Harcharan Singh and ors. vs Additional Director, Consolidation of Holdings Punjab and ors.

J.V. Gupta, C.J.

This appeal is directed against the order of learned Single Judge dated 10th of March, 1983, whereby the writ petition challenging the order of Additional Director, Consolidation of Holdings, Punjab, Chandigarh dated 23rd of April, 1975, Annexure P7, was dismissed.

The proceedings for the consolidation of holdings in village Rampur Chana, Tehsil Malerkotla took place in 1953. In 1971, Balu Ram, father of the writpetitioner, approached the Consolidation Officer alleging that he had been allotted abadi land and Ruri, vide resolution No. 101 on August 19, 1953, but the same had not been entered in his name in the record. The Consolidation Officer, vide order dated 19th of July, 1971, Annexure P3, ordered that Killa No. 654/62 (01 Biswas) be taken out of the ownership of the Nagar Panchayat and be entered in the name of Balu Ram. This order was passed under Section 43A of the East Punjab Holding (Consolidation and Prevention of Fragmentation), Act (hereinafter referred to as the ''Act''). The Gram Panchayat feeling aggrieved by the order, Annexure P3, assailed the same in a petition under S. 42 of the Act, which was allowed vide order dated 22.3.1973, Annexure P5. It was observed in the said order that Balu Ram, may, however, file a petition under Sec. 42 of the Act in relation to the reliefthat he claimed from the Consolidation Officer, but he should explain the delay for not filing it up to the time he gave an application under Section 43A of the Act. Balu Ram then filed a petition under Section 42 of the Act in which he sought the following two reliefs :

"(1) Abadi plot No. 62 which was allotted to him has not been shown in his ownership and the deficiency in area be made good.

(2) There is a deficiency of area in Killa Nos. 8, 12, 13 and 2 and the deficiency be made good."

The Additional Director, vide order dated 23rd of April, 1975, Annexure P7, dismissed this petition as time barred after recording a finding that no case for condonation of delay in filing the petitioner has been made out. The petitioners assailed the said order in the writ petition. The learned Single Judge took the view that it was within the competency of the Additional Director to condone the delay. Since he did not condone the delay, there was no justification to issue a direction to the Additional Director in writ jurisdiction for condoning the delay.

The learned counsel for the petitioners now appellants submitted that since 1953 when the said Killa No. 654/62 was allotted to them by the said resolution, the petitioners are in possession of the land. It was in the year 1971 when they wanted to construct, an objection was raised by the Gram Panchayat. Balu Ram, their father, moved the Consolidation Officer under Section 43A of the Act and his petition was allowed. It was further contended that in the order dated 22nd of March, 1973, Annexure P5, passed by the Additional Director under Section 42 of the Act, merits were not discussed and the order of the Consolidation Officer was set aside with the direction that an application be made under Section 42 of the Act before the Additional Director. When such an application was moved, the same was dismissed vide order dated 23rd of April, 1975, Annexure P7 as barred by time.

On the other hand, the learned counsel for the respondent submitted that there was a delay of 21 years, which the petitioners could not explain and, therefore, the Additional Director rightly declined to exercise his jurisdiction under Section 42 of the Act. Reference was made to 1972 PLJ 682 and 1990 PLJ 213.

After hearing the learned counsel for the parties, we are of the considered view that from the facts, which are not disputed, the petitioners were entitled to the relief granted to them by the Consolidation Officer under Section 43A of the Act. The above said Killa No. 654/62 was allotted to the father of the petitioner vide resolution dated 19th of August, 1953 and since then they are in possession thereof. Gram Panchayat never claimed its ownership or its possession at any stage. It was Balu Ram, who filed the petition before the Consolidation Officer in the year 1972, which was allowed. The delay, if any, was fully explained by the petitioners as they were in possession of the land. In any case, it was a clerical mistake which should have been rectified by the Consolidation Authorities. In 1990 PLJ 213 the Supreme Court observed that ''two different meanings cannot be given to the same word ''order'' namely that in Section 42 does not include scheme prepared or confirmed or repartition made, while in rule 18 it would include them. The Full Bench, therefore, rightly held that rule 18 of the Rules does not apply to those proceedings in which the legality or validity of the scheme prepared or confirmed or repartition made is challenged. Thus, in the present case, the question of delay, as such, does not arise. The petitioners being in possession of the land in dispute since 1953, were entitled to get this mistake rectified under Section 42 of the Act. Consequently, this appeal succeeds and allowed. The order of learned Single Judge dated 10th of March, 1983 is set aside. The order of the Additional Director dated 23rd April, 1975 as well as the order dated 22.3.1973, Annexures P5 and P7 respectively, are hereby quashed and that of the Consolidation Officer dated 19th of July, 1971, Annexure P3, is restored with no orders as to costs.