Another contention of Sh. Chawla, that since one of the co-sharers has not been impleaded as a party, writ petition is liable to be rejected, is devoid of any force. It has not been brought to the notice of the Court that interest of respondent Nos. 2 and 3 was different from that co-sharer, who was not impleaded as a party in this writ petition. Record reveals that her interest was similar to that of respondent Nos. 2 and 3. It is an established law that service upon one of the co-sharers is sufficient for the purpose of deciding disputes under the act.
in Biru and Anr. v. Suraj Bhan and Ors., (1983) 85 P.L.R. 568 (F.B.) a Full Bench of this Court has specifically opined that, in the matter of consolidation, it is not necessary to implead all the co-sharers and then serve them individually, it is sufficient to give hearing to one or some of them in case their interest is common and there is no fraud or collusion or failure of fair or real trial of issues.
2. It is case of the petitioners that they alongwith respondent Nos. 2 and 3 were co-sharers. During consolidation proceedings, which were concluded in the year 1972, they were allotted land as per their entitlement. Respondent No. 2 (since dead) was not satisfied with the allotment, filed an application, claiming more land. He was given the desired relief vide order dated 10.5.1973 and accordingly necessary changes were incorporated in jamabandi for the year 1979-1980 (Annexure P/2). Still dissatisfied, respondent No. 2 again filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, 'the Act'), claiming following relief:-
"(i) that the shape of his abadi plot be made rectangular.
(ii) that he should be given area under his garden equivalent to his possession.
(iii) that a path be provided to his Kurah in Killa No. 29/26/2."
3. Vide order dated 14.11.1974 (Annexure P/3), the then Additional Director rejected the claim of the respondents, so far as at (i) and (ii) above is concerned. However, relief was granted by providing passage to his land falling in khasra No. 29/726/2, as prayed for at (iii) above.
4. By concealing factum of filing of earlier two applications under Section 42 of the Act, respondent No. 2 again moved another application under Section 42 of the Act, claiming similar relief as was claimed by them in earlier application, which was decided vide order dated 14.11.1974. It has also been stated that civil litigation was going on between the parties and the matter was pending before the executing court. Without considering objections raised by the petitioners, respondent No. 1 allowed the application of respondent Nos. 2 and 3, by passing order dated 9.7.1986 (Annexure P/5), which is impugned in this writ petition.
5. Upon notice, written statement has been filed by the private respondents, wherein allegations levelled by the petitioners, have vehemently been controverted. However, as is evident from the contents of written statement filed, factum of filing of earlier applications, have not been controverted by them. Rather same stands a admitted.
6. Counsel, appearing for the petitioners, has vehemently contended that by passing order, Annexure P/5, respondent No. 1 had virtually reviewed earlier order, Annexure P/3, which was not permissible. He further submitted that while filing application, Annexure P/4, factum of filing of earlier two applications, claiming similar relief, was concealed. Application Annexure P/4, having been moved beyond a period of limitation, was liable to be rejected. He has further argued that by passing order, under challenge, respondent No. 1 had virtually ordered execution of judgment and decree passed by the civil court, Annexure P/1, regarding which, proceedings were going on before the competent civil court. He prayed that order, being without any jurisdiction, be quashed.
7. Mr. G.K. Chawla, Advocate, appearing for respondent Nos. 2 and 3 , has vehemently controverted arguments raised by counsel for the petitioners, by stating that order, Annexure P/5, was most equitable, as by that order, land had been allotted on circular road, to the respondents, with a view to avoid further litigation. He further stated that order, Annexure P/5, was only a remand order, as such, writ petition is not competent to challenge the same. He has also raised objection that since the petitioners have failed to implead one of the co-shares, namely, Maya Devi, in view of that, writ petition deserves dismissal. He further argued that right of the respondents, in dispute, is established by decree, Annexure P/1 and vide order, under challenge, it had only been ordered that necessary entries be made in that regard in the revenue record. He prayed that writ petition be dismissed having no substance.
8. After hearing counsel for the parties, this Court is of the considered opinion that arguments raised by counsel for the petitioners have substance and in view of that this writ petition deserves to be allowed.
9. It is admitted fact that re-partition proceedings came to an end in the year 1972. On an application under Section 42 of the Act, moved by respondent No. 2, vide order dated 10.5.1973, necessary relief was granted to him. Thereafter, he again moved an application on 30.7.1973, with a prayer that shape of abadi plot allotted to him be rectified, area under garden be allotted to him, as per his possession and path be provided to his land situated under Khasra No. 297/26/2, vide order dated 14.11.1974, (Annexure P/3), his two prayers were rejected, however, third prayer was granted and passage was provided to his kurah, as prayed by him.
10. By concealing factum of filing of earlier two applications, he moved third application under Section 42 of the Act, claiming similar relief, which was earlier death with by the competent authority while passing order, Annexure P/3 and got passed order, Annexure P/5. It is evident that, by passing order, Annexure P/5, respondent No. 1 had virtually reviewed earlier order dated 14.11.1974 (Annexure P/3), passed by the competent authority.
11. This Court is of the view that while passing order, under challenge, respondent No. 1 had acted beyond jurisdiction. As per established law, authorities, exercising powers under Section 42 of the Act, are quasi judicial in nature and have no power to review. It has been so held by a Full Bench of this Court in Deep Chand and Anr. v. Additional Director, Consolidation of Holdings, Punjab Jullundur, and Anr., (1964)66 The Punjab Law Reporter 318.
12. In that case, it was observed that an Additional Director of Consolidations, exercising powers of the Government under Section 42 of the Act, was not empowered to review his earlier orders passed on merits, even though the orders may be erroneous or unjust. In the present case, this court is of the opinion that even order passed earlier i.e. Annexure p/3 was perfectly justified and equitable.
13. In Harbhajan Singh v. Karam Singh and Ors., A.I.R. 1966 Supreme Court 641, their Lordships of the Hon'ble Supreme Court, while dealing with a similar situation, after taking note of the provisions of Section 42 of the Act, had opined as under:-
"5. There is no provision in the Act granting express power of review to the State Government with regard to an order made under Section 42 of the Act. In the absence of any such express power, it is manifest that the Director, Consolidation of Holdings, cannot review his previous order of 3rd April, 1958 dismissing the application of Harbhajan Singh under Section 42 of the Act. It follows therefore that the order of the Director dated 29th August, 1958 is ultra vires and without jurisdiction and the High Court was right in quashing that order by the grant of a writ under Article 226 of the Constitution."
14. It is also apparent from the records that respondent No. 2 had filed three applications, claiming similar reliefs. A co-sharer is not entitled to file successive applications under Section 42 of the Act for the same relief and also to claim relief in a piecemeal manner, that too, by concealing material facts. It is further evident from the records that respondent No. 2, when filed third application, had failed to disclose filing of earlier two applications and orders passed thereon. In paragraph (1) of his application, respondent No. 2 had wrongly stated that he had, previously not filed any application under Section 42 of the Act. Because of concealment of a material fact, respondent No. 2 was not entitled to any relief.
15. In Jot Ram and Anr. v. State of Haryana and Ors., 1983 Revenue Law Reporter 360, a Single Bench of this Court while dealing with a similar situation, had opined as under:-
"The petitioner has challenged the a foresaid order on the ground that second application under Section 42 of the Act amounts to review and the Additional Director had no authority in law for review. It is settled law that under the Act, the second application under Section 42 of the Act cannot be entertained by the Additional Director. Moreover, respondent No. 4 concealed the fact of his filing the previous application under Section 42 of the Act. In his second application against column No. 9 which pertained to whether any earlier application under Section 42 was filed by the petitioner, he did not disclose the factum of his earlier application which he should have disclosed in all fairness. He should have taken all the grounds in his earlier application regarding, all categories of land and the piecemeal applications cannot be permitted between the same parties."
16. It is apparent from the records that Consolidation proceedings were concluded in the village in the year 1972. Application Annexure P/4 was filed in 1986 i.e. after about 14 years of conclusion of consolidation proceedings. No explanation whatsoever was given by respondent No. 2 for moving the third application after such a long period.
17. In view of law laid down by their Lordships of the Hon'ble Supreme Court in Gram Panchayat Kakran v. Addl. Director of Consolidation and Anr., J.T. 1997(8) S.C. 430, application under Section 42 of the Act, having been filed after a long delay, without any explanation for the same, was liable to be rejected.
18. Further arguments of the counsel for the petitioners that by passing order, Annexure P/5, respondent No. 1 had virtually decided the question of title between the parties, has also force. It is apparent from the records that before the start of consolidation proceedings, father of petitioner No. 1 and respondent Nos. 2 and 3 had made a gift deed in the year 1958, in favour of petitioner No. 1 Rachhpal Singh and respondent No. 3 regarding one half share of the land measuring 250 kanals and 6 marlas. During consolidation proceedings, after necessary calculation, land, referred to above, was reduced to 102 kanais and 2-1/2 marlas. Litigation was going on between the parties. The Civil Court, after conclusion of consolidation proceedings, passed a decree of joint possession on 26.3.1975 (Annexure P/1), vide with joint possession of his share qua 101 kanals and 2-1/2 marlas of land was granted to respondent No. 2, rest of his claim was rejected. Respondent No. 2 filed an execution application on 16.11.1978, which was dismissed. He failed in appeal on 14.6.1986. Further revision in High Court was also dismissed on 20.2.1991.
19. Respondent No. 2 then moved an application under Sections 151, 152, 153 of C.P.C. with a prayer that judgment and decree, Annexure P/1, be amended. That application was allowed and permission was granted to respondent No. 2 to lead evidence before executing court to show that as to which land, was carved out, in consolidation proceedings, in lieu of land, which was subject matter of decree, Annexure P/1. Execution application was pending for 20.9.1986. Under these circumstances, while passing order, Annexure P/5, respondent No. 1 was not justified to determine and opine regarding share of respondent Nos. 2 and 3 in the land, in dispute.
20. It is also apparent from the records that share of respondent Nos. 2 and 3 was wrongly noted by respondent No. 1, while passing order under challenge. Authorities exercising powers under Section 42 of the Act, are not competent to go into question of title amongst the co-sharers, as such, order passed is liable to be set aside on this ground too.
21. Contention of Sh. Chawla, that since order, under challenge, is only a remand order, writ petition was not competent, is liable to be rejected. It is apparent from the records that while passing order, Annexure P/5, specific directions had been given to the consolidation officer which were binding upon that officer. Rights of the parties had been determined wrongly while remanding the matter for further action by the consolidation officer. To that extent, order, Annexure P/5 was final, as such, it is rightly challenged by filing the present writ petition.
22. Another contention of Sh. Chawla, that since one of the co-sharers has not been impleaded as a party, writ petition is liable to be rejected, is devoid of any force. It has not been brought to the notice of the Court that interest of respondent Nos. 2 and 3 was different from that co-sharer, who was not impleaded as a party in this writ petition. Record reveals that her interest was similar to that of respondent Nos. 2 and 3. It is an established law that service upon of the co-sharers is sufficient for the purpose of deciding disputes under the act.
23. in Biru and Anr. v. Suraj Bhan and Ors., (1983) 85 P.L.R. 568 (F.B.) a Full Bench of this Court has specifically opined that, in the matter of consolidation, it is not necessary to imp lead all the co-sharers and then serve them individually, it is sufficient to give hearing to one or some of them in case their interest is common and there is no fraud or collusion or failure of fair or real trial of issues.
24. In the present case, counsel for the respondent No. 2 has failed to show as to how the case of the respondent is covered under any of the exceptions laid down by the Full Bench in Biru's case (supra). He also failed to show as to what other defence, than the one which has been put forward by the respondent before this court, would have been agitated by those co-sharers, who are not impleaded in this writ petition.
25. In view of reasoning given above, this writ petition is allowed and the order, Annexure P/5, under challenge, is quashed. No order as to costs.
Print Page
in Biru and Anr. v. Suraj Bhan and Ors., (1983) 85 P.L.R. 568 (F.B.) a Full Bench of this Court has specifically opined that, in the matter of consolidation, it is not necessary to implead all the co-sharers and then serve them individually, it is sufficient to give hearing to one or some of them in case their interest is common and there is no fraud or collusion or failure of fair or real trial of issues.
Punjab-Haryana High Court
Rachhpal Singh And Anr. vs The Addl. Director Consolidation ... on 2 February, 2005
Equivalent citations: (2005) 140 PLR 419
1. In this writ petition, petitioners have prayed that order, Annexure P/5 and 9.7.1986 be quashed.2. It is case of the petitioners that they alongwith respondent Nos. 2 and 3 were co-sharers. During consolidation proceedings, which were concluded in the year 1972, they were allotted land as per their entitlement. Respondent No. 2 (since dead) was not satisfied with the allotment, filed an application, claiming more land. He was given the desired relief vide order dated 10.5.1973 and accordingly necessary changes were incorporated in jamabandi for the year 1979-1980 (Annexure P/2). Still dissatisfied, respondent No. 2 again filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, 'the Act'), claiming following relief:-
"(i) that the shape of his abadi plot be made rectangular.
(ii) that he should be given area under his garden equivalent to his possession.
(iii) that a path be provided to his Kurah in Killa No. 29/26/2."
3. Vide order dated 14.11.1974 (Annexure P/3), the then Additional Director rejected the claim of the respondents, so far as at (i) and (ii) above is concerned. However, relief was granted by providing passage to his land falling in khasra No. 29/726/2, as prayed for at (iii) above.
4. By concealing factum of filing of earlier two applications under Section 42 of the Act, respondent No. 2 again moved another application under Section 42 of the Act, claiming similar relief as was claimed by them in earlier application, which was decided vide order dated 14.11.1974. It has also been stated that civil litigation was going on between the parties and the matter was pending before the executing court. Without considering objections raised by the petitioners, respondent No. 1 allowed the application of respondent Nos. 2 and 3, by passing order dated 9.7.1986 (Annexure P/5), which is impugned in this writ petition.
5. Upon notice, written statement has been filed by the private respondents, wherein allegations levelled by the petitioners, have vehemently been controverted. However, as is evident from the contents of written statement filed, factum of filing of earlier applications, have not been controverted by them. Rather same stands a admitted.
6. Counsel, appearing for the petitioners, has vehemently contended that by passing order, Annexure P/5, respondent No. 1 had virtually reviewed earlier order, Annexure P/3, which was not permissible. He further submitted that while filing application, Annexure P/4, factum of filing of earlier two applications, claiming similar relief, was concealed. Application Annexure P/4, having been moved beyond a period of limitation, was liable to be rejected. He has further argued that by passing order, under challenge, respondent No. 1 had virtually ordered execution of judgment and decree passed by the civil court, Annexure P/1, regarding which, proceedings were going on before the competent civil court. He prayed that order, being without any jurisdiction, be quashed.
7. Mr. G.K. Chawla, Advocate, appearing for respondent Nos. 2 and 3 , has vehemently controverted arguments raised by counsel for the petitioners, by stating that order, Annexure P/5, was most equitable, as by that order, land had been allotted on circular road, to the respondents, with a view to avoid further litigation. He further stated that order, Annexure P/5, was only a remand order, as such, writ petition is not competent to challenge the same. He has also raised objection that since the petitioners have failed to implead one of the co-shares, namely, Maya Devi, in view of that, writ petition deserves dismissal. He further argued that right of the respondents, in dispute, is established by decree, Annexure P/1 and vide order, under challenge, it had only been ordered that necessary entries be made in that regard in the revenue record. He prayed that writ petition be dismissed having no substance.
8. After hearing counsel for the parties, this Court is of the considered opinion that arguments raised by counsel for the petitioners have substance and in view of that this writ petition deserves to be allowed.
9. It is admitted fact that re-partition proceedings came to an end in the year 1972. On an application under Section 42 of the Act, moved by respondent No. 2, vide order dated 10.5.1973, necessary relief was granted to him. Thereafter, he again moved an application on 30.7.1973, with a prayer that shape of abadi plot allotted to him be rectified, area under garden be allotted to him, as per his possession and path be provided to his land situated under Khasra No. 297/26/2, vide order dated 14.11.1974, (Annexure P/3), his two prayers were rejected, however, third prayer was granted and passage was provided to his kurah, as prayed by him.
10. By concealing factum of filing of earlier two applications, he moved third application under Section 42 of the Act, claiming similar relief, which was earlier death with by the competent authority while passing order, Annexure P/3 and got passed order, Annexure P/5. It is evident that, by passing order, Annexure P/5, respondent No. 1 had virtually reviewed earlier order dated 14.11.1974 (Annexure P/3), passed by the competent authority.
11. This Court is of the view that while passing order, under challenge, respondent No. 1 had acted beyond jurisdiction. As per established law, authorities, exercising powers under Section 42 of the Act, are quasi judicial in nature and have no power to review. It has been so held by a Full Bench of this Court in Deep Chand and Anr. v. Additional Director, Consolidation of Holdings, Punjab Jullundur, and Anr., (1964)66 The Punjab Law Reporter 318.
12. In that case, it was observed that an Additional Director of Consolidations, exercising powers of the Government under Section 42 of the Act, was not empowered to review his earlier orders passed on merits, even though the orders may be erroneous or unjust. In the present case, this court is of the opinion that even order passed earlier i.e. Annexure p/3 was perfectly justified and equitable.
13. In Harbhajan Singh v. Karam Singh and Ors., A.I.R. 1966 Supreme Court 641, their Lordships of the Hon'ble Supreme Court, while dealing with a similar situation, after taking note of the provisions of Section 42 of the Act, had opined as under:-
"5. There is no provision in the Act granting express power of review to the State Government with regard to an order made under Section 42 of the Act. In the absence of any such express power, it is manifest that the Director, Consolidation of Holdings, cannot review his previous order of 3rd April, 1958 dismissing the application of Harbhajan Singh under Section 42 of the Act. It follows therefore that the order of the Director dated 29th August, 1958 is ultra vires and without jurisdiction and the High Court was right in quashing that order by the grant of a writ under Article 226 of the Constitution."
14. It is also apparent from the records that respondent No. 2 had filed three applications, claiming similar reliefs. A co-sharer is not entitled to file successive applications under Section 42 of the Act for the same relief and also to claim relief in a piecemeal manner, that too, by concealing material facts. It is further evident from the records that respondent No. 2, when filed third application, had failed to disclose filing of earlier two applications and orders passed thereon. In paragraph (1) of his application, respondent No. 2 had wrongly stated that he had, previously not filed any application under Section 42 of the Act. Because of concealment of a material fact, respondent No. 2 was not entitled to any relief.
15. In Jot Ram and Anr. v. State of Haryana and Ors., 1983 Revenue Law Reporter 360, a Single Bench of this Court while dealing with a similar situation, had opined as under:-
"The petitioner has challenged the a foresaid order on the ground that second application under Section 42 of the Act amounts to review and the Additional Director had no authority in law for review. It is settled law that under the Act, the second application under Section 42 of the Act cannot be entertained by the Additional Director. Moreover, respondent No. 4 concealed the fact of his filing the previous application under Section 42 of the Act. In his second application against column No. 9 which pertained to whether any earlier application under Section 42 was filed by the petitioner, he did not disclose the factum of his earlier application which he should have disclosed in all fairness. He should have taken all the grounds in his earlier application regarding, all categories of land and the piecemeal applications cannot be permitted between the same parties."
16. It is apparent from the records that Consolidation proceedings were concluded in the village in the year 1972. Application Annexure P/4 was filed in 1986 i.e. after about 14 years of conclusion of consolidation proceedings. No explanation whatsoever was given by respondent No. 2 for moving the third application after such a long period.
17. In view of law laid down by their Lordships of the Hon'ble Supreme Court in Gram Panchayat Kakran v. Addl. Director of Consolidation and Anr., J.T. 1997(8) S.C. 430, application under Section 42 of the Act, having been filed after a long delay, without any explanation for the same, was liable to be rejected.
18. Further arguments of the counsel for the petitioners that by passing order, Annexure P/5, respondent No. 1 had virtually decided the question of title between the parties, has also force. It is apparent from the records that before the start of consolidation proceedings, father of petitioner No. 1 and respondent Nos. 2 and 3 had made a gift deed in the year 1958, in favour of petitioner No. 1 Rachhpal Singh and respondent No. 3 regarding one half share of the land measuring 250 kanals and 6 marlas. During consolidation proceedings, after necessary calculation, land, referred to above, was reduced to 102 kanais and 2-1/2 marlas. Litigation was going on between the parties. The Civil Court, after conclusion of consolidation proceedings, passed a decree of joint possession on 26.3.1975 (Annexure P/1), vide with joint possession of his share qua 101 kanals and 2-1/2 marlas of land was granted to respondent No. 2, rest of his claim was rejected. Respondent No. 2 filed an execution application on 16.11.1978, which was dismissed. He failed in appeal on 14.6.1986. Further revision in High Court was also dismissed on 20.2.1991.
19. Respondent No. 2 then moved an application under Sections 151, 152, 153 of C.P.C. with a prayer that judgment and decree, Annexure P/1, be amended. That application was allowed and permission was granted to respondent No. 2 to lead evidence before executing court to show that as to which land, was carved out, in consolidation proceedings, in lieu of land, which was subject matter of decree, Annexure P/1. Execution application was pending for 20.9.1986. Under these circumstances, while passing order, Annexure P/5, respondent No. 1 was not justified to determine and opine regarding share of respondent Nos. 2 and 3 in the land, in dispute.
20. It is also apparent from the records that share of respondent Nos. 2 and 3 was wrongly noted by respondent No. 1, while passing order under challenge. Authorities exercising powers under Section 42 of the Act, are not competent to go into question of title amongst the co-sharers, as such, order passed is liable to be set aside on this ground too.
21. Contention of Sh. Chawla, that since order, under challenge, is only a remand order, writ petition was not competent, is liable to be rejected. It is apparent from the records that while passing order, Annexure P/5, specific directions had been given to the consolidation officer which were binding upon that officer. Rights of the parties had been determined wrongly while remanding the matter for further action by the consolidation officer. To that extent, order, Annexure P/5 was final, as such, it is rightly challenged by filing the present writ petition.
22. Another contention of Sh. Chawla, that since one of the co-sharers has not been impleaded as a party, writ petition is liable to be rejected, is devoid of any force. It has not been brought to the notice of the Court that interest of respondent Nos. 2 and 3 was different from that co-sharer, who was not impleaded as a party in this writ petition. Record reveals that her interest was similar to that of respondent Nos. 2 and 3. It is an established law that service upon of the co-sharers is sufficient for the purpose of deciding disputes under the act.
23. in Biru and Anr. v. Suraj Bhan and Ors., (1983) 85 P.L.R. 568 (F.B.) a Full Bench of this Court has specifically opined that, in the matter of consolidation, it is not necessary to imp lead all the co-sharers and then serve them individually, it is sufficient to give hearing to one or some of them in case their interest is common and there is no fraud or collusion or failure of fair or real trial of issues.
24. In the present case, counsel for the respondent No. 2 has failed to show as to how the case of the respondent is covered under any of the exceptions laid down by the Full Bench in Biru's case (supra). He also failed to show as to what other defence, than the one which has been put forward by the respondent before this court, would have been agitated by those co-sharers, who are not impleaded in this writ petition.
25. In view of reasoning given above, this writ petition is allowed and the order, Annexure P/5, under challenge, is quashed. No order as to costs.
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