DHYAN SINGH Vs. DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) The petitioner prays for relief under Article 226 of the Constitution against an order dated November 26, 1973 of the Director, Consolidation of Holdings dismissing his petition.

(2.) The petitioner is a resident of village Saloh, Tehsil and District Una. Pursuant to a notification under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, consolidation operations were commenced in the area. After the pre-partition proceedings had been published the petitioner applied on January 12, 1971, for the reservation of land for the extension of his Abadi. The application was made under Section 42 of the Act to the Director, Consolidation of Holdings. It was recited that Khasra Nos. 10623/6564 and 11887/10626 were previously owned and possessed by the petitioner and his brother Hukam Singh, that the brother had applied to the Consolidation Officer for the allotment of the said khasra numbers for himself and the petitioner but the said khasra numbers had been allotted to the respondents Ranbir Singh and Harnam Singh contrary to law. The petition was dismissed on November 26, 1973 by the Director, Consolidation of Holdings on the merits. He pointed out that no application for reservation of land had been made by the petitioner; it had been made by his brother Harnam Singh only. In that application Harnam Singh had sought reservation of Khasra numbers 10626/6564 and 6565, that both the numbers had been allotted to the respondents, and that as regards khasra number 11887/10626 no application had been made by the petitioner or by his brother Harnam Singh during preparation of the scheme for reservation. On that, the Director said, the petitioner had no case on the merits.

(3.) In this writ petition, learned counsel for the petitioner contends that the Director was bound in law to have dismissed the petitioner's petition in default and could not have dismissed it on the merits. The consequence of the petition being dismissed on the merits, learned counsel says, is that the petitioner is now debarred from having the petition re-determined on the merits. The second contention is that a number of respondents had not been served by the Director with notice of the petition and therefore the Director erred in disposing of the petition. As regards the first contention, learned counsel relies on Madho Narayan v. Ragho Niloo, AIR 1970 Bom 132. In that case, Rule 19 of the Bombay Tenancy and Agricultural Lends (Vidarbha Region) Rules 1959 permitted the Tribunal, in the case of non-appearance of the parties, to dismiss the application or to decide it on merits after hearing the respondent. The Bombay High Court held that ordinarily, unless there was a compelling reason for the Tribunal to proceed with the disposing of the revision application on merits, the proper order was en order for dismissal in the absence of the parties, and that the passing of an order on merits without hearing the parties acted to the grave prejudice of the party in default. It was pointed out that having regard to the scheme of the Act inasmuch as the Tribunal was the final forum where a dispute could be taken, the party suffers an adverse order without having an opportunity of being heard. It was held that the Tribunal should indicate clearly and satisfactorily why its discretionary power to decide the application on merits has been exercised rather than the dismissal of the application for default. The High Court allowed the application and quashed the order of the Tribunal. It is pointed out that one of the respondents Ranbir Singh was present, but in my opinion that makes no difference to the application of the principle on which the Bombay High Court relied. If the applicant was absent, the principle would still require that ordinarily his application should be dismissed in default only and not decided on the merits. For dismissing an application in default it is the absence of the petitioner which is relevant. Section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 gives the widest power to the Director in the matter of disposing of a petition before him. He has the discretion, in the absence of the petitioner, to dismiss the petition in default or to decide it on the merits. On the basis of the principle mentioned above, the Director, Consolidation of Holdings erred in disposing of the petition before him on the merits. In the proper exercise of his jurisdiction he should have dismissed the petition in default.