IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 62 of 2006 (O&M) Date of decision: 24.7.2009 Teja Singh ......Appellant Vs. The Additional Director, Consolidation of Holdings and others. ...Respondents CORAM:- HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MRS.JUSTICE DAYA CHAUDHARY PRESENT: Ms. Amita Gupta, Advocate, with Mr.G.S.Sandhawalia, Advocate, for the appellant. Mr. S.D.Bansal, Advocate, for respondent No.2. Mr.P.K.Gupta, Advocate, with Mr.Ajay Kaushik Advocate for respondents 10,16,19,20 and 22. Mr.Manish Kumar Singla, Advocate, for LR of respondent No.5 Niranjan Singh. **** ADARSH KUMAR GOEL, J. (Oral) 1 The appellant is aggrieved by the order dated 6.12.2005 whereby the learned Single Judge dismissed the application for recall of order dated 4.10.2004, dismissing the writ petition as withdrawn. 2 The appellant, one of the writ-petitioners in the writ petition, challenged order dated 29.3.1996 passed by the Additional Director of Consolidation under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. Grievance in the writ petition was that the land which was in the name of Gram Panchayat, could not be partitioned in favour of the proprietors. The writ petition was admitted and was pending consideration. C.M.No.16578 of 2004 was filed by the writ petitioners for withdrawing the writ petition. Accordingly, the writ petition was dismissed as withdrawn. L.P.A. No. 62 of 2006 [2] 3. Thereafter, the appellant filed C.M.No.4663 of 2005 for recall of order dated 4.10.2004 inter-alia stating that the writ petition had been duly admitted and stay had been granted but the Sarpanch as well as proprietors of the village had played fraud upon the appellant by using his blank thumb marked paper executed for getting old age pension. Averments in paras 2 to 5 are as under: “2. That the order passed by the learned Additional Director which was under challenge in this writ petition the jurisdiction of the learned Additional Director Consolidation was also challenged in the Hon'ble Supreme Court and the Hon'ble Supreme Court has now finally settled in Gram Panchayat Nurpur vs. State of Punjab and others reported in 1997(1) PLJ 269 in which it has been held as under:- “ East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, Section 42 Additional Director Consolidation has no authority to go into the question whether the land in dispute is Shamlat Deh or not Jamabandi entry prior to consolidation reads “Shamlat Deh Hasab Rasad Khewat and in cultivation column entry is Maqbooza Malkan – Question whether land is Shamlat Deh or not can only be decided by authorities under Punjab Village Common Lands (Regulation) Act, Section 11 and 13.” In view of this settled principle of law, the number of writ petition filed in this Hon'ble Court filed by the L.P.A. No. 62 of 2006 [3] Gram Pacnhayat have been allowed and the order passed by the learned Additional Director, Consolidation has been set aside. The case in hand is also fully covered with the judgment. But faced with this situation and with the change of Panchayat as well as the Proprietors of the village i.e. Private respondents in the writ petition, has played a fraud with petitioner Teja Singh by using his blank thumb marked paper which the petitioner Teja Singh executed with a view to get old age pension has been converted into affidavit and by producing the same has managed to get the present writ petition as dismissed as withdrawn. 3. That in fact no such affidavit which has been filed along with an application filed under Order 23, Rule 1 C.P.C. for withdrawal of the writ petition has been sworn by the applicant Teja Singh. Fraud has been played upon the applicant Teja Singh. In support of this the applicant Teja Singh has now sworn an affidavit duly executed and attested by the Executive Magistrate, Fatehgarh Sahib on 4.3.2005. A copy of the affidavit dated 4.3.2005 is attached herewith as Annexure A-1. 4. That the facts mentioned in this affidavit Annexure -1 may be read as part of this application which clearly shows that the petitioner/applicant came to know about the dismissal of a writ petition on 28.2.2005 L.P.A. No. 62 of 2006 [4] that the above noted writ petition has been got dismissed as withdrawn by producing the affidavit of all the four petitioners and by changing counsel. 5. That it appears that all this game has been played by the private respondents (proprietors) in connivance with the Sarpanch of the village Gram Panchayat who is a respondent in the writ petition and from the order dated 4.10.2005, it is quite clear that the counsel appearing for the Panchayat have raised no objection for the withdrawal of the writ petition meaning thereby the land in question which was under the control of the Gram Panchayat and the benefit of the same was being derived by the Panchayat and as per the settled law that such land which is in question vest in the Panchayat and the Director Panchayat is the only competent to decide whether the land is to be partitioned or not. By withdrawing the above noted writ petition the impugned order passed by the learned Additional District Judge which is per incurim as against the settled law and thus the order withdrawing the writ petition is liable to be recalled simply on the ground that a fraud has been played upon the petitioner as well as on the Panchayat in connivance with the Sarpanch of the village by the private respondents (proprietors).” 4. Learned Single Judge dismissed the said application on the L.P.A. No. 62 of 2006 [5] ground that earlier application for withdrawal of the writ petition was supported by an affidavit which was duly attested and application for recall had been filed by changing the counsel. 5. We have heard learned counsel for the parties. 6. Learned counsel for the appellant submitted that the original counsel who filed the petition was not the counsel who made application for withdrawal of the order. No doubt, the affidavit was filed in support of the application for withdrawal of the writ petition but the circumstances in which the affidavit was prepared has been mentioned in the application particularly in para 5 which has not been taken into account by the learned Single Judge.It is submitted that the averments in the application for recall, reproduced above, have not been adverted to while dismissing the same . The writ petition should have been heard on merits. 7. Learned counsel for the contesting respondents points out that even if the writ petition was to be heard on merits, the same had to be dismissed in view of the judgment of this Court dated 27.5.1996 in C.W.P.No.7693 of 1996 filed by the Gram Panchayat itself, against which an SLP was also dismissed. CWP No. 17791 of 1997was also filed by the same Gram Panchayat, which petition was dismissed as withdrawn on 9.12.1998.Learned counsel for the respondents also rely upon some other orders passed by this Court which are said to be similar. 8 Learned counsel for the appellant states that dismissal of the writ petition of the Gram Pancyhayat was no bar to the appellant pursuing his remedies. The earlier writ petition was dismissed as withdrawn at the instance of the Gram Panchayat and not at the instance of appellant Teja Singh. L.P.A. No. 62 of 2006 [6] 9. We are of the view that the controversy on merits need not be gone into, at this stage. There being allegations in C.M.No.4663 of 2005 that withdrawal of earlier writ petition was a result of fraud and the said fact having not been adverted to, we are of the view that the said aspect needs to be gone into by the learned Single Judge. 10. We, accordingly, allow this appeal and set aside order dated 6.12.2005 dismissing the application for recall being C.M.No.16578 of 2004 and remand the matter to the learned Single Judge for consideration of the said application afresh, qua the appellant. 11. The matter may be placed before learned Single Judge on 31.7.2009 for further orders. (ADARSH KUMAR GOEL) JUDGE (DAYA CHAUDHARY) July 24, 2009 JUDGE raghav