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2005 DIGILAW 848 (PNJ)

Sohna Ram v. Director Of Consolidation Of Holdings

2005-08-10

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. The petitioner, by way of the present writ petition, prays for the issuance of a writ of Certiorari for quashing the order dated 7.11.1985 passed by the Director, Consolidation of Holdings, Punjab, Chandigarh. 2. A brief narrative of the facts would be appropriate. 3. Lal Singh, respondent No. 2, was joint owner of 1/72 share out of land measuring 142 Bighas 18 Biswas, situated in Nabha City. Consolidation proceedings commenced in the year 1958-59. Vide registered sale deed dated 23.1.1961, the petitioners purchased the aforesaid land. Vide order dated 2.5.1962, the Assistant Collector, IInd Grade, Nabha, sanctioned mutation No. 1625, in favour of the petitioner. As consolidation proceedings were pending, the petitioner approached the consolidation authorities to reflect his ownership in the revenue record. The revenue record was prepared reflecting the petitioner as owner of the 10 kanals and 17 marlas of land. Consolidation proceedings concluded in the year 1962. 4. 22 years thereafter on 3.9.1984, Lai Singh filed a civil suit in the court of Additional Senior Sub Judge, Nabha, praying for a declaration that he was owner of 1/72 share of land comprised in Khewat No. 6, Khatta No. 601, as detailed in the plaint. Lal Singh pleaded that after 1962-63, his name, as a co-sharer had been erroneously deleted from the revenue record but as he continued to be owner in possession of the aforementioned land, the revenue record be rectified to reflect his ownership. The petitioners, in their written statement, pleaded that they had become owners in possession of the land in dispute pursuant to a registered sale deed dated 23.1.1961. The land was partitioned and the petitioners had become owner in possession of the land in dispute. 5. Respondent No. 2, in his replication, pleaded that the sale deed dated 23.1.1961 was null and void, forged, fabricated and without consideration. It was further pleaded that on 23.1.1961, respondent No. 2 was a minor, incapable of executing any agreement/contract, rendering the sale deed null and void. 6. 5. Respondent No. 2, in his replication, pleaded that the sale deed dated 23.1.1961 was null and void, forged, fabricated and without consideration. It was further pleaded that on 23.1.1961, respondent No. 2 was a minor, incapable of executing any agreement/contract, rendering the sale deed null and void. 6. During the pendency of the suit, but without waiting for its outcome, respondent No. 2 filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act), 1948 (hereinafter referred to as "the Act"), before the Director, Consolidation of Holdings, Punjab, praying therein that the revenue record, prepared by the Consolidation authorities, be rectified, the entries, reflecting the petitioners as owners be set aside, as these entries were based upon a sale deed, which has been executed by his brother, when respondent No. 2 was a minor, without any authority or permission from any Court of competent jurisdiction. 7. The Director Consolidation, vide order dated 7.11.1985 held that the sale deed executed in favour of the petitioners was void, as on the said date, respondent No. 2 was a minor and his brother Bant Singh had no legal authority to alienate his share. The Director, also set aside the orders of the Consolidation Officer the Khatauni Istemal, the mutation sanctioned and directed rectification of the record to reflect respondent No. 2 as a co-sharer. 8. Counsel for the petitioners contends that the Director, Consolidation in exercise of his powers under Section 42 of the Act, has no jurisdiction to declare the registered sale deed null and void. Such power is only tested with the Civil Court. By setting aside the sale deed, the Director has usurped the powers of the Civil Courts and, therefore, the impugned order is a nullity. 9. It is further argued that the findings returned by the Director proceed on a factual error namely; that the sale deed was executed by Bant Singh. The sale deed was, however, executed by Bant Singh, and Smt. Punni, mother and natural guardian of respondent No. 2. This factual error renders the impugned order null and void. 10. It is vehemently contended that the mutation was sanctioned in the year 1962, during the pendency of consolidation proceedings, which concluded in the year 1962. The sale deed was, however, executed by Bant Singh, and Smt. Punni, mother and natural guardian of respondent No. 2. This factual error renders the impugned order null and void. 10. It is vehemently contended that the mutation was sanctioned in the year 1962, during the pendency of consolidation proceedings, which concluded in the year 1962. The application under Section 42 of the Act, was filed in 1985, after unexplained delay of 23 years and, therefore, should have been rejected by the Director at the very outset. The limitation for impugning an order of the Consolidation Officer, is six months, as prescribed under Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as "the Rules). 11. Counsel for the respondent No. 2 contends that on 23.1.1961, respondent No. 2 was a minor. That being so, the Director rightly held that the sale deed, did not bind respondent No. 2 as it was null and void. By setting aside the orders of the Consolidation Officer and the mutation etc., no illegality was committed. It is further argued that in essence, the Director has invoked the powers, conferred upon the consolidation authorities by Section 30 of the Act. This provision bars sale of any land during consolidation proceedings, without the permission of the consolidation authorities. As the petitioners had not obtained any such permission, the Director rightly set aside the order passed by the Consolidation Officer, incorporating the ownership of the petitioners in the revenue record. 12. On the question of delay, counsel for respondent No. 2 contends that the Act does not prescribe a period of limitation for seeking rectification of an error committed by the consolidation authorities and, therefore, the petition filed before the Director did not suffer from any delay or laches. 13. I have heard learned Counsel for the parties, perused the impugned order as also the paper book. 14. I am inclined to accept the argument raised by the counsel for the petitioners that the Director had no jurisdiction to decide upon the legality or validity of a registered sale deed. A perusal of the Act, reveals that no power whatsoever has been conferred upon the Director or any other authority under the Act, to entertain or adjudicate questions of title. Such questions can be entertained and adjudicated upon by Civil Courts. A perusal of the Act, reveals that no power whatsoever has been conferred upon the Director or any other authority under the Act, to entertain or adjudicate questions of title. Such questions can be entertained and adjudicated upon by Civil Courts. In such situations, the only course open to the Director was to direct the parties to approach the Civil Courts for an adjudication of their questions of title. 15. A perusal of the impugned order, on the other hand reveals that the Director, not only assumed the jurisdiction of a civil Court but has also usurped its powers by declaring the sale deed as null and void. In my considered opinion, the Director had no jurisdiction to pronounce upon the legality of the sale deed and issue any such declaration. Assuming that respondent No. 2 was a minor, on the date of the execution of the registered sale deed, the question whether the sale deed had been executed validly on his behalf, by his mother and natural guardian was a question to be adjudicated by a Civil Court by adducing evidence and could not have been summarily decided by the Director. Another question that would arise would be the limitation for setting aside a registered sale deed, at the behest of a minor, upon his attaining majority. These questions and adjudication thereof fell within the exclusive domain of a Civil Court and thus, the Director exceeded his jurisdiction. 16. Contention of learned Counsel for the respondent No. 2 that the Director did not decide any question of title but merely ignored the sale deed, by invoking the provision of Section 30 of the Act does not merit acceptance. The Director has specifically held the sale deed to be void and on that basis held that the permission granted by the consolidation authorities was not based upon any document. On the said premise, the Director has also set aside the mutation and all subsequent orders, revenue documents, revenue entries etc. Even otherwise, Section 30 of the Act, debars land owners from transferring land without the permission of consolidation authorities, once consolidation has commenced. Such a transfer, made without the permission of the consolidation authorities, would not bind the consolidation authorities, while preparing the scheme, directing the re-partition of the land and preparing the revenue record. Even otherwise, Section 30 of the Act, debars land owners from transferring land without the permission of consolidation authorities, once consolidation has commenced. Such a transfer, made without the permission of the consolidation authorities, would not bind the consolidation authorities, while preparing the scheme, directing the re-partition of the land and preparing the revenue record. However, such a sale deed would be a valid transaction inter-parties and would continue to bind them till such time as it is set aside by a Court of competent jurisdiction. Once the authorities had accepted the sale deed, directed rectification of the revenue record, which record remained unchallenged for 23 years, the Director had no jurisdiction to turn the clock back and set aside the sale deed. 17. The impugned order also suffers from an inherent factual error. The learned Director held that the sale deed had been executed by Bant Singh, the elder brother of respondent No. 2, who had no authority to do so. A perusal of the sale deed, annexed as Annexure R-4 reveals that respondent No. 2s share was sold by his mother as his natural guardian. Bant Singh also appended his signatures. The sale deed bears the R.T.I, of Smt. Punni, mother and natural guardian of respondent No. 2 and the L.T.I, of Bant Singh. The Director apparently perused the opening lines of the sale deed, which state that Lai Singh is under the guardianship of Bant Singh. However, he failed to notice that the sale deed, bears the right thumb impression of Smt. Punni, mother of respondent No. 2 as his natural guardian. On this factual error, the impugned order merits quashing. 18. The sale deed was executed in the year 1961. During the pendency of consolidation proceedings, which concluded in 1962, Mutation No. 1625 was sanctioned on 2.5.1961. Respondent No. 2 filed a civil suit on 3.9.1984, 22 years after the conclusion of the consolidation proceedings claiming to be owner in possession. In the civil suit and in the replication filed by him, respondent No. 2, impugned the legality of the sale deed, on the plea that on the date of execution of the sale deed, he was a minor. Without waiting for the conclusion of the civil suit, respondent No. 2 filed an application under Section-42 of the Act on 11.4.1985, 23 years after the conclusion of consolidation proceedings. 19. Without waiting for the conclusion of the civil suit, respondent No. 2 filed an application under Section-42 of the Act on 11.4.1985, 23 years after the conclusion of consolidation proceedings. 19. A perusal of the application filed under Section 42 reveals that respondent No. 2 prayed for condonation of delay. However, no reason whatsoever was assigned, to show sufficient cause for his inordinate delay. Contention of learned Counsel for the respondent that proceedings, pursuant whereto, the petitioner has been reflected as the owner of the disputed property, could be impugned at anytime under Section 42 of the Act, in my opinion, does not merit acceptance. Without embarking upon any adjudication as to whether the limitation of six months, prescribed in Rule 18 was applicable or hot, suffice is to say that even if no limitation is prescribed, a party must approach the appropriate forum within reasonable time, that also where no explanation whatsoever, is forthcoming. It is for the individual invoking the jurisdiction of a forum, to explain the cause for delay. Courts, over a period of time have become liberal in condoning delay so as not to shut out just causes. However, that would not absolve a litigant of the need to furnish an explanation for the delay. A feeble attempt has been made to put forth an explanation that respondent No. 2 was a minor in 1961 and it was only in 1984, that he came to know about the wrong revenue entries. I express my inability to accept this assertion, in the absence of any factual material, placed on record, whether before the Director or before this Court that would enable this Court to return a finding that the delay was occasioned by a cause sufficient to condone it Or that, respondent No. 2 had sufficient cause to approach the Director after a gap of 23 years. Taking into consideration the fact that the petitioner was a minor in 1961, it can be safely concluded that the period of 3 years, prescribed after attaining majority, for impugning a transaction made on behalf of a minor, had expired long before, respondent No. 2 filed the petition, before the Director in 1985. Consequently, 1 am left with no other alternative but to hold that the Director, Consolidation erred in entertaining the application filed under Section 42 of the Act, which was hopelessly barred by limitation/laches. 20. Consequently, 1 am left with no other alternative but to hold that the Director, Consolidation erred in entertaining the application filed under Section 42 of the Act, which was hopelessly barred by limitation/laches. 20. In view of what has been held above, the present petition is allowed, the impugned order dated 7.11.1985 passed by the Director Consolidation, being illegal, void and without jurisdiction is set aside, with no order as to costs.