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2009 DIGILAW 356 (HP)

Bhodi v. Dalumbi

2009-04-21

DEV DARSHAN SUD

body2009
Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court declaring her to be the owner in possession of land comprised in Khasra No.142/1, measuring 6 Biswas, situated in village Pangal, Tehsil Sadar, District Bilaspur, H.P. and that the order dated 30.1.1986 Ex.P1 passed by the Director Consolidation under the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act (hereinafter referred to as the `Act’) is illegal or not binding on her interest. The grievance made by the plaintiff was that in revision proceedings under Section 54 of the Act supra, the plaintiff-appellant was not served and as such, did not bind her interest nor could such order determine her rights. The learned trial Court on appraisal of the material on record, determined two important issues, namely, that she was not properly represented before the Director Consolidation and that Shri Sham Lal, proforma defendant, who is her brother, was not authorized to make any statement on her behalf. The learned District Judge, in the appeal preferred by the defendants, set aside the order holding that Ex.D-3, which is the certified copy of the statement made by Sham Lal binds the interest of the plaintiff and that there was no evidence on record to show that no proper service had been effected on the plaintiff. This appeal was admitted on the following substantial questions of law:- “1.Whether in view of the provisions of Section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, a civil Court has no jurisdiction to try the suit? 2. Whether the civil Courts have jurisdiction to interfere in case an authority (Director of Consolidation) exercises the jurisdiction not vested in it or the jurisdiction is exercised duly vested in it illegally or violates the principles of natural justice which causes prejudices to the rights of the parties? 3. Whether the Director of Consolidation of Land Holdings, H.P. was required to issue and serve the notice of appeal on the plaintiff before the passing of impugned orders, dated 30.1.1986? 4. Whether the statement before the Director of Consolidation of Land Holdings, H.P. made by Shri Shayam Lal who had no authority or power on behalf of the plaintiff can be read against the plaintiff and is binding on her? 4. Whether the statement before the Director of Consolidation of Land Holdings, H.P. made by Shri Shayam Lal who had no authority or power on behalf of the plaintiff can be read against the plaintiff and is binding on her? Questions No.3 and 4: Dealing with questions No.3 and 4, which are primary questions, I find from the record that the plaintiff has pleaded in no uncertain terms that she was not served in the proceedings pursuant to which the impugned order Ex.P1 was passed by the Director Consolidation. This order is based on the statement Ex.D-3, which has been made by Sham Lal purporting to represent the interest of the plaintiff-appellant herein. I do not find from the record anything to show or suggest that Sham Lal had any authority to represent the plaintiff. Even if it is assumed as held by the learned District Judge that the provisions of the Code of Civil Procedure do not apply, to the proceedings under the Act, it is but fundamental that the principles of natural justice apply and a chance for representation has to be granted to the parties to the proceedings as their rights are being determined. No person can be condemned unheard. Learned counsel appearing for the appellant-plaintiff has also referred to Ex.PX which is the Jamabnandi for the year 1981-82 where the plaintiff-appellant has been shown to be the exclusive owner of the land which belongs to her and not to the proforma respondent Sham Lal. Reference has been made to this document as it was urged that he being a co-sharer in the land had all authority to make any statement before the Director Consolidation. This submission cannot be accepted as a co-owner, would require specific authority to surrender the share of another co-owner. Once there is a conflict of interests between the co-owners, in the absence of a specific authority for relinquishment, no statement contrary to the interest of the plaintiff could have been made. Both these questions are accordingly decided in favour of the plaintiff. I hold that it was the duty of the Director Consolidation to have ensured proper representation of the plaintiff before any order contrary to her interest was made. Questions No.1 and 2: On questions No.1 and 2 the matter is no longer res-integra. Both these questions are accordingly decided in favour of the plaintiff. I hold that it was the duty of the Director Consolidation to have ensured proper representation of the plaintiff before any order contrary to her interest was made. Questions No.1 and 2: On questions No.1 and 2 the matter is no longer res-integra. This Court while dealing with the provisions of Section 57 of the Act held in Shri Lajpat Rai (Deceased) through his LRs.Smt.Maya Devi and others vs. Smt.Taro Devi and others, 1991(1) S.L.J., 511 that Section 57 does not bar the jurisdiction of the Civil Court to look into the legality of the order(s) passed. This proposition of law has been re-affirmed in RSA No.48 of 1998, titled: Sant Ram vs. Sh.Tulsi (dead) through LRs.Smt.Kansu & Others, decided on 20th March, 2009. There is nothing to indicate in the order that proper service was effected on the plaintiff or that she was given a chance of representation before the decision contrary to her interests was made by the Director. Even otherwise, the proviso to Section 54 of the Act clearly provides for granting an opportunity to the parties of being heard before any order is passed. These questions are, therefore, decided in favour of the appellant. I hold that it was the bounden duty of the Director to have ensured that adequate opportunity is granted to the appellant to represent her case. In the facts and circumstances of this case, the judgment of the learned District Judge is quashed and set aside and that of the trial Court is restored. Ex.P1 is quashed and set aside as being illegal and arbitrary. Having granted this declaration, I further direct that this shall not preclude the Director Consolidation from Respondent-determining the rights of the parties. The Director shall take up the revision petition afresh for decision in accordance with law. For this purpose, the parties through their counsel shall appear before the Director Consolidation on 30.6.2009 who shall dispose of the revision petition in accordance with law not later than 30th December, 2009. There shall be no order as to costs.