PETITIONER: CHETSINGH Vs. RESPONDENT: STATE OF PUNJAB & ORS. DATE OF JUDGMENT24/03/1977 BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) GUPTA, A.C. KAILASAM, P.S. CITATION: 1977 AIR 1494 1977 SCR (3) 369 1977 SCC (2) 499 ACT: Constitution of India, Article 136--Powers to be exer- cised when--whether non-est orders can be ignored--East Punjab Holdings (Consolidation and Prevention of Fragmenta- tion) Act 1948--Section 42 . HEADNOTE: Gurdev Singh had certain complaints about the Consolida- tion Scheme. He was not present when his application was being considered. Therefore, the application was dis- missed by the Additional Director, Consolidation. Thereaf- ter, Gurdev Singh respondent No. 3 filed an application for restoration supported by an affidavit attributing his ab- sence to his illness. The Additional Director accepted the ground of respondent No. 3 about illness and granted necessary relief to him. The appellant filed a writ.peti- tion in the High Court under Articles 226 and 227 of the Constitution. The High Court held that the assertion of rights by the appellant merely because of some report con- tained in the "Fard Badar" could not take away the effect of the entries in the revenue records The High Court also held that no injustice was caused to the appellant and, there- fore, there was no ground for interference under Article 226. In an appeal by Special Leave, the appellant contended that the Additional Director had no power to review his previous order. The power to review conferred by section 42 of the Act has to be exercised only after hearing the interested parties. Since respondent No. 3 was not given an opportunity of being heard on account of his illness, it shows that the order passed was non-est and can be ignored at any stage. The court dismissed the appeal on the ground that this was not a fit case for interference under Article 136. the Court, however, observed that if the appellant has any right on account of long possession or otherwise he can assert them by adopting proper proceedings and that his rights would not be affected by whatever is stated m the Judgment of this Court as well as the High Court. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2150
of 1968.
(Appeal by Special Leave from the Judgment and Order
dated 5.9.1968 of the Punjab & Haryana High Court in L.P.A.
No. 458/68).
V.C. Mahajan, Hardev Singh and R.S. Sodhi, for the appel-
lant. O.P. Sharma, for the respondents 1 and 2.
K.R. Nagaraja and P.N. Puri, for respondent No. 3.
The Judgment of the Court was delivered by
BEG, C.J. This appeal under Article 136 of the Consti-
tution is directed against a very detailed Judgment of the
Punjab & Haryana High Court on a Writ Petition No. 1875 of
1965 filed under Articles 226 and 227 of the Constitution,
assailing an order of the Additional Director, Consolidation
of Holdings, passed on 8 June, 1965. A perusal of that
order, together with the earlier order of 4 May, 1965, and
the application for restoration dated 15 May, 1965, filed by
Gurdev Singh, respondent No. 3, shows: Gurdev Singh, who
had
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some complaint against the Consolidation Scheme, was not
present so that his petition was ordered to be filed by the
Additional Director, Consolidation on 4 May, 1965. Gurdev
Singh, soon thereafter i.e. on 15 May, 1965, filed an appli-
cation for restoration supported by an affidavit, attribut-
ing his absence on 4 May, 1965, to his illness. The. order
dated 8 June, 1965, of the Additional Director, shows that
the applicant Gurdev Singh’s assertion that he could not
attend due to illness, over which he had no control, was
accepted by the Additional Director, who proceeded to exer-
cise his powers under section 42 of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948
(hereinafter referred to as the Act) and to set right the
grievance of the applicant, Gurdev Singh, after going into
all the relevant records. The learned Judge of the High
Court, who heard the petition also went through the records
very carefully, came to the conclusion that an assertion of
rights by the petitioner/ appellant, a member of the Sanjam
Group, merely because of some report contained in the “Fard
Badar,” could not take away the effect of entries in the
revenue records. The learned Judge held that no injustice
was caused to the petitioner/appellant also, there was no
ground for interference under Article 226 of the Constitu-
tion.
The learned counsel for the appellant has relied upon
the case of Harbhajan Singh v. Karam Singh& Ors. reported
in 1966 (1) S.C.R. 817, where this Court held that the
Addl. Director exercising the powers of the State Government
has no jurisdiction under section 42 of the Act to review
his previous order.
Section 42 of the Act runs as follows:
“The State Government may at any time for
the purpose of satisfying itself as to the
legality or propriety of any order passed,
scheme prepared or confirmed or repartition
made by any officer under this Act, call for
and examine the record of any case pending
before or disposed of by such officer and
may pass such order in reference thereto. as
it thinks fit:
Provided that no order or scheme or repar-
tition shall be varied or reserved without
giving the parties interested notice to appear
and opportunity to. be heard except in case
where the State Government is satisfied that
the proceedings have been vitiated by unlawful
consideration.”
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 under Section
42. The fact that the Additional Director was satisfied
that the respondent, Gurdev Singh, did not have an opportu-
nity 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 under Section 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
371
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.
On the facts and circumstances of this case, we think
that this is not a fit case for interference under Article
136 of the Constitution. The appellant, if he has acquired
any rights by reason of long possession, can assert them
whenever any proceedings are taken before a competent au-
thority to dispossess him. What we have held here or
whatever has been held by the High Court will not affect
such other rights, if any, as the Appellant may have ac-
quired by reason of possession. We do not know and refrain
from deciding who is actually in possession and for how long
and in what capacity. This appeal is dismissed. Parties
will bear their own costs.
_
P.H.P. Appeal dismissed.
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