- (1.) THIS is an appeal against the order of the Divisional Commissioner,bikaner,dated 30th April, 1955 sanctioning the exchange of chak No. 7 EEA belonging to the respondents with chak No. 13 RB held by the appellants.
(2.) THE facts of the case in brief are that the respondents presented an application before the Collector, Ganganagar, requesting for an exchange of their holding measuring 40 bighas 10 biswas in chak TEA in Tehsil Padampura with an equal area namely 40 bighas 10 biswas out of the holding in chak No. 13 RB in a village in Tehsil Raisinghnagar belonging to the appellants for the purpose of consolidation. THE Collector forwarded this application to the Tehsildar Padampur for a report. THE Tehsildar in his report, dated 4th March, 1955, recommended the proposed exchange. THE S. D. O. endorsed the same and the same was approved by the Collector who submitted the papers for orders of the Commissioner and who in his turn sanctioned the proposal on 30th April, 1955. Being aggrieved with this order, the appellants with whose land the exchange was sanctioned have come up in appeal before the Board. We have carefully gone through the record of the case and heard the learned counsel appearing on behalf of the parties. The order of the lower court is impugned primarily on the ground that none of the subordinate courts including the Commissioner himself ever gave an opportunity to the appellants to put up their objections against the exchange applied for. It was also urged that the procedure adopted by the lower courts was in contravention of the instructions for dealing with the cases of exchange of land issued on 11-12-44 by the then Government of Bikaner. It was also contested that the land in question had been in the cultivatory possession of the appellants in l947and the lower-courts incorrectly observed that it was un-occupied. We have examined the rules about dealing with the cases of exchange of land referred to and have no hesitation in saying that lower courts have followed them more in the breach than in the compliance of the same. According to Rule 1. It is essential that on receipt of an application of exchange Revenue Commissioner, will cause an enquiry to be made into the reasons for the exchange desired by the applicant and the said enquiry should be made by an Officer not below the rank of a Tehsildar who should personally inspect the site and record his reasons as to the validity of the request of exchange. In this case, the enquiry was made by the Naib-Tehsildar and his report was simply endorsed by the Tehsildar None of these two officials inspected the site, nor did they ascertained from the appellants or other persons concerned with this holding as to whether they had any objection to the exchange. It is also evident that the S. D. O. or even for the matter of that, the Collector did not make any enquiry as to whether the land in question was unoccupied or was in the possession of the appellants. Further curiously enough these officers also did not take into account the provisions of Rules 10 and 11 which enjoins that ordinarily land in one chak will not be exchanged with another chak if the same is situated in different squares. The appellants have on the basis of the khasra entries produced by the respondents themselves have satisfactorily shown that the land in question was in the cultivatory possession of the appellants on the date when the exchange was ordered. It is an elementary principle of legal procedure that the party, against whom the order is made, is afforded a reasonable opportunity to put up his version before the court and to meet the case of the opposite party. To pass an order at the back of the party is something unknown in law. It is surprising enough that the learned Commissioner and the Collector omitted to examine this aspect of the case and acting merely on the report of the subordinate officers submitted to them permitted the exchange without realising its full implications. Nothing has been said in the order of the learned Commissioner about the position of the appellants nor has anything been clarified as regards the land which is to be given up by the respondent in exchange. It is clear to us that none of the subordinate officers cared to read the instructions existing on the subject and proceeded to decide the case in a highly arbitrary manner. In the circumstances, the entire proceedings conducted by the courts are quashed and the order passed by the Divisional Commissioner is set aside. The appeal is allowed. .;