Gram Panchayat vs Additional Director and Others

Ajay Kumar Mittal, J.—This order shall dispose of Civil Writ Petition Nos. 11383 of 1990, 4810 of 1993 and 7687 of 1995 as learned counsel for the parties are agreed that the issue involved in all these petitions is identical. However, the facts are being extracted from Civil Writ Petition No. 11383 of 1990. Challenge in CWP No. 11383 of 1990 is to the order dated 25.5.1990, Annexure P.8 passed by respondent No. 1-Additional Director, Consolidation of Holdings, Punjab whereby the petition filed by the private respondents u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, "the Act") against repartition carried out u/s 21(1) of the Act was allowed.

A few facts relevant for the decision of the controversy involved, as narrated in the petition, may be noticed. Gram Panchayat of revenue estate Sadhoheri, Tehsil Nabha, District Patiala is the petitioner. Consolidation operations started in the year 1957-58 in this Village under the Act. The scheme was framed and resolutions were carried through after consultation with the residents of the village. Thereafter, the actual repartition process was initiated. The right holders were settled on their allotted sites and no objection, appeal or revision had ever been made in respect thereof till the present dispute was raised by the private respondents in the year 1990. The khata in favour of the Panchayat was mutated in its favour vide mutation sanctioned on 28.6.1956 and ever since then the petitioner is recorded to be its owner in possession till date. On 1.3.1990, private respondents moved a petition u/s 42 of the Act challenging repartition carried out u/s 21(1) of the Act. The land in question had already vested in the petitioner on the strength of the mutation which was never challenged. According to the petitioner, once the repartition is finalised and record is consigned, the consolidation authorities have no jurisdiction to make any change. According to the jamabandi for the year 1984-85, the petitioner had been leasing out parcel of land out of its khata to various persons on chakota and the private respondents had been participating in the auction proceedings and many of them had been taking these parcels of land on chakota from the petitioner. Now after a period of more than 34 years, they cannot challenge the ownership of the petitioner. Under item No. 4 of the Scheme, the area reserved for common purposes was separately formed for being used for the purposes mentioned in it such as Phirni, Rastas, Abadi etc. In the petition u/s 42 of the Act, the private respondents raised an issue that before consolidation, area comprised in Shamlat deh measuring 169 kanals 11 marlas alone had to be used for common purposes but the consolidation authorities reserved the land measuring 313 kanals 3 marlas for charand, school and for the income of the panchayat in separate categories and parcels which was wrong and against the law and could not be reserved for these purposes in the scheme. Vide order dated 25.5.1990, Annexure P.8, respondent No. 1 allowed the petition and ordered that the area be distributed amongst the right holders according to their shares and as a consequence, sent the case to the Consolidation Officer, respondent No. 2 for implementation of the order. Aggrieved thereby, the petitioner is before this Court through the present petition.

Learned counsel for the petitioner submitted that the order which has been impugned was passed on 25.5.1990 on an application filed by the private respondents on 1.3.1990. According to the learned counsel, the private respondents through the said application had sought re-partition of the land and amendment in the scheme which was framed in pursuance of consolidation proceedings which took place in the year 1957-58. Relying upon judgments in Gram Panchayat, Kakran Vs. Addl. Director of Consolidation and Another, Maha Singh Vs. Director, Consolidation and Another, ), Dalbara Singh and Another Vs. The Additional Director, Consolidation of Holdings and Another, Ajit Singh and Others Vs. Additional Director, Consolidation of Holdings and Another, , Gram Panchayat of Village Hari Nagar Kerki v. Director, Consolidation of Holdings, Punjab and others, 2004 (4) RCR (Civil) 687 (P&H), Gram Panchayat, Bhattian Bet v. Additional Director, Consolidation, Punjab and others, 2005 (2) RCR (Civil) 246 (P&H), Fauja Singh Vs. State of Punjab and Others, and Joginder Nath alias Joginder Pal Vs. Sat Pal and Others, (P&H), it was urged that the Director had erroneously exercised jurisdiction as the scheme was sought to be amended after an inordinately long delay of three decades from its framing.

On the other hand, learned counsel for the private respondents argued that the area reserved for various categories in the original consolidation scheme was against the statute which could be rectified at any time. Reliance was placed upon judgments in Gram Panchayat, Nawan Killa Vs. Additional Director, Consolidation , Mansa Ram Vs. State of Haryana and Others , Gram Panchayat, Nangli v. Additional Director, Consolidation and others, 2001 (2) PLJ 249 (P & H) and Hardial Singh and Others Vs. Director of Consolidation of Holdings, Punjab, Jullundur and Others, In the end, it was argued that the land was bachat land which was sought to be partitioned and, therefore, the same could be done at any time.

After hearing learned counsel for the parties, we find force in the submissions made by learned counsel for the petitioner.

The point that arises for consideration is whether in a petition u/s 42 of the Act after expiry of more than three decades from the date when consolidation scheme was sanctioned, an application for variation in the scheme is permissible.

The Hon''ble Supreme Court in Gram Panchayat, Kakran''s case (supra) that even though the limitation prescribed in Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 is not applicable to an application filed u/s 42 of the Act, the competent authority cannot entertain an application/petition filed under that Section after long lapse of time. The proposition of law laid down by the Apex Court reads thus:-

Even where no period of limitation is prescribed, the party aggrieved is required to move the appropriate authority for relief within a reasonable time. Infact, this Court in the case of Gram Panchayat, Village Kanonda Vs. Director, Consolidation of Holdings, Haryana, Chandigarh and Others, dealing with Rule 18 itself, said that when no limitation is prescribed for an application u/s 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 the case, the delay of about 3 years and 8 months in filing an application u/s 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 u/s 42. But even if Rule 18 is not directly attracted, an application which is made after such inordinate delay ought not to have been entertained.

The aforesaid decision was followed by a Division Bench of this Court in Jaswinder Kaur and Others Vs. Additional Director, Consolidation and Others, . Similar view was taken by this Court in Ajit Singh and Gram Panchayat of Village Hari Nagar Kerki''s cases (supra).

Adverting to the judgments relied upon by learned counsel for the respondents, it may be noticed that in Mansa Ram''s case (supra), it was held that where there was a clerical or arithmetical mistake in a scheme or order under the Act arising from any accidental slip or omission, it could be corrected at any time by the authority either of its own motion or on an application u/s 42 of the Act. In Hardial Singh''s case, a Full Bench of this Court had adjudicated that the scheme of consolidation of a Village could be amended in an individual case and question of delay was not under consideration in that case. In Gram Panchayat, Nangli and Gram Panchayat, Nawan Killa''s cases (supra), the question was with regard to partition of bachat land and there was no dispute with regard to the fact that the land in question belonged to the landowners of the Village and not to the Gram Panchayat. It was held that the land owners were not aggrieved by the provisions of the scheme or by the repartition proceedings. The consolidation proceedings were in conformity with law whereas the land owners were only wanting restoration of the land which had been initially taken away from them which was their rightful due. It was further held that asking for distribution of bachat land was not questioning of scheme or the proceedings of consolidation. Such is not the position in the present case. Thus, no benefit can be derived by the respondents from these judgments. In view of the above, the impugned orders in all the three petitions are quashed. The petitions stand allowed.