1. This is a petition under Arts. 226 and 227 of the Constitution of India and seeks the issuance of a writ of certiorari quashing the order dated the 12th of June, 1970 (a correct copy of which is Annexure 'B-I' to the petition) passed by the Additional Director, Consolidation of Holdings, Punjab, Chandigarh under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
2. It is now common ground between the parties that the impugned order was passed in the absence of and without notice to the petitioner according to whom it is, therefore, void and without jurisdiction. It is contended on behalf of respondents Nos. 2 and 4, however, that the petitioner and his son Niranjan Singh are residing, messing and cultivating land jointly, that Niranjan Singh aforesaid appeared at the hearing before the Additional Director who gave him a full opportunity of being heard and that the petitioner must therefore, be held to have been duly represented before the Additional Director. With this contention I do not find myself in agreement. It has no doubt been held in Rattan v. State of Punjab, 1965-67 Punj LR 276 & Bhagwana v. State of Punjab, 1966 Cur LJ 5 (Punj) that where one of several joint land-owners has been served with a notice of a petition under Section 42 ibid and one of them is present at the hearing of the petition, all of them are deemed to be effectively represented. This dictum has not been extended by analogy to the case of a person who is not served with a notice of a similar petition but one of whose relations is present at the hearing. On the contrary, in Kanshi Ram v. State of Punjab, 1970 Rev LR 309 (Punj), Mehar Singh, C. J., and R. S. Narula, J., held that while a co-sharer may be taken to represent his other co-sharers during consolidation proceedings because of the sameness or similarity of their interests, a mere relation could not be placed in that position. And it appears to me that it makes no difference if the relation be a son who is living, messing and cultivating land jointly with his father and has no interest adverse to the latter. Unless the father permits himself to be represented by his son, a representation by the son cannot take the place of the appearance by the father himself. A son may not be able to put the case in the same light as his father and may on that account suffer and order which would operate to the detriment of the father whose right to represent himself cannot, therefore, be taken away especially when the statute is silent on the point. Accordingly the decision of a petition under Section 42 ibid without notice to those whose rights it affects must be deemed to have been taken without jurisdiction even though the progeny of those affected were heard before it was taken. Order Annexure 'B-I' is an order of that type.
3. It is contended on behalf of the contesting respondents that even though the impugned order be one without jurisdiction it should not be quashed inasmuch as it does substantial justice between the parties and is likely to be repeated even if proceedings under Section 42 are taken after notice to the petitioner. With this contention I cannot agree. The scheme of consolidation of holdings applicable to the parties states that in case land has to be allotted to a party away from his major portions, an attempt should be made to see that it is situated in the same patti as those portions. A major ground of the petitioner is that the land which the order allots to him is not situated in the patti where his other land is, that no attempt was made to allot the said land to him in that patti and that in fact, his son never cared to request the Additional Director to make an effort to allot all the land to the petitioner in one patti. Clearly, therefore, the order of the Additional Director is not in accordance with the scheme and it cannot be said that substantial justice has been done by him to the parties.
4. In the result, the petition is accepted and the impugned order is quashed. The Additional Director shall rehear the petition under Section 42 ibid after hearing the parties who have been directed to appear before him on the 29th of September, 1971. There will be no order as to costs.
5. Petition allowed.