the case of Biru and another v. Suraj Bhan and others, 1983 P.L.J. 216 in support of the submission that sufficient number of co- sharers had been impleaded and, therefore, the applications filed by the respondents for setting aside the order dated 5.11.1980 were not maintainable.