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1982 Supreme(P&H) 25
PUNJAB & HARYANA HIGH COURT
M.M.Punchhi, J.
Kundan Singh
Versus
Additional Director, Consolidation Of Holdings, Punjab, Jullundur
Civil Writ Petition No. 884 of 1980,
Decided On : JANUARY 8, 1982
The Additional Director, Consolidation of Holdings, Punjab, Jullundur, has the power to condone the period of limitation for filing a petition under Section 42 of the Act, and good merits of the case can be a ground for condoning the period of limitation. A petitioner who has withdrawn an earlier petition under Section 42 of the Act can file a subsequent petition on the same cause of action, especially when the subsequent petition is directed against a different party. The Additional Director, Consolidation of Holdings, Punjab, Jullundur, is not bound by the site of the water-course that was being pleaded in civil litigation, and can determine the most suitable site for the water-course based on the provisions of the scheme.
Headnote:
EAST PUNJAB HOLDINGS (CONSOLIDATION AND PREVENTION OF FRAGMENTATION) ACT, 1948 - SECTION 42 - LIMITATION - CONDONATION - WITHDRAWAL OF PETITION - SUBSEQUENT PETITION ON SAME CAUSE OF ACTION - SITE OF WATER-COURSE - PERVERSE ORDER - The Additional Director, Consolidation of Holdings, Punjab, Jullundur, has the power to condone the period of limitation for filing a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (the Act), and good merits of the case can be a ground for condoning the period of limitation. A petitioner who has withdrawn an earlier petition under Section 42 of the Act can file a subsequent petition on the same cause of action, especially when the subsequent petition is directed against a different party. The Additional Director, Consolidation of Holdings, Punjab, Jullundur, is not bound by the site of the water-course that was being pleaded in civil litigation, and can determine the most suitable site for the water-course based on the provisions of the scheme.
Fact of the Case:
The petitioner and respondent No.2 were right-holders in a village where consolidation operations took place under the Act. After the repartition, respondent No.2 filed a petition under Section 42 of the Act, claiming that he had a right to a water-course from a well, which was allowed by the Additional Director. The petitioner challenged this order, arguing that the petition was time-barred, that respondent No.2 had withdrawn an earlier petition on the same cause of action, and that the site of the water-course was different from the one that was being pleaded in civil litigation.
Finding of the Court:
The court held that the Additional Director had the power to condone the period of limitation for filing the petition, that respondent No.2 could file a subsequent petition on the same cause of action, and that the Additional Director was not bound by the site of the water-course that was being pleaded in civil litigation.
Issues: 1. Whether the Additional Director had the power to condone the period of limitation for filing the petition under Section 42 of the Act? 2. Whether respondent No.2 could file a subsequent petition on the same cause of action after withdrawing an earlier petition? 3. Whether the Additional Director was bound by the site of the water-course that was being pleaded in civil litigation?
Ratio Decidendi: 1. Section 42 of the Act mentions the scheme, repartition or orders within the correcting ambit of the State Government, whose delegatee is the Additional Director. Thus, three instances of exercise of power by functionaries under the Act are distinct and do not intermingle. It is only to orders passed under the Act that the clog of limitation for the purposes of challenge under Sec.42 of the Act is attached. 2. There is no warrant for the proposition that a petitioner who has withdrawn an earlier petition under Section 42 of the Act cannot file a subsequent petition on the same cause of action. 3. The Additional Director is not bound by the site of the water-course that was being pleaded in civil litigation, and can determine the most suitable site for the water-course based on the provisions of the scheme.
Final Decision: The petition was dismissed.
1. This is a petition under Articles 226 and 227 of the Constitution of India, requiring this Court to quash the orders of the Additional Director, Consolidation of Holdings, Punjab, Jullunder, dated December 21, 1979, Annexure-P-4 to the petition.
2. Facts giving rise thereto are these :
The petitioner as also respondent No.2 named Swaran Singh were right-holders in village Bir Pind, Tehsil Nakodar, District Jullundur. Consolidation operations under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, referred to as the Act ) took place in the village. In due course the scheme of repartition was prepared. Repartition took place on July 20, 1961. Neither the petitioner nor respondent No.2 objected to the same and it became final. According to the petitioner, none of them even tiled objections thereto so as to attract any order under S.21(2) of the Act. There were no appeals either under the said S.21.
3. On the supposed assertion of the claim by respondent No.2, that he had a right to have his land irrigated from a well, he fell out with his brother named Sham Singh, who is not a party to the present petition. This Sham Singh, in order to get respondent No.2 injuncted from claiming such right and from restraining him from interfering with the possession of Sham Singh over a water-channel, filed a suit in the Court of Sub Judge, II Class, Nakodar. The same was decreed on Jan. 25, 1979, vide judgement Annexure-P-1, wherein the detail of the alleged water-course finds mention in the heading of the judgement.
While respondent No.2 was in the process of prosecuting his appeal against the said judgement, he thought it fit to file a petition under Section 42 of the Act before the Additional Director, Consolidation, vide copy of petition Annexure-P-2. That was made on April 12, 1979. The appeal of Swaran Singh before the Additional District Judge against the judgement of the learned Subordinate Judge was dismissed on July 23, 1979. Seemingly, the finding of the trial Court was affirmed that Swaran Singh respondent No.2 had no such claim against Sham Singh. Presumably finding that it would be futile to pursue the litigation before the Additional Director against Sham Singh, respondent No.2 withdrew his petition under Sec.42 of the Act on Sept. 21, 1979 vide Order Annexure-P-3 to the petition.
A few days later on Oct. 18, 1979, respondent No.2 filed a petition under S.42 of the Act and this time directing it against Kundan Singh primarily (the present petitioner) claiming that he had a right of a watercourse from the well situated in Khasra No.35/27 which had not been provided to him as was the mandate of the scheme of consolidation and that the same should be done now. The learned Additional Director having perused the provisions of the scheme, as also the revenue record, came to the conclusion that the holding of the petitioner as reflected in the Khatauni Ishtemal prepared during the consolidation proceedings, revealed that his area was irrigated, and if that was so, then the petitioner was entitled to have, in accordance with para 8 of the scheme, a water-course by way of a direct link on the Killa-line from the source of irrigation for irrigation purposes since the land of the petitioner did not join the Ahata (the courtyard) of the Persian wheel. He accordingly accepting the petition, allowed a water-course to respondent No.2 to his holding from the well situated in Khasra No.35/27, along Killa numbers specified in his order Annexure-P-4, which is now impugned.
4 The learned counsel for the petitioner, in the first instance, relying on S. Gurdial Singh V/s. State of Punjab, AIR 1968 Punj 267 (FB); Thakar Singh V/s. Dharam Singh, 1969 Pun LJ 389 and Swaran Singh V/s. Addl. Director, Consolidation of Holdings, Punjab, Jullundur, 1976 Pun LJ 317 contends that the Additional Director condoned the period of limitation illegally and improperly as good merits of the case are no ground for
