SARUP SINGH Vs. ADDITIONAL DIRECTOR

JUDGEMENT

(1.) Sarup Singh challenges in this writ petition the order passed by the Additional Director dated September 13, 1983, copy Annexure P-3 purporting to act under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1941 (hereinafter called 'the Act'). Earlier, Sarup Singh petitioner filed an application under section 42 of the Act for getting passage to his hand. The Additional Director, Consolidation, vide his order dated August 16, 1981, accepted the application and allowed the passage. A copy of that order is Annexure P-1. This order was challenged in suit by Mit Singh son of Kali Ram, who was one of the co-sharers. The suit was dismissed by Subordinate Judge 1st Class, Sonepat, on March 12, 1983, a copy of the judgment is Annexure P-20 Ram Kishan, another son of Kali Ram, on December 3, 1982, moved an application under section 42 of the on which the impugned order Annexure P-3 was passed on September 13, 1983. It was alleged by Ram Kishan that no notice was given to him when the Additional Director passed the order on August 16, 1981. The Additional Director, vide the impugned order Annexure P-3, noticed the decision of this Court in Biru and another V. Suraj Bhan and others, 1983 PunLJ 216, and observed that since the application of Ram Kishan was already pending, the decision in Biru's case will not apply. At this stage it may be noticed that the Full Bench in Biru's case had held that adequate hearing given to one or some of the co-sharers is, in the eye of law, a hearing to all body of co-sharers. The Additional Director, vide order Annexure P-3, allowed the application filed under Section 42 of the Act and held that the previous order dated September 16, 1981, is to be ignored and he decide to re-hear the case. This approach of the Additional Director, Consolidation, is not correct as urged in the writ petition.

(2.) While opposing the writ petition, Ram Kishan took up the stand that one path already with Sarup Singh and vide order dated 16.8.1981, Annexure P-1, another path was allowed to Sarup Singh. He further maintained that since he was not made a party when order Annexure P-1 was passed, he could certainly ask for the setting aside of the ex parte order and vide the impugned order Annexure P-3, the matter is to be decided afresh.

(3.) After hearing the counsel for the parties I am of the view that the Additional Director had no jurisdiction to pass the impugned order Annexure P-3. The approach of the Additional Director by ignoring the Full Bench decision of this Court in Biru's case is correct. The Full Bench has merely interpreted the scope of section 42 of the Act. If one or more co-sharers were represented before the Additional Director in proceedings under Section 42 of the Act, they were representing all the co-sharers. The other co-sharers could not come up and challenge the order stating that they were not heard or they were parties. It was on that basis that the Civil Court dismissed the suit filed by the Mit Singh, one of the sons of Kali Ram, copy of the judgment being Annexure P-2. The mere fact that this judgment was announced when application filed by Ram Kishan under Section 42 of the Act was pending is no ground so ignore the judgment. The mater was under consideration of the Full Bench in Deep Chand and another V. Additional Director, Consolidation of Holdings, Punjab Jullundur and another,1984 PunLJ 318, wherein it was held that the Additional Director had no power to recall or review his earlier erroneous and unjust order whenever it is discovered that the error was due to his own mistake view of the merits of the controversy. The said decision still holds the field.