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2005 DIGILAW 763 (PNJ)

Maya Devi (Died) through LRs. v. State of Punjab

2005-07-20

JASBIR SINGH

body2005
JUDGMENT Jasbir Singh, J. - The petitioners have filed this writ petition for issuance of writ of certiorari seeking quashment of orders Annexures P-6 and P-7, having been passed contrary to the provisions of The East Punjab Holdings (Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act). It is their primary objection that orders referred to above amount to review of earlier orders (Annexures P-2 and P-3 dated 23rd October 1974 and 4th May, 1975 respectively) passed by respondent No. 1, which he was not competent to do as such are liable to be quashed. 2. As per the averments, it is the case of the petitioners that initially, before consolidation, one Lakha Singh alongwith his co-sharers had purchased land falling in khasra No. 2560 min/1007-1008. During consolidation proceedings, land referred to above of Lakha Singh etc. was kept in the reserved tak i.e. Land was to be allotted to those very landowners who were owner of the land at the time when consolidation proceedings were initiated in the village. Out of the land, referred to above, during consolidation proceedings, new khasra numbers 146/6 and 146/15 were carved out. However, instead of allotting those khasra numbers of Lakha Singh etc., the land falling in khasra No. 1158 measuring 1 kanal 15 marlas was wrongly allotted to Lakha Singh and his co-sharers. When came to know about that mistake, they moved one application under Section 42 of the Act with a prayer that the mistake above be rectified and they be allotted land falling in khasra No. 146/6 and 146/15. Vide order dated 23 October, 1974 (Annexure P-2) the then Additional Director (Consolidation) accepted that application and remanded the matter to be decided by the Consolidation Officer. The Consolidation Officer, vide order dated 4.5.1975 (Annexure P-3) excluded khasra No. 146/6 from the ownership of Jagir Kaur and khasra No. 146/15 from the ownership of Chet Singh and allotted the same to Midha Singh and in lieu thereof khasra No. 1158 was withdrawn from Midha Singh was allotted to above named persons. It was further the case of the petitioners that they had purchased the land falling in khasra No. 146/6 and 146/15 from Lakha Singh etc. though in the sale-deed khasra number mentioned was 1158, which was wrongly allotted to said Lakha Singh etc. It was further the case of the petitioners that they had purchased the land falling in khasra No. 146/6 and 146/15 from Lakha Singh etc. though in the sale-deed khasra number mentioned was 1158, which was wrongly allotted to said Lakha Singh etc. The petitioners further contend that the land in dispute bearing khasra No. 146/6 and 146/15 was wrongly allotted to Nachhatar Singh and Chet Singh etc. during consolidation proceedings and taking benefit of the same, they had sold land falling in those khasra numbers to different persons including the private respondent Nos. 4 to 6. Once mistake of wrong allotment of above mentioned land to Nachhatar Singh etc. was rectified vide orders Annexure P-2 and P-3, respondent Nos. 4 to 6 have no right to claim the land falling in khasra No. 146/6 and 146/15. Due to above confusion, when petitioners failed to get possession of the land purchased by them, they filed a civil suit for possession. However, the said suit was dismissed vide judgment and decree dated 16th May, 1978. Compelled under the circumstances, they filed a petition (Annexure P-5) under Section 42 of the Act before respondent No. 1 with a prayer that entries made vide order dated 4.5.1975, by the Consolidation Officer, by rectified in their favour. It was further prayed by them that order passed by Consolidation Officer be set aside. During pendency of that application, private respondents also filed applications under Section 42 of the Act wherein they made challenge to the orders Annexure P-2 and P-3 on the ground that those orders having been passed, at their back, deserves to be set aside. 3. It is apparent from the records that after hearing application of the petitioners and also that of respondent Nos. 4 to 6, the then Additional Director vide order dated 4.11.1982 (Annexure P-6) set aside the order Annexure P-4 and P-5 and decided to hear afresh original applications moved by the petitioners as well as by Midha Singh etc. and private respondents. Vide order dated 7.1.1983 (Annexure P-7) Additional Director dismissed the original application moved by Midha Singh etc., quashed orders Annexure P-2 and P-3 and also dismissed the application moved by the petitioners. Hence this writ petition. 4. In written statement filed in this writ petition, it has been stated by the private respondents that writ petition is not maintainable. Vide order dated 7.1.1983 (Annexure P-7) Additional Director dismissed the original application moved by Midha Singh etc., quashed orders Annexure P-2 and P-3 and also dismissed the application moved by the petitioners. Hence this writ petition. 4. In written statement filed in this writ petition, it has been stated by the private respondents that writ petition is not maintainable. It has further been stated that there is no question of review of order earlier passed, as those orders were passed at the back of private respondents and they were not heard though they were the necessary parties. It has further been stated that once the petitioners have failed in the civil suit, they had no locus standi to file an application under Section 42 of the Act or the present writ petition. Still further, it was averred that once, after passing of order Annexure P-6 and without challenging the same, the petitioners had participated in proceedings before the then Additional Director, they had no right to challenge Annexure P-6 after passing of order Annexure P-7. It has been prayed that the writ petition be dismissed. 5. After hearing counsel for the parties, this Court is of the view that present writ petition deserves to be dismissed, having no substance. 6. The contention of counsel for the petitioners that by passing orders Annexures P-6 and P-7, the then Additional Director has reviewed his earlier orders Annexure P-2 and P-3 is devoid of any force and hence the same is rejected. It is apparent from the records that during consolidation proceedings, land bearing khasra Nos. 146/6 and 146/15 was allotted to Nachhatar Singh etc. In their application under Section 42 of the Act, Midha Singh etc. did not implead them as respondents though they were necessary party. As such before passing the order Annexures P-2 and P-3, necessary parties were not heard. In view of that those orders were set aside. This Court feels that setting aside of an ex parte order does not amounts to review, as alleged. This view finds support from a judgment of this Court rendered in Jage and another v. Director, Consolidation of Holdings, Haryana and others, 1984 PLJ 128. 7. It is apparent from the records that vide registered sale-deed, the petitioners had purchased land falling in khasra No. 1158 in the year 1973. This view finds support from a judgment of this Court rendered in Jage and another v. Director, Consolidation of Holdings, Haryana and others, 1984 PLJ 128. 7. It is apparent from the records that vide registered sale-deed, the petitioners had purchased land falling in khasra No. 1158 in the year 1973. In view of sale of land in that khasra number, Lakha Singh etc. ceased to be the owner of the same, thereafter, as has been rightly held by respondent No. 1 vide impugned orders, they were not entitled to file any application under Section 42 of the Act for claiming khasra Nos. 146/6 and 146/15. Respondent No. 1 has rightly held that application on the basis of which Annexures P-2 and P-3 were passed was wrongly entertained at the instance of Lakha Singh and Midha Singh etc. It is also apparent from the records that when the petitioner failed to get possession of land falling in khasra Nos. 146/6 and 146/15, they filed a suit recovery against Lakha Singh and successors of Midha Singh etc. on the ground that they had in fact purchased land falling in those khasra numbers, but by playing a fraud land sold was shown falling in khasra No. 1158. By stating that, they prayed that prices of the land be got returned to them. Civil Court rejected their claim on the ground that once vide registered sale-deed, they have purchased a particular khasra number, which at the relevant time, was ownership of the opposite party, the petitioners have no right to claim refund of the sale consideration. It was noticed by the civil Court that when sale-deed was executed, relevant jamabandi was also obtained and attached with sale-deed alongwith a site plan. Judgment passed by the Civil Court (Annexure P-4) clearly establishes that in fact the petitioners had purchased land falling in khasra No. 1158 and subsequent application moved by them before the Consolidation Authorities to lay claim on the land falling in khasra Nos. 146/6 and 146/15 was nothing but a mala fide one to get undue benefit. At one time they had succeeded to some extent, when on their application they were shown as gair marusi tenant under Gurnam Kaur (successor of Midha Singh). However, said mistake was rightly rectified by the then Additional Director by passing orders Annexures P-6 and P-7. 146/6 and 146/15 was nothing but a mala fide one to get undue benefit. At one time they had succeeded to some extent, when on their application they were shown as gair marusi tenant under Gurnam Kaur (successor of Midha Singh). However, said mistake was rightly rectified by the then Additional Director by passing orders Annexures P-6 and P-7. It has come on record that order dated 4.5.1975 (Annexure P-3) was passed by the then C.O. without visiting the spot. During proceedings, when order Annexure P-7 was passed, it was specifically admitted by Tarsem Chand, attorney of Maya Devi petitioner that the land in dispute was not in possession of the petitioner rather it was in possession of the private respondents and they had built up their houses thereon. It has also come on record that when there was no cloud against the title of Nachhatar Singh etc., the private respondents had purchased the land, were put in possession of the same and have constructed their houses etc. over the said property. When an attempt was made to get possession from them on the basis of earlier orders (Annexures P-2 and P-3) passed, at the instance of Midha Singh and Chet Singh etc., then they came to know about those Annexures P-2 and P-3 and immediately moved an applications for setting aside of those orders having been passed at their back. The then Additional Director had came to a conclusion that the private respondents were the bona fide purchasers. It is apparent from the contents of application stated to have been moved by the petitioners themselves under Section 42 of the Act that they had also prayed for quashing of order (Annexure P-3) dated 4.5.1975, which was also the prayer of the private respondents. Vide the impugned orders, same has been done and after that it is not open the petitioners to turn around and say that the orders passed were not justified. In view of reasons above, this writ petition fails and accordingly is dismissed. No order as to costs. Petition dismissed.