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1993 Supreme(P&H) 769
PUNJAB & HARYANA HIGH COURT
V.K.Bali, J.
Tellu
Versus
State Of Punjab
Civil Writ Petition No. 2389 of 1987,
Decided On : SEPTEMBER 21, 1993
Notice to affected parties is mandatory before passing any order under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
Headnote:
LAND REFORMS - CONSOLIDATION OF HOLDINGS - REPARTITION - BOUNDARY DISPUTE - NOTICE TO AFFECTED PARTIES - SECTION 42, EAST PUNJAB HOLDINGS (CONSOLIDATION AND PREVENTION OF FRAGMENTATION) ACT, 1948 - NOTICE TO AFFECTED PARTIES MANDATORY - ORDER WITHOUT NOTICE QUASHED.
Fact of the Case:
Petitioner challenged the orders passed by the Director, Consolidation of Holdings and Consolidation Officer, quashing the repartition proceedings carried out in 1952-53 under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (Act of 1948). The petitioner, who purchased land in 1968, alleged that the orders were passed without notice to him and without hearing the Gram Panchayat of the affected village.
Finding of the Court:
The court held that the orders passed by the Director, Consolidation and Consolidation Officer were illegal and liable to be quashed. It held that the petitioner, as an affected party, should have been given notice and an opportunity of hearing before passing the orders. The court also held that the principle of audi alteram partem was totally ignored while passing the impugned orders.
Issues: 1. Whether the Director, Consolidation and Consolidation Officer could pass orders affecting the rights of the petitioner without giving him notice and an opportunity of hearing? 2. Whether the principle of audi alteram partem was violated in the present case?
Ratio Decidendi: The court relied on the provisions of Section 42 of the Act of 1948, which requires notice to be given to the affected parties before passing any order under the said section. The court also relied on the principle of audi alteram partem, which requires that no one should be condemned unheard.
Final Decision: The court allowed the petitions, quashed the impugned orders, and directed the Director, Consolidation to re-hear the application filed by the respondents after hearing all the affected parties and dispose of the same in accordance with law.
V.K.Bali, J.
1. This order will dispose of two connected writ petition Nos. 2389 of 1987 and 2542 of 1987 as common questions of law and facts are involved therein. The facts, however, have been extracted from Civil Writ Petition No. 2389 of 1987, Tellu v. State of Punjab and Ors. Prayer in both the petitions is to quash the orders, Annexures P-2 and P-3, passed by the Director, Consolidation of Holdings as also Consolidation Officer, dated November 28,1985 and May 15, 1986 respectively.
2. The facts of the case reveal that the proceedings of consolidation of holdings were carried out and completed in village Ramgarh Chanan in the year 1952-53. The consolidation Officer carried out repartition proceedings under Section 21(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (here-in-after referred to as the Act of 1948) in accordance with the scheme. The possession were exchanged in the same year and thus the repartition became final. Records of rights were prepared under Section 22 of the Act. It is pleaded that there was no boundary wall dispute between village Leloda and Ramgarh Chhanan and all the right holders were given Kurras according to their entitlement without any objection either regarding wrong fixation of boundary or deficiency in area. Petitioner, who was in cultivating possession of land comprised in Khasra Nos. 220/2 and 221, total measuring 8 bighas as tenant of S. Baldev Singh, purchased this land from him vide registered sale deed dated June 20, 1968 and mutation No. 77 was sanctioned on September 23, 1968. He remained in cultivating possession of the land as owner since then and no objection regarding boundary line or otherwise was ever raised by either Gram Panchayat, Laloda or any other right holder of the villages. It is pleaded that the land purchased by petitioner was situated on the boundary of villages Laloda and Ramgarh Chhanan. Respondents No. 3 and 4 however, years and years thereafter in the year 1985 filed an application under Section 42 of the Act of 1948 before the Director, Consolidation of Holdings. It is specifically pleaded in para 6 of the petition that in the application aforesaid the Director did not issue any notice to petitioner and no opportunity of hearing was afforded to him. The Director Consolidation proceeded hastily and decided the application within three weeks without complying with the provisions of the Act of 1949. It is pleaded that even the Gram Panchayat of village Ramgarh Chhanan was not summoned and heard. The reason for proceedings in the matter in utmost haste is stated to be that respondent Nos. 3 and 4 were the real sister and nephew of the then Chief Minister, Punjab and the husband of respondent No. 3 was Chairman of Punjab School Education Board, Mohali. The Director, Consolidation decided the application, it is pleaded, under influence of the persons aforesaid and at the back of the right-holders and Gram panchayat of Ramgarh Chhanan who were affected parties. In pursuance of the orders passed by the Director, Consolidation, the Consolidation Officer proceeded with the matter and vide order, Annexure P-3, dated May 15, 1986 effected major changes not only in the boundaries of the right-holders but also in the possession that had ripened into ownership since long. It is these two orders as indicated above, that have been assailed in these writ petitions.
3. A short reply has been filed by respondent Nos. 3 and 4 and in paragraph 4 thereof it has been pleaded that petitioner Telu Ram was not summoned by the Director, Consolidation when he passed the order dated October 28, 1985. However, it is pleaded that the prayer in the application under Section 42 of the Act of 1948 was only for demarcation of the land allotted to the respondents. They had not asked for any change in the scheme nor were they asking for any change of Kurras not they were praying for repartition. It is further pleaded that under proviso to Section 4
