Basant Singh vs The State of Punjab and Others

T.H.B. Chalapathi, J.—This writ petition is filed to quash the order of the Additional Director, Consolidation of Holdings, Punjab, dated 28.1.1981.

The petitioner and respondent No. 2 and 3 are the owners of the certain lands in the chak of village Rai KHANA, Tehsil Talwandi Sabo, District Bathinda. The consolidation proceedings took place in the village during the year 1955-56 and were finalised in the year 1958-59. During the consolidation proceedings a passage or Pahi was carved out for running along Killa No. 55/3/4. Thereafter on 26.7.1979 i.e. nearly 20 years after finalisation of the consolidation proceedings, the 2nd respondent (Jagjit Singh) made an application u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, praying that the passage running along his Killa No. 55/3/4/ be cancelled. That application was dismissed by the Additional Director, Consolidation of Holdings, Punjab, Chandigarh, by an order dated 13.12.1979. In the said order he took the view, that the passage has been carved out in the consolidation proceedings which have been finalised during the year 1958-59. Therefore, it was hopelessly barred by time. On merits, the Additional Director held that the passage-in question cannot be deemed as superfluous or unnecessary. Accordingly, he dismissed the application filed by the 2nd respondent.

During the pendency of the proceedings before the Additional Director respondents No. 2 and 3 filed a civil suit in the Court of Senior Sub Judge Bathinda for an injunction restraining the writ petitioner and his brothers from constructing or extending further the Pahi and also using the same in any way. That suit was dismissed as withdrawn on 19.10.1979. Thereafter, the Additional Director, Consolidation of Holdings, Punjab, passed the order dated 13.12.1979. The said order has not been challenged by way of appeal or in the writ proceedings. On the other hand, the 3rd respondent filed an application u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, on 24.1.1980 to abolish the path. On that application, the Additional Director, Consolidation of Holdings, Punjab, Chandigarh held that the path does not lead anywhere and, therefore, allowed the application filed by the said respondent and abolished the path which was sanctioned in the consolidation proceedings that took place in the year 1958-59. The petitioner filed an application on 17.3.1981 for the review of the order of the Additional Director, Consolidation of Holdings, Punjab, dated 28.1.1981 The Additional Director passed an order on the application of the writ petitioner on 10.9.81 admitting that there is a conflict between his order dated 28.1.1981 and the order passed by his predecessor on 13.12.1979, but he expressed his helplessness in the matter as there was no provision for review. Accordingly, he directed the petitioner to approach the High Court for getting the earlier order passed by him quashed. Therefore, the petitioner approached this Court and filed the present writ petition for quashing the order of the Additional Director, Consolidation of Holdings, Punjab, Chandigarh dated 28.1.1981.

The main contention of the learned counsel for the petitioner is that the order of the Additional Director dated 13.12.1979 has become final and respondents No. 2 and 3 did not challenge that order, but instead they filed an application u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 and the order dated 28.1.1981 came to be passed on the said application. According to the learned counsel for the petitioner, the Additional Director has no power to review the earlier order passed by his predecessor on 13.12.1979. Therefore the order dated 28.1.1981 is liable to be quashed.

There is no controversy that the Additional Director Consolidation of Holdings Punjab, Chandigarh, passed an order on 13.12.1979 dismissing the application filed by the 2nd respondent for abolishing the path which has been provided during the consolidation proceedings which took place in the year 195859. That order has become final. Therefore, the Additional Director Consolidation of Holdings, Punjab, became functus officio after passing the order dated 13.12.1979. He has no power to review the order passed earlier. In fact the order dated 21.1.1981 does not show that the Additional Director while passing the order dated 28.1.1981 has perused the earlier record and order dated 13.12.1979 was brought to his notice. On a reading the order dated 28.1.1981 it is also clear that no notice was given to the petitioner. On coming to know the order dated 28.1.1981, the petitioner filed an application before the Additional Director, Consolidation of Holdings, Punjab, on 17.3.1981 bringing to his notice the order passed by his predecessor on 13.12.1979. On that application, the Additional Director, Consolidation of Holdings, Punjab, Chandigarh expressed his helplessness in the matter that he cannot review his order. If he cannot review his own order. He also cannot review the order passed by his predecessor in office.

It has been held by a Full Bench of this Court in Deep Chand and Anr. v. Additional Director, Consolidation of Holdings, Punjab, Jullundur that the Additional Director is not empowered to recall or review his earlier erroneous and unjust order whenever it is discovered that the error was due to his own mistaken view of the merits of the controversy. The apex Court also held in Harbhajan Singh Vs. Karam Singh and Others, that there is no provision in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act granting express power of review to the State Government with regard to an order made u/s 42 of the Act and in the absence of any such express power, the Director, Consolidation of Holdings, cannot review his previous order of dismissing the application of the petitioner u/s 42 of the Act. Hence, the subsequent review order of the Director is ultra vires and without jurisdiction.

In this view of the matter, the order dated 28.1.1981 cannot be allowed to stand. The writ petition is, therefore, allowed and the order of the Additional Director Consolidation of Holdings, Punjab, Chandigarh, dated 28.1.1981 is hereby quashed. There will be no order as to costs.