Allowed

Joga Singh & Ors. v. Addl. Director C/H Punjab etc.

Punjab & Haryana HC2 Aug 2010CWP/2843/1984

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed a writ petition for certiorari quashing an order directing respondents to make good land deficiency from common village land. The court held that the petition filed 40 years after consolidation was filed with an inordinate delay without reasonable explanation and was illegal.

What did the court decide?

The impugned order dated 10.08.1983 passed by the Additional Director, Consolidation Holdings, Punjab, Chandigarh is set aside.

Joga Singh & Ors. Vs Addl. Director C/H Punjab etc. — Land Acquisition | Punjab & Haryana HC (2010)

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CWP No.2843 of 1984

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.2843 of 1984 Date of decision:02.08.2010

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Joga Singh and others

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...... Petitioners

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VERSUS

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Additional Director, Consolidation of Holdings, Punjab, Chandigarh and others

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......Respondents

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CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA.

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Present: Mr.H.S.Diwana, Advocate for the petitioners. Mr.C.S.Brar, DAG, Punjab for respondent no.1. Mr.Amarjit Markan, Advocate for respondents no.2 to 11.

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RAJIVE BHALLA.J (Oral)

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The petitioners pray for issuance of a writ in the nature of certiorari for quashing the order dated 10.08.1983, passed by the Additional Director, Consolidation Holdings, Punjab, Chandigarh, whereby he has ordered that deficiency in the holding of respondents no.2 and 4 be made good from land belonging to Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Zare Khewat Maqbooza Malkan .

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Consolidation proceedings concluded in the year 1960-61. Respondent no.2 (now represented by his legal representatives) filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act), on 17.11.1982 praying that deficiency in his land be made good from 52 kanals and 9 marlas of land allotted for common purposes of the village as “Jumla Mushtarka Malkan” . Pursuant to the impugned order, the Director,

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CWP No.2843 of 1984

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Consolidation, ordered that the deficiency of 2 standard kanals and 8 standard marlas be made good from “Jumla Mushtarka Malkan”.

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Counsel for the petitioners submits that notices were never issued or served upon the proprietors or the Gram Panchayat and as the application was filed after a delay of twenty years, the impugned order is a nullity.

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Counsel for the private respondents, on the other hand, submits that it has been found as a matter of fact that they were allotted less land, the Additional Director, Consolidation, was justified in directing that deficiency be made good from “Jumla Mushtarka Malkan” , as this land was created after applying a pro-rata cut on the holdings of the proprietors.

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I have heard counsel for the parties and perused the impugned order. Apart from the fact that neither the Gram Panchayat nor the proprietors were impleaded or served, the application was highly belated and should not have been entertained much less allowed, twenty years after conclusion of consolidation proceedings and then also from land reserved for common purposes. It is true that Section 42, empowers the State Government to examine the records of any case “at any time”. The expression “at any time” has however been repeatedly interpreted to denote “reasonable time”. In order to place the meaning of the expressions “any time” and “reasonable time” in their correct perspective, it would be appropriate to reproduce a relevant extract from a judgment of this Court reported as Gram Panchayat of Village Ban Bhaura, Tehsil Malerkotla V. Additional Director, Consolidation of Holdings, Punjab and others, 2004(3) R.C.R. (Civil) 298:-

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"10. The question whether a petition under Section 42 can be filed at any time and the authority constituted

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CWP No.2843 of 1984

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under the Act can entertain the same ignoring the long delay between the finalisation of the consolidation proceedings and filing of the petition was considered by the Supreme Court in Gram Panchayat v. Director consolidation of Holdings, 1989(2) Suppl. SCC 465; 1989 (20 RRR 554 (SC) and Gram Panchayat, Kakran v. Additional Director of Consolidation and another, 1997 (8) SCC 484; 1997(4) RCR (civil) 498 (SC) . In the second decision, the Supreme Court referred to the earlier decision and observed:-

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" This, however, cannot be understood as enabling the party which is aggrieved by the repartition to make an application under Section 42 after an unreasonably long lapse of time. Even where no period of limitation is prescribed, the party aggrieved is required to move the appropriate authority for relief within a reasonable time. In fact this Court in the case of Gram Panchayat V. Director, Consolidation of Holdings dealing with Rule 18 itself, said that when no limitation is prescribed for an application under Section 42 dealing with confirmation of the scheme, the application should be made within a reasonable time and this question will have to be decided on the facts of each case. In that

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CWP No.2843 of 1984

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case the delay of about 3 years and 8 months in filing an application under Section 42 by the Panchayat was held to be not unreasonable. In the present case, however, the delay is of 40 years. We have tried to ascertain from the 2^nd respondent whether there is any explanation for this unreasonable and inordinate delay. But no satisfactory explanation appears to be there for this inordinate delay in making the application under Section 42. The only contention which has been urged before us by Respondent no.2 relates to the application of Rule 18 and the period of limitation prescribed therein not being applicable where the challenge is to the consolidation scheme and repartition. But even if Rule 18 is not directly attracted, an application which is made after such inordinate delay ought not to have been entertained. It is also contended by the 2^nd respondent that the appellants have no locus standi to challenge the order of the Additional Director of Consolidation in a writ petition because the land in question continue to remain in the name of the proprietary body. He drew out attention to

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CWP No.2843 of 1984

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Rule 16(ii) of the said Rules. Rule 16(ii), however, quite clearly provides that the management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary party and the panchayat shall have to utilise the income and the benefits of the estate or estates concerned. Even before the Additional Director, the appellants were made a party-respondent. This contention, therefore, has no merit."

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11. By applying the ratio of the aforementioned decisions to the facts of this case, I hold that the impugned order suffers from an error of law, inasmuch as, respondent no.1 entertained and allowed the petition filed by respondent Nos.3 to 6 without considering the issue of delay of 29 years and concurrent finding recorded by the civil Courts that they were not the owners of the land in question."

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It is, therefore, apparent that the remedy under Section 42 must be availed within reasonable time and then also after pleading sufficient cause for the delay. The Additional Director, Consolidation, disregarded the inordinate delay, in filing the petition under Section 42 of the Act, the absence of any explanation for this delay, proceeded to entertain the petition and ordered that deficiency be made good from Jumla Mushtarka

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CWP No.2843 of 1984

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Malkan . The order passed by the Additional Director, Consolidation, in my considered opinion, is illegal and void and must therefore, be set aside.

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In view of what has been stated hereinabove, the writ petition is allowed, the order dated 10.08.1983, passed by the Additional Director, Consolidation Holdings, Punjab, Chandigarh, is set aside, with liberty however, to the petitioners to seek such other remedy as may be available, in accordance with law.

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02.08.2010 shamsher

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[RAJIVE BHALLA] JUDGE

Joga Singh & Ors. v. Addl. Director C/H Punjab etc.

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Joga Singh & Ors. v. Addl. Director C/H Punjab etc.

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