IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 135 of 2005 (O&M) Date of Decision: July 13, 2009 Daljit Rai Oberai …Appellant Versus The Financial Commissioner and Secretary Rehabilitation Department, Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Mr. Som Nath Saini, Advocate, for the appellant. Mr. Sanjeev Kaushik, Addl. AG, Haryana, for respondent Nos. 1 and 2. Mr. Rajiv Kataria, Advocate, for private respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This appeal filed under Clause X of the Letters Patent is directed against order dated 18.5.2005, passed by the learned Single Judge in CWP No. 774 of 1985 dismissing the writ petition filed by the petitioner- appellant. The following short question of law has been raised in this LPA No. 135 of 2005 (O&M) appeal:- “Whether an adverse order passed by a quasi judicial authority after issuance of notice and hearing of one of the two co- sharers would be consistent with the principles of natural justice and binding on the other co-sharer in the absence of any fraud or collusion? 2. Before we answer the aforesaid issue, it would be necessary to notice the facts in brief. On 13.8.1959, one plot bearing No. 89, measuring 7 bighas 7 biswas, situated within the municipal limits of Rohtak, was put to auction by the Rehabilitation Department. The aforementioned plot was under urban agricultural land. Shri Sat Pal Oberai-respondent No. 13 (respondent No. 7 in the writ petition) gave the highest bid of Rs. 65,100/-. However, it is claimed that he associated the petitioner-appellant (Daljeet Rai Obroi) to the extent of Rs. 26,775/-. The auction was confirmed and payment of Rs. 65,100/- was made to the department. 3. The petitioner-appellant has alleged that in the year 1957 out of the auctioned land Sarvshri Basant Lal, Sardari Lal, Ram Parkash and Bal Raj sons of Hari Kishan Dass (respondent Nos. 3 to 6 in the writ petition) (for brevity, ‘the allottees’) had by misrepresentation and fraudulently secured allotment of urban land measuring 2 bighas 14 biswas within municipal limits of Rohtak and other urban agricultural land in lieu of their claim of rural land. Permanent rights were also conferred upon them. 4. On 3.8.1961, the Chief Settlement Commissioner, Punjab, Jalandhar, cancelled the allotment made in favour of the allottees on the ground that nature of the land allotted was urban while the claim made by 2 LPA No. 135 of 2005 (O&M) them was for rural land (P-1). On 7.1.1965, the allottees challenged order dated 3.8.1961 by filing suit for permanent injunction on the ground that notices to all the allottees as required under Section 24(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for brevity, ‘the 1954 Act’) were not served. On 18.3.1967, learned Senior Sub Judge, Rohtak, decreed the suit in respect of Basant Lal, Sardari Lal and Ram Parkash whereas qua Balraj dismissed the same (P-14). Thereafter the Rehabilitation Department referred the matter to the Chief Settlement Commissioner, who after issuance of notices to the allottees, cancelled their allotments vide three separate orders dated 25.7.1968 (P-2). During this interregnum period, the allottees also approached the Rehabilitation Department at Delhi for allowing them to purchase the urban land. On 1.6.1962, the Regional Settlement Commissioner, Jalandhar, informed the Chief Settlement Commissioner, Delhi that the land could be offered at the rate of Rs. 75/- per biswa. However, the Chief Settlement Commissioner revised the price of the land and offered the same to the allottees at the rate of Rs. 300/- per biswa, vide order dated 19.12.1964 (P-3). However, the allottees failed to avail the said opportunity as no amount was deposited by them. Accordingly, the Chief Settlement Commissioner, Delhi, in exercise of powers conferred under Section 20 of the 1954 Act, issued sale certificate dated 16.1.1970 (P-5) in favour of the auction purchaser, namely, Shri Satpal-respondent No. 13 and Shri Daljit Rai Oberai-petitioner-appellant, in respect of land measuring 7 bighas 7 biswas. It is claimed that possession of the land was delivered on 1.6.1974. 5. After a lapse of about six years of passing of cancellation 3 LPA No. 135 of 2005 (O&M) orders dated 25.7.1968, the allottees filed a revision petition in the year 1974, before the Authorised Chief Settlement Commissioner for setting aside sale certificate dated 16.1.1970, which was issued in favour of the auction purchaser, without impleading respondent No. 13 and the petitioner- appellant as party respondent. It has been alleged by the petitioner- appellant that stay order was passed against Shri Satpal-respondent No. 13 but no notice whatsoever was issued to the petitioner-appellant. It has further been alleged by the petitioner-appellant that the case was not properly defended by Shri Satpal respondent No. 13. The sale certificate in favour of the petitioner-appellant and respondent No. 13 was cancelled by the Chief Settlement Commissioner vide order dated 30.5.1975 (P-9). It has been asserted that whole sale could not have been set aside as the allottees at the most could have claimed some right in respect of land measuring 2 bighas 4 biswas only and not the whole land involved in the sale certificate (P-5). The Chief Settlement Commissioner has set aside the sale certificate primarily on two grounds (i) when the property was put to auction it did not form part of compensation pool and, therefore, the auction was void-ab- initio; and (ii) at the time when the land was put to auction no rules were framed for disposal of urban agricultural land, which were framed for the first time vide notification dated 17.11.1960 and in that regard reliance was placed on a Division Bench judgment of this Court rendered in the case of Sohan Lal v. Central Government, 1972 PLR 749. 6. Shri Sat Pal-respondent No. 13 challenged order dated 30.5.1975 (P-9) in this Court by filing C.W.P. No. 3907 of 1975, which was dismissed in limine vide order dated 3.8.1975 after filing of written 4 LPA No. 135 of 2005 (O&M) statement by the respondents. The petitioner-appellant has claimed that at that point of time he was residing in Delhi and doing his business. He was not even informed by respondent No. 13 about the said proceedings before the Chief Settlement Commissioner. After coming to know about setting aside of the sale certificate, the petitioner-appellant filed an application before the Authorised Chief Settlement Commissioner for setting aside order dated 30.5.1975, which was allowed vide interim order dated 22.4.1981 and the parties were directed to argue the case on merits on 14.5.1981 (P-6). 7. Feeling aggrieved against the order dated 22.4.1981 (P-6), the allottees preferred a petition under Section 33 of the 1954 Act before the Financial Commissioner-respondent No. 1, who set aside the aforementioned interim order by placing reliance on a Full Bench judgment of this Court rendered in the case of Biru Ram v. Suraj Bhan, 1983 PLJ 216, vide his order dated 27.9.1984 (P-7). The Full Bench of this Court has interpreted provisions of Section 21 and 42 of the Consolidation Act, 1948 in Biru Ram’s case (supra). Against the order dated 27.9.1984 (P-7) passed by respondent No. 1, the petitioner-appellant has approached this Court by filing C.W.P. No. 774 of 1985, which has been dismissed by the learned Single Judge vide impugned judgment dated 18.5.2005. 8. The stand of the allottees before the learned Single Judge was that the status of the petitioner-appellant is that of a co-sharer along with his brother-respondent No. 13 as he had participated in the auction whereas the petitioner-appellant had joined him later on for the purchase of the property by way of auction. It was not disputed that individual rights of the 5 LPA No. 135 of 2005 (O&M) petitioner-appellant and respondent No. 13 were never determined. The allottees also asserted that at the time of setting aside of the sale certificate respondent No. 13 had appeared before the Chief Settlement Commissioner and defended the case. The order setting aside the sale certificate was also challenged by respondent No. 13 in this Court and the writ petition was dismissed. Meaning thereby the order passed by the Financial Commissioner has attained finality. Thus, in the capacity of a co-sharer, the petitioner-appellant cannot raise the plea that no notice under Section 24 of the 1954 Act was issued to him once respondent No. 13 has appeared and defended the case. 9. After noticing the factual position and various judgments, learned Single Judge has dismissed the writ petition filed by the petitioner- appellant by observing as under:- “ The perusal of the facts shows that the land in question was purchased by Sat Pal respondent No. 7 by associating the claim of the petitioner. However, such claim resulting into issuance of a sale certificate had been rejected by the Chief Settlement Commissioner in the presence of Sat Pal respondent No. 7 through his counsel, who was the principal auction purchaser. He rightfully challenged the order before this Court by way of civil writ petition, which was dismissed vide order dated 8.8.1975. This order was never ever challenged any further by Sat Pal or by the petitioner. There is no allegation leveled by the petitioner against Sat Pal to the effect that a fraud or misrepresentation was committed by Sat 6 LPA No. 135 of 2005 (O&M) Pal and he has also not been able to show that the claim of the petitioner in any manner is distinguishable from the claim of Sat Pal. Thus, in view of the dicta of the Full Bench of this Court in Biru Ram[s case (Supra), I am bound by the same, resultantly, the argument of the learned counsel for the petitioner is rejected. It may be observed that the factual status as divulged by the petition is correct. The right flowing from a document, under the statute once denied or rejected in favour of the beneficiary, needs to be challenged in accordance with law, which admittedly has not been challenged in the right and correct perspective. There is no law which comes to the protection of a person who is negligent, callous, lazy and indifferent in regard to his right. The hierarchy created under the statute for challenging the incorrect orders has to be adhered to at the right time and subject to the rigour of law of limitation. And, of course, by invoking the jurisdiction of the competent court. In the case at hand, unfortunately, Sat Pal respondent No. 7, being the principal auction purchaser, did not challenge the veracity of the order passed by this Court in CWP 3901 of 1975 nor the same was challenged by the petitioner. In such circumstances the Court would also become helpless. In view of the above, there is no merit, in the petition and the same is dismissed.” 10. We have heard learned counsel for the parties at a considerable 7 LPA No. 135 of 2005 (O&M) length on the aforesaid issue and have also perused the record with their able assistance. 11. The legal question raised in the instant appeal is no longer res integra. The aforesaid issued has been adjudicated by their Lordships’ of Hon’ble the Supreme Court in Harihar Prasad Singh v. Balmiki Prasad Singh, AIR 1975 SC 733. In that case one of the appellant had died during the pendency of the appeal and his legal representatives were brought on record. A part of the decree having become final by reason of the abatement, the entire appeal was held to be abated. It has been held that even where only some of the legal representatives of the deceased were brought on record they would represent the whole estate and the other legal representatives as well. Such a judgment would be binding on all in the absence of fraud and collusion. The principle emanates from the judgment is that where the interest is common and identical then one or such person having common and identical interest may while representing others also bind them in the absence of any fraud or collusion or on the ground of very special circumstance showing that the absent legal representative would be prejudiced in his individual right. 12. The jurisprudential concept and principle that where there is identity and jointness of interest then any one of such person might well represent the others and also bind them. This concept is further discernible from the conclusion drawn by Hon’ble the Supreme Court in Prabodh Verma v. State of U.P., (1984) 4 SCC 251. The principle of civil law was extended to the area of service law by holding that in a case where a large number of selected candidates were facing challenge to their selection then 8 LPA No. 135 of 2005 (O&M) it was not insufficient if at least some of them had been impleaded as parties-respondents. Speaking for the three Judge Bench, Hon’ble Mr. Justice D.P. Madon concluded in para 50(1) as under:- “50. To summarize our conclusions: (1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative, capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non- joinder of necessary parties.” (emphasis added) 13. The aforesaid view echoed and reiterated the principle of representative hearing which was discernible from the earlier view of Hon’ble the Supreme Court expressed in Harihar Prasad’s case (supra). 14. These principles have been consistently followed by an unbroken chain of precedents by Hon’ble the Supreme Court. It would be suffice to rely on two of them. In All India SC/ST Employees’ Association v. A. Arthur Jeen, (2001) 6 SCC 380 and Tridip Kumar Dirgal v. State of West Bengal, (2009) 1 SCC 768 these principles have been applied and reiterated. 15. On principle and precedent it stands established that where there is identity and jointness of interest then any one of such person might well represent the others subject to the rider that there is no fraud or 9 LPA No. 135 of 2005 (O&M) collusion or such an interest which is peculiary to an individual. 16. When the aforesaid principles are applied to the facts of the present case, it would inevitably become apparent that the appeal lacks merit. The petitioner-appellant herein is co-sharer with his brother- respondent No. 13 although at the auction held on 13.8.1959 it was respondent No. 13 who had given highest bid. The other respondents 3 to 6, namely, Sarvshri Basant Lal, Sardari Lal, Ram Parkash and Bal Raj sons of Hari Kishan succeeded in persuading the Chief Settlement Commissioner that sale certificate issued in favour of the petitioner-appellant and his brother in respect of the plot in dispute was not sustainable in the eyes of law. Accordingly, the sale certificate was set aside by the Chief Settlement Commissioner vide his order dated 30.5.1975 holding that the property at the time of auction did not form part of compensation pool and, therefore, the auction was void-ab-initio. Respondent No. 13 co-sharer and brother of the petitioner-appellant challenged that order in CWP No. 3907 of 1975, which was dismissed in limine on 3.8.1975 after consideration of the written statement filed by the contesting parties. Therefore, we find no room to interfere with the view taken by the learned Single Judge. The appeal is, thus, liable to be dismissed. 17. As a sequel to the above discussion, this appeal fails and the same is accordingly dismissed. No cost. (M.M. KUMAR) JUDGE 10 LPA No. 135 of 2005 (O&M) (H.S. BHALLA) July 13, 2009 JUDGE Pkapoor 11