Kanshi Ram vs The State of Punjab and others

Mehar Singh, C.J. and R.S. Narula, J.—In village Dewan Khera, in Fazilka Tehsil of Ferozepur District, consolidation of holdings began with the notification u/s 14(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), on April 12, 1960. The scheme of consolidation was confirmed by the Settlement Officer by February 24, 1964.

Certain area of lard had been allotted in that village by the consolidation authorities to Mam Raj, v. ho after his death, is represented in this appeal by his sons, Sohan Lal, Raja Ram and Kanshi Ram, Respondents 4 to 6, his widow Jiyan, Respondent 7, and his married daughter Bogi, Respondent 8, and one Shiv Karan who was Respondent 5 in the petition of Harikishan alias Kishan Chand Respondent 3 in this appeal. Sometime in the year 1960 certain area of land cut of that allotment was cancelled by the rehabilitation authorities, being in excess of the allotment permissible according to the rules. The area of land, which became so free, was allotted to Tehla Ram and others, and they sold the same for Rs. 4,470/- to Respondent 3 under a registered sale deed of May 31, 1962. The mutation with regard to the same sale was attested on July 19, 1962. Respondent 3 also purchased from different persons some other area measuring about 16 Bighas in the revenue estate of the same village. If will be noticed that so far as his purchase from Tehla Ram and others was concerned, that was during the currency of the consolidation proceedings and after the date of the notification u/s 14(1) of Act 50 of 1948, and it might well be that the purchase of the remaining 16 Bighas of land was also in the same position.

In repartition during the consolidation proceedings, on April. 28, 1964 the Consolidation Officer made allotment of land to respondant 3 which the latter considered not suitable and fair to him. So Respondent 3 made objections to the allotment of land to him which were accepted on October 22, 1964, by the Consolidation Officer copy of whose order is Annexure ''D''. It is noted in this order that the Appellant, Kanshi Ram, was not present but a relative of his, Bhagwana, was present. The Consolidation Officer accepting the objections of Respondent 3 made changes in the allotment of land which affected adversely the Appellant. On July 30, 1965, the Appellant made an application u/s 42 of the Act before the Director of Consolidation of Holdings against the order of the Consolidation Officer making a grievance that his original allotment should not have been disturbed. He stated in his application that he came. to know of the change in his allotment in the month of June l965 on the delivery of possession of the area that had previously been allotted to him and that had been excluded, though it was a part of his major portion, and had been included in the lot of Mam Raj and so also of Respondent 3. He prayed that his original area be re-allotted to him. Copy of his application is Annexure ''E''. This application was disposed of by the Additional Director of Consolidation of Holdings, Respondent 2, by his order of September 14, 1966, copy Annexure ''F''. The Additional Director of Consolidation of Holdings reversed the order of the Consolidation Officer and restored the position as in the original repartition, finding that what had been taken out of the lot of the Appellant was in fact a part of his major portion and situate at a place where the Appellant had a percentage of 88 as opposed to Respondent 3''s percentage of 53, that according to the scheme the Appellant was entitled to the land in question and not Respondent 3, and that the Consolidation Officer had erred in making the change to the advantage of Respondent 3. Then he said that "the petition is time-barred but as the changes by the Consolidation Officer were made in the absence of the parties and Mam Raj has no objection,, the following changes are ordered-(then detail of the changes appears)'' It is against that order of the Additional Director of Consolidation of Holdings that Respondent 3 made a petition tinder Articles 226 and 227 of the Constitution .

4 In paragraphs 18 and 21 (e) of his petition Respondent 3 said that the Appellant''s application u/s 42 of the Act was time- barred as not having been filed within a period of six months as prescribed by Rule 18 of the Rules made under the Act, and there was no sufficient cause for condonation of delay. The Appellant was fully aware, according to him of the order made by the Consolidation Officer because Bhagwana. a cousin of his was present before the Consolidation Officer In his return the Appellant said that "The Consolidation Officer had passed the order at the back of the answering deponent and the said Bhagwana is not a cousin brother of the answering deponent. He is not related in any manner to the answering deponent. He is not a co sharer with the answering deponent and he had no right to represent the answering deponent before the Consolidation Officer * * * * the Additional Director suo motu considered this plea (plea of limitation) and condoned the delay as the changes had been made by the Consolidation Officer in the absence of the answering deponent and Mam Raj, Respondent 4, had no objection to it-"There was a return by the Additional Director of Consolidation of Holdings also and it was said in paragraph 15 that the consolidation Officer had decided the objection Petitioner. of Respondent 3 in the presence of Bhagwana, a relative of the Appellant, and in paragraph 21 (e) it was said that the Consolidation Officer had made the order in the absence of Kanshi Ram without informing him. It was further jointed out that Kanshi Ram resided in village Sardar (sic)ura of Tehsil Fazilka and the presence of a relative of his was tot a proper representation on his behalf. This was a somewhat contradictory stand in the return of the Additional Director of Consolidation of Holdings. There was a replication by the father of Respondent 3 and in paragraph 15 of the same it is stated that "It is also incorrect that Bhagwana is not a cousin brother of the said Respondent (Appellant) or is not related to him." In paragraph 21 (e) of this replication it was stated that "the deponent expressess his ignorance about the fact whether Bhagwana is not a co-sharer with Respondent 3 (Appellant). The corresponding sub-paragraph of the writ petition is reiterated. It is incorrect that Bhagwana had no right to represent Respondent 3 before the Consolidation Officer.

It was in this state of the pleadings of the parties that the learned Single Judge came to the conclusion that in fact the Appellant was represented before the Consolidation Officer by a relation. Bhagwana, and his application u/s 42 of the Act was barred by time. The learned Judge was further of the opinion that the Additional Director of Consolidation of Holdings acted on considerations not germane when he condoned the delay in making of that application by the Appellant on the ground that the Appellant had not been heard when the Consolidation Officer made the order and Mam Raj was agreeable. In the end the learned Judge points out that, in any case, on the admission of the Appellant himself in his application u/s 42 of the Act, he came to know of the order of the Consolidation Officer in June 1965 and he did not make his application u/s 42 until July 30, 1965, without explaining delay of this period of anything from one to two months after he gained knowledge of the order of the Consolidation Officer. So the leaned Judge quashed the order, copy Annexure ''F'', dated September 14, 1966. of the Additional Director of Consolidation, Respondent 2, by his judgment and order of September 3, 1969. This is an appeal under Clause 10 of the Letters Patent by the Appellant from that judgment and order.

There is no material on the record, after the denial of the fact in his affidavit by the Appellant that Bhagwana is related to him, which supports the factum of relationship between those two persons. In any case, while in consolidation proceedings a cosbarer may be taken to represent his other co-sharer or co sharers because of the sameness of similarity of their interest, a mere relation cannot be placed in that position, it not having been shown in this case that Bhagwana had any interest whatsoever in the consolidation proceedings and particularly in regard to the land that had been allotted in repartition to the Appellant. Consequently before the Consolidation Officer the Appellant was not represented and Bhagwana could not represent him. The order was made by the Consolidation Officer in the absence of the Appellant and, therefore, does not bind him. On this consideration the Additional Director of Consolidation of Holdings gave an adequate reason for cordoning delay at least down to June 1965, there being no evidence or material before him which established that earlier to that the Appellant had knowledge of that order. It the matter stood there, that would have justified interference with the order of the learned Single Judge.

However, the Appellant has still to explain delay of anything from a month to nearly two monts between June 1965, and July 30, 1935, the date on which he made his application u/s 42 of the Act, and for this apparently it this stage nothing is said or is available so far as the record is concerned. Two arguments have been urged by the learned Counsel for the Appellant in this respect. One argument is that the starting point of the period of limitation of six months under Rule 18 should be taken to be from the date of the knowledge of the order by the Appellant, but this cannot be, because in so many words the rule says that the starting point of the period of limitation under that rule is the date of the order against which an application u/s 42 of the Act is made. So this approach cannot be accepted. The second argument urged by the learned Counsel is that the time between June 1965, and July 311, 1965, was taken by the Appellant in procuring copy of the order against which he was making an application u/s 42 of the Act, but this is a matter into which this Court cannot go at this stage, for it essentially depends upon two considerations (a) questions of fact, and (b) whether the allegations in that respect are or are not to be believed. These are matters entirely for the authorities under the Act to consider and not for this Court either in a petition under Articles 226 and 227 of the Constitution or in an appeal under Clause 10 of the Letters Patent arising out of a petition of that type. One thing is, however, quite clear that the Additional Director of Consolidation of Holdings having been impressed by the fact that the Appellant had not been heard before the Consolidation Officer made his order, he did not go into the question of considering whether there was or was not explanation sufficient to justify condonation of delay in the making of the application u/s 42 of the Act by the Appellant so far as the period between June 1965 and July 30, 1965, is concerned. No doubt the absence of any objection by Mam Raj would not make any difference, but on facts and material available it is open to the Director of Consolidation of Holdings in a case like the present to reach a conclusion whether or not there is sufficient cause for not preferring the application u/s 42 of the Act after June 1965, and down to July 30, 1965. This is a matter on which this Court cannot give a finding. So, in these circumstances, it is the Director of Conslidation of Holdings who has to decide this matter, with the result that the application u/s 12 of the Act by the Appellant cannot be taken to have been disposed of finally and completely

In the circumstances, while there is no justification for interference with the order of the learned Single Judge as such, because the order of the Additional Director of Consolidation of Holdings as it cannot be sustained But the learned Judge has while quashing the order of this authority not given any direction as to what is to happen to the application of the Appellant and how is the question of limitation with regard to the period between June 1965. and July 30, 1965, to be dealt with. So while we dismiss this appeal, we only, make this change in the order made by the learned Single Judge that the order of the Additional Director of Consolidation of Holdings, copy Annexure ''F'', of September 14, 1966, having been quashed, that officer will now attend to the application of the Appellant u/s 42 of the Act. and consider the question whether there is sufficient cause for his preferring that application on July 30. 1965, after having gained knowledge of the order of the Consolidation Officer in June 1965, and if he finds that there is a sufficient cause, then obviously he will proceed to condone the delay and dispose of that application of the Appellant on merits, but if. on the other hand, he finds as a fact that there is no sufficient cause for that delay and the same cannot be condoned obviously he will then proceed to dismiss the Appellant''s application with this modification in the order of the learned Single Judge, this appeal is dismissed, but there is no order in regard to costs.