MAGHAR SINGH Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) This case was adjourned on 23rd of May, 1967, on the ground that the Full Bench decision in C.W. No. 913 of 1966 had not been decided. This decision was made on 25th of May, 1967 and has since been reported as S. Gurdial Singh and others v. The State of Punjab and others, 1967 CrLJ 909. During the course of arguments, counsel for neither side as deemed it advisable to rely upon it.

(2.) This is a petition under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari or mandamus for quashing the order dated 23rd of December, 1966, passed by the Additional Director of Consolidation of Holdings, Ferozepur, respondent No. 2. The petitioner is Maghar Singh of village Verkey, Tehsil Moga, District Ferozepur. It is alleged in the petition that the proceedings for the consolidation of holdings started in his village in the year 1952, and were concluded in 1956 or 1957 when new jamabandis were made. It was also urged that prior to 1955, possession of the new areas (kurrahs) was taken by all the right holders including the petitioner Maghar Singh and the contesting respondent Baghel Singh. The consolidation which was finalised in 1955 was never questioned on any score by Baghel Singh for nearly 10 years, till he made an application dated 13th of April, 1966, to respondent No. 2, exercising the powers of Government, under Section 42 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. He did not impleaded either Maghar Singh the petitionern or any of the right holders. In that application, the opposite party was the State. By his order dated 23rd of December, 1966, the application of Baghel Singh was allowed. It may be pointed out that there is a discrepancy between the date of the order of respondent No. 2; according to copy Annexure A, the date of institution is 7th of May, 1966 though according to the writ petition, para 2, this date is said to be 13th of April, 1966; and in the return filed on behalf of the State, the correctness of this date has not been questioned. Apart from the discrepancy in the date, no material difference is made so far as the respective rights are concerned. In his order, the second respondent conceded that the petition of Baghel Singh was time-barred but a as path has to be provided to every kurrah under the scheme, the time-limit was waived, and an order was passed that a path "in the width of two karams be provided in the east of kila No. 49/10, and east and north of kila No. 49/1 and in the east of kila No. 48 5/2." He consequently ordered these changes. According to the petitioner's contention, the result of this order was that 11 marlas of the petitioner's land had been taken away and he has been given in return 5 marlas. In the petition, he maintains that the second respondent had not jurisdiction as the petitioner, was not made a party. He also raised the question that the petitioner of Baghel Singh, made almost 10 years after the finalisation, of the consolidation was hopelessly time barred and did not attract the provisions of Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949. Two points are urged on behalf of the petitioner. That in Baghel Singh's application made to the second respondent in 1966, petitioner Maghar Singh was not made a party and the decision has been taken to his prejudice behind his back. In the affidavit of Shri Dalip Singh, Director, Consolidation of Holdings, Punjab, made on behalf of respondents 1 and 2, it was admitted, that the petitioner was not impleaded as a respondent in the said revision petition before respondent No. 2. It was also admitted that Beghel Singh had never filed any petitioner earlier for providing a path for his kurrah. In view of this admission, the petitioner's contention deserves to prevail. The order was passed obviously, to his prejudice whereby 11 marlas of his land had been taken away and he had been given 5 marlas, in proceedings instituted almost 10 years after the finalisation of consolidation proceedings and all this was done without his having been made a party. Neither he nor any other right holder in the village was made a party. The only party impleaded was the State. In para 3 of the affidavit, it was stated that the notice for hearing of this case was taken by the chaukidar to the house of the petitioner but the petitioner refused to sign the notice saying that he would be present at the time of hearing. Assuming this to be so, the petitioner's contention does not suffer in soundness or cease to be without merit, when admittedly he had not been impleaded. This is an instance of manifest injustice done to the petitioner in disposing of a matter to his detriment without his having been made a party.

(3.) Audi Alteram Partem has long been a received Rule that no one is to be condemned, punished or deprived of his property in any proceeding partaking of a judicial or quasi-judicial character, unless he had had an opportunity of being heard. This Rule applies to all cases where there is a duty to act judicially. This was not a case of an administrative kind but one which concerned the parties rights to property determining their ownership. To the circumstances of this case, the observations of Viscount Haldane, L.C. in Local Government Board v. Arlidge,1915 1 AC 120 are fully applicable.