KISHNA RAM Vs. ASSISTANT COLLECTOR IST GRADE

JUDGEMENT

(1.) PETITIONER, Kishna Ram, seeks through the present petition a writ in the nature of certiorari so as to quash the orders Annexures P-3, P-4, P-5 and P-6, passed by the Assistant Collector Ist Grade, the Collector, the Appellate Commissioner, Hissar Division, and the Financial Commissioner, Haryana. Brief facts of the case need to be noticed first The petitioner states that he owns land jointly with his two brothers, namely, Hari Ram and Gopal, in village Ram Sara, tehsil Fazilka, district Ferozepore, as also another piece of land again jointly owned with his two brothers in village Nathusari kalan, tehsil and district Sirsa. The petitioner states that he has l/9th share in the joint Khewat owned by him alongwith his brothers in village Nathusar Kalan and the total land is 321 Bigrras, whereas his share comes to 35-Bighas 14-Biswas, equivalent to 22 Acres 2 Kanals and 10 Marlas. Brothers of the petitioner sold away their entire share in the joint holding in village Nathusari Kalan through sale deed dated June 27, 1966 The petitioner had earlier approached this Court, when proceedings for declaring his land as surplus were initiated. The said writ petition bearing No. 628 of 1966 was filed by him alongwith his two tenants, namely, Rati Ram and Moman, wherein the order passed by the Special Collector was impugned in the judgment that came to be recorded in the aforesaid writ petition on February 7, 1975, it was held that the order with regard to surplus area of the petitioner shall be passed after hearing him. The case of the petitioner is that the Collector is still seized of the matter and has not so far passed any order in compliance with order of this Court However, during the pendency of the writ petition, referred to above, Beg Raj son of Gaura, respondent No. 6, clairning himself to be a tenant under the petitioner on the land situate in village Nathusari Kalan, made an application for purchase of land under Section 18 of the Punjab Security of Land Tenures Act on September 24, 1968. The Assistant Collector 1st Grade vide his order dated March 24, 1970, accepted the purchase application, thus, constraining him to file an appeal on May 30, 1972. It is his case that since he was not present before the Assistant Collector when the order was passed, he derived knowledge of the said order on May 24, 1972. The Collector, Sirsa, however, vide his order dated October 4, 1972, consigned the appeal to the record ex-parte on the ground that neither the petitioner nor his counsel was present. On the same very date, i. e. October 4, 1972, an application for restoration was moved, but the same was also rejected on November 25, 1975. Aggrieved, the petitioner filed an appeal before the Appellate Comissioner, Hissar Division, which, too, was dismissed on December 9, 1976. The petitioner thereafter filed a revision before the Financial Commissioner, which, too, was dismissed on August 21, 1979. Merits of the case apart, the main case of the petitioner, as projected in the pleadings, is that there was no justification for the authorities not to restore the petition filed by the petitioner, particularly when the application for restoration was moved on the same date when the appeal was dismissed

(2.) THIS petition has been contested on behalf of respondent No. 6, Beg Raj. It has been pleaded in the written statement that even though the civil writ petition was filed by the petitioner and Rati Ram and Moman Ram and the same was allowed, but the directions issued were only to redetermine the area declared surplus as no opportunity had been given to Ratti Ram and Moman Ram before including the area under their tenancy in the surplus area of the petitioner in terms of Section 24-A (2) of the Punjab Security of Land Tenures Act. It is pleaded that this Court did not set aside the decision of the Collector dated 14-9-1960/21-3-1966. It is also stated that the petitioner or his brothers did not put in appearance despite service and were accordingly proceeded ex-parte before the Assistant Collector 1st Grade and that it was incorrect that the petitioner came to know about the purchase application and decision recorded thereon only on May 24, 1972. It is further said that the petitioner or his counsel did not put in appearance when the appeal was called for hearing and the same was rightly dismissed and there was no good cause shown for restoration of the same.

(3.) AFTER perusing the record of this case, I am of the confirmed view that the authorities below did not consider the matter in right perspective and wrongly dismissed the petition filed on behalf of the petitioner for restoration of the appeal. The ground taken in the application for restoration was that when the case was called, the counsel representing the petitioner, was busy in another case in another Court. The moment he was free, he came to attend this case, which in the meanwhile was dismissed. This particular aspect of the matter was not disputed and all that was mentioned was that the petitioner had already lingered the case tremendously and he was doing this knowingly with a view to harass the tenants. The Collector while dealing with the matter only observed that counsel for the petitioner was busy in some other Court, the appellant should have appeared or Clerk of the counsel could have appeared. Inasmuch as no such action was taken, it was clear that the petitioner was no more interested in prosecution of the case. When the matter was taken before the Commissioner in appeal and it was pleaded that non-appearance of the counsel for the petitioner was on account of a sufficient cause and bona fide and that in any case the matter could not be dismissed in default in early hours, the Commissioner observed that it was clear that neither the counsel for the appellant nor his clerk nor the petitioner was present in the Court and that the law that cases should not be dismissed in default in early hours is applicable only to civil Courts because the Collectors (Deputy Commissioners) do not attend to the Court work in the entire day and since the order of dismissal was passed at 12. 15 noon, the same was correct. The Financial Commissioner disposed of the matter by only observing that no injustice was caused to the petitioner nor there was any irregularity. Even the bare minimum brief facts of the case with regard to restoration were not noticed It has been repeatedly held by this Court that the procedural law if works injustice to a citizen, the same should not be very strictly adhered. Even though when the case was called the petitioner or his counsel or clerk of his counsel were not present, but the fact remains that the application for restoration was filed on the very date when the case was dismissed in default. Non-appearance of the counsel was for sufficient cause as when the case was called, he was appearing in another Court. Once this aspect of the matter was not disputed, I find no justification whatsoever in the order passed by the authorities declining the petitioner's request for restoration of the case, A citizen is entitled to a decision of his cause on merits and this is what precisely has been declined to the petitioner in the present case.