Bachan Singh vs State of Punjab and Ors.

D. V. Sehgal, J. (Oral)

The petitioner impugns in this writ petition order dated 8.7.1982 Annexure, P/7, passed by the Additional Director, Consolidation of Holdings, Punjab, respondent No. 2 and further impugns the order dated 10.9.1982. Annexure P18 of respondent No. 2, which is in fact consequential to the order Annexure P/7.

A petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1949 (for short `the Act'') was filed by Gurmukh Singh and others, respondent Nos. 4 to 8 as the successorininterest of one Rura before respondent No. 2. It was alleged therein that Lala and Rura two brothers, were cosharers having half share each in their joint Khewat No. 140 measuring 85 Standard Kanals. 10 Standard Marlas. Out of this an area of 35 Standard Kanals 15 Standard Marlas had earlier been allotted by the Custodian from the share of Lala who was a Muslim evacuee to different persons. During consolidation of holdings, the consolidation staff inadvertently entered both Lala and Rura as joint owners in equal shares in respect of the entire land of 85 Standard Kanals 13 Standard Marlas. In this way the land allotted by the Custodian from the share of Lala to the extent of 35 Standard Kanals 15 Standard Marlas was not accounted for from his account. Thus the Consolidation staff erroneously made double allotment to the share of Lala and thereby Rura suffered loss of 17 Standard Kanals 5 Standard Marlas. It was contended that an area of 35 Standard Kanals 15 Standrad Marlas ought to have been excluded from the share of Lala. It was, thus, sought to be made clear that the Consolidation staff wrongly allotted 42 Standard Kanals 15 Standard Marlas to each of them. Actually 7 Standard Kanals Standard Marla only could be allotted to Lala, the evacuee and the remaining land ought to have been allotted to Rura. It was brought out that as a result of this mistake Lala got 17 Standard Kanals 10 Standard Marla in excess. It was further maintained that the heirs of Rura are in possession to the land legitimately falling to their share but due to the mistake committed on the record the Custodian wrongfully allotted 42 Standard Kanals 15 Standard Marlas instead of 7 Standard Kanals Standard Marla from the total Khewat to Bachan Singh son of Santa Singh (the petitioner herein). This allotment was questioned and it was contended that the same was illegal and was the result of the mistake in the Consolidation record. They sought rectification of this mistake in the record and prayed that from the entire Khewat, Lala evacuee should be shown as owner of 7 Standard Kanals Standrad Marlas and respondent Nos. 4 to 8 as the heirs of Rura should he shown as owner for the remaining area of 42 Standard Kanals 15 Standard Marlas. The petition so filed under Section 45 of the Act was allowed by respondent No. 2. He directed rectification of the mistake and ordered consequent changes with regard to the allotment of share of 42 Standard Kanals 15 Standard Marlas to them leaving 7 Standard Kanals 10 Standard Marlas as the share of Lala evacuee.

The main complaint of the petitioner is that he is the allottee of 38 Kanals 12 Marlas of land from the Custodian. The land vested in the Custodian being the share the of Lala evacuee. The impugned order Annexure P/7 has been passed by respondent No. 2 at the back of the petitioner. He has been directly affected by this order as his right to the land allotted to him by the Custodian has been put into jeopardy. He no doubt states that he had made an application before respondent No. 2 on 17.6.1982 for being impleaded as a respondent. That application was dismissed in his absence. A the same time it was the duty of respondent Nos. 4 to 8 to implead him as a respondent to the application under Section 42 of the Act as they had alleged that the Custodian had wrongly allotted the land to him.

two separate written statements have been file one by respondent Nos. I and 2 and the other by respondent Nos. 4 to 8. It is maintained that the petitioner was not a necessary party to the proceedings initiated on. the application under Section 42 of the Act and respondents No. 2 has rightly so held in the impugned order. It has been farther pointed out that the land had in fact been allotted to the petitioner for a period of ten years under the East Punjab Utilization of Land Act, 1949, which period of lease expired by Kharif 1978. An order of eviction, Annexure R/2. was passed against the petitioner on 18.6.1980 by the Collector, Amritsar. He filed an appeal, Annexure R/3 before the Commissioner which has been dismissed vide order dated 18.6.84 a copy of which has been placed on the record through C. M. No. 2095 of 1984. Respondent Nos. 4 to 8, therefore, maintain that he was a trespasser and, therefore had no right to be heard before the application under Section 42 of the Act was decided.

I have heard the learned counsel for the parties. I am of the considered view that the principle of audialteram partem which is one of die basic postulates of the rules of natural justice has not been complied with in this case by respondent No. 2. In the application under Section 42 of the Act filed by respondent Nos. 4 to 8 a specific complaint was made that as a result of wrong entries in the record of rights by the Consolidation staff the Custodian had allotted the land in dispute to the petitioner. It was nowhere stated in the application that the petitioner was a trespasser. At any rate it cannot be disputed that the petitioner had entered into possession of the land lawfully. Therefore, any order passed by respondent No. 2 making the correction sought for by respondent Nos. 4 to 8: was to adversely affect the possession of the petitioner on the land in dispute whether as an allottee or otherwise. Therefore, the view taken by respondent No. 2 in the impugned order, Annexure P/7, that the petitioner is not a party to the case is not correct. He ought to have directed respondent Nos. 4 to 8 to be impleaded as a party; afforded him an opportunity of hearing and then decided their petition under Section 42 of the Act.

Learned counsel for respondent Nos. 4 to 8 has brought to my notice that the land had been allotted to the petitioner for a period of ten years as mentioned in their return. Thereafter on expiry of this lease period an order of eviction dated 18.6.1980, Annexure R/2 had been passed by the Collector, Amritsar, against him. He was, therefore, a trespasser on the land but be concedes that the petitioner had filed an appeal Annexure R/3, against the aforesaid order of eviction before the Commissioner, Jalandhar which was pending when the impugned order, Annexure P/7, was passed by respondent No. 2.

On the other hand, it has been brought to my notice by the learned counsel for the petitioner that he had made an application to the Tehsildar (Sales) for transfer of this land out of the Package Deal Property. An order dated 21.10.1981, Annexure P. 2/A for transfer of this land in his favour was passed. The transfer was confirmed by the Sales Commissioner and he deposited the amount of sale consideration. He, therefore, became owner of the land. No doubt, it has been pointed out by the learned counsel for respondent Nos. 4 to 8 that an appeal filed by them was decided by the Chief Sales Commissioner vide his order dated 27.9.1982, Annexure R/1, by which he set aside the transfer of land in favour of the petitioner and remanded the case to the Tehsildar (Sales) for redecision but this order was apparently passed as a direct result of the impugned order Annexure P/7, passed by respondent No 2 as is apparent from its perusal. While the learned counsel for the petitioner states that a revision petition filed by him against the order. Annexure R/1 is pending before the Financial Commissioner, learned counsel for respondent Nos. 4 to 8 maintains that the matter after remand is pending before the Tehsildar (Sales) to await the decision of the present writ petition. It is obvious in these circumstances that the petitioner''s right to transfer of the land is yet to be determined by the concerned authorities and it cannot be said that he was not a party affected by the impugned order, Annexure P/7. I, however, do not consider it at all advisable to comment on the legality, validity or otherwise of the orders passed by the authorities under the East Punjab Utilization of Lands Act, 1949 or by the authorities under Package Deal Property Disposal Act, 1976. Be that as it may, it is clear that the petitioner had a right to be heard before the impugned order was passed by respondent No. 2.

Consequently, I allow this writ petition, quash the orders, Annexures P/7 and P/8 passed by respondent No. 2. Respondent Nos. 4 to 8 shall implead the petitioner as a respondent to their petition under Section 42 of the Act pending before respondent No. 2, who shall then decide the same after giving due opportunity of hearing to the petitioner. With a view of expedite the decision of the dispute between the parties, I direct them, through their counsel, to appear before respondent No. 2 on 28.3.1988. It would be desirable that respondent No. 2 should decide the dispute expeditiously

In the circumstances of the case, however. I make no order as to costs.