Mahabir Parshad vs Chhaju and others

Pritam Singh Pattar, J.—This is a letters patent appeal filed by Mahabir Parshad son of Kusla Ram, resident of Gurgaon, against the judgment dated November 16. 1972, of a learned Single Judge of this Court, whereby the writ petition of Chhaju and others was accepted and the impugned order dated December 20, 1967 of the Additional Director, Consolidation of Holdings, Haryana was quashed.

The facts of this case are that the consolidation of holdings took place in the village of the parties in the year 1961 and Chhaju and others, respondents were allotted land measuring 16 kanals 4 marlas in rectangle No. 27/7/2(2K-16M) and rectangle No. 21/3 (8K-9M). 21/4/1 (5K-8M) as Jumla Mushtraka Malkan Mahabir Parshad appellant was alleged to be present in the village during the period the consolidation proceedings took place in the village but he did not file any objections under S. 21 (1) of the East Punjab Holding (Consolidation and prevention of Fragmentation) Act, 1941 (hereinafter called the Act). He also did not file any appears u/s 21 (3) or 21 (4) of the Act, The appellant also did not proved in the matter for about 5� years and he submitted an application u/s 42 of the Act on February 14. 1967, to the Additional Director, Consolidation of Holdings, Haryana and in that petition, Chhaju, Ishwar, Panna Lal, Bala Ram and Durga Lambarda were not impleaded as party. This application of Mahabir Parshad appellant was allowed by the Additional Director, Consolidation of Holdings, Haryana by his impugned order dated December 20, 1967. Chhaju, Ishwar and others filed Civil Writ No. 619 of 1969 to quash this order of the Additional Director as being illegal, void and mala-fide as it was passed without jurisdiction. This petition was contested by Mahabir Parshad appellant. It was contended before the learned Single Judge that the Additional Director had exercised jurisdiction not vested in him by entertaining a time-barred petition without first condoling the delay in filing that petition. This contention (sic) with the learned Single Judge and the writ petition was accepted and the impugned order was quashes. Feeling dissatisfied, Mahabir Parshad filed this appeal under clause X of the Letters Patent.

The impugned order dated December 20, 1967, of the Additional Director, Consolidation of Holdings, whose copy is attached as Annexure ''B'' to the Writ petition reads as follows :--

This is a time-barred application in which something useful to the village community is involved according to the statement of Sarvshri Nathu Singh Sarpanch Charanji Parshad, Ganpat and Mangal. The applicant wants to surrender 4 K-10 M of his arable land within the circular road and to have land new agricultural plot which would be useful to both the parties, the to the village and the applicant.

In order to do something useful to the village and the applicant, the following changes are ordered under sections 42.

S. No. Name of right-holder. . Area excluded Area included

S KM S K M

Dev Karrn s/o Jella Mahabir Parshad son of Kusla 12 share Khewat No. 28 1/2 South 150-3-17 27-7/2 21/3 4/2 1.17 1.0 1.0 3.17

Jumla Mushtraka Kalkan Khewat No. 29. Area included in Item No. 1 Area excluded in Item No. 1 in Item

It is undisputed that the appellant did not file any objections 21 (2) of the Act and he also did not file any appeal u/s 21 (3) and 21 (4) of the Act. Consolidation of Holdings started in this village in 1061. The appellant made application u/s 42 of the Act on February 14, 1967, i.e., about more than 5� years after the land was repartioned. According to rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, an application u/s 42 of the Act shall be made within six months of the date of the order again which it is filed. However, the competent authority may admit such application after the expiry of the period of limitation, if it is satisfied that there was sufficient cause for not making the application within such time. In the instant case, the petition u/s 42 of the Act was clearly barred by limitation. The additional Director could get jurisdiction to decide this petition only when he first condoned the delay in making the application after the expiry of the, period of limitation. However, in the impugned order, the Additional Director did not condone the delay at all and he simply observed that this is a time-barred application in which something useful to the village community is involved according to the statements of the Sarpanch and 2/3 other persons. Thus, the delay in making the application by the appellant was not condoned by the Additional Director and consequently he had no jurisdiction to entertain the same He should have condoned the delay and then entertained this petition and decided it on merits. The Additional Director exceeded his jurisdiction by entertaining the time-barred petition without condoning the delay. The learned Single Judge, therefore, rightly accepted the writ petition and quashed the impugned order.

As mentioned above, the Additional Director did not condone the delay although he noticed that the application was barred by limitation. Before an Additional Director can extend the time, he has to come to a conclusion that during the period of default, there was sufficient cause for the petitioner for not making the petition. No such finding was given by the Additional Director and consequently the case mast be remitted to (sic) for deciding the question of limitation in accordance with law and then to decode the petition of the appellant on merits.

As a result this appeal is accepted to this extent only that the case is ordered to be remitted to the Additional Director, Consolidation of Holdings, Haryana at Chandigarh to first decide the question of limitation and then to decide the petition of the appellant on merits. There will be no order as to costs.

D.K. Mahajan, J.

I agree.