HAZURA SINGH Vs. ADDITIONAL DIRECTOR CONSOLIDATION OF HOLDINGS

JUDGEMENT

(1.) The first point urged by Mr. K.K. Cuccria in this petition under Articles 226 and 227 of the Constitution is that without there having being any precise objection under Section 21(2) of the East Punjab Holdings Consolidation and Prevention of Fragmentation) Act (50 of 1948) (hereinafter called the Act) in relation to the holding of the petitioner, no first appeal could be preferred under sub-section (3) of Section 21 and no second appeal could be preferred under sub-section (4) of that Section so as to ultimately affect the petitioner. According to the averments in the writ petition no objection was taken by any right-holders including respondent Nos. 3 to 9 regarding the allotment of that land to the petitioner which has now been excluded from his holding under the impugned order of the Assistant Director, dated June 14, 1962, and that an appeal had been preferred under sub-section (3) of Section 21 by the right-holders before the Settlement Officer, wherein the petitioner was not even impleaded. The appeal under sub-section (3) of Section 21 was preferred by one Ghukar Singh who is not a party to the present proceedings. Relief was granted to Ghukar Singh by the order of Shri Bharat Rattan Nagpal, Settlement Officer, Consolidation of Holdings, Sangrur, dated November 2, 1961 (Annexure 'A'). The relief granted by the said order did not, however, affect the petitioner. Bhagwan Singh respondent No. 8 was affected by the order Annexure 'A', and he, therefore, went up in second appeal under sub-section (4) of Section 21 to the Assistant Director. It is frankly admitted on behalf of the petitioner that he was properly represented at the hearing of the said second appeal by his son Bachan Singh whose presence has been duly recorded in the impugned order, dated June 14, 1962 (Annexure 'B'). In fact even this writ petition has been filed by Hazura Singh through his same son Bachan Singh. The petitioner having thus been afforded an opportunity of being heard, the order that was passed in the said second appeal affected him. He submitted a petition under Section 42 of the Act before the State Government, which was filed away under the order of the Additional Director, dated August 27, 1964 (Annexure 'C') on the ground that the petition did not lie against the order passed by the Assistant Director under Section 21(4) of the Act. The petitioner then came up to this Court to have quashed the order of the Assistant Director.

(2.) The correctness of the order of the Additional Director, dated August 27, 1964, cannot be questioned in view of the authoritative pronouncement of the Supreme Court in Roop Chand v. The State of Punjab and another, 1963 65 PunLR 576. The appellate order of the Settlement Officer (Annexure 'A') shows that it had been passed in "an appeal from the order of Consolidation Officer, Sunam II, dated 31.7.1959, whereby he had made certain amendment in the 'A' grade plot of the appellant (Ghukar Singh)". It is, therefore, obvious that the impugned proceedings did not commence with an appeal under sub-section (3) of Section 21, but were duly commenced with objections under Section 21(2) of the Act. Once objections had actually been preferred by anyone as a result of disposal of which by the Consolidation Officer, Ghukar Singh was affected on 31.7.1959, he had a right of appeal under Section 21(3). Again when the order of the Settlement Officer affected Bhagwan Singh, the right of appeal under Section 21(4) could not be denied to him. In order to grant relief to Bhagwan Singh, any person who had an opportunity of being heard before the impugned order was passed by the Assistant Director could be affected by the second appellate order under Section 21(4) of the Act. Counsel has relied on my judgment in Nazar and others v. Additional Director and others, 1966 CurLJ 755, and argued that the objections under Section 21(2) not being such as could affect the petitioner's interest, further proceedings under sub-sections (3) and (4) of Section 21 emanating from the order under Section 21(2) could not possibly be permitted to affect the petitioner's rights. No such thing was laid down in the case of Nazar and others . What was held in that case was that considering the scheme of the Act and particularly of sub-sections (1) to (4) of Section 21 thereof and complete absence in the Act of a provision like Order 41 Rule 33 of the Code of Civil Procedure, and in the absence of conferment of any suo motu power on the authorities under sub-sections (2), (3) and (4) of Section 21 of the Act, no relief could be granted to such a respondent in those proceedings who had himself not claimed any relief in an appropriate application or appeal. In the present case no relief has been granted in favour of any person who was a respondent before the authorities under the Act. Relief was granted at every stage against the party arrayed on the opposite side. Nothing stated by me in the case of Nazar and others is, therefore, of any avail to the petitioner. For the foregoing reasons, I find no force in the first contention of Mr. Cuccria.

(3.) It was then submitted by counsel that respondent No. 3 had less percentage than that of the petitioner, and that, therefore, according to the scheme of consolidation, respondent No. 3 had to be upset before the petitioner could be unsettled from his major portion. This ground was admittedly not urged by the petitioner (who appeared as a respondent at that stage) before the Assistant Director. It is, therefore, impracticable to decide a dispute of this kind in proceedings under Article 226 of the Constitution for the first time. Mr. Achhra Singh learned counsel for respondent No. 8, has also pointed out that no land of the petitioner has been given to respondent No. 3 nor has any land of the third respondent been given to the petitioner. In these circumstances, it is not possible to interfere with the impugned order on this ground.