HARDYAL KAUR Vs. SANTA SINGH

JUDGEMENT

(1.) In consolidation proceedings an application was made by Santa Singh respondent No. 1 under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) (hereinafter called the Act), which was allowed by the order of the Additional Director Consolidation of Holdings, Punjab, dated August 19, 1964 (Annexure A to the writ petition). The scheme was amended and changes were made which prejudicially affected the estate of Mastan Singh who was one of the respondents in the Section 42 proceedings. Mastan Singh had died during the pendency of the petition under Section 42 leaving behind a son and a daughter, namely Babu Singh and Hardyal Kaur respectively. Babu Singh had appeared at the hearing of the petition. Though the appellant's contention is that he had appeared suo motu without being a party and without any notice, the counsel for respondent No. 1 insists on submitting that he had been impleaded as a party to the proceedings on an application given by Santa Singh. In any case learned counsel for respondent No. 1 has not been able to deny that Hardyal Kaur had never been impleaded as a party, and that no notice of the proceedings under Section 42 was ever issued to or served on her. Babu Singh applied for review of the order, dated August 19, 1964, but his application was dismissed by the order of the Additional Director, dated April 22, 1965 (Annexure B), on the ground that the matter "had already been discussed and decided in the presence of the parties". A second petition of Babu Singh for review was dismissed by the Additional Director in 1969. It was thereafter that Hardyal Kaur entered the field and made an application for review of the Additional Director's order, dated August 19, 1964. A copy of her application for review, dated February 24, 1971, has today been placed on the record by the appellant. Review was sought on the ground that she had never been impleaded as a party, that no notice of the proceedings under Section 42 had ever been served on her, and that she had suffered on account of her land having been bisected into two parts. By his order, dated September 7, 1971 (Annexure 'B'), the Additional Director (who was different from the one who had passed the original order annexure 'A') allowed the application for review following the judgment of their Lordships of the Supreme Court in Shivdeo Singh and others V. State of Punjab and others, 1963 AIR(SC) 1909, but instead of fixing a date for the hearing of the original petition of Santa Singh under Section 42 after setting aside the order annexure 'A', the learned Additional Director straightaway proceeded to dismiss Santa Singh's petition under Section 42 and allowed the position to remain as it existed prior to August 19, 1964. Santa Singh thereupon filed Civil Writ Petition No. 3880 of 1971 for the issuance of an appropriate writ, order or direction to quash the order in favour of Hardyal Kaur (Annexure 'D'). That petition was allowed by the judgment and order of the learned Single Judge, dated September 2, 1974. It was held that Hardyal Kaur was sufficiently represented before the Additional Director on August 19, 1964, in as much as her co-sharer Babu Singh was present with counsel before the Additional Director on that day. It is against the grant of the respondent's writ petition that Hardyal Kaur has come up in this appeal under clause X of the Letters Patent.

(2.) Mr. G.R. Majithia who appears for the appellant has contended that view taken by the learned Single Judge in the matter of the appellant having been sufficiently represented before the Additional Director is contrary to the law settled by at least two Division Benches of this Court, and the law laid down by more than one Single Bench in this regard. He has firstly referred to the judgment of D.K. Mahajan and S.S. Sandhawalia, JJ. in Jamadar Sheoji Ram V. Smt. Daulati Bai and others, 1970 PunLJ 475. It was held by their Lordships that the question of effective representation can arise only where the parties on whose behalf such representation is claimed are parties to the proceedings. It was clearly laid down that when a person is not a party to the proceedings, there cannot be an effective representation on his behalf. To the same effect is the judgment of the Division Bench (Mahajan and Pattar, JJ.) in Het Ram and others V. The State of Punjab and others,1974 RLR 28. In that case it was held that when notices are issued to the parties impleaded and only one out of those parties whose interests are common with the others appears, the same would be binding on all of them, but where a person present was not a party and no notice was issued to him, it could not be held under any principle of law that the order passed in the absence of such a person can bind him. There appears to be no escape from the binding judgments of the two Division Benches referred to above.

(3.) Mr. D.S. Chahal, learned counsel for Santa Singh respondent, has on the other hand tried to support the judgment of the learned Single Judge on the basis of two different Division Benches. In chronological order the first case on which reliance has been placed by him is an unreported judgment of D. Falshaw, C.J. and A.N. Grover, J. dated December 21, 1961, in Gurnam Singh and others V. The State of Punjab and others, Letters Patent Appeal 198 of 1961. There is no doubt that the heirs of one Ram Singh had not been impleaded and no notice was served on them, though one of those heirs, namely Jangir Singh on coming to know of the pendency of the petition had himself appeared in the proceedings, but the kingpin of the judgment is that their Lordships declined to go into the question of effective representation before the Minister on the ground that that comprised a question of fact on which a final decision had been recorded by the learned Single Judge. This is what the Division Bench observed :-