Jai Singh vs Assistant Director, Consolidation of Holdings and others

P.D. Sharma, J.—Jai Singh in this writ petition under Articles 226 and 227 of the Constitution of India has challenged the validity of an order passed by the Assistant Director, Consolidation of Holdings, Rohtak, respondent No. 1 on 22nd July, 1967 (Annexure ''B'') in exercise of his powers u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, l948, hereinafter referred to as the Act.

The petitioner and respondents Nos. 2 to 5 art right holders of village Masania district Jind, where, consolidation of land holdings started in the year 1962 and ended in the beginning of 1963. Respondents Nos. 2 to 5 in the month of July, 1967, filed a petition u/s 42 of the Act, annexure ''A'' before respondent No. 1 who by his impugned order accepted it and in consequence of which the petitioner was deprived of a part of his land which ha had been allotted in the consolidation proceedings. The petitioner assailed the vires of this order on the grounds that the application u/s 42 of the Act was hope lessly time barred and that the reasons for which the time barred petition was heard and decided by respondent No. 1 were extraneous and did not form a valid consideration for condoning delay under rule 18 framed under the Act. He also urged that respondent No. 1 had no jurisdiction to provide a water course after the completion of the consolidation proceedings since there powers vested in the authorities under the provisions of the Northern Indian Canal and Drainage Act.

Respondent No. 2 in his written statement pleaded that respondent of was within his right in affecting minor changes in order to provide him and the other three respondents with a water-course which was necessary for irrigation of their land. He admitted that their application u/s 42 of the Act was barred by time but added that adequate explanation had been given for the delay which found favour with respondent No. 1.

There is no doubt that the application put in by Lal Chand and others respondents u/s 42 of the Act was hopelessly barred by time. Respondent No. 1 while condoning the dalay observed -

The petition is time barred. But the petitioner says that he was not given proper demarcation of water course for a long time and so he remained in misunderstanding. Hence the time limit is condoned.

Respondent No 2 on the other hand in paragraph No. 3 of his written statement explained as under:

Since the lands under respondents Nos. 2 to 5 were originally irrigated by RD. No. 6912/L and the Canal authorities on 21st February, 1967 transferred the kurrah of respondents Nos. 2 to 5 to RD No. 12060/JL and there was no water-course provided for the irrigation of the land of respondents Nos. 2 to 5, so the respondents Nos. 2 to 5 approached respondent No. 1 for making provisions of water course.

It will thus be seen that respondents Nos. 2 to 5 thereby admitted that they were irrigating their land from the previous water-course uptil 21st February, 1967. Therefore respondent No. 1 was not correct in condoning the delay on the ground that proper demarcation of water-course was not given to the parties for a long time. It may also be mentioned here that not only respondents Nos. 2 to 5 failed to mention the reasons for delay in their petition u/s 42 of the Act but also emitted to produce any evidence in support thereof. The Assistant Director while condoning the delay appeared to have relied on the verbal representation made by Lal Chand petitioner that he was not given proper demarcation of water-course for a long time. This representation which Lal Chand respondent No. 2 is alleged to have made before the Assistant Director respondent No. 1, is contradicted by his own written statement filed in this Court. Indeed Lal Chand made no effort to explain the delay adequately as was necessary in view of the rule laid down in Gurdial Singh v. The State of Punjab (1967) 69 P.L.R. 689. Respondent No. 1 condoned the delay on facts which did not exist and thus entertained a petition u/s 42 of the Act which was hopelessly barred by time. His order on this account was without jurisdiction. Further, as explained by respondent No. 2 in his written statement the lands allotted to him and the other three respondents were originally irrigated by RD No. 6912/L till 21st February, 1967 when those were transferred by an order of the Canal Authority to RD No. 12060/L. According to him there was no watercourse provided for irrigation of their land from the new source. Hence they approached respondent No. 1 u/s 42 of the Act to provide them with a new water-course. The consolidation of land holdings in the village had ended as far back as 1963. Respondent Nos. 2 to 5 were confronted with the new situation on account of the order passed by the Canal Authorities under the provisions of the Northern India Canal and Drainge Act and not on account of any action taken under the Act. Hence the proper authorities for respondents Nos. 2 to 5 to get the necessary relief were those provided in the Northern India Canal and Drainage Act and not under the Act. The Assistant Director, respondent No. 1, therefore, was not justified in invoking his powers u/s 42 of the Act. The order passed by respondent No. 1 was consequently beyond the powers vested in him under the Act and for this reason also it required to be quashed.

The writ petition is allowed and the impugned order passed by respondent No. 1, annexure ''B'' is quashed.