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2013 DIGILAW 1374 (PNJ)

Gur Ajaib Singh v. Additional Director, Consolidation of Holdings

2013-10-10

G.S.SANDHAWALIA, JASBIR SINGH

body2013
Jasbir Singh, J. 1. This writ petition has been filed to lay challenge to an order dated 14.5.1987 (P-3), vide which application filed by Ujjagar Singh predecessor-in-interest of respondents No. 2 to 6, under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short 'the Act'), was allowed and correction was ordered to be made in the boundaries of Khasra No. 49//6. Further challenge has been made to an order dated 5.1.1988 (P-5), vide which application filed by the petitioner, to recall order dated 14.5.1987 (being an ex-parte order), was dismissed. Further challenge is to an order dated 7.6.1988 (P-7), vide which application, filed by the petitioner under Section 43A of the Act, was dismissed. 2. As per facts on record, consolidation in the village Chhani Tola took place in or around the year 1960. The Consolidation Officer passed an order under Section 21(1) of the Act, effecting re-partition of the land, as per entitlement of the right holders. Ujjagar Singh was not satisfied with the allotment so made. 3. He filed an application under Section 42 of the Act to lay challenge to that order dated 13.9.1962. After contest, that application was allowed on 24.12.1965. 4. It was noted that land, falling in Khasra No. 49//6, measuring 4 Kanals 1 Marla and Khasra No. 49//7, measuring 18 Marlas, was wrongly allotted to father of the petitioner Bawa Singh and other cosharers. It was ordered to be withdrawn from them and in lieu thereof, land falling in Khasra No. 10//13 and 18, total measuring 6 Kanals 12 Marlas was allotted to Bawa Singh etc. Standard value of the land, so included and excluded, was the same. Both the parties were satisfied with the order and it was not challenged. 5. After a gap of about 22 years i.e. in the year 1986, Ujjagar Singh filed an application under Section 42 of the Act, stating that after demarcation at the spot, he had come to know that the area falling in Khasra No. 49//6 and 49//7 has wrongly been shown in the Field Book. That application was got dismissed as withdrawn on 25.2.1987 (P-2), with liberty to file a fresh one. 6. Sh. Ujjagar Singh again filed an application under Section 42 of the Act, in the year 1987, laying challenge to an order passed by the Consolidation Officer under Section 21(1) of the Act. That application was got dismissed as withdrawn on 25.2.1987 (P-2), with liberty to file a fresh one. 6. Sh. Ujjagar Singh again filed an application under Section 42 of the Act, in the year 1987, laying challenge to an order passed by the Consolidation Officer under Section 21(1) of the Act. That application was allowed and some changes were ordered in the boundary of Khasra No. 49//6. 7. The petitioner, aggrieved by order dated 14.5.1987, filed an application to recall it, stating that the order was passed without hearing him, in an ex-parte manner. His application was entertained vide order dated 27.11.1987, however, thereafter, it was rejected on 5.1.1988 simply by stating that to review orders dated 24.12.1965 and 14.5.1987, respondent No. 1 has no power. 8. Contention of counsel for the petitioner that order dated 14.5.1987 was an ex-parte order, was not looked into as per facts. Setting aside of an ex-parte order, does not amount to review and the officer concerned, who passed that order has the power to look into grievance of the parties afresh. That was not done. 9. It is also necessary to mention here that thereafter, the petitioner filed an application under Section 43 A of the Act with a prayer that his application has wrongly been dismissed on 5.1.1988. Prayer was also made to effect necessary changes in terms of order passed by this Court on 20.4.1988 in CWP No. 3046 of 1988, filed by Ujjagar Singh. That application was also dismissed on 7.6.1988. Hence, this writ petition. 10. We have heard counsel for the parties and on perusing the paper book are satisfied that the orders under challenge cannot be sustained. 11. It is on record that against re-partition proceedings, effected under Section 21(1) of the Act vide order dated 13.9.1962, Ujjagar Singh filed an application under Section 42 of the Act, claiming wrong allotment. His application was allowed and he was allotted land falling in Khasra No. 49//6 and 7, which was allotted to the petitioner's father during re-partition proceedings. Ujjagar Singh remained satisfied with the order passed and did not challenge the same. 12. After a gap of about 22 years, he filed second application under Section 42 of the Act, raising a grievance that land falling in Khasra No. 49//6 and 7is less at the spot, it has wrongly been shown in the consolidation record. Ujjagar Singh remained satisfied with the order passed and did not challenge the same. 12. After a gap of about 22 years, he filed second application under Section 42 of the Act, raising a grievance that land falling in Khasra No. 49//6 and 7is less at the spot, it has wrongly been shown in the consolidation record. That application was got dismissed as withdrawn. 13. Third application was filed in the year 1987, again raising above said grievance and it was allowed on 14.5.1987, without hearing the petitioner and changes were ordered to be made in the boundaries of Khasra No. 49//6 and 7. 14. It is stated by counsel for the respondent that third application was under Section 43A and not under Section 42 of the Act, as mentioned in the order. 15. Contention of Mr. Bali that third application filed after about 22 years of an order, passed on 24.12.1965, was barred by limitation, appears to be correct. 16. In this case, re-partition proceedings took place in the year 1962. Application under Section 42 of the Act was filed in the year 1962 which was decided in the year 1965. Thereafter, no action was taken for a period of about 22 years. In filing third application under Section 43A of the Act, no explanation has been given. 17. As per established law, such like applications can be filed only within a reasonable time. It was so said by the Supreme Court in the case of "Gram Panchayat Kakran v. Additional Director of Consolidation and another' (1997) 8 SCC 484 " wherein it was observed as under:- "This, however, cannot be understood as enabling the party which is aggrieved by the scheme or by repartition to make an application under Section 42 after an unreasonably long lapse of time. Even where no period of limitation is prescribed, the party aggrieved is required to move the appropriate authority for relief within a reasonable time. In fact this Court in the case of Gram Panchayat vs. Director, Consolidation of Holding (1989 Suppl.(2) SCC 465) dealing with Rule 18 itself, said that when no limitation is prescribed for an application under Section 42 dealing with confirmation of the scheme, the application should be made within a reasonable time and this question will have to be decided on the facts of each case. In that case the delay of about 3 years and 8 months in filing an application under Section 42 by the Panchayat was held to be not unreasonable. In the present case, however, the delay is of 40 years. We have tried to ascertain from the 2nd respondent whether there is any explanation for this unreasonable and inordinate delay. But no satisfactory explanation appears to be there for this inordinate delay in making the application under Section 42. The only contention which has been urged before us by respondent No. 2 relates to the application of Rule 18 and the period of limitation prescribed therein not being applicable where the challenge is to the consolidation scheme and repartition. But even if Rule 18 is not directly attracted, an application which made after such inordinate delay ought not to have been entertained. It is also contended by the 2nd respondent that the appellants have no locus standi to challenge the order of the Additional Director of Consolidation in a writ Petition because the land in question continued to remain in the name of the proprietary body. He drew our attention to Rule 16(ii) of the said Rules. Rules 16(ii), however, quite clearly provides that the management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary party and the Panchayat shall have to utilise the income and the benefits of the estate or estates concerned. Even before Additional Director, the appellants were made a party-respondent. This contention, therefore, has no merit." 18. Furthermore, in order dated 14.5.1987 in Para No. 3, it is specifically stated that no loss has been caused to the applicant i.e. Ujjagar Singh. However, without making out a case for effecting changes in the boundaries of Khasra No. 49//6, it was ordered that measurement be corrected as 7 Karams instead of 10 Karams in the boundary of that Khasra number. As such, order under challenge cannot be sustained. 19. So far as orders dated 5.1.1988 and 7.6.1988 are concerned, they are consequential to the order mentioned above. Once it is held that order dated 14.5.1987 is not sustainable, these orders have become redundant. Otherwise also, finding given by respondent No. 1 in order dated 5.1.1988, that she cannot interfere in the orders dated 14.5.1987 as it would amount to review, is not correct. Once it is held that order dated 14.5.1987 is not sustainable, these orders have become redundant. Otherwise also, finding given by respondent No. 1 in order dated 5.1.1988, that she cannot interfere in the orders dated 14.5.1987 as it would amount to review, is not correct. Order dated 14.5.1987, was an ex-parte order. It was passed without giving an opportunity of hearing to the petitioner. If that is so, interference could have been made in that order. In the above circumstances, this writ petition is allowed. All the impugned orders 14.5.1987 (P-3), 5.1.1988 (P-5) and 7.6.1988 (P-7) cannot be sustained and are set aside.