Joginder Singh and Others vs Director, Consolidation of Holdings and Others

R.L. Anand, J.—The petitioners have filed the present petition under Articles 226/227 of the Constitution of India for quashing the impugned

orders, i.e., Annexure P1 dated 18.10.1978, Annexure P2 dated 21.7.1979 and Annexure P3 dated 7.8.1980 passed by the official respondents

Nos. 1 and 2 and against respondents Nos. 3 to 18 private respondents.

It has been alleged by the petitioners that they and respondents Nos. 3 to 18 are the residents of village Kotli Ablu, Tehsil Muktsar, District

Faridkot. Consolidation operations took place in the village during the year 1961-62 and parties were settled on their new holdings carved out

during the consolidation operations. After the consolidation operations and upto the passing of the impugned orders no person was either

aggrieved from any order or entry or went in appeal u/s 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act (for

short ''the Act''). Later on respondents Nos. 3 to 18 filed two petitions u/s 42 of the Act before respondent No. 1 and the same were decided vide

order dated 18.10.1978 (Annexure P1). The private respondents prayed in the said petitions that in the Jamabandi for the year 1955-56 Khewat

No. 543, Khatauni Nos. 2000 to 2007, Sar hri Karam Singh, Angrez Singh, Lal Singh, Mukhtiar Singh thers were shown as owners, whereas in

the column of ''cultivation'' Sar hri Sadhu Singh, Karnail Kaur and Nazar Singh, co-owners, have been shown as donors while Karam Singh thers

aforesaid were shown as donees and there being a clerical mistake which needed to be corrected u/s 43-A of the said Act. Respondent No. l, i.e.,

Director Consolidation of Holdings, observed in the order that entry in the Khatauni Istamal as well as Naqsha Haqdarwar were correctly

prepared but somehow at the time of Khatauni Pamaish No. 1215 the entry was changed. Respondent No. 1 opined in his order that on account

of the use of Urdu language, difficulty arose in reading the correct entry and being satisfied that the mistake needed correction the same was

ordered to be corrected along with Khatauni Paimaish No. 1215, which came into existence after the consolidation and necessary correction was

ordered to be carried in the revenue records showing Sadhu Singh and Karnail Kaur as donors while Karam Singh, Angrez Singh thers as donees.

The petitioners alleged that after the passing of the said order, respondents Karam Singh thers were still not satisfied and they filed another

application u/s 43-A of the Act, showing that some other numbers were also there and corrections should be made in respect of those numbers as

had been done earlier vide order Annexure P1. This time correction was sought in respect of Khatauni Paimaish No. 1216, 1217, 1218 and 1131

to the same effect as claimed with respect to Khatauni Paimaish No. 1215. The second petition of non-official respondents was disposed of and

decided vide order dated 21.7.1979 (Annexure P2) and it was observed that Karam Singh and others should have been shown in the column of

''possession'' in their capacity as donees in respect of those Killa numbers, which were gifted to them by the relevant resolutions. It was also

observed by respondent No. 1 that Khasra numbers mentioned in the petition with respect to abovesaid Khataunis needed to be added to

Khatauni Paimaish No. 1215. Further directions were given by respondent No. 1 that Karam Singh thers would be shown as donees in the

Khatauni Paimaish and by this order dated 21.7.1979 the earlier order dated 18.10.1978 (Annexure P1) also stood amended. Feeling aggrieved

by the orders dated 21.7.1979 and 18.10.1978, the petitioners filed a revision u/s 42 of the Act before respondent No. 2, who passed order

dated 7.8.1980 (Annexure P3) and dismissed the revision filed by the petitioners. The grouse of the petitioners is that they were co-share is in the

land along with the non-official respondents as the Khata was joint and they applied for the partition of the Khewat on 18.11.1974 itself before the

passing of the impugned orders Annexures P1, P2 and P3. The partition proceedings were disposed of by the Assistant Collector Ist Grade on 9th

May, 1978 and the Khata was partitioned. By virtue of the partition proceedings the possession with respect to the partitioned Khewat was also

taken by the petitioners on 6th May, 1979 vide Rapat Roznamcha No. 307 entered in the revenue records. This aspect of the that the parties had

entered into their settled possession, could not be lost sight of by the Consolidation Authorities at the time of the passing of the orders Annexures

P1, P2 and P3 u/s 42 read with Section 43-A of the Act. Thus in the present writ petition the grouse of the petitioners is that the consolidation

operation took place in the village in the year 1961-62 and continued upto the year 1979. No grievance was made out by anybody against the

entry or the order made during the said consolidation operation. The prayer of the non-official respondents in their separate applications u/s 42 and

43-A of the Act, which were made in the year 1978-79, was misconceived and it was erroneous on the part of respondent No. 2 to pass the

order dated 21.7.1979 amending the Khataunis Paimaish Nos. 1216, 1217, 1218 and 1131 as there was no ambiguity incorporated to the

Khatauni Paimaish and secondly the Consolidation Authorities could not ignore the partition order passed by the revenue authorities in the partition

proceedings u/s 111 of the Punjab Land Revenue Act. The impugned orders Annexures P2 and P3 could not be passed with respect to Khatauni

Paimaish Nos. 1216, 1217, 1218 and 1131 as those orders do not come within the purview of Section 43-A of the Act.

Notice was given to the respondents of the writ petition and it was resisted by private respondents Nos. 3, 6 to 15, who filed the written reply.

They tried to justify the orders Annexures P1, P2 and P3 and the of these respondents is that the entries in the revenue records were liable to be

corrected as donors/donees regarding the whole of the land in dispute, which was the factual position of the revenue record prior to the

consolidation. When the answering respondents applied for the mutation, then they came to know that the entries regarding the whole of the land

had not been corrected by respondent No. 2, but entries regarding half of the land mentioned in the Khatauni Paimaish No. 1215 was corrected

and it became necessary for them to again apply before the Consolidation Authorities to incorporate the factual position with regard to Khatauni

Paimaish Nos. 1216, 1217 and 1218 also. Previously, the land measuring about 300 Acres owned by the petitioners and the non-official

respondents was joint in Khata. During the consolidation proceedings even after the consolidation proceedings it remained as a joint one. That was

the reason that it was not in the knowledge of the respondents about the factual position of the Khatauni Paimaish. The answering respondents

came to know about the factual mistake when the petitioners applied for the partition of the 1 d specially when the partition order was passed by

the revenue officer. The land given to the private respondents was less and when they inquired about this fact from the Revenue Department, they

came to know about the clerical mistake. Orders P2 and P3 have been rightly passed by the authorities concerned and cannot be successfully

challenged by the petitioners in the present writ petition because the clerical and arithmetical mistake can be rectified by the Consolidation

Authorities u/s 43-A of the Act and the propriety of any mistake can also be adjudged by the said authorities u/s 42 of the Act.

A rejoinder was also filed by the present petitioners and it was submitted that while filing the first application, which culminated in the order

Annexure P1. The sole prayer which was made by the respondents was with respect to Khatauni Paimaish No. 1215 which was ordered to be

corrected by virtue of Annexure P1 and the petitioners have no grouse with regard to that order. It has been denied by the petitioners that the

respondents sought correction of the whole of the land in the first application. The first petition was u/s 42 of the Act seeking correction of

Khatauni Paimaish No. 1215, whereas the second petition was made u/s 43-A of the Act for the correction of certain other numbers.

I have heard Shri Arun Palli, Advocate, on behalf of the petitioners, and Shri Ashok Singla, Advocate, on behalf of the non-official respondents,

and with their assistance have gone through the record of this .

After hearing the learned counsel n going through the record I have come to the conclusion that the present petition is devoid of any merit. The

entire thrust of the argument of Mr. Palli was that in view of the partition proceedings which were initiated on 18.11.1974 and decided on

9.5.1978 the joint Khata was partitioned. The proposed changes were accepted by the parties n the basis of the partition order the factual position

with regard to the ownership and the land vis-avis the parties was shown in the revenue record. Though the order of the Tehsildar is dated

9.5.1978, yet it would relate back to 18.11.1974; so much so the order dated 9.5.1978 was further confirmed by the Collector vide Annexure P5

dated 27.2.1979 when the appeal of the respondents was dismissed as time-barred and so much so on the basis of the partition proceedings the

possessions were also exchanged on 6.5.1979 vide entry of Roznamcha No. 307. With this background Mr. Palli submitted that it was too late for

the respondents to apply for the correction of Khatauni Paimaish Nos. 1216, 1217, 1218 and 1131. It was also submitted that while filing the first

application u/s 42 of the Act, the prayer was with regard to Khatauni Paimaish No. 1215 and the order passed on 18.10.1978. This order was

never challenged by the respondents, and the Consolidation Authorities could not ignore the orders of partition passed by the competent revenue

authorities u/s 111 of the Punjab Land Revenue Act.

The petitioners cannot take the advantage of Annexures P4, P5 and P6, i.e., the order of the Tehsildar, order of the Collector and the Rapat

Roznamcha in view of the orders Annexures P1, P2 and P3. In this regard it is submitted that the claim in the consolidation proceedings was

framed on the basis of the revenue record and if there was wrong entry made in the revenue record, which led to the incorrect preparation of the

record by the Consolidation Authorities, that mistake was supposed to be corrected by the Consolidation Authorities themselves. The partition

proceedings which were not on factual position, could not convey a better status upon the petitioners than the one determined by the Consolidation

Authorities while exercising their legal jurisdiction by passing the orders P1, P2 and P3. The petitioners themselves in their replication have

abandoned the challenge to Annexure P1; meaning thereby that they themselves admit the factual mistake which occurred with respect to Khatauni

Paimaish No. 1215. Annexure P1 shows that two petitions were filed u/s 42 of the Act. The contention before the Consolidation Authorities was

that in the Jamabandi of village Kotli Ablu for the year 1955-56, in Khewat No. 543, Khatauni Nos. 2000 to 20007 Sar hri Karam Singh, Angrez

Singh, Lal Singh, Mukhtiar Singh have been shown as owners and in the ''Cultivation'' column Sa hri Sadhu Singh, Karnail Kaur, Nazar Singh have

been shown as donors, whereas Karam Singh, Angrez Singh, Lal Singh have been shown as donees. During consolidation of holdings the entry in

the Khatauni Istemal reflected correctly and also in the Naqsha Haqdenwar, but in the Khatauni Paimaish No. 1215 Sar hri Sadhu Singh, Karnail

Kaur thers were shown as mortgagors instead of donors, while Karam Singh, Angrez Singh thers were showen as mortgagees instead of donees.

This was a clerical mistake according to the revenue authorities which needed to be corrected u/s 43-A of the Act. The Director, Consolidation of

Holdings, was justified in concluding that the explanation offered by the parties with respect to the factual mistake was genuine and accordingly

orders were passed. If the petitioners have no grouse vis-a-vis P1, they cannot agitate with regard to the orders P2 and P3 irrespective of the fact

that the partition order was earlier to the filing of the petition u/s 43-A of the Act, which resulted in the passing of the order Annexure P2. In fact,

the order (Annexure P2), has been passed in continuation of the order (Annexure P1), as is evident from the order itself when it incorporates as

under :-

Earlier a petition filed by Sh. Karam Singh etc. (No. 1304 of 1978) u/s 42 of the Act ibid was decided by this Court on 18.10.78. It has been

pointed out that although the point involved in the matter has been duly decided therein, with the result that the relief sought by the petitioners has

not been made available to them entirely. For example the correction was ordered to be carried out in respect of Khatauni Palmaish No. 1215,

whereas the same was also required to be made in respect of Khatauni Paimaish No. 1216, 1217 and 1218.

If in the consolidation entries the factual position was the same as noticed by the Consolidation Authorities while passing the order dated

21.7.1979 (Annexure P2), and if any mistake has crept in while preparing the consolidation record, such order or mistake could be rectified under

sections 42 and 43-A of the Act. The order (Annexure P2) further speaks that Karam Singh etc. should have been shown in the column of

''possession'' in their capacity as donees in respect of those Killa numbers, which were gifted to them in the relevant resolutions. The Director,

Consolidation of Holdings, further examined the records and came to the conclusion after receiving the details from the Kanungo that Killa

numbers mentioned in the above Khataunies paimaish, i.e., 1216,1217 and 1218, need to be added to Khatauni No. 1215, which was corrected

vide order Annexure P1. For the above reasons, the Director (Consolidation) passed the order dated 21.7.1979 (Annexure P2). which was

challenged by the present petitioners before the Additional Director (Consolidation), Punjab, Chandigarh, who passed the order dated 7.8.1980

(Annexure P3) and dismissed the revision. This authority also came to the conclusion that since all the corrections required were not made by the

first order dated 18.10.1978 (Annexure P1), Karam Singh filed another application u/s 43-A of the Act and the order dated 21.7.1979 for the

removal of the defects was passed. The contention raised by Mr. Palli was put forth and considered by the Additional Director in his order dated

7.8.1980 (Annexure P3) and was rightly rejected. In this regard, the relevant observation made by the Additional Director is as follows:-

I do not agree with this contention of the learned counsel for the petitioner. Any correction made u/s 43-A of the C/H Act takes effect from the

preparation of the Khatauni Paimaish and its corporation in the revenue record starts from that stage. Repartition was carried out in the year 1962

and Misal Haqiat was prepared in the year 1964-65. All the corrections changing the entries from mortgagors to mortgagees to donors and

donees are presumed to have taken effect from the date when these wrong entries came to be incorporated in the record. Any order obtained by

the petitioner on the basis of wrong entries cannot affect the order of the learned Director C/H Punjab passed for correcting these entries. The only

way open to the petitioner is to file either a fresh application for partition and getting the Khatauni prepared during partition by the Tehsildar

corrected. No relief can be given to the petitioner u/s 42 of the Consolidation of Holdings Act.

The above order would corroborate my reasons in disposing of the present writ petition that corrections would relate back from the date when the

scheme was prepared and Khatauni Paimaish was done. Any order obtained by the petitioners on the basis of wrong entries could not affect the

order of the Director, Consolidation of Holdings. The learned Additional Director further held and rightly too, that the only way open to the

petitioners is to file a fresh application for the partition of the 1 d getting the Khatauni prepared during partition by the tensildar corrected.

Elaborating further, if the petitioners have sought a partition on the basis of the wrong record prepared by the authorities, such mistake could be

apparently corrected u/s 42 read with Section 43-A of the Consolidation Act.

One of the major grouse of the petitioners before this Court is that the orders Annexures P2 and P3 could not be passed after a lapse of about

one year either u/s 42 or u/s 43-A of the Act. This argument stands repelled in view of the citation reported as Chatar Singh Additional Director,

Consolidation of Holdings, Punjab and Ors. 1987 (1) CLJ 496, wherein it was held that a petition u/s 42 of the Act when entertained after a lapse

of 27 years and the order passed thereon by the Consolidation Authorities could not be set aside when an error apparent on the face of the record

was corrected and justice was done to the parties according to their respective rights. Even otherwise Section 42 does not speak of any limitation.

The learned counsel for the respondents has also relied upon a Full Bench decision of this Court reported as Shri Jagtar Singh Additional Director,

Consolidation of Holdings, Punjab other 1984 P.L.J. 222, and submitted that the bar of limitation of six months, as provided in Rule 18 of the

Rules framed under the Act does not apply to the scheme prepared or affirmed or revision made under the East Punjab Holdings (Consolidation

and Prevention of Fragmentation) Act. The authority reported as Mansa Ram State of Haryana thers 1993 P.L.J. 339, clearly lays down that

correction of clerical or arithmetical mistake in a Scheme made or order passed by an officer under the Act can be done at any time by Authority

concerned either of its own motion or on the application of any of the parties.

Summing up the above discussion, it is held that the petitioners cannot derive the benefit of the entries made on the basis of Annexures P4, P5

and Rapat Roznamcha Annexure P6 as their rights were determined on the basis of those entries, which were factually incorrect. When the mistake

came to the notice of the respondents after the partition proceedings and the realistic position came to their notice with regard to the wrong entries

made in the Consolidation proceedings, they did not lose any time to approach the Consolidation Authorities, who considered the entire record

and rectified the mistake and passed the necessary orders Annexures P2 and P3, with which I have not been able to find any wrong or illegality.

In this view of the matter, the present writ petition is hereby dismissed with no order as to costs.