Bhup Singh and Others vs State of Punjab and Others

Samsher Bahadur, J.—The five petitioners, Bhup Singh and his brothers Pohap Singh. Kanchan Singh, Siri Chand and Balak Ram have moved this petition under Articles 226 and 227 of the Constitution of India to question the validity of the order passed by the Additional Director, Consolidation of Holdings on 12th November, 1962, u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmention) Act. (hereinafter called the Act) making certain adjustments in their holdings after these had been taken over under the repartition scheme.

In order to fully comprehend the grievance of the petitioners, it is essential to give a brief background of the events which culminated in the passing of the order sought to be impugned in these proceedings. Consolidation of holdings was started in village Bajada Pahari in tehsil Nuh of Gurgaon district, in pursuance of the notification of the Punjab Government issued u/s 14 of the Act on 16th of March, 1959. It is the case of the petitioners that the scheme of consolidation was a product of consultations of the advisory committee of which the second respondent Daban was a member. Plots Nos. 116, 123, 128, 137 and 138 came to be allotted to the petitioners and Plots Nos. 139, 140 and 142 came to the share of respondents No. 2 and 3, Daban and his father Ram Lal, for extension of the abadi. Repartition was actually carried out on 27th February, 1960, u/s 21(1) of the Act. The repartition proceedings were confirmed by the Consolidation Officer on 27th of June, 1960, and thereafter, the consolidation operations came to an end.

It is the case of the petitioners that the second respondent started making an encroachment by constructing a pucca wall on 18th of August, 1960 on Plot No. 128 which came to their share. The petitioners felt obliged to file a civil suit for possession of the encroached portion of the land measuring 11 x 1 karanis in Plot No. 128. The second respondent having admitted that plot No. 128 belonged to the petitioners, the suit was decreed in favour of the petitioners on 4th of March, 1961. The second respondent filed an unsuccessful appeal from this decree in the Court of the Senior Subordinate Judge, Gurgaon, and it was dismissed on 16th of June, 1961. During the pendency of the Civil Suit the respondents moved the Government u/s 42 of the Act on 24th of January, 1961. The order passed by the Director on 12th of November, 1962 (Annexure D) shows that the petition was presented after considerable delay, the repartition having been confirmed on 27th of June, 1960. The limitation was "waived", and it was ordered by the Director that respondents Nos. 2 and 3 should be permitted to remain in possession of the encroached area and the petitioners in lieu of the land of which they were deprived were given an area of 14 x 1 karams in Plot No. 30 which adjoins plot No. 128. Actually, the petitioners have got more than what they have lost.

The adjustment in the opinion of the Director was necessitated because the encroachment had been made when the consolidation operations had started and before the Civil suit was decreed by the trial Court on 4th of March, 1961. This conclusion of the Director is based on the report of the Settlement Officer of 6th of February, 1962.

It is contended by Mr. Sarin, on behalf of the petitioners, that the encroachment was actually made after the consolidation operations had terminated. He submits that the necessity for instituting a civil suit arose because the encroachment was made after consolidation. The question of encroachment never arose during the consolidation operations otherwise it would have found a mention in the scheme and its actual operation. The second respondent being a member of the advisory committee would have raised an objection that plot No. 128 which was allotted to the petitioners had been constructed upon and this factor would have been taken into reckoning in the adjustments which were to be made. The Director, however, seems to have been influenced by the report which was submitted to him by the Consolidation Officer. It is true that the time for fling a petition under a section 42 of the Act is six months after the order which is sough to be set aside has been made. This limitation can, however, be waived. Under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, limitation has been prescribed under clause 18 in respect of applications u/s 42 of the Act. Though the limitation prescribed is six months, it is stated in the proviso that an "application may be admitted after the period of limitation prescribed therefor if the applicant satisfies the authority... that he had sufficient cause for not making the application within such period." Though the reasons are not stated in detail, it is clear enough that the Director considered the grievance of the second respondent to be just and it was stated in the order that the time limit was waived. The question of limitation even it wrongly decided cannot, in any event be questioned in writ proceedings as was ruled by the Supreme Court in Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property,

The impugned order of 12th of November, 1962, is based on the report of the Settlement Officer. It is of course controverted on behalf of the petitioners that the encroachment had been made before the commencement of the consolidation operations. On this disputed question of fact it is not possible for this Court to embark in writ proceedings although it does sound plausible that the encroachment if it had existed would have been made a subject matter of adjustment in repartition proceedings. According to the respondents, the decree of the civil Court had to be passed in view of the admission made that the structural encroachment had been made on plot No. 128 which had come to the share of the petitioners and consequently belonging to them. The adjustment could be sought only in consolidation proceedings and the delay had been condoned by the Director. It is submitted that the petitioners having actually obtained more than what they had lost by encroachment no substantial injustice had been suffered. Moreover, the area now allotted to the petitioners of 14 x 1 karams adjoins their fields and no hardship could be said to result from the adjustment.

All in-all, 1 do not think that it is a case fit for interference of this Court in certiorari proceedings. This petition would, therefore, stand dismissed, but I would make no order as to costs.