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PUNJAB & HARYANA HIGH COURT
Gokal Chand Mital, J.
Chhaju Ram
Versus
State Of Haryana
Civil Writ Petition No. 3609 of 1970,
Decided On : JULY 15, 1981
EAST PUNJAB HOLDINGS (CONSOLIDATION AND PREVENTION OF FRAGMENTATION) ACT, 1948 - SECTIONS 20, 21, 42 - REPARTITION - MODIFICATION - LIMITATION - PETITION UNDER SECTION 42 - COMPETENCY - REPARTITION FINALIZED UNDER SECTION 21(2) - ORDER WITHIN THE MEANING OF RULE 18 - PETITION UNDER SECTION 42 TO BE FILED WITHIN 6 MONTHS - PETITION FILED AFTER 7 YEARS - NOT COMPETENT - STATE GOVERNMENT HAS NO POWER TO EXERCISE JURISDICTION UNDER SECTION 42 UNLESS GRAVE FACTS OR CIRCUMSTANCES ARE BROUGHT BEFORE IT.
Fact of the Case:
Petitioner, a right-holder in village Mittha Thal, was allotted three Khasra numbers in a repartition scheme confirmed in 1962. In 1969, the irrigation authorities started digging through the allotted Khasra numbers without acquiring them. Petitioner filed a writ petition challenging the same. The court directed the petitioner to restore the land to its original position and seek damages from the authorities. In 1970, the Gram Panchayat filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (the Act) for modification of the consolidation proceedings, claiming that an existing canal minor should have been provided for in the scheme. The Assistant Director, acting under delegated powers, modified the allotment and withdrew the three Khasra numbers from the petitioner.
Finding of the Court:
The court held that the petition under Section 42 was not competent as it was filed after a lapse of seven years from the date of the repartition order. The court found that the basis of the order modifying the allotment, that a canal minor was already in existence and water was running through it, was erroneous and against facts placed before the court in an earlier writ petition. The court held that the repartition finalized under Section 21(2) of the Act was an order within the meaning of Rule 18 of the Rules framed under the Act, and a petition under Section 42 challenging such an order had to be filed within 6 months from the date of the order. The court further held that even if Rule 18 did not bar a petition under Section 42 beyond six months, the State Government would have no power to exercise its jurisdiction under Section 42 after a lapse of seven years unless grave facts or circumstances were brought before it.
Issues: 1. Whether a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, challenging a repartition order finalized under Section 21(2) of the Act, is barred by limitation if filed after a lapse of six months from the date of the order? 2. Whether the State Government has the power to exercise its jurisdiction under Section 42 after a lapse of seven years from the date of the repartition order?
Ratio Decidendi: 1. A repartition finalized under Section 21(2) of the Act is an order within the meaning of Rule 18 of the Rules framed under the Act. A petition under Section 42 challenging such an order must be filed within 6 months from the date of the order. 2. The State Government has no power to exercise its jurisdiction under Section 42 after a lapse of seven years from the date of the repartition order unless grave facts or circumstances are brought before it.
Final Decision: The court allowed the petition, quashed the impugned order modifying the allotment, and held that the petitioner was entitled to costs of Rs. 100/-.
1. Chhaju Ram petitioner is a right-holder in village Mittha Thal, tehsil Bhiwani, which was previously in district Hissar but now in district Bhiwani. Consolidation operations were taken in that village and the scheme of partition was confirmed on 5th of May, 1962 and after completion of repartition, the records were consigned. In repartition, besides other numbers, the petitioner was allowed Khasra Nos.264, 265 and 270 of which possession was given to him. In the year 1969, the irrigation authorities unauthorisedly started digging through the aforesaid three Khasra numbers allotted to the petitioner and, therefore, he filed Civil Writ No.2303 of 1969 in this Court to challenge the same. After notice was issued to the State, an affidavit was put in, to the effect that no digging operations had yet been undertaken by the Department and that they had no intention of digging the same till the land was acquired. After the aforesaid affidavit was put in, the counsel for the petitioner pointed out that in fact some part of the land of the petitioner had been dug up and the Department may not interfere when he may try to fill the same and that the Department should pay compensation to the petitioner for digging his land. Keeping the entire matter in view, the following operative order was passed by this Court on 22nd Sept., 1969 :-
"In view of the statement of the learned A.G., Haryana, the petitioner is fully competent to restore the land to its original position, if any digging has taken place therein, and to seek his remedy for damages against the Department or the individuals who have interfered with his property."
The petitioner again brought the disputed portion under cultivation. A month after the order of this Court, somewhere in Oct., 1969, the Gram Panchayat of village Mittha Thal filed a petition under S.42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act), before the State Government for modification of the consolidation proceedings. In that application, it was pleaded that the extension of Gujrani canal minor should have been provided for in the consolidation scheme which had inadvertently been omitted and prayed that the same be provided now by passing a fresh order. The power of the State Government under S.42 of the Act was delegated to an Assistant Director who considered the matter and by order dated 11th June, 1970, (annexure- B ), came to the conclusion that the canal minor was already in existence through the three disputed Khasra numbers which had been allotted to the petitioner besides other Khasra numbers and ordered many changes in the allotment of Khasra numbers. As regards the petitioner, Khasra Nos.264, 265 and 270 were withdrawn from him and he was allotted Khasra No.260 of an equal area. The petitioner again came to this Court in the present writ petition under Arts.226 and 227 of the Constitution of India to impugn order annexure- B .
2. The grounds of attack pleaded by the petitioner are as follows :-
1. That the repartition was completed in the year 1962 and the records had been consigned and the petition under S.42, which could be filed within six months, was filed after lapse of seven years and hence was not competent.
2. That it was categorically stated before this Court in the earlier writ petition that no digging operations were being carried out through the three Khasra numbers belonging to the petitioner and if the same would be required by the Canal Department it would be duly acquired. At that stage, it was never the case of the canal authorities that the minor was already in existence. Rather, a reading of the affidavit filed on behalf of the Irrigation Department in the earlier writ petition shows that there was some proposal for extension of the canal minor through the Khasra numbers which ultimately were allotted to the petitioner and, therefore, the very basis of the order annexure- B that the canal minor w
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