Vinod K. Sharma, J.@mdashPresent Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed to challenge exparte order passed by respondent No. 1 as well as order Annexure P-3 vide which he has refused to entertain petition u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the Act) for setting aside exparte order passed against the petitioner.
2. It was prayed by the petitioner that an application was made by respondent Nos. 2 to 6 u/s 42 of the Act in which only Tehsildar Sales (Surplus), Hoshiarpur was impleaded as a party. The prayer made in the application was that surplus land situated at another place be substituted with another surplus land. Said application was allowed on the consent given by Naib Tehsildar Agrarian. In pursuance to the order passed by the Additional Director, Consolidation of Holdings, Punjab, on an application moved by respondent No. 2 the petitioner was dispossessed from the land in dispute which resulted in filing of civil suit in civil court at Hoshiarpur. The petitioner succeeded before the trial Court but appeal was decided against him against which the petitioner filed regular second appeal No. 1933 of 1984 which was admitted for hearing.
3. In the civil suit on appreciation of evidence a findings was recorded that the petitioner was put in possession of the land which was declared to be surplus in the hands of Banarsi Dass. However, it was on account of impugned order Annexure P-l that the appeal was accepted by the learned lower appellate court as it was held that in view of the order Annexure P-l, the petitioner has no right in the land and therefore, was not entitled to declaration that he was owner in possession of the land.
4. It was further the case of the petitioner that after coming to know about the said order he moved an application u/s 42 of the Act for recall of exparte order on the plea that even though he was interested party he had no notice of the same. However, the said application was also dismissed by observing that the petitioner was not a necessary party, as Agrarian Department which transferred the land to the petitioner was necessary party as the petitioner drew his title through Agrarian Department which was duly represented. The application was also held to be time barred.
5. Learned Counsel for the petitioner has challenged the orders Annexure P-l and P-3 primarily on the ground that the orders have been passed in violation of principles of natural justice as in spite of the allotment and possession having been given to the petitioner no notice was served upon him while passing order Annexure P-1. In support of this contention learned Counsel for the petitioner has placed reliance on the judgment Of Hon''ble Supreme Court in the case of
4. The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order u/s 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being heard due to his illness seems to us to amount to a finding that the proviso could not be complied with so that the previous order could not be held to be an order duly passed u/s 42 of the Act. It could be ignored as non est. The view taken in Harbhajan Singh''s case (supra) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are non est can be ignored at any stage.
6. Learned Counsel for the petitioner also placed reliance on the judgment of this Court in Gram Panchayat of village Serohi Behali and Ors. v. Har Lal and Ors. (1971) 73 P.L.R. 1009 wherein a Division Bench of this Court was pleased to lay down as under:
3. The learned Counsel for the appellant has, however, submitted that the words "parties interested" in the proviso to Section 42 of the Act only relate to the right holders and not the tenants or other persons in possession of the land otherwise than as right holders. We regret our inability to agree to that submission. The words ''parties interested in the proviso means persons whose rights of the ownership or possession or any other rights in the land will be effected by the adjudication u/s 42 of the Act. The reason is that no order adverse to the interest of any person whatever can be made without issuing notice to him and affording him an opportunity of being heard and that is the purpose and the intention of the proviso. It cannot be confined only to the right holders. The tenants have also a right to be heard in order to safeguard their tenancy rights and to secure that, in case of any other land being allotted to the landowner under whom they are tenants, their rights in that land are protected and that the land allotted in lieu of the land going to be taken away from them in such a land which is cultivable and their interest as tenants will not in any way suffer. The learned Judge has not decided the merits of the case which he has left to the additional Director to decide afresh in the presence of the writ petitioners. No fault, can therefore, be found with that order. We accordingly find no merit in this appeal and dismiss the same with costs.
In view of the authoritative pronouncements referred to above the impugned orders i cannot be sustained and they are accordingly set aside. Respondent No. 1 was also wrong in dismissing the application to be time barred in spite of the fact that a specific stand was taken that the petitioner was not party to the impugned order Annexure P-l and application u/s 42 of the Act had been moved immediately on coming to know about the same and therefore, it could not be said that the application moved was time barred.
Consequently, this writ petition is allowed and the impugned orders Annexures P-1 and P-3 are set aside and the case is remanded back to the learned Additional Director, Consolidation of Holdings, Punjab for decision on merit after giving an opportunity to all interested parties in the case.
