IMPORTANT POINT
Decision without notice to the defendant cannot be sustained.

JUDGMENT :

Shiva Kirti Singh, J.

1. Heard the parties at some length. Leave granted.

2. By the impugned order dated January 15, 2013 the High Court of Delhi has dismissed L.P.A. No.39 of 2013 preferred by the appellant. As a consequence the judgment and order passed by the learned Single Judge dated 13.12.2012 passed in W.P.(C)No.7124/2009 as well as order passed in review from that order, dated 18.12.2012 stand affirmed.

3. The relevant facts leading to the aforesaid orders of the High Court need to be noticed only in brief. Consolidation proceedings under The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 [hereinafter referred to as ‘the 1948 Act’] commenced in Village Karala, Delhi around 1975 and concluded in 1976. After about 23 years of closure of consolidation proceedings, on 16.4.1999 the contesting respondents no.4 to 7 filed an application under Section 43A of the 1948 Act, seeking allotment of land of Khasra No.168 on the ground that during the consolidation proceedings their father late Rajender Singh was found to be in possession over the area of 11 biswas of Scheme Khasra No.168 (old Khasra No.703). Such possession was allegedly reflected in the Scheme of Consolidation of the village and described as – “Scheme Kabizan”. The consequent Case No.2/CO/1999 was initially dismissed by the Consolidation Officer by order dated 11.05.1999 on the ground that consolidation proceedings had been completed long back and hence the Consolidation Officer had become functus officio. That order was however reversed by the Financial Commissioner before whom the parties agreed that the Consolidation Officer still had jurisdiction in respect of an application invoking powers under Section 43A of the 1948 Act. After remand, the Consolidation Officer commenced hearing of the case but it was disrupted on account of a necessity to implead legal representatives of late Baljit Singh on whom notices were ordered to be issued on 04.10.2004. The order passed on 04.10.2004 did not indicate any further date for hearing. The next order dated 18.10.2004 noted service of notices on the concerned legal representatives of Baljit Singh. It also recorded presence of the applicant Tej Ram along with his counsel. Evidently the appellant or his counsel were not present on that date or on the next date which was fixed as 16.11.2004. On the next further date, i.e., 24.12.2004, the Consolidation Officer allowed the claim after noticing presence of only Tej Ram. Inspite of the presence of the appellant or his counsel not mentioned, at one place the order records that the counsel for respondent had argued the case at length and had pressed for dismissal of the petition because father of the claimants did not claim during his lifetime and allegedly the claim was inappropriate at such late stage. The order also records that as per revenue records the aforesaid land had been allotted in the name of respondents no.3 to 7 as joint holding of the respondents separated during consolidation proceedings. It was also noticed that the encumbrances on the said land were only against the appellant Rajender Singh son of Hoshiar Singh. As per order the revenue records were perused along with the consolidation scheme leading to fresh allotment to Tej Ram and others of new Khasra No.168 having area of 11 biswas on the basis of “Scheme Kabizan”. In light of such allotment the Halka Patwari was directed to make corresponding entries in the revenue records.

4. Against the order of Consolidation Officer allowing the claim of respondents Tej Ram and others the appellant and the proforma respondents filed a Revision Petition in the court of Financial Commissioner, Delhi bearing Case No.47/2005-CA. The case of the appellant was that no opportunity of hearing was given by the Consolidation Officer and the order was passed by manipulating the records when in fact no notice of hearing was ever issued after the decision to issue notice to legal representatives