Mansa Ram vs State of Haryana

V.K. Bali, J.

Mansa Ram seeks a writ in the nature of Certiorari so as to quash orders dated 27.7.1984 Annexure P2 as also orders passed by the Consolidation Officer dated 12.10.1984 Annexure P6 as also order dated 4.9.1987 Annexure P8 passed by the Additional Director, Consolidation of Holdings in the present writ petition filed by him under Articles 226/227 of the Constitution of India.

Brief facts on which the aforesaid relief has been sought to be based are that consolidation scheme in the village was framed in the year 1962 under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter to be called the Act of 1948) and the repartition proceedings were carried out immediately there after. The copy of the scheme in so far as it is relevant for the purpose of deciding the present controversy has been annexed with the petition as Annexure P1. Shri Darya Singh who has been arrayed as respondent No. 2 in the present writ petition filed an application under Section 42 of the Act of 1948 pleading therein that consolidation proceedings in the village were carried out in the year 196162 and Khasra No. 562 which belonged to him prior to consolidation proceedings had been earmarked for him as also others during consolidation proceedings and inasmuch as there was a clerical mistake, the same should be corrected. During the consolidation proceedings, plot No. 562 was reserved after verification in the names of following right holders :

Nanha son of Udmi, Jugti, Darya Singh, Manphool Singh, Attar Singh sons of Khem Chand, in equal share, 1/2 share. Tulsi son of Surja 1/2 share.

This Khasra number was located within the abadi land and was meant for residential purposes. Its preconsolidation number was 2756. The aforesaid application came up for hearing before Mr. R.S. Kailay, the Chief Executive Haryana who was exercising the powers of the State Government so delegated to him under Section 42 of the Act of 1948 (Annexure P2). After hearing the parties concerned and examining the record, it was observed that persons namely Manphool Singh, Balwant Singh, Attar Singh, Smt. Chandro were owners in equal shares in 2/5th share, Darya Singh was owner of 3/5th share and Khem Chand son of Jita of 1/5th share of Khasra No. 2756 of which plot No. 562 was a part and only the said right holders who were original share holders of Khasra No. 2756 should be shareholders of plot No. 562. That being the position, it was ordered that the persons, names of whom have been mentioned above should be shareholders of plot No. 562 and the names of persons other than them should be deleted from the partnership of plot No. 562. In the end, it was also observed that the persons who were deleted from the partnership of plot No. 562 and if they were to be made shareholders then they may be so made in any other land where they were shareholders.

After the remand, the officer concerned dealing with the matter inspected the record as also on spot inspection, the necessary corrections were carried out. The aforesaid order was, however, appealed by the petitioners. Vide Annexure P7, the appeal was dismissed, thus, constraining the petitioner to carry a petition under Section 42 of the Act of 1948 before the Assistant Director of Consolidation of Holdings. Order Annexure P2 was upheld even in petition filed under Section 42 on that behalf vide Annexure P8. It is these orders which have been challenged in the present petition.

The petition has been opposed by respondent No. 2 and in the written statement filed on his behalf, it has been pleaded that the challenge in the present petition being exclusively directed against findings of fact which do not deserve to be set aside in writ jurisdiction of this Court, the same deserve to be dismissed. It has also been pleaded that all the coowners of the land having not been impleaded, the writ petition is liable to be dismissed for non impleading of necessary parties. It has also been facts, pleaded that there has been concealment of material facts, inasmuch as the petitioner alongwith his brother Des Ram and sister Smt. Dharmo had filed civil suit No. 289 of 1981 in the Court of Sub Judge Ist Class regarding the plot in question which was later on withdrawn by them on the plea that a writ petition about the same matter was pending in the High Court. On merits, the case of respondent No. 2 is that land in dispute comprising plot No. 562 which forms part of Khasra No. 2756 was purchased by him and other cosharers on 31.7.1951 from Partap son of Jawahara vide registered saledeed of the same date. On the basis of the aforesaid saledeed, the respondent and other cosharers came to be recorded as owners in possession of the land in dispute in the Jamabandi for the year 195152. However, in June, 1981 when the respondent and his cosharers wanted to add to their house which is already partially built, they were obstructed from doing so by the petitioners who claimed share in the disputed plot. As the respondent and his brothers were the only cosharers in the plot and constructed their house on the said plot without any hindrance, the claim of petitioner was resisted and on enquiries made it, however, transpired that there has been a clerical error in recording the ownership of the aforesaid Khasra number during consolidation proceedings. It is, this, revelation which necessitated filing of an application by respondent, reference of which has been given above.

After hearing the learned counsel for the parties and examining the records of the case, I am of the considered view that there is no substance in the points pleaded and so canvassed by Mr. Mahajan and, therefore, the present petition must fail. It shall be seen from the narration of facts as have been given above as also the order passed by the Consolidation Officer dated 12.1.1984 which came into being after inspection of record and site as also report Annexure R2/1 that plot No. 562 prior to consolidation was in the ownership of respondent No. 2 and his brothers, names of whom have already been given above. There, thus, crept a clerical error while recording the ownership of the persons with regard to aforesaid plot in the consolidation proceedings. This is a pure finding of fact which does not deserve to be set aside, not only for the reason that such a finding cannot be set aside but from the records that are made available, it is found that such was the position. Mr. Mahajan, However, draws support from Annexure P4 which is copy of Jamabandi for the year 197778 to contend that the aforesaid finding of fact is incorrect. After going through Jamabandi Annexure P4, I find no substance in the submissions made by Mr. Mahajan. It shall be immediately found out from the Jamabandi aforesaid that the same pertains to post consolidation period and with a view to find out that it was a case of clerical mistake or otherwise, reference has to be made to preconsolidation record.

The other submission of Mr. Mahajan is that such a mistake could not be corrected as it amounted to change in the consolidation scheme which was not permissible. He also contends that such an action taken after 20 years from the date when the entries came into existence would be highly belated and in any case no application for condonation of delay was filed in the present case and that being the position, the matter should have been rejected having become barred by limitation.

All the arguments raised by Mr. Mahajan have to be repelled as in "Hardial Singh and others v. Director of Consolidation of Holdings, Punjab, Jullundur and others", 1970 PLJ 121 a Full Bench of this Court held that a scheme of consolidation can be amended under Section 42 of the Act of 1948 in an individual case and the amendment need not necessarily be actual rewriting of a particular provision of the Scheme as also that it is proper and adequate compliance with the provision to Section 42 of the Act of 1948, if a change or amendment or variation in a Scheme of consolidation is made after the authority making the same had before its mind the particular provision of the Scheme to be thus affected and the arguments of the parties in respect to the effect of the change. Once the matter is present to the mind of the authority exercising power under Section 42 of the Act of 1948 and after considering the relevant provision of the Scheme, it gives a decision or makes an order, that is sufficient compliance with the proviso to Section 42 of the Act of 1948 and no more is required. Further, it shall be made out from Section 43 of the Act of 1948, that a clerical or arithmetical mistake in a Scheme made or an order passed by any officer, under the Act arising from any accidental slip or omission can be corrected at any time by the authority concerned either of its own motion or on the application of any of the parties. In Jagtar Singh v. Additional Director, Consolidation of Holdings Jullundur and another, AIR 1984 Punjab & Haryana 216 : 1984 R.R.R. 31, a Full Bench of this Court held that the bar of Limitation under Rule 18 does not apply to those petitions under Section 42 in which the legality or validity of a scheme prepared or confirmed or repartition made is challenged. That being the position, this petition deserves to be dismissed which is accordingly dismissed leaving the parties to bear their own costs.