Mukand Singh vs Additional Director, Consolidation of Holdings, Punjab, Chandigarh

Harjit Singh Bedi, J.

The petitioner is aggrieved by the order Annexure P1 dated 14th October, 1982, passed by the Additional Director, Consolidation of Holdings, Punjab, Chandigarh, whereby the order Annexure P2 passed by the Consolidation Officer, Jalandhar, providing a Khal to him from the land belonging to the private respondent, has been set aside. The facts, as averred in the petition, are that as certain area belonging to the petitioner was not being irrigated, being higher in level, he represented to the consolidation authorities for the proper alignment of the Khal. The Consolidation Officer heard the parties and after perusing the record and hearing Sardara Singh son of Smt. Mukhtiar Kaur (Private respondent), ordered that the Khal to the Nehri tak of the petitioner be given from the North of Killa No. 304/25. This order is appended as Annexure P2 to the petition. Aggrieved by the order Annexure P2, respondent No. 2 filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the ''Act''). As already indicated above, the said petition has been allowed vide Annexure P1.

Counsel for the petitioner has urged that the private respondent, Smt. Mukhtiar Kaur, was represented before the Consolidation Officer at the time when order Annexure P2 who made and, as such, the appeal against the order Annexure P2 having been filed after more than two years, ought to have been dismissed on that short ground. It has also been urged that it was only the authorities who couldmake any modification in the scheme that had been framed under the Act and, as such, the order was perfectly valid in law.

The respondents, in reply, have urged that the Consolidation Officer in making the order Annexure P2, in fact, made an amendment in the consolidation scheme which had been duly sanctioned and this matter was kept in view by the Additional Director while allowing the petition filed under section 42 of the Act. It has also been urged by Mr. Sarjit Singh, learned Senior Advocate appearing on behalf of the private respondent, that once a scheme had been framed and sanctioned any modification of the alignment of a watercourse couldbe made only under the provisions of the Northern India Canal an Drainage Act. For this proposition, he has relied on Harbeant Singh others, v. The additional Director Consolidation of Holdings Punjab and others 1973 P.L.J. 374. In reply to the argument of the petitioner that petition under section 42 of the Act was filed belatedly, learned counsel has placed reliance on Nathu and others, v. Additional Director of Consolidation of Holdings, Punjab and others,1968, PLJ 64 in order to contend that it was on the opposite party to bring to the notice of the Presiding Officer that the petition had been filed belatedly and was barred by time. If this was not done, the Director was not duty bound to record finding to that effect. He has also urged that in view of this judgment, the High Court couldalso not interfere on the same analogy.

After hearing counsel for the parties, I find no merit in the petition. It wouldbe clear from the order Annexure P1 that the Additional Director has, in fact, restored the Khal to the place where it had been originally sanctioned in the consolidation scheme. It is pertinent that the Consolidation Officer while seeking to change the KhaI from one place to the other had gone contrary to the scheme that had been framed and this was beyond his competence. I am of the view, keeping in view the observations made in Harbans Singh''s case (supra), that once the consolidation scheme had been framed and implemented, any change in the alignment of the watercourse couldhave been made only by taking recourse to the provisions of the Northern India Canal and Drainage Act by filing the requisite application. The argument of the petitioner with record to the point of limitation cannot succeed in view of Nathu''s case (supra).

For the reasons recorded above, the present writ petition is dismissed with no order as to costs.