Hazara Singh and another vs The Punjab State and others

R.S. Sarkaria, J.—This, is a petition under Articles 226 and 227 of the Constitution for the issuance of a writ of certiorari, direction or order for quashing two awards, dated 24th August, 1954 and 29th September, 1954, and the order, dated 3rd February, 1960 (Annexure A) of the Assistant Director Consolidation, of Holdings. Jullundur (Respondent 3), the order, dated 3rd February, 1960 (Annexure B) of the Assistant Director of Consolidation of Holdings, with powers of Registrar, Cooperative Societies, Punjab (Respondent 3), and the order, dated 17th April, 1966, (Annexure C).of the Director of Consolidation of Holdings, Punjab, with.powers of Deputy Secretary Co-operative Societies (Respondent 2).

The petitioner sand Respondents 5 to 7 are right-holders in village Padhiana, Tehsil and District Jullundur. In 1947-1951, consolidation of holdings was carried out in the village under the Cooperative Societies Act, 1912 (hereinafter called ''the Act''). The repartition during those consolidation proceedings was made in 1951. The petitioners, Respondents 5 to 7, and all other right-holders in the village were given possession of their new holdings allotted to them on repartition. Respondents 5 and 6 complained that they had been allotted land of inferior quality. They made a unilateral representation to the Registrar of the Co-operative Societies for that purpose. Thereupon, the Registrar illegally referred the matter to the arbitration of Respondent No. 4. Shri Shiv Ram, retired Inspector of Consolidation. The arbitrator (Respondent 4) without issuing any notice to the petitioners and their uncle, Natha Singh (since deceased), and without affording them any opportunity of being heard. gave his awards, dated 24th August, 1954 and 29th September, 1964, whereby 29 Kanals and 7 Marias of superior quality land were taken out of the new holdings of the petitioners and in lieu thereof, 24 Kanals of land of inferior quality were allotted to them. The land thus excluded from the Kurrah of the petitioners was given to Respondents 5 to 7. Thus, the petitioners were deprived not only of 5 Kanals and 7 Marias of land but were also given highly inferior land in field numbers 3407 and 3408 on both sides of the cho. Similarly, the land comprised in field numbers 2374 and 2375 excluded from the petitioners'' Kurrah was far superior to field number 3155, given to them, which was also located near the cho, The result is that the holdings of the petitioners have been disintegrated, frustrating the very purpose of consolidation of holdings.

Aggrieved by the aforesaid awards, the petitioners preferred two appeals before Respondent 3 (Assistant Director of Consolidation), complaining that the Arbitrator had given the award without giving any notice or opportunity to the petitioners of being heard. Respondent 3 not only dismissed the appeal by means of his impugned order (Annexure A), but in the garb of partly accepting their appeal, did more damage to the petitioners by excluding some more area from the Kurrah of the petitioner vide (Annexure B). Aggrieved by these orders (Annexures A and B) of Respondent 3, the petitioners went in revision before the Director of Consolidation (Respondent 2), who also arbitrarily dismissed their revision-petition by means of the impugned order, dated 17th April, 1966 (Annexure C). The petitioners are assailing the awards and the orders of the Assistant Director-cum-Registrar and the Director of Consolidation of Holdings on various grounds, out of which, only those reproduced below are now being pressed before me:

The Petitioners were not made a party to the reference to arbitration, nor did the Arbitrator ever issue any notice to the petitioners; nor did he afford an opportunity to the petitioners of being heard. The entire proceedings culminating in the impugned awards, dated 24th August, 1954 and 29th September, 1954 were conducted ex-parte in an illegal manner against the rules of natural justice and fairplay.

The old Musavis (field maps prepared at the time of the settlement) and other revenue record which was with the President of the Consolidation Committee had been mala fide concealed or destroyed by the President in collusion with the Arbitrator. The petitioners had lodged a complaint with the Minister in this behalf.

Respondents 2 and 3 had illegally assumed that the petitioners were allotted area in excess of their entitlement. In the absence of the record concealed or destroyed by the President of the Consolidation Committee they could not come to any finding about the excess area alleged to have been allotted to the petitioners.

The impugned orders in Annexures A, B and C of the Assistant Director and the Director could not regularise in any manner she wholly illegal and void awards given by the Arbitrator. Nor could Respondent 2, on appeal by the petitioners, take out more area from the Kurrah of the petitioners in the absence of any appeal against them.

Respondents I to 4 have not filed any return. Respondents 5 and 7, however, have submitted a joint written statement. It is pleaded that Hardas Singh. Respondent 7 was allotted land; on the basis of an arbitration award, dated, 9th September, 1954, given under clause (f) of Rule 18 of the Rules framed u/s 43(1) of the Act. The petitioners never appealed against that award before the Registrar as provided in Rule 18(i) of the Rules. The result was that the award had become final under Rule 18(j) and could not be challenged in these proceedings after more than 12 years. Copy of that award is Annexure R. 1. In this writ petition also, the petitioners have not specifically challenged the award, dated 9th September, 1954. The judgment, dated 3/d February, 1960, of the Assistant Director in Appeals Nos. 25 and 26 of 1954-55 related to the award, dated 29th September, 1954, in favour of Babu Singh, Respondent 5. Gainda Singh and Mukand Singh appellants in Appeal No. 25 of 1954-55 moved the Registrar in revision who, in turn, dismissed the same on 31st July, 1961. The said Gainda Singh and Mukand Singh filed Civil Writ 1317 of 1961 to impugn that order, dated 31st July, 1961, against Babu Singh, Respondent 5. The writ petition was dismissed by Shamsher Bahadur J. on 30th May, 1962. All the objections now raised in this writ petition were also raised in Writ Petition 1317 of 1961.

The allegations in para 4 of the petition were denied and it was asserted that the dispute had rightly been referred to the Arbitrator, Mr. Shiv Ram. Respondent 4, who informed the parties, visited the spot, consulted the Advisory Committee and perused the relevant records in the presence of the petitioners and other right-holders. The Arbitrator conducted all the proceedings in the village and announced the award in the presence of the petitioners, who, however, refused to sign the award in token of their presence. The Arbitrator thereupon issued registered notices to the petitioners. The petitioners were wrongly allotted 7 Karnals and 6 Marias of land in excess of their entitlement. Consequently, the excess area was rightly withdrawn from their Kurrah. The details of the excess area allotted to the petitioners were as follows:

Respondent 7 was given only 3 Kanals 7 Marias of land, bearing field No. 1370, vide award, dated, 9th September, 1954 (Annexure R. 1). Against this allotment, no appeal was filed by the petitioners. They, however impleaded Respondent 7 before the Director only. Consequently, they had no locus standi to file this writ petition

In reply to para 8, the respondents submitted that the award, dated 24th August, 1954, did not relate to the answering respondents. It was award, dated 29th September, 1954. only that related to Babu Singh, Respondents. The award in favour of Hard is Singh, Respondent 7, was dated 9th September, 1954 and no appeal was ever filed against that award. Hardas Singh, Respondent 7, also filed a separate affidavit in which he made the same averments which are made in the written statements of Respondents 5 and 7.A perusal of Annexures A, B & C would show that the petitioner never challenged the award, dated 9th September, 1954 (Annexure R. 1), made by the Arbitrator in favour of Hardas Singh, Respondent 7, before the Assistant Director Consolidation-cum-Registrar, Co-operative Societies; or even before the Director of Consolidation. It is. however, true that in revision before the Director (vide Annexure C), Hardas Singh was also'' impleaded as a respondent. A perusal of the order of the Director (Annexure C) shows that-even in the course of arguments before him, the award, dated 9th September, 1954, was not assailed. It was not even referred to. There is thus force in the objection of the respondent that so far as the award, dated 9th September, 1954, made by the Arbitrator in favour of Hardas Singh, Respondent 7, is concerned, the same cannot be'' disturbed in this writ petition after a lapse of more than 12 years. The petitioners had obviously acquiesced in that award.

As regards the awards, dated 24th August, 1954 and 29th September, 1954 the averments made in the written statement of the respondents, to the effect that all the proceedings were taken by the Arbitrator after due notice to the petitioners, in the presence of the petitioners and others concerned, and that the petitioners Were actually heard by the Arbitrator before announcing the award, are not supported by the original record of those arbitration proceedings now produced for my inspection. The Arbitrator (Respondent 4) who was the best informed person about these facts, has not cared to put in any return. Nor have Respondents 1, 2, and 3 refuted this allegation of the petitioners by means of any counter-affidavit. A perusal of the order, dated 17th April, 1966 (Annexure C) also shows that the petitioners were not made a party to the arbitration proceedings. The Director, however, observed that the Arbitrator went to the village and made adjustment in the plot of the petitioners and that from this fact a presumption can be drawn that the petitioners had notice of these proceedings. The impugned awards manifestly show that they were made in the absence of the parties, and that they had to be communicated to the parties through registered post. If the petitioners had refused to sign in token of their presence, the Arbitrator ought to have put that fact on the record, but he did nothing of the kind. The record now produced further shows that from the very start in 1P58, the petitioners have been complaining that the award was made without affording them any opportunity of being heard, arid that it was an ex-parte and one-sided affair. So far as it is possible to ascertain from the record produced, it seems that no notice was given by the Arbitrator to the parties, much less to the petitioners to put their case before him. There can be no dispute that the arbitration proceedings were quasi-judicial proceedings. It was, therefore, necessary in accordance with the principles of natural justice, to afford an opportunity of being heard to all the persons affected. Since such an opportunity was denied to the petitioners, the award was vitiated.

Counsel for the respondents, however contended that even if such an opportunity was not given to the petitioners by the Arbitrator, the whole matter was reviewed in appeal by the Assistant Director of Consolidation of holdings-cum-Registrar where the fullest opportunity was given to the petitioners and all concerned, before making the impugned orders (Annexures A & B). It is urged that the awards thus got merged in the impugned order of the Assistant Director Consolidation of Holdings-cum-Registrar (Annexures A and B) and the final order passed by the Director (Annexure C).

Mr. H. L. Safin, the learned counsel for the petitioners, contends that the giving of such an opportunity by the appellate or the revisional authorities to the petitioners would not cure the illegality of the awards. It is stressed that the awards of the Arbitrator, which were a nullity; did not get merged in the orders of the appellate or revisional authorities. In support of his Contention, the learned counsel has referred to Shfimati Patri and another v. State of Punjab (1966) 68 P.L.R. 844, and Sadib Singh v. Deputy Chief Settlement Commissioner (1967) Cur. L.J. 760.

In Shrimati Pari''s case sortie area belonging to the petitioner was declared surplus area under the Punjab Security of Land Tenures Act 10 of 1953 in January, 1962. The Collector, Fazilka, who was competent to deal with the matter, did not do so. Instead, the Special Collector at Chandigarh issued notice to the petitioner to appear before him on 22nd January, 1962, though her entire holdings were in one Circle. Kanshi Ram appeared as a representative of the petitioner before the Special Collector at Chandigarh. The Collector did not afford any further opportunity to the petitioner to substantiate the objections filed on her behalf. On 22nd January, 1962, the Collector declared 22-3 standard acres of the petitioner''s land as surplus. He ignored some transfers made by the petitioner. The objections were not dealt by the Collector in his order, dated 22nd January, 1962. Tints, there was a non-compliance with Rule 6 (6) of the Rules framed under the said Act. The petitioner filed three separate appeals to the Commissioner against the order of the Special Collector. The appeals were dismissed by the Commissioner on 16th November, 1962. They filed revision-petitions before the Financial Commissioner, who dismissed the same. The petitioners contended that the orders of the Collector were bad in law, because notices of the enquiry at the original stage were not issued by the Collector to the persons concerned as required by Rule 6(3) of the Rules. An attempt was made to meet this argument, by saying, that all those objections were admittedly heard at the appellate and revisional stages, and that this should be a sufficient substitute- for hearing at the original enquiry. The learned Judge (Narula J) repelled this argument of the respondents'' counsel by saying that the hearing at the appellate stage or the revisional stage is no substitute for hearing at the original stage for which provision is made in a statute. Reference was made to the dictum of the Federal Court in Suraj Narain Anand v. The North West Frontier Province AIR 1952 F.C. 3, where it was held that there was a well marked difference between a decision given by an officer who acts in the consciousness that he is primarily responsible for the investigation and decision of the case and the act of one who is expected; only to satisfy himself that another officer who had the primary responsibility has properly dealt with the case or not. The distinction, so held the Federal Court, is one of substance and is not merely formal or technical.

The above principle enunciated in Shrimati Pari''s case will apply to the facts of the case before me. It may be noted that so far as the award, dated 24th August, 1954, is concerned, the Assistant Director by means of the impugned order (Annexure A and the Director by his order, dated 17th. April, 1966, passed in revision Annexure C) only upheld the award and did not alter or supersede it. The inherent illegality in the award, dated 24th August, 1964, therefore, could not be cured by affording the petitioners a hearing at the appellate and the revisional stages by the Assistant Director and the Director, respectively.

Mr. Maluk Singh, the learned counsel for Respondents 5 and 7, referred to the judgment, dated 30th May, 1962, of this Court in lnder Singh and others v. Punjab State and others C.W. 1317 Of 1961, Civil Writ No. 1317 of 1961, where a similar point was canvassed by the petitioners, but the contention was not accepted. I do not think that any rule contrary to the one enunciated in Shrimati Pari''s case was laid down. The learned Single Judge declined to interfere in the exercise of his special jurisdiction under Article 226 of the Constitution, on the ground that no substantial injustice had accrued to the petitioner as a result of the manifest illegality in the award. It was observed:

That there was an obvious illegality in the proceedings of the arbitrator admits of no dispute. It is, however, to be borne in mind that this award has been set aside and is non est facto for all practical purposes. What we are now concerned with is the appellate order of the Assistant Director and there is no manifest illegality so far as that is concerned. The petitioners themselves submitted to the appellate jurisdiction of the third respondent and they cannot be heard to say that the entire proceedings should be effaced because of the blemish in the original award which gave rise to the appeal.

The aforesaid observations concerned the award, dated 9th September 1954, which had been altered by the Assistant Director on appeal filed by Gainda Singh, the then petitioner. It is, however, different in the case of the award, dated 24th August, 1964, which was not at all modified either at the appellate stage by the Assistant Director or at the revisional stage by the Director. The result was that the illegal award, dated 24th August, 1954, which had been made without giving the petitioners an opportunity of being heard, was upheld. It was never set aside. Thus, the illegality in the original aw?rd. dated 24th August, 1954, was not cured by affording the petitioner a hearing at the appellate and the revisional stages.

The question, however, is whether or not the illegality of the award has occasioned substantial injustice to the petitioners. It is well settled that this Court is loath to interfere in the exercise of its special jurisdiction under Article 227 of the Constitution even with an illegal order of a quasi-judical authority, where the illegality has not caused any substantial injustice. It will be proper to consider this question along with the connected award, dated 9th September, 1954. It was this award which was challenged in Civil Writ 1317 of 1961 of Gainda Inder Singh, and Mukand Singh sons of Ishar. Out of the rightholders, Babu son of Ghanya, only, was impleaded as a respondent. The present petitioners were not impleaded. That judgment, therefore, does not now operate as res judicate. It was held in that case that the grievance of the petitioners, Gainda etc., had been redressed by the Assistant Director, whose appellate order has supreseded the award and substituted a modified decision for the award.

The counsel for the petitioners, however, contends that there is a manifest illegality in the order (Annexure B) of the Assistant Director relating to the award, dated 29th September, 1954. The order (Annexure B) disposes of two appeals one was Appeal No. 25, filed by Gainda son of Ishar against Babu respondent, and the second was Appeal No. 26, filed by Hazara Singh petitioner against Babu respondent. Before me the petitioner''s contention is, that in the garb of partly accepting his Appeal No. 26, the Assistant Director actually did him more harm.

There is force in this contention. A perusal of the original record of the case shows "that the main grievance of Hazara Singh in his Appeal No. 26 before the Assistant Director was that the Arbitrator had wrongly excluded 21 Kanals and 7 Marias of ''A'' class land belonging to the appellant, and, had, in lieu thereof, allotted him only 16 Kanals of inferior Ghair Mumkin land in the cho. Babu and the Advisory Committee of the Consolidation were impleaded as respondents. Babu felt satisfied with the award (dated 29th September, 1954 of the Arbitrator) and never preferred any appeal or cross-objections against it before the Assistant Director (Registrar). It was also contended before the Assistant Director (Registrar) that the records produced showing the extent and the value of the land owned by Hazara Singh before the repartition were not true and correct, because, in fact, he owned 45 Kanals of ''A'' class land, whereas the records, which were produced before the Assistant Director, showed that he owned only 35 Kanals of such land. In spite of the fact that Babu had not appealed, the Registrar (Assistant Director) recorded the finding that injustice had been done to Babu Singh, inasmuch as the Aribitrator had made an excess allotment of 2 Kanals and 1 Maria standard in favour of Hazara Singh appellant, and had allotted 2 Kanals and 1 Maria standard less to Babu Singh respondent. He, therefore, under the guise of partly accepting Hazara Singh''s appeal, took out 4 Kanals and 10 Marias of land from the allotment of Hazara Singh appellant and allotted Killa Nos. 2472 and 2473 Min south, measuring 4 Kanals and 10 Marias standard to Babu Singh, and, instead, allotted only 2 Kanals standard in Killa No. 1334 East to Hazara Singh appellant. In the absence of any appeal by Babu Singh, the Assistant Director (Registrar) had no jurisdiction to grant him this relief and to deprive Hazara Singh appellant of more area, i.e. 2 Kanals and 10 Marias.

It is now well settled that the scope of the jurisdiction of the appellate Authority under sub-section (3) or sub-section (4) of Section 21 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, is circumscribed by the provisions of those sub-sections A plain reading of those sub sections would show that the right of appeal thereunder has been conferred on a person aggrieved by an order of the Consolidation Officer or the Settlement Officer, as the case may be. It follows, therefore, that only such a person who is entitled and, in fact, who goes up in appeal before the Settlement Officer under Sub-Section (3) or before the Assistant Director under sub-section (4), can be granted some relief, and no relief in such an appeal can be granted to a person who was not aggrieved by the order appealed against. It is, of course, true that in granting the whole or part of the relief to an appellant, the appellate Authority may make necessary consequential changes in favour of the respondent also, but in no case an appellant before the Settlement Officer or the Assistant Director can be deprived while deciding that appeal, of what he has already got. In other words, he cannot be meted out treatment which is adverse to his interests, without his asking for it, merely in order to benefit the respondent who never felt aggrieved by the order of the Consolidation Officer or the Settlement Officer and against which he never filed any appeal.

The same principle will hold good where the appeal has been filed under Rule 18(i) of the Cooperative Societies Rules framed under Act No. 2 of 1912. Under the aforesaid Rules also, such an appeal can be filed by any ''party aggrieved by an award'', to the Registrar. Here, the petitioner went before the Registrar (Assistant Director) complaining that he had been awarded less than what was his due. The Registrar on the contrary holding that he had been awarded more land than what was his due, deprived him of more than 2 Kanals standard to benefit Babu Singh respondent, who not being an appellant was not entitled to any relief under the aforesaid Rule 18(i).

This very point came up for determination before Narula J. in Nazar and others v. Additional Director, Consolidation, Punjab ILR 1987 P&H 803. I had also an occasion to consider it in Civil Writ 754 of 1965 (Sohan Lal v. State of Punjab and others) decided on 1st September, 1967. Thus, so far as the grievance of the petitioner with regard to the illegal award, dated 29th September, 1954, is concerned, instead of being redressed it was rather accentuated by the Registrar (Assistant Director) on appeal by the petitioner. So far as the petitioner is concerned, it cannot, therefore, be said that the initial illegality in the award had not occasioned him any substantial injustice. The figures given by Respondents 5 and 7 in para 4 of their written statement to shown that the petitioner was actually allotted area in excess of his entitlement, cannot be taken as a gospel of truth. The petitioner''s grievance even before the Registrar was that these records and accounts regarding the valuation and classification of his land were not true and correct. In para 11 (c), the petitioner has averred that the old Musayis and other records, which were in the custody of the President of the Consolidation Committee which conducted the consolidation operations had been mala fide concealed or destroyed by the President of the Committee in collusion with the Arbitrator (Respondent 4). Thereupon, the petitioners and other right-holders of the village approached the Minister with a complaint, which was referred to Shri B. D. Dhawan, the then Consolidation Officer Flying Squad. The latter tried his best to get the records produced, and after enquiry made a detailed report on 20th September, 1960, to the Government showing the illegalities and irregularities committed during the consolidation proceedings, The only persons who could be the best informed about these allegations of fact were the Arbitrator (Respondent 4) and Respondents 1, 2 and 3. These respondents have not chosen to controvert this allegation by means of any affidavit. It will, therefore, be not extravagant to assume that there was something wrong with the arbitration proceedings and also with the records prepared or relied upon by the Arbitrator.

In these circumstances, the Director, exercising the powers u/s 69 of the Punjab Cooperative Societies Act 1961, ought to have gone into the merits of the cafe, and not thrown out the revision-petition filed by Hazara Singh mainly on the ground that ''after over 11 years it would be improper to interfere with the award.'' The delay was not due to any fault of the petitioner. His first appeal before the Registrar (Assistant Director) remained pending for more than 6 years. Thereafter, his revision-petition u/s 69 of the Punjab Cooperative Societies Act 1961, remained pending before the Director for an other 6 years. Surely, the petitioner could not be punished for this delay in adjudication of his appeal or revision, which was not due to his fault.

For the foregoing reasons, I am firmly of the view that the awards, dated 24th August, 1954 and 29th September, 1954, are bad in law. Similarly, the impugned orders (Annexures ''A'', ''B'' and ''C) are not in accordance with law. I, therefore, allow this writ petition, quash the awards, dated 24th August, 1954 and 29th September, 1954, and the impugned orders, and issue a direction that the Assistant Director Consolidation-cum-Registrar shall re-decide the disputes after giving a fresh opportunity of being heard to the petitioners and all others concerned. In the circumstances of the case, there will be no order as to costs.